Opinion
Civil Action No. 99-2466-GTV
November 9, 2000
MEMORANDUM AND ORDER
Plaintiff Germent Palton brings this action alleging that he was falsely arrested and falsely imprisoned by defendant, discriminated against based on his race and his disability, and retaliated against for having engaged in protected activity. This matter is before the court on defendant's motion to dismiss all of plaintiff's claims except the claim for race discrimination (Doc. 22). For the reasons set forth below, defendant's motion to dismiss is granted.
In light plaintiff's amended complaint, defendant's motion to dismiss plaintiff's original complaint (Doc. 7) is denied as moot.
I. MOTION TO DISMISS
Defendant moves to dismiss Counts I, III, and IV of plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state claims upon which relief can be granted.
A Rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling him to relief under his theory of recovery. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "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). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. See id.; Fed.R.Civ.P. 8(f). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Harlow v. Fiztgerald, 457 U.S. 800 (1982).
A. False Imprisonment/False Arrest
In Count I of his complaint, plaintiff alleges he was falsely arrested as a result of defendant's plant manager calling the police subsequent to an altercation in the workplace. Defendant argues that plaintiff has failed to allege sufficient facts to support such a claim. The court agrees with defendant and concludes that Count I fails to state a claim upon which relief can be granted.
One seeking to recover for false arrest must prove he was unlawfully caused to be arrested by the defendant, and though it is not necessary that the arrest be directly ordered by the defendant, "it must appear that the defendant either instigated it, assisted in it, or by some means directed, countenanced or encouraged it." See Wright v. Montgomery Ward Co., 814 F. Supp. 986, 989 (D.Kan. 1993) (quoting Thompson v. General Fin. Co., 468 P.2d 269, 280 (Kan. 1970)). Plaintiff, however, merely alleges that the plant manager of the defendant called the police. No additional factual information is provided by plaintiff to suggest that defendant instigated, assisted in, or encouraged the actual arrest. The Kansas Supreme Court has held that a defendant cannot be liable for false arrest by turning over to the authorities its knowledge of a suspected offense where the officer then makes an arrest on the officer's own judgment and discretion. See Wright, 814 F. Supp. at 989 (citing Thurman v. Cundiff, 580 P.2d 893, 898 (Kan.Ct.App. 1978)). Plaintiff has failed to state a claim upon which relief can be granted, and the court dismisses Count I of plaintiff's complaint.
B. Disability Discrimination
In Count III of his complaint, plaintiff alleges a claim of disability discrimination under the Americans with Disabilities Act (ADA), pursuant to 42 U.S.C. § 12111 et seq., when his employment with defendant was terminated. Defendant argues that plaintiff has not exhausted his administrative remedies under the ADA, thus preventing this court from obtaining jurisdiction. The court agrees with defendant and concludes that Count III fails to state a claim upon which relief can be granted.
The Americans with Disabilities Act incorporates the procedures of Title VII, including procedures relating to administrative remedies. See 42 U.S.C. § 12117(a); Schmitt v. Beverly Health Rehabilitation Servs., 962 F. Supp. 1379, 1383 (D.Kan. 1997). Exhaustion of administrative remedies is a jurisdictional prerequisite to filing suit under the Americans with Disabilities Act. See Martin v. State of Kansas, 978 F. Supp. 992, 998 (D.Kan. 1997) (citing Jones v. Runyon, 91 F.3d 1398, 1399, 1399 n. 1 (10th Cir. 1996) (Title VII action)). This includes a requirement that a claimant must receive a right-to-sue notice before bringing a civil action. See Schmitt, 962 F. Supp at 1383.
In exhausting his administrative remedies, a claimant must file a charge with the appropriate administrative agency, which at a minimum must be a "written statement [from the person making the charge] sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1601.12(b). In plaintiff's amended charge to the Kansas Human Rights Commission, however, he merely placed an "X" in the box alleging discrimination based on disability. Plaintiff's charge is devoid of any description of the action or practices complained of.
This issue was addressed by this court in Jones v. Roadway Express, Inc., No. 99-2198-GTV, 2000 WL 1114968 (D.Kan. July 17, 2000) in the context of an Intake Questionnaire. In Jones, the Intake Questionnaire provided nothing more than the names and addresses of the parties involved, and a box with an "X" in it indicating that plaintiff believed he had been discriminated against. See id. at *3. The court determined the Questionnaire was so limited in information that it could not be considered a substitute for an adequate charge, noting the critical absence of any description of the action or practices complained of. See id.
In the instant case, plaintiff's amended charge lacks any description of the action or practices complained of. The charge therefore fails to meet the statutory minimum set forth in 29 C.F.R. § 1601.12(b). As a matter of law, plaintiff has failed to exhaust his administrative remedies related to his claim under the ADA. This court is thus precluded from asserting jurisdiction over this issue. Accordingly, plaintiff has failed to state a claim upon which relief can be grated. The court dismisses Count III of plaintiff's complaint.
C. Retaliation
In Count IV of his complaint, plaintiff alleges that defendant retaliated against him after he engaged in legally protected activity — specifically the filing and winning of a grievance according to a collective bargaining agreement. Defendant argues that retaliation for exercising rights under a collective bargaining agreement constitutes an unfair labor practice. As a result, a claim alleging retaliation is pre-empted by the National Labor Relations Act and falls within the exclusive jurisdiction of the National Labor Relations Board. The court agrees with defendant and concludes that Count IV fails to state a claim upon which relief can be granted.
Section 8 of the National Labor Relations Act, as codified at 29 U.S.C. § 158, provides that "[i]t shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title. . . ." 29 U.S.C. § 158(1). Among the rights guaranteed in section 7 of the N.L.R.A., codified at 29 U.S.C. § 157, is the right of employees to engage in protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. 29 U.S.C. § 157. Filing grievances pursuant to a collective bargaining agreement constitutes protected concerted union activity within the meaning of § 7 of the National Labor Relations Act. See National Labor Relations Board v. United States Postal Service, 906 F.2d 482, 486 (10th Cir. 1990) (citing NLRB v. City Disposal Sys., 465 U.S. 822, 836 (1984)). As a general rule, neither state nor federal courts have jurisdiction over suits directly involving activity that is arguably subject to § 7 or § 8 of the National Labor Relations Act. Vaca v. Sipes, 386 U.S. 171, 180 (1966). Rather, "when an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board." See Paper, Allied, Chemical Energy Workers Intern. Union, Local 5-508 AFL — CIO v. Slurry Explosive Corp., 107 F. Supp.2d 1311, 1329 (D.Kan. 2000) (quoting San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 245 (1959)). Thus, the jurisdiction of this court is preempted by the exclusive jurisdiction of the NLRB. Accordingly, plaintiff has failed to state a claim upon which relief can be granted, and the court, therefore, dismisses Count IV of plaintiff's complaint.
IT IS THEREFORE, BY THE COURT ORDERED that defendant's motion to dismiss plaintiff's original complaint (Doc. 7) is denied as moot.
IT IS FURTHER ORDERED that defendant's motion to dismiss Counts I, III, and IV of plaintiff's amended complaint (Doc. 22) is granted. Only plaintiff's § 1981 race discrimination claim remains.
Copies of this order shall be mailed to counsel of record for the parties.
IT IS SO ORDERED.