Lister v. City of Wichita

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JAMES LEE LISTER, Plaintiff, v. CITY OF WICHITA, KANSAS, Defendant.

Civil Action No. 20-1312-KHV

United States District Court, D. Kansas

August 3, 2022

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

James Lee Lister filed suit against his former employer City of Wichita, Kansas alleging that it discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Plaintiff also alleges that defendant retaliated against him based on disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. This matter is before the Court on Defendant's Motion For Judgment On The Pleadings, (Doc. #34) filed May 16, 2022. For reasons stated below, the Court sustains defendant's motion in part.

Legal Standards

A motion for judgment on the pleadings under Rule 12(c), Fed R. Civ. P., is governed by the same standards as a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P. See Atl Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible-and not merely conceivable-on its face. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679-80.

Plaintiff bears the burden to frame his claims with enough factual matter to suggest that he is entitled to relief; it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. See Twombly, 550 U.S. at 556. Plaintiff makes a facially plausible claim by pleading factual content from which the Court can reasonably infer that defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiff must show more than a sheer possibility that defendant has acted unlawfully-it is not enough to plead facts that are “merely consistent with” defendant's liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action or naked assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the pleading has alleged-but has not shown-that the pleader is entitled to relief. See id. at 679. The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Okla., 519 F.3d 1242, 1248 (10th Cir. 2008).

Factual And Procedural Background

Plaintiff alleges as follows:

Plaintiff is an African American male. Plaintiff has had asthma since the age of 12 and mental health bipolar depression for which he has taken medication for the last ten years. He also has type two diabetes. Over the last five years, he has taken shots and oral medications for diabetes.

On or about August 4, 2014, the City of Wichita Department of Public Works and Utilities hired plaintiff as a laborer. Plaintiff was the only African American on his crew of four to five people. Plaintiff experienced racially disparate treatment while working for the department. His supervisor, Kerry, degraded his work and told plaintiff that he did not “catch on to work related issues.” Kerry would exclude plaintiff from overnight jobs, claiming he had no need for plaintiff but would allow a white male who started on the same day as plaintiff to work overnight.

While attending orientation at city hall for his new position, plaintiff received a parking ticket for an expired meter. Plaintiff forgot to pay the fine for the ticket, which led to the suspension of his driver's license. On or about September 23, 2014, when he discovered that his license was suspended, plaintiff reported the incident to his supervisor, Joe. Joe told him to take care of it as soon as possible. Plaintiff went back out to the field only to be called back to the office a couple of hours later. He met with his supervisors, Elizabeth Warren and Joe, who communicated that he was required to have a valid driver's license for his position and fired him. Immediately afterwards, plaintiff paid his parking ticket and returned to his supervisors with the receipt and his reinstated license, but they did not allow him to return to work. Plaintiff alleges that white males who received Driving Under The Influence (“DUI”) citations kept their jobs despite losing their driver's licenses.

On October 13, 2015, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that defendant harassed and discharged him because of his race and his complaints about employment discrimination. On the charge form, he marked race and retaliation as the basis for discrimination. He alleged that the earliest and latest discrimination took place on September 23, 2014. On October 19, 2015, the EEOC dismissed his charge because it was not timely filed.

Between January 10, 2017 and the filing of his complaint, plaintiff applied for 77 different jobs with the City of Wichita, but it did not hire him. Specifically, between January 10, 2017 and October 16, 2019, plaintiff applied for 57 jobs. Between October 16, 2019 and August 11, 2020, plaintiff applied for eight jobs.^[1] From August 11, 2020 to the filing of this lawsuit, plaintiff applied for 12 jobs.^[2] The City of Wichita Human Resources department responded that plaintiff was not eligible for the positions due to his rehire status^[3], and he needed to submit all requests to director Chris Bezruki. Plaintiff submitted several requests to Bezruki but did not receive a response.

On February 4, 2016, plaintiff filed an employment discrimination suit against defendant, alleging that it discriminated against him because of race and retaliated against him for complaining about such discrimination. On June 23, 2016, the district court granted defendant's motion to dismiss. Plaintiff filed a motion to alter or amend the judgment, which the district court denied. Plaintiff appealed the dismissal, and the Tenth Circuit affirmed the dismissal. On October 31, 2016, while the appeal was pending, plaintiff filed another lawsuit against defendant for employment discrimination. The district court dismissed the case as duplicative of the initial lawsuit.

On August 11, 2020, plaintiff filed an EEOC charge alleging that defendant's refusal to hire him was an act of discrimination based on race, color and retaliation. The EEOC was unable to conclude that defendant had violated a statute.

On November 12, 2020, plaintiff filed this suit against the City, alleging that in failing to rehire him, it discriminated and retaliated against him in violation of Title VII.^[4] Plaintiff also alleged that defendant retaliated against him based on disability in violation of the ADA.

Analysis

Defendant argues that the Court must dismiss all of plaintiff's claims. Defendant argues that the Court should dismiss plaintiff's claims related to refusals to hire that occurred more than 300 days before plaintiff filed his second EEOC charge and, because he has failed to exhaust, claims that occurred after he filed that charge.

Defendant also argues that the Court should dismiss plaintiff's claim for discrimination under Title VII because plaintiff has not alleged that in failing to rehire him between October 16, 2019 and August 11, 2020, defendant treated him less favorably than similarly situated employees. Defendant argues that the Court should dismiss plaintiff's claim for retaliation under Title VII because plaintiff has not sufficiently alleged a causal connection between protected activity and its failure to rehire him between October 16 2019 and August 11, 2020.

Finally, defendant argues that the Court should dismiss plaintiff's ADA retaliation claim because plaintiff has not alleged that he engaged in protected activity for the purposes of an ADA retaliation claim.

I. Exhaustion Of Plaintiff's Title VII And ADA Claims

Defendant argues that the Court should dismiss plaintiff's claims that occurred more than 300 days before he filed his second EEOC charge and, because he has failed to exhaust administrative remedies, claims related to refusals to hire that occurred after plaintiff filed that charge. Plaintiff argues that his time to file an EEOC charge was equitably tolled or that defendant is equitably estopped from asserting an exhaustion defense.

Under Title VII and the ADA, plaintiff must base his discrimination claims on discrete acts. Nat'l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 113 (2002); Payan v. U.P.S. Inc., 905 F.3d 1162, 1168 (10th Cir. 2018); Davidson v. America Online, Inc., 337 F.3d 1179, 1183 (10th Cir. 2003). If plaintiff fails to timely file an EEOC charge regarding each discrete employment incident or adverse action, defendant may raise an affirmative defense of failure to exhaust. Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018). To exhaust, plaintiff generally must present his claims to the EEOC and receive a right-to-sue letter based on that charge. Id. at 1181. In Kansas, plaintiff must file an administrative charge within 300 days of the alleged discriminatory action. See 42 U.S.C. § 2000e-5...