United States District Court, D. Kansas
ANTHONY B. PALMER, Plaintiff,
PENTAIR, and UNITED STEEL WORKERS UNION LOCAL 13, Defendants.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
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.
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.
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.The EEOC issued a
right-to-sue letter for the October 2016 charge, and
plaintiff took no legal action.
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.
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.
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.
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).
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.
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).
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).
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).
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).
Failure to Re-Hire
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
Fischer v. Forestwood Co., 525 F.3d 972, 982-83
(10th Cir. 2008).
Hostile Work Environment
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. ...