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Zhang v. Federal Home Loan Bank of Topeka

United States District Court, D. Kansas

December 30, 2019



          Sam A. Crow, U.S. District Senior Judge.

         The plaintiffs, Qinghua Zhang and Steven Craig Heiland, have filed a pro se employment discrimination complaint alleging discriminatory termination and retaliation in violation of Title VII of the Civil Rights Act 1964, 42 U.S.C. § 20003, et seq., against their former employer, Federal Home Loan Bank of Topeka (“FHLB”), and against four individual defendants, Mark E. Yardley, Patrick Doran, Amanda Kiefer, and Michael Surface. The plaintiffs are now represented by counsel who has entered her appearance and filed responses to the following motions: individual defendants' Rule 12(b)(6) motion to dismiss (ECF# 12), all defendants' Rule 12(b)(6) motion to dismiss Heiland's claims (ECF# 14), and all defendants' Rule 12(f) motion to strike. The motions are ripe for decision.

         The well-established standards governing a motion under Rule 12(b)(6), Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016), were followed along with affording the pro se complaint a liberal construction. At the same time, the court will no longer afford this pleading a liberal construction, because the plaintiffs now have counsel who has had sufficient time to seek to amend the complaint for any necessary deficiencies. See Espinoza v. Raemisch, 2019 WL 1455201, at *3 (D. Colo. Apr. 2, 2019) (court found that counsel adopted the pro se complaint as if filed by him after an ample opportunity to amend had passed). In deciding the defendants' Rule 12(f) standard, the court followed the exhaustive standards set out in Martinez v. Naranjo, 328 F.R.D. 581, 590-93 (D.N.M. 2018).


         The individual defendants rightly argue they are not employers under Title VII liable in an individual capacity. As the plaintiffs have named and sued directly the FHLB as the Title VII employer, the individual defendants contend any suit against them in a representative capacity action would be superfluous. The plaintiffs have not filed a response contesting the individual defendants' request to be dismissed with prejudice. The court shall grant this motion as uncontested and appropriate on its face. D. Kan. Rule 7.4(b).


         The defendant argues that the plaintiffs' complaint fails to allege facts constituting a claim on which he would be entitled to relief. Specifically, Heiland's claim of being “retaliated” against insufficiently alleges engaging “in any conduct protected by Title VII's anti-retaliation provisions.” ECF# 15, p. 2. FHLB contends the plaintiff's opposition claim must allege more than being a witness to alleged discrimination unless there is a close familial or spousal relationship of which there is none here.

         In refuting that his pro se complaint adequately alleges a retaliation claim based on protected activity, Heiland argues:

Plaintiff Heiland clearly supported Plaintiff Zhang's employment discrimination claim when Zhang was wrongfully terminated on March 5, 2019. Thereafter, on April 3, 2019, Defendants were informed that Plaintiff Heiland was specifically identified by representatives of Plaintiff Zhang as a supporting witness to the unlawful actions of the Defendants. Approximately one week later, on April 11, 2019, the Defendants were informed that Plaintiff Zhang would not accept the severance offered by the Defendant (which Zhang believed contained a unique, if not illegal, restriction and that he intended to pursue his suit against the Defendant to which Plaintiff Heiland was a supporting witness. The following day, Plaintiff Heiland was placed on administrative leave after which he was summarily termination on April 29, 2019. Plaintiff Heiland clearly opposed discrimination in the workplace, the most recent opposition being to the discriminatory discharge of Plaintiff Zhang to which he was specifically named as a witness.

ECF# 27, pp. 4-5 (underlining added). The underlined sentence is an allegation not found in the complaint. For that matter, the plaintiff also argues additional allegations of protected activity found in his most recent EEOC charge of discrimination but not yet included in the complaint.

         In deciding the motion, the court looks at what has been alleged in the complaint. This includes that the plaintiff Zhang in meeting with Human Resources officials and alleging his supervisor discriminated against minorities named Heiland as a witness to the supervisor's discrimination and “strongly encouraged” his employer to interview Heiland who would confirm Zhang's reports. ECF# 1, at p. 6. The complaint also alleges that Zhang was terminated and that he subsequently refused a severance package on April 11, 2019, and informed the FHLB that he would “pursue a lawsuit.” Id. at p. 7. The complaint further includes that Heiland was “surprisingly and unexpectedly” put on administrative leave for vague reasons and then was terminated without providing details in support of the vague reasons. Id. The complaint concludes with the allegation that “Mr. Heiland is retaliated against for innocently being the witness.” Id.

         Title VII makes it an unlawful employment practice to discriminate against an employee “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The Tenth Circuit has held:

Courts have held that the “participation clause” protects an employee who: (1) defends himself against charges of discrimination, id. at 203, 205; (2) involuntarily participates as a witness in a Title VII proceeding, see Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186-89 (11th Cir.1997); and (3) “actively participate[s]” in assisting a co-worker to assert her Title VII rights, Eichman v. Ind. State Univ. Bd. of Trs., 597 F.2d 1104, 1107 (7th Cir.1979).

Kelley v. City of Albuquerque, 542 F.3d 802, 813 (10th Cir. 2008). The plaintiff Heiland's claim does not allege participation in a formal EEOC proceeding. See Poff v. Okla. ex rel. Okla. Dep't of Mental Health &Substance Abuse Servs., 683 Fed.Appx. 691, 703 (10th Cir. 2017) (citing SeeLittlejohn v. City of N.Y., 795 F.3d 297, 316 (2d Cir. 2015) (“[T]he participation clause only encompasses participation in formal EEOC proceedings; it does not include participation in an internal employer investigation unrelated to a formal EEOC charge.” (internal quotation omitted)); see also Mackley v. TW Telecom Holdings, Inc., No. 12-2774-SAC, 2013 WL 1502034, at *3 (D. Kan. April 10, 2013) (the court followed as well-reasoned the approach taken by district courts in the Tenth Circuit that, “the participation clause does not extend its protection to internal investigations conducted before Title VII proceedings ...

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