United States District Court, D. Kansas
JENNIFER A. GILL, Plaintiff,
STATE OF KANSAS DEPARTMENT FOR AGING AND DISABILITY SERVICES, et al., Defendants.
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
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.
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.
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 ¶¶
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.
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.
Charge of Discrimination
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.
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
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.
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 ...