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Ross v. Pentair and United Steel Workers Local 13

United States District Court, D. Kansas

December 9, 2019

GARY ROSS, Plaintiff,



         Plaintiff Gary Ross has filed a four-count first amended complaint (Doc. 13) against his employer, defendant Pentair, [1] alleging that it has discriminated and retaliated against him based on his race. Before the court presently is Pentair's motion to dismiss the complaint. (Doc. 18.) Plaintiff asserts no claims against the labor union, defendant United Steel Workers Local 13, in his amended complaint; that entity is no longer a party in this lawsuit. For the reasons outlined below, the court grants in part and denies in part Pentair's motion to dismiss.


         According to the first amended complaint, plaintiff began work at Pentair on or about September 12, 1994. He has worked in various capacities over the years, but is currently an assembler. Although plaintiff has had an excellent employment record with Pentair, he asserts that he has also been the target of discrimination and retaliation because he is African-American. In April 2014, he recounts that he and another African-American employee were “singled out by management for performance standards and alleged policy violations, ” although white employees were working in the same manner and not being disciplined. Plaintiff expressed his concerns about this, and filed a grievance with his union. In September 2015, he filed another grievance. Pentair management began to share information concerning plaintiff's pay and overtime with his co-workers without his permission.

         In 2016, Pentair began to “micromanage” plaintiff's performance and attendance, although white employees were not similarly micromanaged. Plaintiff expressed his concern over “issues regarding” the celebration of the Martin Luther King Jr. holiday in January 2016. In February 2016, he was reprimanded based on the false accusation of a co-worker. Plaintiff's response during that disciplinary meeting was that he believed he was being singled out because of his race and previous claims of discrimination. In August 2016, plaintiff reported to upper management that he was continuing to experience discrimination and harassment; the following month he tried to file a grievance about this treatment. In October 2016, plaintiff and an African-American co-worker filed a complaint with the EEOC outlining Pentair's race discrimination, disparate treatment and retaliation. Although plaintiff received a “Right to Sue” letter from the EEOC, he did not pursue a lawsuit. However, after he filed the EEOC complaint, things got even worse at work.

         In January 2017, a co-worker followed plaintiff into the restroom and stood outside the stall. Plaintiff reported this co-worker for sexual harassment. After a brief investigation, Pentair discounted plaintiff's claim as not credible. In April 2017, a co-worker threatened to kill plaintiff. Plaintiff's account of the ramifications of this event are contradictory. He says that management witnessed the threat and that he also reported it, but no action was taken. He also claims that the company disciplined the co-worker although they had determined the co-worker's behavior was not a threat. Plaintiff appealed this decision but received no relief. Starting in June 2017, plaintiff's African-American friend was repeatedly disciplined for work and safety actions which he had previously performed without repercussion. Plaintiff and his friend shared their experiences and determined that non-African-Americans were not being disciplined for these actions. In July 2017, the company approached plaintiff about a possible new position, but he was also told that he might be laid off. He did not apply for the position. In August, he began working in “the impeller cell, ” but was told it was an apprenticeship program and that if a position opened he could bid on it. That same month, he and his friend complained to management about the firing of a third African-American worker who was terminated after damaging a product, although a non-African-American worker had also damaged a product at around the same time and had not been disciplined.

         In January 2018, plaintiff bid on two utility worker positions, but was notified that he was not eligible to bid on them. The positions were then “removed” and filled by unqualified non-African-American workers who were trained on the job. In April 2018, Pentair fired an African-American worker who was plaintiff's friend. On July 5, 2018, plaintiff filed another complaint with EEOC about Pentair's continued discrimination and retaliation. Plaintiff is still with the company and alleges that he is still being discriminated against. In addition, he has been required to work in dangerous conditions without proper training or equipment. Plaintiff, along with some co-workers, has complained about the dangerous conditions, but Pentair's sole response has been to deny plaintiff promotional opportunities. This hostile environment causes plaintiff fear, stress and anxiety.

         Plaintiff attaches his July 5, 2018 EEOC charge to his amended complaint. (Doc. 13-1.) On the form he indicates that the events constituted a continuing action that took place between February 15, 2015, and January 8, 2018. He describes the events as follows:

I. Respondent hired me on or about September 12, 1994. My most recent job title is Assembler and my immediate supervisor is Gerald Johnson (white), supervisor. Throughout the tenure of my employment, I have performed my job in a satisfactory manner.
II. In or about May 2017, I filed a charge of racial discrimination against the respondent.
III. Since 1996, and continuing to the present, I have attempted to move into a position as a repairperson. In or about late 2016 or early 2017, I approached Ron Barner, Superintendent (white), about moving into the repairperson job. Mr. Barner denied my request because he claimed that I needed to know how to run the CNC machine. Since then, and continuing to the present, I am aware of other similarly situated white employees who have received training on how to run the CNC machine.
IV. I believe that respondent discriminated against me because of my race, black, and in retaliation for my participation in protected activities, in violation of Title VII of the Civil Rights Act of 1964, as amended.

(Doc. 13-1.) The EEOC closed its file without a finding, and issued plaintiff a Right to Sue letter on August 23, 2018. Plaintiff timely filed suit in this court on November 21, 2018. (Doc. 1.)

         Standard of Review

         On a motion to dismiss a complaint brought pursuant to Fed.R.Civ.P. 12(b)(6), the court assumes all well-pled facts in the complaint are true, and permits all reasonable inferences from that pleading. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012). Legal conclusions worded as factual allegations must be disregarded. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (citing Bell Atl. Co. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). In the context of discrimination claims, it is not necessary that the plaintiff set forth all elements of a prima facie case in the complaint, ...

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