Opinion
Civil Action No. 99-2026-CM.
February 20, 2001.
MEMORANDUM AND ORDER
Plaintiff Henry Hill brings this cause of action asserting numerous employment-related claims. This matter is before the court on defendant ATT Corp.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 13); defendant TCI of Overland. Inc.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 15); defendants TCI Holdings, Inc., TCI Communications, Inc., Telecommunications, Inc. and TCI Central, Inc.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 17); defendant Time Warner, Inc.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 19); defendant Tele-Communications, Inc.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 21); defendants Dimitri Ramos, Jim Bell, Clyde Gentry and Tildon Wood's motion to dismiss or, in the alternative, motion for summary judgment (Doc. 23); and defendants Dimitri Ramos, Jim Bell, Clyde Gentry, Tildon Wood, TCI Holdings, Inc., TCI Communications, Inc., Tele-Communications, Inc., Telecommunications, Inc., TCI Central, Inc., TCI of Overland Park, Inc., Time Warner, Inc. and ATT Corp.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 54). Plaintiff also moves for leave to file supplemental suggestions in opposition to defendants' motions to dismiss or, in the alternative, motions for summary judgment (Doc. 70). Plaintiff's motion for leave to file supplemental suggestions is granted, and the court will consider such supplemental suggestions in rendering this opinion.
Defendant Brian McHenry is the only defendant who did not file a motion to dismiss or a motion for summary judgment.
I. Standards
The court must first determine whether to view defendants' motions as motions to dismiss or motions for summary judgment. Each of defendant's motions have been styled as motions to dismiss or, in the alternative, motions for summary judgment. Plaintiff's responses have been styled as briefs or suggestions in opposition to "Motion to Dismiss or for Summary Judgment." Moreover, plaintiff moved to strike certain affidavits submitted by defendants and himself submitted affidavits and documents in support of his responses. Plaintiff also responded to each of defendants' statements of facts. Thus, plaintiff was on notice that the court might issue a summary judgment ruling and, indeed, had an adequate opportunity to present to the court all materials relevant to such a ruling. To the extent that the court considers matters outside plaintiff's first amended complaint, the court will rule on defendant's motions for summary judgment. Whitesel v. Sengenberger, 222 F.3d 861, 866 (10th Cir. 2000). As such, the court will set forth the standards in considering both motions to dismiss and motions for summary judgment.
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff, Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact"and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
II. Discussion A. Timeliness of Plaintiff's Title VII and ADA Claims
Plaintiff, a black male, worked at the TCI of Overland Park, Inc. facility located in Overland Park, Kansas. Plaintiff asserts in Counts I and II that he was subject to a hostile work environment and that defendants retaliated against him in violation of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq. Plaintiff also asserts in Count III a claim under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12001, et seq.
Exactly for whom plaintiff worked is an issue to be discussed later in this opinion. However, resolution of that issue is not necessary for purposes of determining whether plaintiff's Title VII and ADA claims are timely.
Plaintiff filed his first charge of employment discrimination with the EEOC in February 1997 alleging discrimination and harassment on account of his race. Plaintiff received a Notification of Right to Sue in August 1997. Within 90 days, plaintiff filed suit in the Circuit Court of Jackson County, Missouri. Defendants removed the suit to the United States District Court for the Western District of Missouri. In December 1997, during the pendency of plaintiff's suit in the Western District of Missouri, plaintiff filed another charge of discrimination with the EEOC, this time alleging discrimination based on a disability. Plaintiff received a Notification of Right to Sue on his disability claim in January 1998.
In March 1998, Tele-Communications, Inc. filed a motion to dismiss or, in the alternative, for summary judgment in the case before the Western District of Missouri. Plaintiff did not respond, and the district court issued a show-cause order directing plaintiff to respond. Plaintiff did not timely respond to the show-cause order. As a result, the district court dismissed plaintiff's case without prejudice on September 8, 1998. The United States Court of Appeals for the Eighth Circuit affirmed the district court's dismissal.
Defendants contend that plaintiff's Title VII and ADA claims are barred because this action was not filed within ninety days of the date plaintiff received his last Notification of Right to Sue. As a condition precedent to maintaining an action under Title VII or the ADA, a plaintiff must institute his civil action within ninety days of receiving notice of his right to sue. 42 U.S.C. § 2000e-5 (f)(1); 42 U.S.C. § 12117(a); Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983) (compliance with ninety-day filing requirement is a condition precedent to suit that functions like a statute of limitations rather than a jurisdictional prerequisite).
Plaintiff responds by asserting that his Title VII and ADA claims "are timely as they were filed in a matter of days following dismissal of the [Western District of Missouri] Complaint explicitly to be without prejudice." Plaintiff is, however, mistaken in two important respects. Foremost, the instant action was not filed "in a matter of days" following dismissal of the Western District case. The case before the Western District of Missouri was dismissed September 8, 1998. Plaintiff did not institute this action until January 21, 1999, more than 4 months later.
Second, plaintiff's Title VII and ADA claims are not timely. Plaintiff filed the instant lawsuit 17 months after receipt of his first right to sue letter and 12 months after receipt of his second right to sue letter. Thus, plaintiff failed to file this action within the ninety-day time period. Moreover, the fact that plaintiff timely filed and had an ongoing case in another district has no bearing on the ninety-day time requirement. The Tenth Circuit has held that "the filing of a complaint that is dismissed without prejudice does not toll the statutory filing period of Title VII." Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991). Thus, the ninety-day period was not tolled during the pendency of the Western District action.
Plaintiff claims that the filing requirements are subject to equitable modification. Plaintiff, however, presents no reasons why equitable tolling should apply in this case. A Title VII time limit will be equitably tolled only upon a showing of "'active deception'" where, for example, the plaintiff has been "'actively misled'" or "'lulled into inaction by her past employer, state or federal agencies, or the courts.'" Johnson v. United States Postal Serv., 861 F.2d 1475, 1480-81 (10th Cir. 1988) (quoting Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984)). Viewed in the light most favorable to plaintiff, the record does not contain a basis for the application of equitable tolling in this case. Indeed, plaintiff offers no explanation why he waited 12 months after receipt of his second right to sue letter, and 4 months after the dismissal of his first action, to file this case. Plaintiff has failed to show that the ninety-day time requirement should be equitably tolled and, accordingly, the court finds that plaintiff's Title VII and ADA claims are time-barred. Simons v. Southwest Petro-Chem, Inc., 28 F.3d 1029, 1030-31 (10th Cir. 1994). Plaintiff's Title VII and ADA claims are hereby dismissed.
B. § 1981 Claims: Hostile Work Environment and Retaliation
Plaintiff alleges that defendants violated his rights under 42 U.S.C. § 1981. Specifically, plaintiff claims in Counts I, II, III, VII and IX that defendants discriminated against him on the basis of his race. Defendants argue that plaintiff was an at-will employee and that, as a result, plaintiff cannot state a claim under § 1981.
Section 1981 provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981(a). Thus, any claim brought pursuant to § 1981 must be supported by an underlying contractual right of the employee. Section 1981(b) further provides, "For purposes of this section, the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Section 1981 therefore prohibits discriminatory conduct that occurs both before and after the establishment of a contractual relationship. Hopkins v. Seagate, 30 F.3d 104, 105 (10th Cir. 1994). Defendants contend that plaintiff was an at-will employee. Kansas is an employment-at-will state in which the general rule is that, absent an express or implied contract between the employer and employee governing tenure of employment, either party may terminate the employment relationship at any time with or without cause. Wiggins v. Hous. Auth., 22 Kan. App.2d 367, 370, 916 P.2d 718, 721 (1996). Defendants argue that plaintiff's at-will employment status is an insufficient contractual relationship upon which to assert a § 1981 claim. Plaintiff denies that he was an at-will employee but contends that, even if he was, he may assert a claim under § 1981.
At the time the parties briefed this argument before the court, the Tenth Circuit had not yet decided the issue of whether an at-will employee can bring a cause of action under § 1981. Since that time, the Tenth Circuit has decided the issue. See Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir. 1999). In Perry, the Tenth Circuit held that, under New Mexico law, an at-will employment relationship is contractual and that, as a result, an at-will employee may state a cause of action under § 1981. Id. The court further held that an employment at-will relationship encompasses sufficient contractual rights to support a claim for wrongful termination under § 1981. Id. The question for this court becomes whether an at-will employment relationship is contractual under Kansas law. If so, plaintiff may state a cause of action under § 1981 notwithstanding his status as an at-will employee.
The Kansas courts have not addressed the question of whether an at-will employment relationship is contractual in nature. If there is no applicable statute or if the Kansas Supreme Court has not spoken on an issue, this court must determine how it believes the Kansas Supreme Court would rule if confronted with the question. Frontier Refining, Inc. v. Gorman-Rupp Co., 136 F.3d 695, 700 (10th Cir. 1998). In making this determination, the court should consider "other state-court decisions, well-reasoned decisions from other jurisdictions, and any other available authority to determine the applicable state law." Id.
The court turns to the employment at-will doctrine in New Mexico, which was the state law upon which the Tenth Circuit relied in Perry. Both Kansas and New Mexico have similar employment at-will doctrines. Compare Wiggins, 22 Kan. App.2d at 370, 916 P.2d at 721 (in at-will employment relationship either party may terminate the employment relationship at any time with or without cause) with Lopez v. Kline, 124 N.M. 539, 541, 953 P.2d 304, 306 (1998) (an at-will relationship is subject to termination at any time, with or without cause). Moreover, both states have allowed similar causes of actions challenging the dismissal of at-will employees. Compare Murphy v. Topeka-Shawnee County Dept. of Labor Servs., 6 Kan. App.2d 488, 630 P.2d 186 (1981) (public policy) with Francis v. Mem'l Gen. Hosp., 104 N.M. 698, 726 P.2d 852 (1986)(same); compare Elliott v. Employers Reinsurance Corp., 534 F. Supp. 690 (D.Kan. 1982) (applying Kansas law and allowing cause of action for intentional infliction of emotional distress) with Romero v. Mason Hanger-Silas Mason Co., 739 F. Supp. 1472 (D.N.M. 1990) (applying New Mexico law and allowing cause of action for intentional infliction of emotional distress); compare Turner v. Halliburton Co., 240 Kan. 1, 722 P.2d 1106 (1986) (interference with contractual relations) with Romero, 739 F. Supp. 1472 (D.N.M. 1990) (applying New Mexico law and allowing action based upon interference with contractual relations). Additionally, both states have refused to recognize a cause of action challenging the dismissal of an at-will employee based upon a breach of implied covenants of good faith and fair dealing. Compare Morriss v. Coleman Co., 241 Kan. 501, 738 P.2d 841 (1987) with Salazar v. Furr's, Inc., 629 F. Supp. 1403 (D.N.M. 1986) (applying New Mexico law).
Having concluded that both Kansas and New Mexico construe the employment at-will doctrine similarly, the court will look to New Mexico law in determining whether the Kansas Supreme Court would rule that an at-will employment relationship is contractual. In Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 730, 749 P.2d 1105, 1109 (1988), the New Mexico Supreme Court concluded that an at-will employee enjoys a contractual relationship with his employer. Specifically, the court stated, "When an employment contract is not supported by any consideration other than performance of duties and payment of wages, and there is no explicit contract provision stating otherwise, it is an employment contract for an indefinite period and terminable-at-will by either party." Id. Thus, because the New Mexico Supreme Court decided that an at-will employment relationship is contractual, the Kansas Supreme Court would likely rule the same. This court will therefore consider an at-will employment relationship under Kansas law to be contractual.
Because this court construes an at-will employment relation to be contractual under Kansas law, the court finds pursuant to the holding set forth in Perry that plaintiff states a claim under § 1981 for hostile work environment and retaliation. Thus, plaintiff's § 1981 claims in Counts I, II, III, VII and IX may go forward.
C. Fraudulent Misrepresentation 1. State Law Claim
Plaintiff alleges in Count IV that defendants led plaintiff to believe that he was employed by Tele-Communications, Inc. and then took an allegedly inconsistent position in this litigation and the Western District of Missouri case, all in order to defeat his rights and the rights of other employees under Title VII "and other similar acts." In response to plaintiff's first complaint, defendants moved to dismiss plaintiff's fraud claim, arguing that plaintiff failed to state a claim. Following plaintiff's filing of his first amended complaint, defendants argued that plaintiff had abandoned his claim for fraud.
To state a claim for fraud under Kansas law, plaintiff must allege an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the truth, where plaintiff justifiably relies on the statement and acts to his injury and damage. Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545, 551-52 (1980). Plaintiff's amended complaint alleges that Tele-Communications, Inc. represented itself as plaintiff's employer but, when plaintiff filed suit against Tele-Communications, Inc., the defendants filed false and fraudulent affidavits and other pleadings. Plaintiff claims that he has been damaged by reason of defendants' false and fraudulent representations. The court finds that, under the liberal federal pleading standards, plaintiff has stated a claim for fraud.
2. § 1981 and § 1985(3) Claims
Plaintiff asserts a § 1981 claim in Count IV, alleging that defendants' fraudulent conduct violates § 1981 and constitutes an illegal conspiracy under 42 U.S.C. § 1985(3). These allegations, even if the court accepts them as true, fail to state a claim under §§ 1981 and 1985(3).
Plaintiff fails to allege that any of the defendants' alleged fraudulent conduct took place because of his race or with racial animus. In fact, plaintiff alleges that defendants treated other employees (of unstated race) in the same manner. Fatal to plaintiff's claim is that § 1981 was enacted to prevent discrimination against an individual on the basis of his or her race or ethnic background. Saint Francis Coll. v. Alkhazraji, 481 U.S. 604, 613 (1987). Accordingly, dismissal of a § 1981 is appropriate where a plaintiff fails to allege racial or ethnic discrimination. Olguin v. Lucero, 87 F.3d 401, 405 (10th Cir. 1996) (affirming dismissal of § 1981 claim where there was no allegation of racial or ethnic discrimination). In this case, plaintiff has failed to allege that defendants engaged in false representation because of plaintiff's race. Indeed, nowhere in this claim does plaintiff mention that he was discriminated against on the basis of his race. Accordingly, plaintiff's has failed to state a § 1981 claim in Count IV.
The court also finds that plaintiff has failed to state a claim in Count IV under § 1985(3). Section 1985 creates a cause of action against a party conspiring to deprive any person of equal protection of the law or the privileges and immunities of citizenship. 42 U.S.C. § 1985(3). To state a claim, plaintiff must plead 1) a conspiracy 2) for the purpose of depriving any person or class of persons of equal privileges and immunities under the laws, and 3) an act in furtherance of the conspiracy 4) whereby a person or his property is injured or he is deprived of any right or privilege of citizenship. Griffen v. Breckenridge, 403 U.S. 88, 102-03 (1971).
Plaintiff's claim under § 1985(3) fails for several reasons. Foremost, plaintiff has failed to sufficiently allege any conspiracy between the defendants. To state a cause of action under § 1985, the pleadings must "specifically present facts tending to show agreement and concerted action." Sooner Prod. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983). There exists no allegation in plaintiff's complaint that defendants engaged in any agreement to deprive plaintiff of his rights and privileges.
In addition, under the law of this circuit, a plaintiff must be a member of a recognized class and must show class-based discrimination to invoke § 1985. Brown v. Reardon, 770 F.2d 896, 905-06 (10th Cir. 1985). Thus, "evidence of some racial or other class-based invidious discriminatory animus behind the actions of defendants" is required. Id.; see also Griffen, 403 U.S. at 102-03; United Bhd. of Carpenters and Joiners v. Scott, 463 U.S. 825, 833 (1983). In this case, plaintiff has failed to allege that defendants' motive was class- or race-based. Plaintiff's § 1985 claim in Count IV is dismissed.
Accordingly, because plaintiff claims under both § 1981 and § 1985(3) are dismissed, plaintiff's claim in Count IV for attorneys' fees under § 1988 is also dismissed.
D. Gun Incident 1. Outrage Claim
Plaintiff alleges in Count V that defendant Brian McHenry purchased a handgun from defendant Dimitri Ramos while the two were at the Overland Park facility. Plaintiff asserts that McHenry entered the building facility where plaintiff was working, placed the gun against plaintiff's head while using racial epithets and threatening language, and eventually fired a bullet from the gun. The bullet did not strike plaintiff. Plaintiff contends that this conduct was outrageous and extreme and caused plaintiff to suffer extreme emotional distress.
Like plaintiff's fraud claim, defendants moved to dismiss plaintiff's outrage claim, arguing that plaintiff failed to state a claim. Following plaintiff's filing of his first amended complaint, defendants argued that plaintiff had abandoned his claim for outrage.
To state a claim for the tort of outrage, plaintiff must allege that the conduct of the defendant was intentional or in reckless disregard of the plaintiff; that the conduct was extreme and outrageous; that there was a causal connection between the defendant's conduct and the plaintiff's mental distress; and that the plaintiff's mental distress was extreme and severe. Miller v. Sloan, Listrom, Eisenbarth, Sloan and Glassman, 267 Kan. 245, 257, 978 P.2d 922, 930 (1999).
In this case, plaintiff has sufficiently pled a claim for the tort of outrage. Plaintiff has alleged the factual circumstances underlying plaintiff's outrage claim, which was the sale of the gun by Ramos to McHenry and the pointing and discharging of the gun by McHenry. Further, plaintiff has pled that defendant Tele-Communications, Inc. approved or acquiesced in Ramos and McHenry's conduct. Thus, plaintiff has stated a claim against Tele-Communications, Inc. Bolden v. PRC, Inc., 45 F.3d 545, 553-54 (10th Cir. 1995). Defendants' motion to dismiss plaintiff's claim for the tort of outrage is denied.
2. § 1985(3) and § 1986 Claims
Plaintiff alleges in Count V that Ramos's sale of the handgun to McHenry, and McHenry's subsequent use of the handgun toward plaintiff, constituted a conspiracy in violation of § 1985(3). Plaintiff's amended complaint sufficiently alleges "facts tending to show agreement and concerted action" between Ramos and McHenry. Sooner Prod. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983). Moreover, plaintiff has alleged "racial . . . invidious discriminatory animus behind the actions of defendants." Brown, 770 F.2d at 905-06. Thus, the court finds that plaintiff has stated a cause of action against Ramos and McHenry under § 1985(3).
Plaintiff also asserts a claim against Tele-Communications, Inc. under § 1986. Section 1986 provides a cause of action against persons who have knowledge of a § 1985 conspiracy and fail to exercise any power they might have to prevent it. Plaintiff alleges that the actions of Ramos and McHenry were done with the tacit approval or acquiescence, or with the apparent authority, of Tele-Communications, Inc. However, § 1986 has an express one-year statute of limitations. Plaintiff alleges that the events giving rise to the gun incident occurred in January 1997. Plaintiff filed the instant lawsuit on January 21, 1999, two years later.
While statute of limitations is an affirmative defense, when the dates given in the complaint make clear that the right to sue has been extinguished, plaintiff has the burden of establishing a factual basis for tolling the statute. Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980). Plaintiff argues that he brought his initial action (the Western District of Missouri case) within one year of the gun incident and that the "prompt filing . . . following the dismissal" of the Western District case renders plaintiff's claim in this action timely. As already discussed above, plaintiff did not institute this action until 4 months after the Western District case was dismissed. Plaintiff has failed to establish, or even argue, that the statute of limitations should be tolled during the pendency of the Western District case. Plaintiff's § 1986 claim against Tele-Communications is dismissed.
E. § 1985(3) Claims Against Bell, Gentry, and Wood
In Count VII, plaintiff asserts a claim under § 1985(3) against defendants Bell, Gentry, and Wood. In his amended complaint, plaintiff alleges that Bell, Gentry, and Wood had control over the terms and conditions of his employment and that the three "agreed among themselves" to treat plaintiff, or permit plaintiff's treatment, as alleged in paragraphs 3, 11, 12, 13, 14, and 15 of plaintiff's amended complaint. However, with respect to those paragraphs referenced by plaintiff, only paragraph 12 refers to these three defendants.
In any event, plaintiff's only reference to any conspiracy between Bell, Gentry, and Wood is his allegation that the three "agreed among themselves." Plaintiff cannot simply make a conclusory allegation that a conspiracy existed; rather, plaintiff must provide facts showing agreement and concerted action. Sooner v. Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983). In this case, plaintiff's allegation, without more, is insufficient to state a claim for conspiracy. Plaintiff has failed to allege any facts tending to show agreement or concerted action. The court finds that plaintiff has failed to state a claim under § 1985(3) against Bell, Gentry, and Wood. Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10th Cir. 1983) (holding that conclusory allegation of conspiracy without supporting factual averments insufficient to state claim).
F. Retaliation under Workers Compensation
Plaintiff claims that his employment was terminated in retaliation for his exercise of protected rights under the Kansas Workers Compensation Act. In response, defendants argue that plaintiff's employment was terminated because he failed to report to work.
In January 1997, plaintiff filed a claim under the Kansas Workers Compensation Act. Plaintiff apparently was injured at work in September 1996, and plaintiff further was suffering from carpel tunnel syndrome. Beginning on May 14, 1997, plaintiff was absent from work due to his injuries. On May 21, 1997, plaintiff was given the option of taking paid extended sick leave or leave under the Family Medical Leave Act (FMLA). Plaintiff chose to take extended sick leave. When plaintiff used up his paid sick leave, he was notified by certified mail that further leave would be designated as FMLA beginning July 17, 1997. Plaintiff denies that his legal status was that of being on sick leave or FMLA leave. Rather, he argues that, because he was off work due to a work related injury, he was entitled to be off work pursuant to workers compensation law. Plaintiff, however, offers no legal support for his proposition. Indeed, under the FMLA, leave may run concurrently with leave provided under workers compensation statutes. 29 C.F.R. § 825.207(d)(2). Thus, plaintiff's argument lacks merit. Moreover, defendants have provided evidence that plaintiff took, and was aware that he took, sick leave and FMLA leave.
On September 4, 1997, plaintiff began receiving temporary total disability payments under workers compensation. On September 6, 1997, plaintiff was notified that his FMLA leave would expire on October 9, 1997 and that he should return to work on that date. Plaintiff did not, however, return to work or otherwise respond to the notice. Plaintiff's employment was terminated on October 13, 1997. Plaintiff argues that the October 1997 notice was pretextual because defendants knew that plaintiff was receiving temporary total disability payments and that, as a result, his employment was illegally terminated.
As discussed above, under Kansas law, an employer may discharge an employee-at-will for good cause, no cause, or even for wrong cause without being subject to liability. Allsup v. Mount Carmel Med. Ctr., 22 Kan. App.2d 613, 617, 922 P.2d 1097, 1100 (1996). The exception to this rule is based on public policy. Accordingly, an employer may not discharge an employee in retaliation for filing a workers compensation claim, Murphy v. City of Topeka, 6 Kan. App.2d488, Syl. ¶ 7, 630 P.2d 186, 188 (1981), or for being absent or not calling in because of a work-related injury, Coleman v. Safeway Stores, Inc., 242 Kan. 804, Syl. ¶ 3, 752 P.2d 645, 645-46 (1988).
The burden rests with the plaintiff to prove that the defendant discharged him in retaliation for filing a claim under the Kansas Workers Compensation Act. Ortega v. IBP, Inc., 255 Kan. 513, 528, 874 P.2d 1118, 1198 (1994). The plaintiff can recover upon "proving that the discharge was 'based on,' 'because of,' 'motivated by' or 'due to' the employer's intent to retaliate." Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998). The plaintiff must establish his claim "by a preponderance of the evidence, but the evidence must be clear and convincing in nature." Ortega, 255 Kan. at 528, 874 P.2d at 1198. Evidence is clear if "it is certain, unambiguous, and plain to the understanding," and convincing "if it is reasonable and persuasive enough to cause the trier of fact to believe it." Id.
In analyzing state retaliatory discharge claims in Kansas, federal courts apply the burden shifting approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Sanjuan, 160 F.3d at 1298. Under the burden shifting approach, a prima facie case raises "a rebuttable presumption" of a retaliatory intent. Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994). To establish a prima facie case of retaliatory discharge under Kansas law, a plaintiff must produce evidence demonstrating: (1) that the plaintiff filed a claim for workers compensation benefits or sustained an injury for which he might assert a future claim for such benefits; (2) that the employer had knowledge of the plaintiff's compensation claim or the fact that the plaintiff had sustained a work-related injury for which he might file a future claim for benefits; (3) that the employer terminated the plaintiff's employment; and (4) that a causal connection existed between the protected activity or injury and the termination. Sanjuan, 160 F.3d at 1298.
Once the plaintiff employee establishes a prima facie case, the burden of production shifts to the defendant to rebut the presumption by offering a legitimate, non-retaliatory motive for the discharge. If rebutted, the presumption drops out of the case, and the plaintiff must carry the full burden of persuasion of proving by a preponderance of the evidence, which is clear and convincing in nature, that the defendant acted with retaliatory intent. Ingels, 42 F.3d at 621.
Defendants argue that plaintiff has failed to establish a causal connection between the filing of his workers compensation claim and the termination of his employment. Indeed, the court notes a complete lack of any evidence suggesting that defendants were motivated by a retaliatory intent. The court will assume, however, for purposes of this opinion, that plaintiff has established a prima facie case. Thus, the burden shifts to defendants to articulate a legitimate, nondiscriminatory reason for plaintiff's termination.
Defendants contend that the reason plaintiff's employment was terminated was because he did not show up for work on October 9 or otherwise respond to the October 1997 notice. In support, defendants rely on Ortega v. IBP, Inc., Civ. A. No. 92-2351-KHV, 1994 WL 373887 (D.Kan. July 1, 1994). In Ortega, the plaintiff filed a claim for workers compensation after sustaining a work-related injury. Plaintiff's doctor subsequently released the plaintiff to return to work, notified the defendant of the release, and the defendant informed the plaintiff to report to work on a date certain. The plaintiff did not, however, report to work or otherwise respond the defendant's notification. As a result, the defendant terminated her employment. The court in Ortega noted that an employer cannot fire an employee for being absent or failing to call in anticipated absences due to a work related injury. Id. at *6. But the court held that the plaintiff was not terminated for that reason, but rather was terminated because she did not show up for work or otherwise communicate with her employer. Id. The court stated that, "even if [the plaintiff] had a valid excuse for not reporting to work, she has failed to produce clear and convincing evidence that she communicated any such excuse to [the defendant]." Id.
The case at hand differs from Ortega only in that the plaintiff in Ortega had been released by her doctor to return to work. In this case, there is no evidence to suggest that plaintiff had been released to return to work. In fact, plaintiff contends that his medical restrictions had not changed from the time he began his leave to the time defendants notified him to return to work and that defendants knew he was receiving temporary total disability benefits when his employment was terminated.
Resolution of this issue may be different had defendants, with the knowledge that plaintiff was totally disabled, merely stated in its notification that plaintiff was to return to work. However, the notice plaintiff received stated that plaintiff's leave of absence would expire on October 9, 1997 and that defendant was expected to return to work on that day. The notice went on to state:
Unless, prior to the Return Date, you have applied for and received written approval of an additional leave of absence, you are required to report for work on the Return date.
If you (1) have a disability covered by the Americans With Disabilities Act and would like to discuss whether an accommodation of the disability is possible or (2) feel that you are entitled to additional leave on account of the Family Medical Leave Act or any state law, you must deliver to your Supervisor, prior to the Return Date, written notice fully explaining either (a) the nature of your disability and the accommodation requested or (b) why you qualify for leave under the Family Medical Leave Act or a state law. If your Supervisor does not receive this written notice prior to the Return Date, and if you do not report for work on the Return Date, we will assume that you have abandoned your job and your employment with the Company will be terminated.
At the time plaintiff received the notice, he was on temporary total disability. The notice simply requested that plaintiff provide documentation should he be entitled to additional leave. Plaintiff does not put forth evidence, nor does he allege, that defendants were aware that plaintiff had not yet been released for work. Indeed, this is the information defendants sought in the notice.
Moreover, the notice was explicit about the consequences of failing to respond, which required either returning to work or providing written notice that more leave was being sought. Notably, defendants did not leave plaintiff only with the option of returning to work. Were that the case, and had plaintiff failed to show up because he was disabled, the outcome may be different.
However, in this case, plaintiff failed to respond to defendants' request for information regarding whether he was seeking additional leave. Thus, in all material aspects, this case is similar to Ortega, wherein the court found dispositive the fact that, "even if [the plaintiff] had a valid excuse for not reporting to work, she has failed to produce clear and convincing evidence that she communicated any such excuse to [the defendant]." In the instant case, even if plaintiff continued to be temporarily disabled, he failed to show that he communicated any such excuse to defendants. Thus, the only reasonable inference on this record is that defendants terminated plaintiff's employment because plaintiff did not show up for work or otherwise respond to the October 1997 notice. Plaintiff's retaliation claim fails as a matter of law.
G. FMLA Claim
Plaintiff alleges that defendants violated his rights under the FMLA. Specifically, plaintiff claims that he should not have been required to use any FMLA leave while he was off work on workers compensation temporary total disability and that, in any event, defendants terminated his employment while he was on FMLA leave.
With respect to plaintiff's first contention, the court already has stated that, under the FMLA, leave may run concurrently with leave provided under workers compensation statutes. 29 C.F.R. § 825.207(d)(2). Specifically, § 825.207(d)(2) states, "If the employer designates the leave as FMLA leave in accordance with § 825.208, the employee's FMLA 12-week leave entitlement may run concurrently with a workers' compensation absence when the injury is one that meets the criteria for a serious health condition." Clearly, under this regulation, plaintiff cannot state a claim that he should not have been required to use any FMLA leave while he was covered by workers compensation.
Regarding plaintiff's second contention, that defendants terminated his employment while he was on FMLA leave, the court finds that plaintiff has failed to establish a genuine issue of material fact. It is undisputed that plaintiff began his time off work on May 14, 1997. Plaintiff was on extended paid sick leave through July 16, 1997. After plaintiff's sick leave expired, defendants notified plaintiff that his leave would be designated as FMLA leave beginning on July 17, 1997. In September 1997, defendants notified plaintiff that his leave would expire on October 9, 1997 and that he needed to return to work or provide documentation to receive further leave. Plaintiff did not return to work or otherwise respond to the notice.
Plaintiff denies that his legal status was that of being on FMLA leave because, he contends, he was off work due to a work-related injury and thus entitled to workers compensation. However, the court already concluded that FMLA leave may run concurrently with workers compensation leave. Moreover, plaintiff does not deny that he was notified that his leave would be designated as FMLA leave beginning on July 17, 1997, nor does he deny that defendants indeed processed the proper paperwork to place him on FMLA leave.
Under the FMLA, an eligible employee is entitled to twelve weeks of leave over any period of twelve months. 29 U.S.C. § 2612(a)(1). In the present case, plaintiff's FMLA leave began on July 17, 1997, and plaintiff was notified that his leave would end on October 9, 1997, exactly twelve weeks later. Thus, defendants did not, as plaintiff contends, terminate him while he was on FMLA leave, nor did defendants fail to offer plaintiff a full twelve weeks of FMLA leave. Rather, plaintiff's employment was terminated only after he failed to show up for work or otherwise respond to the notice, which was, in turn, only after he was afforded twelve weeks of FMLA leave. Viewing the evidence in the light most favorable to plaintiff, the court finds that plaintiff has failed to create a genuine issue of fact on his FMLA claim.
H. Proper Parties
At this juncture, plaintiff's remaining claims are as follows: § 1981 claim for hostile work environment against TCI defendants; § 1981 claim for retaliation against Tele-Communications, Inc.; false representation claim against TCI defendants; § 1985(3) claim against McHenry and Ramos; outrage claim against Tele-Communications, Inc., McHenry and Ramos; § 1981 claim against Bell, Gentry and Wood; and a successor liability claim against Time Warner, Inc. and ATT.
Plaintiff alleges that the TCI defendants, which include TCI Holdings, Inc.; TCI Communications, Inc.; Tele-Communications, Inc.; Telecommunications, Inc.; TCI Central, Inc.; and TCI of Overland Park, Inc., employed plaintiff. Defendants respond by arguing that TCI of Overland Park, Inc. was the only entity which employed plaintiff. To survive summary judgment on plaintiff's § 1981 claim against the TCI defendants, plaintiff must bring forth evidence that he was employed by or had a contractual relationship with each defendant. Plaintiff asserts that he commenced work with TCI of Overland Park, Inc., but that he was later employed by the TCI defendants after the acquisition of TCI of Overland Park, Inc.
1. Tele-Communications, Inc. and TCI Communications, Inc.
Tele-Communications, Inc. is a Delaware corporation with its principal place of business in Colorado. TCI of Overland Park, Inc. is a Kansas corporation and a wholly-owned subsidiary of Tele-Communications, Inc. In 1995, TCI of Overland Park, Inc. was acquired by a subsidiary of Tele-Communications, Inc.
TCI of Overland Park, Inc. was formally Telecable of Overland Park, Inc.
Defendants present evidence that Tele-Communications, Inc. maintains its own separate books, corporate records, and in every other way observes the formalities of a corporation independent from TCI of Overland Park, Inc. and that Tele-Communications, Inc. does not conduct day-to-day management, nor is it involved in the conduct of the day-to-day labor and employment relation matters, of TCI of Overland Park, Inc. In response, plaintiff submits as evidence his previous payroll stubs, which came from Colorado and which indicated either Tele-Communications, Inc. or TCI Communications, Inc. as plaintiff's employer. Plaintiff also submits medical insurance forms, disability insurance forms, and retirement benefits forms, all of which refer to Tele-Communications, Inc. or TCI Communications, Inc. as being plaintiff's employer. As such, plaintiff has presented evidence sufficient to withstand summary judgment on defendant's contention that Tele-Communications, Inc. and TCI Communications, Inc. did not employ plaintiff. Plaintiff may, at this juncture, pursue his federal and state claims against these defendants.
Plaintiff also has named Telecommunications, Inc. (to be distinguished from Tele-Communications, Inc.) in this lawsuit. Defendants contend by affidavit that there is no entity known as "Telecommunications, Inc." and further state that presumably, Telecommunications, Inc. refers to Tele-Communications, Inc. Having presented no evidence to the contrary, plaintiff has failed to establish that there is a corporate entity named "Telecommunications, Inc."
2. TCI Holdings, Inc. and TCI Central, Inc.
Plaintiff has failed to put forth any evidence that he was employed by or had a contractual relationship with TCI Holdings, Inc. and TCI Central, Inc. Defendants present evidence that TCI Holdings, Inc. and TCI Central, Inc. are separate corporate entities from TCI of Overland Park, Inc.; that each maintains its own separate books, corporate records, and in every other way observes the formalities of an independent corporation; that Tele-Communications, Inc. does not conduct the day-to-day management of these entities; that TCI Holdings, Inc. and TCI Central, Inc. do not conduct the day-to-day management of TCI of Overland Park, Inc.; that TCI Holdings, Inc. and TCI Central, Inc. do not and have not conducted the day-to-day labor and employment matters of TCI of Overland Park, Inc.
In response, plaintiff presents no evidence that TCI Holdings, Inc. and TCI Central, Inc. were his employers. Plaintiff fails to controvert that TCI Holdings, Inc. and TCI Central, Inc. are merely related, but separate, corporate entities. Under § 1981, plaintiff cannot pursue a claim against those with whom he shared no contractual relationship. Accordingly, TCI Holdings, Inc. and TCI Central, Inc. are dismissed from this case.
3. ATT
Plaintiff claims that ATT is liable under the doctrine of successor liability. Defendants present evidence that in March 1999, Tele-Communications, Inc. merged with and its assets became a part of Italy Merger Corp., a wholly owned subsidiary of ATT. Tele-Communications, Inc. was the surviving entity. Since March 1999, Tele-Communications, Inc. has conducted its business operations as an operating subsidiary of ATT, its corporate parent. Defendants contend that Tele-Communications, Inc. is still a valid, active, and well-capitalized corporation and that ATT is not involved in the day-to-day management decisions of Tele-Communications, Inc.
Based upon this evidence, defendants correctly argue that ATT is not the "successor" of Tele-Communications, Inc. or, for that matter, any other TCI entity. Rather, Tele-Communications, Inc. still exists, and ATT merely operates as a parent corporation. Plaintiff presents no contradictory evidence. Moreover, plaintiff does not bring forth evidence that he had a direct employment or contractual relationship with ATT. Accordingly, plaintiff's § 1981 claims against ATT are dismissed.
With regard to plaintiff's state law claims against ATT, the inquiry under Kansas law is whether the parent corporation is the alter ego of its subsidiary. "'The ultimate test for imposing alter ego status is whether, from all of the facts and circumstances, it is apparent that the relationship between the parent and the subsidiary is so intimate, the parent's control over the subsidiary is so dominating, and the business and assets of the two are so mingled that recognition of the subsidiary as a distinct entity would result in an injustice to third parties.'" Schmitt v. Beverly Health and Rehab. Servs., Inc., 993 F. Supp. 1354, 1360 (D.Kan. 1998) (citing Doughty v. CSX Transp., Inc., 258 Kan. 493, 500, 905 P.2d 106, 111 (1995)). In the case at hand, defendants have presented evidence that ATT maintains separate books and finances, ATT has a separate board of directors, and that ATT is not involved in the day-to-day operations of Tele-Communications, Inc. Plaintiff has presented no evidence to the contrary. As such, the court finds that Tele-Communications, Inc. is not, nor was it ever, the alter ego of ATT. Plaintiff's state law claims against ATT are also dismissed.
4. Time Warner, Inc.
Plaintiff also contends that Time Warner, Inc. is liable under the doctrine of successor liability. Defendants present evidence that, in August 1998, the assets of TCI Overland Park, Inc. were contributed to Kansas City Cable Partners in exchange for an interest in the partnership. Kansas City Cable Partners is a Colorado general partnership doing business as Time Warner Cable in Kansas and Missouri. Kansas City Cable Partners is a partnership between TCI Communications, Inc. and Time Warner Entertainment, L.P. Time Warner, Inc. indirectly owns a share of Time Warner Entertainment, L.P., a Delaware limited partnership. TCI of Overland Park, Inc. is not a subsidiary of Time Warner, Inc. Further, Time Warner, Inc. has its own corporate board and corporate officers separate from TCI of Overland Park, Inc., and Time Warner, Inc. does not conduct, nor is it involved in, the day-to-day management of TCI of Overland Park, Inc.
TCI of Overland Park, Inc. is a wholly owned subsidiary corporation of Tele-Communications, Inc.
Plaintiff brings forth no evidence to contradict defendants' assertion that Time Warner, Inc. is not a successor to TCI of Overland Park, Inc. or any other TCI defendant. Rather, both Time Warner, Inc. and TCI of Overland Park, Inc. merely own an interest in Kansas City Cable Partners. Furthermore, plaintiff fails to offer evidence that he had a direct employment or contractual relationship with Time Warner, Inc. Plaintiff's § 1981 claims against Time Warner, Inc. are dismissed.
Plaintiff's state law claims against Time Warner, Inc. also fail for the same reasons discussed above. Defendants have presented evidence that Time Warner, Inc. maintains separate books and finances, has a separate board of directors, and is not involved in the day-to-day operations of TCI of Overland Park, Inc. Plaintiff has presented no evidence to the contrary. The court finds that TCI of Overland Park, Inc. is not, nor was it ever, the alter ego of Time Warner, Inc. Plaintiff's state law claims against Time Warner, Inc. are dismissed.
III. Conclusion
As a result of the foregoing, the claims remaining against the moving defendants in this lawsuit are as follows: § 1981 claim for hostile work environment against Tele-Communications, Inc., TCI of Overland Park, Inc., and TCI Communications, Inc. (Counts I and IX); § 1981 claim for retaliation against Tele-Communications, Inc. (Counts II and III); false representation claim against Tele-Communications, Inc., TCI of Overland Park, Inc., and TCI Communications, Inc. (Count IV); § 1985(3) claim against McHenry and Ramos (Count V); outrage claim against Tele-Communications, Inc., McHenry and Ramos (Count V); and a § 1981 claim against Bell, Gentry and Wood (Count VII). Counts VI, VIII, and X are dismissed in their entirety.
IT IS THEREFORE ORDERED that defendant ATT Corp.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 13) is granted; defendant TCI of Overland. Inc.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 15) is granted in part and denied in part; defendants TCI Holdings, Inc., TCI Communications, Inc., Telecommunications, Inc. and TCI Central, Inc.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 17) is granted in part and denied in part; defendant Time Warner, Inc.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 19) is granted; defendant Tele-Communications, Inc.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 21) is granted in part and denied in part; defendants Dimitri Ramos, Jim Bell, Clyde Gentry and Tildon Wood's motion to dismiss or, in the alternative, motion for summary judgment (Doc. 23) is granted in part and denied in part; defendants Dimitri Ramos, Jim Bell, Clyde Gentry, Tildon Wood, TCI Holdings, Inc., TCI Communications, Inc., Tele-Communications, Inc., Telecommunications, Inc., TCI Central, Inc., TCI of Overland Park, Inc., Time Warner, Inc. and ATT Corp.'s motion to dismiss or, in the alternative, motion for summary judgment (Doc. 54) is granted in part and denied in part; and plaintiff's motion for leave to file supplemental suggestions in opposition to defendants' motions to dismiss or, in the alternative, motions for summary judgment (Doc. 70) is granted.