Yousif v. Landers McClarty Olathe KS, LLC

HUBERT YOUSIF, Plaintiff, v. LANDERS MCCLARTY OLATHE KS, LLC, and RLJ-McCLARTY-LANDERSAUTOMOTIVE HOLDINGS, LLC, Defendants.

Case No. 12-2788-CM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: October 28, 2013

MEMORANDUM AND ORDER

This matter is before the court on a joint motion to dismiss filed by defendants Landers McClarty Olathe, KS, LLC ("LM") and RLJ-McClarty-Landers Automotive Holdings, LLC ("RLJ") (Doc. 56). Plaintiff Hubert Yousif alleges violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., with claims of discrimination based on actual and perceived race, color, religion, and national origin. Plaintiff also alleges violations of 42 U.S.C. § 1981 ("Section 1981") with claims of discrimination based on actual and perceived race. In addition, plaintiff brings a claim of retaliatory discharge under Kansas common law. Defendants' motion argues that plaintiff's "perceived" claims should be dismissed for failure to state a claim and for lack of subject matter jurisdiction. For the reasons below, defendants' motion is granted.

I. Factual Background¹

In approximately May 2009, plaintiff began working for defendants. Defendants employed Jeff Briggs ("Briggs") and Dale Wethered ("Wethered"), both of whom had supervisory authority over plaintiff. Plaintiff suffered injuries at work on December 17, 2010, and March 4, 2011. Plaintiff reported the December 17, 2010 incident to both Briggs and Wethered. Both refused to report the injury or otherwise turn it in for the purpose of workers' compensation benefits, and plaintiff was forced to continue to work full-time for defendants and seek medical care through his own physicians. When plaintiff reported the March 4, 2011 incident to Wethered, Wethered reported this injury to workers' compensation, as well as plaintiff's earlier December 17, 2010 incident. Briggs did not assist plaintiff in seeking workers' compensation benefits.

Defendants subjected plaintiff to offensive, derogatory, and retaliatory comments regarding plaintiff's work-related injuries. Briggs also subjected plaintiff to severe and unwelcome conduct because of plaintiff's actual and perceived race, actual and perceived color, actual and perceived religion, and actual and perceived national origin, including, but not limited to, offensive comments and innuendo. Briggs refused to accommodate plaintiff's physical limitations and restrictions that were sustained as a result of his work-related injuries, telling plaintiff "you can either be a car washer or just leave." Briggs and Wethered subjected plaintiff to increased scrutiny and supervision through unscheduled drug and alcohol testing not otherwise administered to other employees of defendants. After plaintiff's second work-related injury, Briggs told plaintiff "I need you to either resolve your issues with your doctors or quit and sue me."

Before and during April 2011, plaintiff made complaints to defendants' employees Adam Brazos, Chuck Cummings and Sandy Bradley about the offensive, derogatory and retaliatory conduct of Briggs and Wethered. In May 2011, plaintiff again reported the conduct of Briggs and Wethered to Steve Landers, an officer of defendants. Landers told plaintiff, "I know you can leave right now andsue the crap out of me." After plaintiff's meeting with Landers, Briggs told plaintiff that he knew plaintiff had met with Landers and stated, "If you don't get your ass back to work, you can just stay home." On January 28, 2012, and after plaintiff advised defendants of a surgery scheduled for February 16, 2012, related to the aforementioned injuries, defendants terminated plaintiff. Briggs told plaintiff to leave the premises without providing him a reason. In retaliation for plaintiff's work-related injuries and his reporting of the aforementioned conduct, defendants harassed, mistreated and fired plaintiff.

When plaintiff complained about and opposed the aforementioned conduct and other offensive and retaliatory comments and actions of defendants' employees, defendants' management failed to take prompt and appropriate corrective action to end the wrongful treatment of plaintiff, treated plaintiff rudely, unfairly disciplined and supervised plaintiff, and terminated plaintiff. By failing to conduct a prompt and thorough investigation of the aforementioned conduct, defendants ratified and condoned this conduct in their workplace.

Prior to his firing, the individual who fired plaintiff knew about his work-related injuries, his need for medical treatment, his need for ongoing medical treatment, his need to be absent from work as a result of his work injuries, and his exercise of his statutory rights. Plaintiff argues that defendants fired him because of these reasons, and he alleges he suffered various damages as a result of defendants' actions.

II. Legal Standard

"Federal courts are courts of limited jurisdiction." Culbertson v. Holder, No. 12-2734-EFM-DJW, 2013 WL 3517141, at *2 (D. Kan. July 11, 2013) (citation omitted). To bring a claim under Title VII, a plaintiff must first exhaust his or her administrative remedies. Id. (citing Ransom v. U.S. Postal Serv., 170 F. App'x 525, 527 (10th Cir. 2006)). Exhaustion of administrative remedies is ajurisdictional prerequisite to suit. Id. (citing Woodman v. Runyon, 132 F.3d 1330, 1341 (10th Cir. 1997)). If the plaintiff fails to exhaust his or her administrative remedies, then the court is without subject matter jurisdiction to hear the case, and it must be dismissed. Id. (citing Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1318 (10th Cir. 2005)). However, "[i]f the plaintiff does attempt to obtain administrative relief by first filing a complaint with the EEOC, the court's jurisdiction is limited to issues that are reasonably expected to arise from the claims filed with the EEOC." Mitchell v. Compass Group USA, Inc., No. 12-2250-EFM, 2013 WL 3491401, at *2 (D. Kan. July 11, 2013) (citing MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)). The plaintiff carries the burden to show exhaustion of administrative remedies. Id. (citation omitted).

The court will grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) only when the factual allegations fail to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While the factual allegations need not be detailed, the claims must set forth entitlement to relief "through more than labels, conclusions and a formulaic recitation of the elements of a cause of action." In re Motor Fuel Temperature Sales Practices Litig., 534 F. Supp. 2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is plausible, rather than merely conceivable. Id. "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). The court construes any reasonable inferences from these facts in favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).

Finally, "when a defendant seeks dismissal under Rule 12(b)(1) and 12(b)(6) in the alternative, the court must decide first the 12(b)(1) motion, for the 12(b)(6) challenge would be moot if the courtlacked subject matter jurisdiction." Mounkes v. Conklin, 922 F. Supp. 1501, 1506 (D. Kan. 1996) (citing Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)).

III. Discussion

A. Title VII Perceived Claims

The court must first consider whether it has subject matter jurisdiction over plaintiff's Title VII "perceived" discrimination claims before reaching the merits of this case. ² Plaintiff must have exhausted his administrative remedies on his Title VII claims, or the court is without subject matter jurisdiction over these claims. See Culbertson, 2013 WL 3517141, at *2 (citation omitted). This case is a unique one. As will be explained below, plaintiff has stated a claim that does not exist under the applicable statute. Thus, although plaintiff attempted to exhaust his administrative remedies on his perceived discrimination claims, he did not do so?and he could not have done so. Because of the posture of this case, the court's analysis addresses in tandem subject matter jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6).

Plaintiff brings actual and perceived discrimination claims on the basis of race, color, national origin, and religion. Plaintiff's EEOC charge does state that Briggs called him an "Iranian terrorist," and a "Middle Eastern hitman," and stated that "[plaintiff's] relatives were getting in trouble" in referring to Middle-Eastern persons in the media. (Doc. 18-5.) But plaintiff does not state in his complaint or the EEOC charge that he is Middle-Eastern?or, in the alternative?that he is not, and that defendants perceived him as such. And plaintiff includes no other references to his race, color, national origin, or religion.

Regardless, case law clearly demonstrates that plaintiff's "perceived" discrimination claims are not cognizable under Title VII. See, e.g., Guthrey v. Cal. Dep't of Corr. & Rehab., No. 1:10-cv-02177-AWI-BAM, 2012 WL 2499938, at *6 n.2 (E.D. Cal. June 27, 2012) (noting that the plaintiff is Caucasian and not a member of a protected class, finding that the plaintiff's "perception of race" theory is not recognized under Title VII, and collecting cases stating the same). Title VII protects only members of a protected class. Butler v. Potter, 345 F. Supp. 2d 844, 850 (E.D. Tenn. 2004) (citing 42 U.S.C. § 2000e-2(a)(1)). And as defendant points out, "Congress has shown, through the Rehabilitation Act and the Americans with Disability Act [("ADA")], that it knows how to enact legislation that protects persons who are wrongly perceived to be in a protected class." Id.

Unlike these other Acts, Title...