United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN, UNITED STATES DISTRICT JUDGE
an age discrimination and retaliation case initiated by
former emergency manager Michael Dunmars against his
ex-employer, Ford County, Kansas Board of Commissioners
(“the County”). The case is brought under the Age
Discrimination in Employment Act in three counts-Count I,
hostile work environment, Count II, age discrimination, and
Count III, retaliatory discharge.
County moves the Court to dismiss Dunmars' Complaint
(Doc. 8). For the reasons that follow, the Court grants the
motion as to Count I, but otherwise denies the motion.
Factual and Procedural Background
February 28, 2018, Dunmars filed a complaint with the Kansas
Human Rights Commission and the Equal Employment Opportunity
Commission. In his complaint, he accused the County of
harassment, disparate treatment, discipline, and termination
based on his race, age, and religion. He further alleged that
the County retaliated against him for opposing practices
forbidden by the Kansas Act Against Discrimination and the
Age Discrimination in Employment Act. He listed the dates of
the discrimination and retaliation as “on or about
March 2017, to February 6, 2018”
worked as an emergency manager for the County. He claimed he
suffered numerous instances of discrimination from 2017 to
2018, including verbal harassment. He alleged that multiple
members of the county, including the County Administrator and
Assistant County Administrator made a pattern of jokes at his
expense from October to December 2017. In particular, he
claimed the County Administrator and his assistant teased him
about his mobility, giving as an example a comment from the
Administrator that the group could “walk down the
street . . . go and take care of our business and when we
return, ” Dunmars would not have moved. Dunmars alleged
that these remarks demoralized him and hurt his performance.
claimed the County had mistreated him in other ways. He
• The Administrator repeatedly told him to check his
phone while in the middle of religious services.
• His work was more closely scrutinized than that of the
• The County demoted him in an apparent effort to
replace him with a less qualified white person.
• The County fired him after he complained of
• The Administrator had threatened to “get revenge
against” him for a previous workplace dispute and made
good on that promise by demoting and harassing him.
complaint elaborates upon many of the same allegations in his
EEOC/KHRC complaints, but also states some new ones. Dunmars
claims that as early as 2015, the Assistant Administrator,
J.D. Gilbert, made fun of him for being old and slow. In
August, a dispute allegedly developed between Gilbert and
Dunmars over a training video. Gilbert ordered Dunmars to
tell a coworker, Jane Longmeyer, to film an emergency
training exercise, and she expressed concerns for reasons
unknown. After this, Gilbert told Dunmars to call a meeting.
The Assistant Administrator's intent, Dunmars claims, was
to humiliate and belittle him in front of his coworkers. When
Dunmars refused, Gilbert reputedly told him, “When I
become Ford County Administrator I am going to get my revenge
allegedly continued his habit of deriding Dunmars for his age
and slowness from 2015 to 2018, especially after he was
promoted to Administrator in 2016. Dunmars claims he was
subjected to discipline, suspension, and harassment in 2017,
including multiple reprimands for failing to check his cell
phone during church. He also claims Gilbert joked, in
reference to Dunmars' speed, that he could go take care
of his business and when he returned, Dunmars would still be
in the same place.
believes the motivation for this behavior was to drive him
out of a job in order to replace him with former County
Commissioner and then-Assistant Emergency Manager Danny
Gillum, to whom Gilbert owed a favor. Dunmars' coworkers
reportedly advised him as much: the Administrator allegedly
told them he was planning to replace Dunmars because he was
complained to the County on February 5, 2018 about the
alleged age discrimination, hostile work environment, and
retaliation. He advised the County that he was filing a
complaint with the KHRC. The County fired him the next day.
The Department of Justice issued him a right to sue
alleges three violations of the Age Discrimination in
Employment Act and Kansas Act Against Discrimination-hostile
work environment based on age (Count I), age discrimination
(Count II), and retaliatory discharge (Count III). The County
now moves to dismiss, arguing that he has failed to exhaust
his administrative remedies, made claims which are
time-barred, and failed to state a claim under Rule 12(b)(6)
for hostile work environment and retaliation.
Rule 12(b)(6), a defendant may move for dismissal when the
plaintiff has failed to state a claim upon which relief can
be granted. Upon such motion, the court must decide
“whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its
face.'” A claim is facially plausible if the
plaintiff pleads facts sufficient for the court to reasonably
infer that the defendant is liable for the alleged
misconduct. The court is required to accept the
factual allegations in the complaint as true, but is free to
reject legal conclusions. The plausibility standard reflects the
requirement in Rule 8 that pleadings provide defendants with
fair notice of the nature of claims as well as the grounds on
which the claims rest.
County argues that Dunmars has not exhausted his
administrative remedies, since his allegations in this
complaint are different from those in his KHRC/EEOC charge.
It contends that Dunmars' 2015 and 2016 discrimination
claims run outside the ADEA's statute of limitations.
Finally, the County maintains that Dunmars has failed to
state a ...