Summary
stating that false accusations of sexual harassment do not constitute a violation of Title VII
Summary of this case from Matlosz v. ChaseOpinion
No. 01-4169-SAC
May 14, 2002
MEMORANDUM AND ORDER
This pro se employment discrimination case comes before the court on the motion of the plaintiff to certify the case as a class action, and on the motion of the defendant to dismiss the case for failure to state a claim. The court first considers defendant's motion.
MOTION TO DISMISS
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 pursuant to Fed.R.Civ.P. 12 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)), or unless an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). A court judges the sufficiency of the complaint accepting as true all well-pleaded facts, Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and drawing all reasonable inferences from those facts in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881 (1998). 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).
Because plaintiff proceeds in this action pro se, his pleadings are entitled to a liberal construction. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Even under a liberal construction, however, the court "will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded." Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam), cert. denied, 493 U.S. 1059 (1990).
Defendant's motion (Dk. 16) contends that plaintiff's complaint that he was falsely accused of sexual harassment, even if true, fails to violate Title VII or the ADEA. It is true that such a claim of false accusation does not constitute a violation of those statutes. See Balazs v. Liebenthal, 32 F.3d 151, 155 (4th Cir. 1994); Albert v. Edward J. DeBartolo Corp., 999 F.2d 539, 1993 WL 272477, at *3 (6th Cir. July 20, 1993) (Table); Kipnis v. Baram, 949 F. Supp. 618, 623 (N.D.Ill. 1996). Accordingly, to the extent plaintiff's motion alleges that defendant violated Title VII or the ADEA by falsely accusing him of sexual harassment, defendant's motion to dismiss is granted.
However, read liberally, plaintiff's complaint alleges much more. Defendant's memorandum contends that plaintiff's handwritten complaint (second part of Dk. 1) claims solely discriminatory termination, while plaintiff's form complaint (first part of Dk. 1), includes discriminatory terms and conditions of employment. Defendant urges the court to consider plaintiff's handwritten complaint to the exclusion of plaintiff's form complaint, for purposes of this motion. The court finds no reason to dissect plaintiff's complaint in this manner, and believes that the two should be read together in determining the thrust of a pro se's complaint.
But even if the court were, for some reason, justified in ignoring plaintiff's form complaint, plaintiff's handwritten complaint contains ample notice to defendant that plaintiff's claims relate not only to his termination, but also to disparate terms and conditions of his employment. See e.g., Dk. 1, p. 1 ("while employed at Market USA, I was subject to discrimination because of my [a]ge . . ., [r]ace . . ., and [s]ex."); p. 3 (alleging sex discrimination because he was terminated but female employees who had lied about him prior to his termination were not terminated); p. 3-4 (alleging age discrimination because he was given a pretextual reason why he was not permitted to apply for a transfer or promotion, yet younger males who did not meet the stated prerequisite were permitted to apply); p. 4 (alleging his defense to sexual harassment charge was not properly investigated because of his race); and p. 4 (charging defendant with "race and sex discrimination in condition (sic) of my employment. Also I charge them with the [ADEA].").
Although some of these disparate terms and conditions may relate to plaintiff's termination, his complaint cannot reasonably be construed to allege that plaintiff's false accusation of sexual harassment serves as the basis for all his Title VII and ADEA claims.
Liberally construing plaintiff's complaint and viewing all reasonable inferences in his favor, the court concludes that plaintiff may be able to prove a set of facts in support of his theories of recovery. See Pacheco v. State of Kansas Social Rehabilitation Servs., No. 90-2283-V, 1991 WL 97564, at *1 (D.Kan. May 15, 1991) (VanBebber, J.) (denying Rule 12(b)(6) motion to dismiss where pro se plaintiff's complaint alleged that she was deprived of job duties and harassed by defendants because of her race).
As a result, defendants' motion to dismiss is granted as to plaintiff's complaint that he was falsely accused of sexual harassment in violation of Title VII and the ADEA, and is denied as to plaintiff's remaining claims.
MOTION FOR CLASS ACTION DETERMINATION
In addition to Article III standing requirements, Fed.R.Civ.P. 23(a) lists four prerequisites to the certification of a class and the maintenance of a class action. Fed.R.Civ.P. 23(a) provides that a class action may be maintained only if the following requirements are met:
(1) the class is so numerous that the joinder of all class members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a); See Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982). Plaintiff has the burden to present an evidentiary basis to show that the action is maintainable as a class action under Rule 23. See D. Kan. Rule 23.1(d); see also Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988) (stating that the party seeking to certify a class is required to show "under a strict burden of proof, that all the requirements of [ Fed.R.Civ.P.] 23(a) are clearly met." (brackets in original)). "Whether a case should be allowed to proceed as a class action involves intensely practical considerations, most of which are purely factual or fact-intensive." See Reed, 849 F.2d at 1309. This court has discretion to grant or deny certification, and the decision must be based on "practicalities and prudential considerations." Id. Emig v. American Tobacco Co., Inc., 184 F.R.D. 379, 384 (D.Kan. 1998).
When determining whether certification is proper, the court cannot inquire into the merits of the suit, see Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988) (citing Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177 (1974), and must accept as true the allegations of the complaint, see Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976).
Numerosity
The court first examines whether the proposed class is so numerous that the joinder of all class members is impracticable, as the controlling rule requires. "The numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations." General Tel. Co. of the Northwest, Inc. v. Equal Employment Opportunity Commission, 446 U.S. 318, 330 (1980).
D. Kan. Rule 23.1(a)(2)(A) specifies that a party seeking class certification must identify the size of the class in the complaint. In his motion for class action determination (Dk. 18), plaintiff names three plaintiffs, and purports to make claims "for any other names that come up being discriminated against during the course of action I'm taking." (Dk. 18, p. 2).
Plaintiff's claims of numerosity are not unlike those made in Rex v. Owens ex rel. State of Okl., 585 F.2d 432 (10th Cir. 1978). There, the plaintiff requested class certification, alleging only that he was seeking to represent himself and "all other persons similarly situated. The members of the class similarly situated are all persons who have been, are, or may be subjected to the procedure and operation of [an Oklahoma statute.]" Id. at 436.
The Tenth Circuit rejected plaintiff's generic claim of numerosity in Rex, stating:
In class action suits there must be presented some evidence of established, ascertainable numbers constituting the class in order to satisfy even the most liberal interpretation of the numerosity requirement. There is, however, no set formula to determine if the class is so numerous that it should be so certified. The determination is to be made in the particular circumstances of the case. The duty of establishing those particular circumstances rests with the party who asserts the existence of the class and that party must produce some evidence or otherwise establish by reasonable estimate the number of class members who may be involved.585 F.2d at 436.
Although some class actions have been deemed viable in instances where as few as 17 to 20 persons are identified as the class, see Rex, 585 F.2d at 436, (citing cases), the court has found none which have met the numerosity requirement with as few as three. Instead, numerous cases in which certification has been denied demonstrate that a class of three would be too small to meet the numerosity requirement. See, e.g., General Tel. Co. of the Northwest, Inc., 446 U.S. 318 (15 class plaintiffs too small); Monarch Asphalt Sales Co. v. Wilshire Oil Co., Inc. of Texas, 511 F.2d 1073, 1077 (10th Cir. 1975) (37); Peterson v. Albert M. Bender Co., 75 F.R.D. 661, 667 (N.D.Cal. 1977) (35-45); Murray v. Norberg, 423 F. Supp. 795, 798 (D.R.I. 1976) (fewer than 20); Chmieleski v. City Products Corp., 71 F.R.D. 118, 150-151 (W.D.Mo. 1976) (22); Lopez v. Jackson County Bd. of Supervisors, 375 F. Supp. 1194, 1196-1197 (S.D.Miss. 1974) (16); Moreland v. Rucker Pharmacal Co., 63 F.R.D. 611, 613-614 (W.D.La. 1974) (26); Anderson v. Home Style Stores, Inc., 58 F.R.D. 125, 130-131 (E.D.Pa. 1972) (18). The court has no hesitancy in finding that plaintiff's class is not so numerous that the joinder of all class members is impracticable.
The court finds it unnecessary to address the other requirements of the rule. Because plaintiff has failed to demonstrate that the class is so numerous that joinder of all members is impracticable, his motion for class certification shall be denied.
IT IS THEREFORE ORDERED that defendant's motion to dismiss (Dk. 16) is granted as to plaintiff's complaint that he was falsely accused of sexual harassment in violation of Title VII and the ADEA, and is denied as to plaintiff's remaining claims.
IT IS FURTHER ORDERED that plaintiff's motion for class action determination (Dk. 18) is denied.