Opinion
No. 01-4065-SAC.
January 14, 2002
MEMORANDUM AND ORDER
The case comes before the court on the defendant William Minner's motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dk. 5). This is an employment discrimination case brought under the civil rights statutes of 42 U.S.C. § 1981 and 1983. The plaintiff worked as a special investigator with the Kansas Humans Rights Commission ("KHRC") from 1992 until his termination in July of 1999. The plaintiff alleges he opposed unlawful discrimination observed during his employment, suffered retaliation for his protected opposition, endured disparate terms and conditions of employment because of his race, was subjected to a hostile work environment "because of his Mexican ancestry," and was constructively discharged as a result of "adverse disparate treatment" and "intolerable working conditions." (Dk. 1). The plaintiff further alleges that the defendant William Minner, as the executive director of the KHRC, is "responsible for the adverse employment action and intentional discrimination against" him. Id.
The defendant Minner seeks dismissal asserting qualified immunity, legal flaws in bringing such actions, and pleading deficiencies. The plaintiff timely filed his response opposing the defendant's motion and requesting an opportunity to amend his complaint should the court find any pleading deficiencies. The defendant Minner filed a reply brief, but he missed the deadline by six days and did not request any extension of time. In addition, the defendant chose to raise at least two new issues in his reply brief that were not addressed in the original motion and memorandum. Generally, a party is prohibited from raising new arguments and issues in a reply brief. Boilermaker-Blacksmith Nat. Pension v. Gendron, 67 F. Supp.2d 1250, 1257 n. 4 (D.Kan. 1999); John Deere Health Benefit Plan. v. Chubb, 45 F. Supp.2d 1131, 1140 (D.Kan. 1999). A court is not to consider issues first raised in a reply brief. Plotner v. AT T Corp., 224 F.3d 1161, 1175 (10th Cir. 2000). The court shall not consider the defendant's reply brief, because it was not timely filed and contains new issues.
RULE 12(B)(6) STANDARDS
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993); see Hospice of Metro Denver, Inc. v. Group Health Ins. of Oklahoma, Inc., 944 F.2d 752, 753 (10th Cir. 1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted)). All well-pleaded factual allegations in the complaint must be accepted as true, see Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir. 1992), and viewed in the light most favorable to the nonmoving party, Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472 (10th Cir. 1990) ("Under Rule 12(b)(6), dismissal is inappropriate unless plaintiff can prove no set of facts in support of his claim to entitle him to relief."). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted).
Although plaintiff need not precisely state each element of its claims, it must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Put another way, "'conclusory allegations without supporting allegations are insufficient to state a claim.'" Erikson v. Pawnee County Bd. of County Com'rs, 263 F.3d 1151, 1154 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110). "[A]llegations of conclusions or opinions are not sufficient when no facts are alleged by way of the statement of the claim." Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir. 1977); see Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990) (district court is not required to accept "footless conclusions of law" in deciding motion to dismiss). "'It is true that the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. Nevertheless, a plaintiff must allege sufficient facts to outline a cause of action, proof of which is essential to recovery.'" Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir. 1997) (quoting Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047 (1986)).
QUALIFIED IMMUNITY
The defendant Minner generally argues that he is entitled to qualified immunity and that the plaintiff has not alleged with particularity the facts and law showing the defendant violated a clearly established constitutional right held by the plaintiff. Under this section of his brief, the defendant summarizes the relevant law from the Supreme Court and the Tenth Circuit and then merely refers to his arguments advanced in later sections, specifically, that the plaintiff has not alleged any constitutional violation, that plaintiff has erroneously relied on § 1981, that the plaintiff has brought this action in an effort to avoid the administrative exhaustion requirements of Title VII, and that the plaintiff has not alleged a constitutional violation sufficient to sustain a § 1983 claim.
"'[O]fficials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Johnson v. Fankell, 520 U.S. 911, 914-15 (1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This defense shields officials from "the burdens of broad-ranging discovery," Harlow, 457 U.S. at 818, when dismissal on the pleadings is appropriate, and from the burdens of trial as well as liability "when evidence fails to uncover evidence sufficient to create a genuine issue," Johnson, 520 U.S. at 915.
Once a defendant asserts a defense of qualified immunity, the "court must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999) (citations omitted). The issue of "whether the plaintiff has asserted a violation of a constitutional right at all" is a "purely legal question." Siegert v. Gilley, 500 U.S. 226, 232, (1991). If the complaint states a cognizable federal claim, the court should proceed to examine whether the right was clearly established at the time of the challenged conduct. This is also a question of law. See, e.g., Harlow v. Fitzgerald, 457 U.S. at 818 (district court may appropriately determine on summary judgment "not only the currently applicable law, but whether that law was clearly established at the time an action occurred"). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992).
"If the defendant's conduct as alleged by the plaintiff does not violate the law, we need not reach the issue of whether the law was clearly established." Clanton v. Cooper, 129 F.3d 1147, 1153-54 (10th Cir. 1997) (citation omitted).
"In the context of a 12(b)(6) motion to dismiss, . . . the qualified immunity defense is limited to the pleadings," and "the allegations in the complaint and any reasonable inferences . . . from them" are drawn in favor of the plaintiff. Dill v. City of Edmond, Okla., 155 F.3d 1193, 1203-04 (10th Cir. 1998). In the past, the Tenth Circuit has required a plaintiff to meet a heightened pleading standard upon a defendant's assertion of qualified immunity. Currier v. Doran, 242 F.3d 905, 911 (10th Cir.), cert. denied, 122 S.Ct. 543 (2000). The Tenth Circuit in Currier held, however, that this heightened pleading requirement does not survive the Supreme Court's opinion in Crawford-El v. Britton, 523 U.S. 574 (1998). 242 F.3d at 916. While accepting that its review is now limited to the customary 12(b)(6) standards, the Tenth Circuit observed that the Supreme Court recognized a trial judge's discretion to "require a plaintiff to plead 'specific, nonconclusory factual allegations' to survive a prediscovery motion for dismissal." 242 F.3d at 916 (quoting Crawford-El, 523 U.S. at 598). When faced with this requirement, the plaintiff "may amend his complaint to include additional 'specific, non-conclusory allegations of fact' sufficient to allow the district court to determine whether Defendants are entitled to qualified immunity." Dill v. City of Edmond, Okla., 155 F.3d at 1204.
The Supreme Court more fully explained that prior to permitting discovery on a claim against a public official involving proof of a wrongful motive, the trial judge had two options with the first being:
First, the court may order a reply to the defendant's or a third party's answer under Federal Rule of Civil Procedure 7(a), or grant the defendant's motion for a more definite statement under Rule 12(e). Thus, the court may insist that the plaintiff 'put forward specific nonconclusory factual allegations' that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment. (citation omitted).523 U.S. at 598.
The plaintiff's complaint lacks well-pleaded factual allegations and relies principally on allegations of conclusions or opinions. The complaint does not plainly and directly identify the constitutional right allegedly violated. It does allege "unlawful racial discrimination" in the terms and conditions of employment. "Racial and national origin discrimination can violate the Fourteenth Amendment right to equal protection of the law and state a cause of action under 42 U.S.C. § 1983." Ramirez v. Department of Corrections, Colo., 222 F.3d 1238, 1243 (10th Cir. 2000) (citing Poolaw v. City of Anadarko, Okla., 660 F.2d 459, 462 (10th Cir. 1981). The most specific allegation in the complaint is that the defendant "created barriers to advancement and continued employment of Plaintiff by failing to equalize, privileges and other terms and conditions of employment for Plaintiff, as contrasted with similarly situated African American employees." (Dk. 1, ¶ 16). Like the other allegations in the plaintiff's complaint, this is little more than a bare conclusion or opinion. It cannot withstand a qualified immunity defense without supporting allegations of fact. In his response, the plaintiff seeks leave to file an amended pleading to supply the factual detail needed to support his claim. The court gives the plaintiff twenty days from the filing date of this order to file an amended complaint that includes specific, non-conclusory, factual allegations in support of his equal protection claim. The court denies the defendant's motion for dismissal on qualified immunity grounds without prejudice to a similar motion being advanced after the plaintiff's filing of an amended complaint.
42 U.S.C. § 1981The defendant argues the plaintiff's allegations regarding discrimination during the course of his employment are not actionable under § 1981 as they do not involve the "formation of a contract." This argument entirely ignores The Civil Rights Act of 1991, Pub.L. No. 102-166 § 2, which amended 42 U.S.C. § 1981 adding the prohibition against discrimination in the "performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." See Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1532 n. 11 (10th Cir. 1995). Thus, claims of racial discrimination concerning the terms and conditions of employment are actionable under § 1981. See Witt v. Roadway Exp., 136 F.3d 1424, 1432-33 (10th Cir.), cert. denied, 525 U.S. 881 (1998). Moreover, a plaintiff need not plead and prove for a § 1981 claim a factual basis independent of a Title VII claim. Heno v. Sprint/United Management Co., 208 F.3d 847, 858-59 (10th Cir. 2000); see Ellis v. University of Kansas Medical Center, 163 F.3d 1186, 11297 (10th Cir. 1998) (§ 1981 provides the substantive right against racial discrimination in employment). The defendant's motion to dismiss the § 1981 claim is denied.
42 U.S.C. § 1983The defendant makes the general argument that the plaintiff cannot use § 1983 to avoid the exhaustion of administrative remedy requirement found in Title VII. "Section 1983 itself does not create any substantive rights, but merely provides relief against those who, acting under color of law, violate federal rights created elsewhere." Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d at 1536 (citation omitted). Consequently, "'a right created solely under Title VII cannot serve as the basis for an independent remedy under Section 1983.'" Seamons v. Snow, 84 F.3d 1226, 1234 n. 8 (10th Cir. 1996) (quoting Starrett v. Wadley, 876 F.2d 808, 813-14 (10th Cir. 1989)). As stated above, discrimination on the basis of national origin can violate the right to equal protection and serve as the basis for a § 1983 action. Ramirez, 222 F.3d at 1243. An equal protection claim under § 1983 for racial discrimination can be brought even though the same set of facts could or do support a Title VII claim:
Thus, under Drake [ v. City of Fort Collins, 927 F.2d 1156 (10th Cir. 1991)], the basis for a § 1983 claim is "independent" from Title VII when it rests on substantive rights provisions outside Title VII — that is, when it rests on a constitutional right or a federal statutory right other than those created by Title VII. We emphasize that the basis of a § 1983 claim may be independent of Title VII even if the claims arise from the same factual allegations and even if the conduct alleged in the § 1983 claim also violates Title VII. For example, a § 1983 claim of racial discrimination is independent of a statutory disparate treatment claim arising out of the same set of facts because the § 1983 claim is substantively grounded in the Equal Protection Clause of the Fourteenth Amendment, whereas the disparate treatment claim flows from Title VII. Because the substantive legal standards that govern these claims emanate from different sources, as long as the substantive legal bases for the claims are distinct, our "independence" requirement is satisfied and Title VII does not foreclose an employment discrimination plaintiff's § 1983 claim.
Notari v. Denver Water Dept., 971 F.2d 585, 587 (10th Cir. 1992). As alleged, the defendant acting under color of state law intentionally discriminated against the plaintiff on the basis of his national origin in violation of his rights secured by the Equal Protection Clause of the Fourteenth Amendment. For those § 1983 claims alleging discrimination in the terms and conditions of employment on the basis of national origin or race, the substantive legal bases are distinct from Title VII, and only those § 1983 claims that rely on Title VII provisions are foreclosed. See Notari, 971 F.2d at 588.
A plaintiff may not bring a § 1983 claim based on "the right to be free from retaliatory . . . [conduct] created by Title VII." Starrett v. Wadley, 876 F.2d at 817 n. 12. Indeed, "no court has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination." Sims v. Unified Government of Wyandotte County, 120 F. Supp.2d 938, 959 (D.Kan. 2000). The Tenth Circuit in Long v. Laramie County Community College Dist., 840 F.2d 743, 752 (10th Cir.), cert. denied, 488 U.S. 825 (1988), held that a plaintiff alleging an employer's retaliation following complaints of sexual harassment could not bring "such a theory of liability for retaliatory conduct . . . within § 1983." (citation omitted). Consequently, the plaintiff is unable to pursue a § 1983 claim for retaliatory conduct taken against him for opposing, reporting or complaining about unlawful race discrimination.
The defendant summarily argues that the plaintiff is unable to pursue his constructive discharge claim under § 1983 as he has not exhausted his administrative remedies under the Kansas Civil Service statutes. The court rejects the argument that the plaintiff's failure to appeal his discharge to the Kansas Civil Service Board precludes his equal protection claim. "It is beyond dispute that a plaintiff need not exhaust state administrative remedies before filing suit in federal court under § 1983." Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 519 (10th Cir. 1998) (citing Patsy v. Board of Regents, 457 U.S. 496, 516 (1982)).
PLEADING § 1983 CLAIMS
The defendant rightly challenges the sufficiency of the plaintiff's factual allegations. As the court discussed above, the plaintiff's complaint is best characterized as naked assertions of conclusions and opinions with little or no supporting factual allegations. The court concurs with the defendant that the plaintiff's complaint lacks the minimal factual allegations needed to provide fair notice of the claims being asserted and the grounds on which they are brought. For example, the plaintiff's complaint fails to allege facts showing the required affirmative link between the defendant's conduct and the constitutional violation. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1156-57 (10th Cir. 2001). The conclusory allegation that the defendant "is responsible for" the discrimination is not sufficient. Another example is that "Defendant subjected Plaintiff to retaliation and disparate terms and conditions of employment on a continuous basis." (Dk. 1, ¶ 12). This is plainly a footless conclusion. Finally, the plaintiff's allegations of a hostile work environment and constructive discharge are deficient in pleading facts in support of such claims.
Under Rule 12(b)(6), the court typically does not dismiss a claim until the plaintiff has been afforded notice and an opportunity to amend the complaint to cure the defective allegations. Land v. Midwest Office Technology, Inc., 979 F. Supp. 1344, 1349 (D.Kan. 1997); see Hall v. Bellmon, 935 F.2d at 1109-10. A court "'may dismiss sua sponte when it is patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.'" Id. (quoting Hall, 935 F.3d at 1110). Unable to say with any certainty whether the plaintiff will be able to cure these pleading deficiencies, the court will permit the plaintiff an opportunity to amend his complaint and file the same within twenty days of the filing date of this order.
IT IS THEREFORE ORDERED that the defendant's motion to dismiss (Dk. 5) is granted with respect to a § 1983 claim based on the right to be free from retaliatory conduct created by Title VII, is denied without prejudice as to the defendant's defense of qualified immunity and his challenges to the sufficiency of the pleadings and the plaintiff shall have twenty days from the filing date of this order to file an amended complaint addressing the pleading deficiencies discussed in the body of this order, and is denied as to the defendant's other legal challenges to the plaintiff's §§ 1981 and 1983 claims.