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Dunmars v. Ford County

United States District Court, D. Kansas

August 14, 2019

MICHAEL DUNMARS, Plaintiff,
v.
FORD COUNTY, KANSAS BOARD OF COMMISSIONERS, composed of SHAWN TASSET, CHRIS BOYS, and KEN SNOOK, Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         This is 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.

         The 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.

         I. Factual and Procedural Background[1]

         On 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”

         Dunmars 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.

         Dunmars claimed the County had mistreated him in other ways. He alleged that:

• 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 other employees.
• 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 discriminatory treatment.
• 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.

         Dunmars' 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 against you.”

         Gilbert 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.

         Dunmars 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 too old.

         Dunmars 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 letter.[2]

         Dunmars 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.

         II. Legal Standard

         Under 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.[3] 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.'”[4] 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.[5] The court is required to accept the factual allegations in the complaint as true, but is free to reject legal conclusions.[6] 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.[7]

         III. Analysis

         The 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 ...


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