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Palmer v. Pentair

United States District Court, D. Kansas

July 18, 2019

ANTHONY B. PALMER, Plaintiff,
v.
PENTAIR, and UNITED STEEL WORKERS UNION LOCAL 13, Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE.

         Defendants Pentair and United Steel Workers Union Local 13 (“Union”) each move to dismiss plaintiff Anthony B. Palmer's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust administrative remedies and untimeliness under Title VII, and for insufficient allegations under both Title VII and Section 1981. (Docs. 19, 21.) Plaintiff moves, in his opposition memorandum, for leave to amend his complaint if defendants' motions would otherwise be granted. (Doc. 27.)

         I. FACTUAL BACKGROUND

         Plaintiff is an African-American and former employee of defendant Pentair. Plaintiff worked for defendant Pentair from on or about November 28, 2005 until his termination on April 9, 2018. After hiring, defendant Pentair promoted plaintiff to the job of painter, and there are no allegations of discrimination during the first nine years of the employment relationship. From April 2014 through September 2018, plaintiff filed multiple EEOC charges against defendants.

         On or about April 2014, plaintiff and another African-American employee were reprimanded for not following performance standards that no Pentair employees followed. Around October 2016, plaintiff filed an EEOC charge against defendants alleging race/color discrimination and retaliation based on how plaintiff was treated at work both before and after reporting discriminatory treatment.[1]The EEOC issued a right-to-sue letter for the October 2016 charge, and plaintiff took no legal action.

         In June 2017, defendant Pentair disciplined plaintiff for performance and safety issues, including engaging in conduct that plaintiff had done without incident prior to alleging discrimination. Plaintiff's non-African-American coworkers who engaged in the same conduct were not disciplined. Plaintiff reported to management that he was being denied overtime and promotional opportunities, and again reported that he believed he was experiencing discrimination and retaliation by being targeted for discipline. In August 2017, plaintiff reported to management that he believed another African American employee was subjected to discriminatory termination for damaging a product when a non-African-American employee was not terminated under similar circumstances.

         Defendant Pentair terminated plaintiff's employment on April 9, 2018. Plaintiff engaged defendant Union for assistance in retaining his job as they had done with other non-African-American employees of defendant Pentair, but defendant Union did not assist him. After termination, plaintiff filed another charge on April 10, 2018 and the EEOC mailed a right-to-sue letter on April 11, 2018.

         Plaintiff alleges that both defendants opposed plaintiff's appeal for re-employment and request for employment benefits. Plaintiff filed another charge on September 5, 2018 and received a right-to-sue letter on September 12, 2018.

         II. LEGAL STANDARDS

         On a motion to dismiss under Rule 12(b)(6), the court assumes true all well-pleaded facts in the complaint, disregards all legal conclusions worded as factual allegations, and grants the plaintiff all reasonable inferences from the pleadings. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012). To survive a motion to dismiss, the 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) (citing Bell Atl. Co. v. Twombly, 550 U.S. 544, 570 (2007)) (quotation marks omitted). “While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in [the] complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).

         When a party instead moves for leave to amend, that party must (1) provide a concise statement of the amendment or leave sought; (2) attach the proposed amended pleading; and (3) comply with Local Rules 7.4 through 7.6 governing the form of motions and the amended pleading. See D. Kan. Rule 15.1.

         A. Title VII

         Title VII makes it unlawful for a covered employer to refuse to hire or otherwise discriminate against any employee on the basis of race or other protected category. See 42 U.S.C. § 2000e-2(a)(1). A Title VII plaintiff must meet three procedural conditions before bringing suit: (1) file a charge of discrimination with the EEOC; (2) receive a right-to-sue letter; and (3) file suit within 90 days of receiving the letter. See Mackley v. TW Telecom Holdings, Inc., 296 F.R.D. 655, 661 (D. Kan. 2014). A plaintiff's claims are untimely if not filed within the 90-day window corresponding to his right-to-sue letter, and those untimely claims may not be revived by including them in a newer EEOC charge. See Brown v. Unified Sch. Dist. No. 501, 465 F.3d 1184, 1186 (10th Cir. 2006).

         A plaintiff's Title VII claims are generally limited by the scope of the administrative investigation that can be reasonably expected to follow his charge of discrimination. Smith v. Cheyenne Retirement Investors L.P., 904 F.3d 1159, 1165-66 (10th Cir. 2018); see Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007). Although the court construes EEOC charges liberally when determining whether a plaintiff has exhausted a particular claim, the charge “must contain facts concerning the discriminatory actions underlying each claim.” Furr v. Ridgewood Surgery & Endoscopy Ctr., LLC, 192 F.Supp.3d 1230, 1245 (D. Kan. 2016) (citing Jones, 502 F.3d at 1186).

         1. Discrimination

         A plaintiff lacking direct evidence of discrimination may rely on indirect evidence under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A prima facie case of discrimination under Title VII requires the plaintiff show (1) he belongs to a protected class; (2) he suffered adverse employment action; and (3) that action took place in circumstances giving rise to an inference of discrimination. Moore-Stovall v. Shineski, 969 F.Supp.2d 1309, 1321 & n.16 (D. Kan. 2013) (citing Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005)). While the inference of discrimination is often shown through similarly-situated persons who were not subjected to adverse action, a comparator is “just one sufficient means” of meeting a plaintiff's burden. Sorbo, 432 F.3d 1169, 1173 (10th Cir. 2005).

         2. Retaliation

         The prima facie case for retaliation is slightly different, requiring a plaintiff to show (1) he engaged in protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection between the protected activity and materially adverse action. Khalik, 671 F.3d at 1193. Although temporal proximity alone may raise an inference of causation in retaliation claims, more is needed when the employer's alleged retaliation is remote in time from the plaintiff's protected conduct. See Hysten v. Burlington N. & Santa Fe. Ry. Co., 296 F.3d 1177, 1183-84 (10th Cir. 2012); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three-month time period insufficient to infer causation).

         3. Failure to Re-Hire

         The prima facie case for failure to hire requires:

(1) plaintiff belongs to a protected class; (2) plaintiff applied and was qualified for a job for which the employer was seeking applicants; (3) despite being qualified, plaintiff was rejected; and (4) after plaintiff's rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiff's] qualifications.

Fischer v. Forestwood Co., 525 F.3d 972, 982-83 (10th Cir. 2008).

         4. Hostile Work Environment

         Hostile work environment claims require a plaintiff to allege facts showing “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998). “A hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice'.” Nat'l R.R. ...


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