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Gill v. State of Kansas Department

United States District Court, D. Kansas

May 30, 2019

JENNIFER A. GILL, Plaintiff,



         Plaintiff Jennifer A. Gill brings this action alleging claims for sex discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII"), 42 U.S.C. §§ 2000e, et seq., violation of her federally-protected rights pursuant to 42 U.S.C. § 1983, and intentional infliction of emotional distress under Kansas common law. Doc. 1. Defendants State of Kansas Department for Aging and Disability Services (“KDADS”) and Timothy Keck (Secretary of KDADS) move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff fails to state a claim upon which relief can be granted. Doc. 6.

         For the reasons set forth below, the Court finds that Plaintiff has failed to exhaust her administrative remedies with respect to her Title VII claims and, therefore, dismissal of those claims under Rule 12(b)(6) is warranted. The Court further finds that Plaintiff has failed to allege facts sufficient to establish her claim under § 1983. And, finally, given its dismissal of the foregoing federal claims, the Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claim for intentional infliction of emotional distress and accordingly dismisses that claim without prejudice.

         I. BACKGROUND[1]

         A. Factual Background

         From April 2015 until her termination in December 2016, Plaintiff was employed as the Assistant Director of Equi-Venture Farms (“EVF”), which provides day and residential services for adults with developmental disabilities. Doc. 1 ¶ 11. EVF's license to operate is issued by KDADS. Id. at ¶ 13. Throughout her employment with EVF, Plaintiff reported to EVF's Executive Director, Ben Swinnen. Id. at ¶ 12. After a complaint was raised regarding local policy enforcement, Mr. Swinnen directed Plaintiff to work with KDADS-specifically, Brandt Haehn, Home and Community Based Services Commissioner at KDADS-to resolve the complaint. Id. at ¶¶ 14-15.

         Plaintiff alleges that during the course of their work together, from September to December 2016, Mr. Haehn repeatedly sent sexual messages, pictures, and video to her on her EVF-paid cell phone. Id. at ¶ 17. On or about December 2, 2016, Plaintiff emailed Mr. Swinnen to report Mr. Haehn's actions and request guidance and assistance. Id. at ¶ 21. When Mr. Haehn's conduct persisted, Plaintiff again complained to Mr. Swinnen and forwarded an explicit video allegedly received from Mr. Haehn. Id. at ¶¶ 22-23. Plaintiff alleges Mr. Swinnen confirmed with Mr. Haehn that he sent the video. Id. at ¶ 24. EVF ultimately terminated Plaintiffs employment on December 26, 2016. Id. at ¶¶ 11, 25. Plaintiff alleges EVF failed to follow its policies, failed to thoroughly investigate her claims, and failed to remedy the alleged issues. Id. at ¶ 25.

         In February and/or March 2017, Plaintiff reported Mr. Haehn's actions to senior legal counsel for KDADS and was told an investigation into her allegations would be conducted. Id. at ¶ 26. Plaintiff alleges, however, that Defendants-KDADS and Timothy Keck, Secretary of KDADS-did not conduct a prompt and thorough investigation of her allegations, did not take prompt and appropriate action to remedy the alleged issues, and failed to provide her with any further information or the results of any investigation. Id. at ¶¶ 28-30.

         B. Charge of Discrimination

         On or about March 15, 2018, Plaintiffs attorney submitted a Charge of Discrimination (“Charge”) on her behalf with the Equal Employment Opportunity Commission (“EEOC”). Id. at Ex. A. The face of the Charge itself lists KDADS as the respondent. Id. In the section of the Charge indicating the bases of the alleged discrimination, the box indicating “sex” discrimination is checked; no other boxes in this section are checked. Id. The Charge alleges continuing discrimination from September 1, 2016 to the present. Id.

         Submitted simultaneously with the Charge was an additional document reciting the factual allegations associated with the Charge. Id. In this document, Plaintiff identifies both KDADS and Mr. Keck as respondents. Id. Again, Plaintiff identifies the basis of the alleged discrimination as “sex” and states that the discrimination began in September 2016 and is ongoing. Id. In her factual narrative, Plaintiff recites the allegations related to Mr. Haehn's conduct, as summarized in Part I.A above. The narrative concludes with the statement: “Claimant swears and affirms she has read the above charge and that it is true to the best of her knowledge, information and belief” Id. The document is signed by Plaintiffs attorney, Brenda L. Head, below the statement “[r]espectfully submitted on behalf of Jennifer A. Gill.” Id. Ms. Head's signature is not notarized. Id. Plaintiff's signature does not appear on either the Charge itself or the accompanying narrative document.

         C. Instant Action

         Following receipt of the Charge, the EEOC forwarded Plaintiffs request for a notice of right to sue to the U.S. Department of Justice (“DOJ”) for action. Id. at Ex. B. The Civil Rights Division of the DOJ subsequently issued Plaintiff a right-to-sue letter on June 8, 2018. Id. at Ex. C On September 6, 2018, Plaintiff filed this action, naming KDADS and Mr. Keck-in both his individual capacity and his official capacity as Secretary of KDADS-as Defendants. Doc. 1. Plaintiff asserts claims for: (1) sex discrimination and harassment in violation of Title VII, (2) retaliation under Title VII, (3) deprivation of his federal rights pursuant to 42 U.S.C. § 1983, and (4) intentional infliction of emotional distress. Id. Defendants move to dismiss each of these claims pursuant to Rule 12(b)(6) for failure to state a claim for relief. Doc. 6.

         II. STANDARD

         Under Rule 12(b)(6), to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At l. Corp. v. Twombly,550 U.S. 544, 570 (2007)). The plaintiffs claim is facially plausible if he pleads sufficient factual content to allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully” but “is not akin to a ‘probability requirement.'” Id. “Where a complaint pleads facts that are ...

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