Opinion
Case No. 22-CV-0009-SWS
2022-05-26
Jamin JOHNSON, Plaintiff, v. Christian HANDLEY, in his individual capacity, Defendants.
Qusair Mohamedbhai, Felipe Bohnet-Gomez, Pro Hac Vice, Omeed Marco Azmoudeh, Pro Hac Vice, Rathod Mohamedbhai LLC, Denver, CO, for Plaintiff. Debra Lynne Hulett, Pro Hac Vice, Mark A. Klaassen, Wyoming Attorney General's Office, Cheyenne, WY, Timothy W. Miller, Wyoming Attorney General's Office, Casper, WY, for Defendants.
Qusair Mohamedbhai, Felipe Bohnet-Gomez, Pro Hac Vice, Omeed Marco Azmoudeh, Pro Hac Vice, Rathod Mohamedbhai LLC, Denver, CO, for Plaintiff.
Debra Lynne Hulett, Pro Hac Vice, Mark A. Klaassen, Wyoming Attorney General's Office, Cheyenne, WY, Timothy W. Miller, Wyoming Attorney General's Office, Casper, WY, for Defendants.
ORDER DENYING 12(b)(6) DISMISSAL OF PLAINTIFF'S HOSTILE-WORK-ENVIRONMENT CLAIM
Scott W. Skavdahl, United States District Judge
This matter comes before the Court on Defendant's Partial Motion to Dismiss Amended Complaint and supporting memorandum (Docs. 20, 21), Plaintiff's opposition (Doc. 23), and Defendant's reply (Doc. 24). Having considered the parties’ arguments, reviewed the record herein, and being otherwise fully advised, the Court finds and concludes dismissal of Plaintiff's cause of action for hostile work environment (First Claim for Relief) is not warranted under Fed. R. Civ. P. 12(b)(6).
12(b)(6) STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a party to seek dismissal based on the opposing party's "failure to state a claim upon which relief can be granted." "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
To overcome a Rule 12(b)(6) motion to dismiss, a complaint's (or counterclaim's) well-pled factual allegations, assumed to be true, must "raise a right to relief above the speculative level" and must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court accepts the nonmoving party's well-pled factual allegations as true and construes them in the light most favorable to the nonmoving party, but it does not accept asserted legal conclusions as true. Hall v. Bellmon , 935 F.2d 1106, 1109 (10th Cir. 1991) ; Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
FIRST AMENDED COMPLAINT'S ALLEGATIONS
Plaintiff Jamin Johnson's operative amended complaint sets forth the following relevant factual allegations:
Plaintiff Jamin Johnson worked as a deputy sheriff for the Albany County Sheriff's Office (ACSO) in Laramie, Wyoming, from 2007 to August 2017. (Am. Compl. ¶ 1.) Defendant Christian Handley was hired in 2011 and worked alongside Mr. Johnson as a co-worker and later as his supervisor. (Id. ¶¶ 18, 19, 22, 26.) Defendant made repeated racist and derogatory comments to Mr. Johnson about him and other Black people for the next six years. (Id. ¶¶ 19, 20, 24, 28-34.) The last of Defendant's race-based pejorative remarks to Mr. Johnson occurred "around" June 2017. (Id. ¶¶ 28, 33.)
In 2017, Defendant was promoted to Patrol Sergeant and "the hostile work environment that had included a steady barrage of dehumanizing comments and race-based harassment transformed into a sham disciplinary process designed to target Mr. Johnson and force him out of the ACSO." (Am. Compl. ¶ 39.) Defendant instituted disciplinary charges against Mr. Johnson in February and March of 2017. (Id. ¶¶ 40-46.) Then in July 2017, Defendant prepared three "sham disciplinary actions against Mr. Johnson in rapid succession." (Id. ¶ 47.) The first, issued on or about July 11, 2017, accused Mr. Johnson of being untruthful about statements made during a traffic stop and of lying to his supervisor. (Id. ¶¶ 49-50.) Defendant issued the second on or about July 17, 2017, accusing Mr. Johnson of being untruthful in a phone call with an assistant county attorney while on the scene of an investigation. (Id. ¶¶ 51-55.) Mr. Johnson was out on vacation when Defendant issued the second disciplinary action and was not due back to work until after July 29, 2017. (Id. ¶ 58.) Defendant informed the sheriff of the pending disciplinary actions, and the sheriff instructed Defendant to have Mr. Johnson come in the next day (July 20, 2017) for a meeting while not knowing Mr. Johnson was on vacation. (Id. ¶¶ 59-62.)
64. First, [Defendant] called Mr. Johnson and simply said the sheriff had requested
a meeting with him the following day. Mr. Johnson told [Defendant] that he would have to call him back, because he was on vacation and was currently the primary caretaker of his children and needed to arrange childcare.
65. Later on July 19, 2017, Mr. Johnson called [Defendant] back and told him he'd rearranged his schedule and could meet the next day.
66. Mr. Johnson then asked [Defendant] what the meeting was about.
67. Only then did [Defendant] tell Mr. Johnson that the meeting was about another disciplinary action.
68. Mr. Johnson expressed his frustration at the unfounded nature of [Defendant's] disciplinary actions, asked [Defendant] "why do you keep coming after me at every turn?"
69. [Defendant] became enraged, told Mr. Johnson "never mind, fuck it, get your ass in here now," and ordered Mr. Johnson to come that evening to receive a copy of the Second Disciplinary Action, despite the fact that he was on vacation.
70. Mr. Johnson stated that would pick up a copy of the Second Disciplinary Action on July 20, 2017, and hung up the phone.
71. [Defendant] then issued another written disciplinary action, also dated July 24, 2017, concerning Mr. Johnson's response (the "Third Disciplinary Action").
72. In the Third Disciplinary Action, [Defendant] concluded that Mr. Johnson's response to being notified of the Second Disciplinary Action was "completely unacceptable" and (without specifying why) was "threatening in nature."
(Id. ¶¶ 64-72.) Defendant was able to persuade the sheriff "to issue an ultimatum to Mr. Johnson: he could accept a five-day suspension and demotion to Patrol Deputy or leave the ACSO," which was delivered to Mr. Johnson in a July 31, 2017 letter from the sheriff. (Id. ¶¶ 75, 78-79.) The sheriff's "decision to demote and discipline Mr. Johnson was made at [Defendant's] request and urging, without any input by Mr. Johnson, and was deliberately timed by [Defendant] to occur while Mr. Johnson was out on vacation." (Id. ¶ 85.) Mr. Johnson found his work conditions intolerable and resigned on or around August 2, 2017. (Id. ¶ 87.)
DISCUSSION
The only issue presented in Defendant's motion for partial dismissal is whether Mr. Johnson's cause of action for hostile work environment (First Claim for Relief) is time-barred by the applicable statute of limitations. "A statute of limitations defense ‘may be appropriately resolved on a [ Rule] 12(b) motion when the dates given in the complaint make clear that the right sued upon has been extinguished.’ " Sierra Club v. Oklahoma Gas & Elec. Co. , 816 F.3d 666, 671 (10th Cir. 2016) (alteration in original) (quoting Lee v. Rocky Mountain UFCW Unions & Emp'rs Tr. Pension Plan , 13 F.3d 405, at *1 (10th Cir. 1993) (Table)). "When the dates on which the pertinent acts occurred are not in dispute, the date a statute of limitations accrues is a question of law." Bistline v. Parker , 918 F.3d 849, 862 (10th Cir. 2019) (citing Edwards v. Int'l Union, United Plant Guard Workers , 46 F.3d 1047, 1050 (10th Cir. 1995) ).
Mr. Johnsons alleges this claim under 42 U.S.C. § 1981, as brought through the vehicle of 42 U.S.C. § 1983. See Lounds v. Lincare, Inc. , 812 F.3d 1208, 1221 (10th Cir. 2015) (both § 1981 and Title VII of the Civil Rights Act authorize a plaintiff to bring a claim for hostile work environment based on unlawful race discrimination and the same substantive standards apply regardless of the statutory basis for the claim). The parties and Court agree the claim is subject to a four-year limitations period. (Doc. 21 p. 5; Doc. 23 p. 2 n.1.) The parties and Court also agree the limitations period expired either July 26 or July 27, 2021 based on the parties’ 2021 tolling agreements (Docs. 21-1, 21-2), with the outcome of this motion being the same for either date. (Doc. 21 p. 6; Doc. 23 p. 2 n.1.) And finally, the parties and Court agree that for Mr. Johnson's claim to be timely, some form of actionable conduct had to occur on or after July 26 or July 27, 2021, that is, within the limitations period. (Doc. 21 p. 6; Doc. 23 p. 4.)
The parties disagree whether Mr. Johnson set forth any conduct contributing to his hostile work environment claim that is alleged to have occurred within the limitations period.
The elements of a hostile work environment claim are: (1) the plaintiff is a member of a protected group; (2) the plaintiff was subjected to unwelcome harassment; (3) the harassment was based on the protected characteristic (in this case, race); and (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of the plaintiff's employment and created an abusive working environment.
Bobelu-Boone v. Wilkie , 526 F. Supp. 3d 971, 983 (D.N.M. 2021) (citing Dick v. Phone Directories Co. , 397 F.3d 1256, 1262–63 (10th Cir. 2005) ). Defendant contends Mr. Johnson's hostile work environment claim is based entirely on alleged harassment occurring prior to July 26 or July 27, 2017, "and is therefore barred under the statute of limitations." (Doc. 21 p. 7.) Defendant argues the only possible allegations occurring within the limitations period concern the disciplinary actions on which the sheriff issued the "five-day suspension with demotion or leave the ACSO" ultimatum, which cannot contribute to the hostile work environment claim because "[s]uch employee disciplinary decisions and process are discrete acts that are actionable on their own." (Doc. 21 p. 11.)
To decide this issue, the Court must "determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period." Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 120, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). "[T]here must be a relationship between acts alleged after the beginning of the filing period and the acts alleged before the filing period[.]" Duncan v. Manager, Dep't of Safety, City & County of Denver , 397 F.3d 1300, 1308 (10th Cir. 2005). In conducting this analysis, the Court examines "the type of [ ] acts, the frequency of the acts, and the perpetrator of the acts," but there is no per se requirement that the acts must completely fit each consideration. Tademy v. Union Pac. Corp. , 614 F.3d 1132, 1139, 1144 (10th Cir. 2008). If the acts were racial or stemmed from racial animus, reasonably constituted part of the same hostile work environment, and one of the acts occurred within the limitations period, then Mr. Johnson's hostile-work-environment claim is timely. See id. at 1140 ; see also Morgan , 536 U.S. at 117, 122 S.Ct. 2061 ("It does not matter ... that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.").
Defendant's argument that disciplinary actions cannot constitute acts in furtherance of an ongoing hostile work environment because they are discrete, independently-actionable conduct is not well taken. A "hostile-work-environment claim is a single ‘unlawful employment practice’ that includes every act composing that claim, whether those acts are independently actionable or not." Green v. Brennan , 578 U.S. 547, 557, 136 S.Ct. 1769, 195 L.Ed.2d 44 (2016) (emphasis added) (citing and summarizing the holding of Morgan , 536 U.S. at 115-121, 122 S.Ct. 2061 ); cf. Green , 578 U.S. at 562 n.7, 136 S.Ct. 1769 ("In Morgan , the Court noted that even if a claim of discrimination based on a single discriminatory act is time barred, that same act could still be used as part of the basis for a hostile-work-environment claim, so long as one other act that was part of that same hostile-work-environment claim occurred within the limitations period."). Thus, in conformity with the reasoning of Green and Morgan , a single discriminatory act that could be independently actionable, such as disciplinary action, also can be a part of a series of actions that together creates a hostile work environment. And this makes logical sense. Surely a victim of a hostile work environment feels equally harassed regardless of whether each separate incident in the series does or does not amount to an independent cause of action.
The question now becomes whether Mr. Johnson has plausibly alleged one or more acts making up part of the hostile work environment that occurred within the limitations period (i.e., after July 26 or July 27, 2017). Accepting the well-pled factual allegations as true and construing them in the light most favorable to Mr. Johnson, the Court finds he has plausibly alleged harassing conduct contributing to his hostile-work-environment claim after July 26 or July 27, 2017. Specifically, Mr. Johnson plausibly alleged Defendant leveraged the disciplinary charges, which were themselves inaccurate and based on Defendant's race-based animosity toward Mr. Johnson, along with private discussions with the sheriff to convince the sheriff to issue the "five-day suspension with demotion or leave the ACSO" ultimatum, which was issued to Mr. Johnson in writing from the sheriff on July 31, 2017. (Am. Compl. ¶¶ 48-80.) The July 17, 2017 ultimatum letter occurred within the limitations period. This allegation is supported by Mr. Johnson's assertion that he was not given an opportunity to present his side of the matter during his meeting with the sheriff because the sheriff cut him off by saying, "I already know what happened." (Id. ¶ 82.) Accepting as true Mr. Johnson's claim that the sheriff denied him the opportunity to defend himself against Defendant's disciplinary actions before issuing the "ultimatum," the Court finds it plausible the ultimatum was issued on July 31, 2017, primarily at Defendant's "request and urging." (Id. ¶ 85.) Additionally, it is sufficiently related to the other alleged acts pre-dating the limitations period, including other unfounded claims of misconduct leveled against Mr. Johnson by Defendant (id. ¶¶ 39-46) along with race-based derogatory comments by Defendant (id. ¶¶ 20, 24, 28-34), so as to be a part of the same actionable hostile work environment. Taking as true Mr. Johnson's allegations of overt racist behavior by Defendant directed at Mr. Johnson during the several years preceding any disciplinary action (and preceding Mr. Johnson's promotion to Patrol Sergeant in 2017), Defendant's initiation of disciplinary proceedings against Mr. Johnson in 2017 are contaminated by the specter of Defendant's ongoing racial animus. Consequently, the Court concludes Mr. Johnson's claim of hostile work environment was timely pled within the four-year statute of limitations. Moreover, Mr. Johnson's alternative theory of recovery on his hostile-work-environment claim, constructive discharge (Am. Compl. ¶ 121), also falls within the four-year statute of limitations. A claim for constructive discharge based on a hostile work environment "accrues—and the limitations period begins to run—when the employee gives notice of his resignation." Green , 578 U.S. at 564, 136 S.Ct. 1769. Here, Mr. Johnson "was compelled to resign on or around August 2, 2017." (Am. Compl. ¶ 87.) With the parties’ 2021 tolling agreements (Docs. 21-1, 21-2), Mr. Johnson's time to file his hostile-environment-constructive-discharge claim expired on or about January 24, 2022, and this lawsuit was filed several days before the deadline on January 18, 2022 (Doc. 1 ). The cause of action for hostile-work constructive discharge was timely pled within the four-year statute of limitations.
Though not expressed as clearly as in the amended complaint, Mr. Johnson's original complaint sufficiently sets forth a hostile-environment-constructive-discharge claim. (Doc. 1 ¶¶ 52, 66-67.) Therefore, under Fed. R. Civ. P. 15(c)(1), the amended complaint relates back to the date the original complaint was filed.
CONCLUSION AND ORDER
Based on the plausible, well-pled factual allegations, which the Court accepts as true and construes in the light most favorable to Mr. Johnson at this stage of the proceedings, the Court concludes Mr. Johnson timely filed his cause of action for hostile work environment/hostile-work constructive discharge (First Claim for Relief). Dismissal of this claim under Rule 12(b)(6) is not warranted.
IT IS THEREFORE ORDERED that Defendant's Partial Motion to Dismiss Amended Complaint (Doc. 20) is DENIED .
ORDERED : May 26th , 2022.