Opinion
CIVIL ACTION No. 00-2521-CM
July 9, 2001
MEMORANDUM AND ORDER
Plaintiff Janet Moore filed this action against defendant Total Sleep Diagnostics of Kansas, Inc. alleging violations of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq. This matter is before the court on defendant's motion to dismiss (Doc. 3).
I. Facts
Plaintiff, a white female, worked for defendant from May 1998 to April 1999. Plaintiff alleges that, during her employment with defendant, she was "subjected to discrimination in the form of race discrimination and retaliation by her immediate supervisor" and that "[t]hroughout the length of her employment, she was subjected to a racially hostile and offensive work environment as a result of racist comments" made by her supervisor. Plaintiff further alleges that these comments were "generally made about African American people" and that she was highly offended by these comments. Plaintiff does not allege that she worked with any black employees or that any racial comments were directed at co-employees.
Plaintiff also alleges that she was terminated in retaliation for keeping written records of the racial comments and for telling a co-worker that she intended to report the conduct to the NAACP.
II. Standards
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).
III. Discussion
Defendant argues that plaintiff lacks standing to bring a hostile work environment and retaliation claim under Title VII. Specifically, defendant contends that, because plaintiff is a white female, she cannot state a claim for hostile work environment or retaliation based upon comments allegedly made by her supervisor about African Americans. For support, defendant cites three cases from other circuits that have held that white employees cannot bring a discrimination claim based upon comments made in the workplace about African Americans. See Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179-80 (7th Cir. 1998) (holding that white employee could not maintain a hostile work environment claim based upon allegations that her coworkers were biased against blacks); Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134-35 (2d Cir. 1999) (holding that complaint of retaliation for opposing discrimination by co-employees against non-employees is not cognizable under Title VII); Childress v. City of Richmond, 907 F. Supp. 934, 940 (E.D.Va. 1995), aff'd, 134 F.2d 1204 (4th Cir. 1998) (holding that white police officers could not state a claim for hostile work environment based on supervisor's race-biased comments or for retaliation for speaking out against the comments). Plaintiff states that she found no caselaw in the Tenth Circuit directly on point and that, as a result, the law is unsettled and that this court is not bound by the holdings of those three cases cited by defendant.
The court could not find a case from the Tenth Circuit on point. However, within our circuit is Jones v. City of Overland Park, Nos. 92-2163, 92-2162-KHV, 1994 WL 583153 (D.Kan. Aug. 15, 1994). In Jones, plaintiff was a white employee who asserted a Title VII claim for a racially hostile work environment. The court held:
[Plaintiff] has no standing to object to the existence of a racially hostile work environment because she is not a member of the protected group. Title VII prohibits employers from discriminating against employees because of their race, color, religion, sex, or national origin. When an employer creates a work environment hostile to a black employee, that employer does not alter the conditions of a white employee's employment because of her race or sex, even if that employee is as offended as the protected employee. Thus, [plaintiff's] Title VII claim for a racially hostile work environment necessarily fails.
Id. at *3 (citations omitted) (emphasis in original).
The court's reasoning in Jones is persuasive. In this case, plaintiff claims that she was offended by her supervisor's use of racial comments. However, plaintiff is not a member of the protected group. Accordingly, plaintiff cannot state a claim for a racially hostile work environment since defendant did not alter the conditions of plaintiff's employment because of her race. Plaintiff's hostile work environment claim is dismissed.
Regarding plaintiff's claim of retaliation, the court turns to the analysis set forth in Wimmer, 176 F.3d at 134-35. In Wimmer, the plaintiff, a white police officer, claimed retaliation for having reported overhearing racial slurs made by fellow police officers against black citizens and for questioning a fellow officer's two stops of minority motorists without cause. Thus, plaintiff had presented evidence that certain members of the department had acted in a discriminatory manner toward the public. The court found significant the fact that plaintiff had never heard a racial epithet directed toward himself or any member of the department. The court held that, in the absence of such evidence, plaintiff's retaliation claim was not cognizable under Title VII because plaintiff's opposition was not directed at an unlawful employment practice. Id. at 135. "[Plaintiff] could not have reasonably believed that he was opposing an employment practice because the evidence does not address racial discrimination in an employment practice." Id.
The Second Circuit also rejected plaintiff's claim that his actions opposed the "unlawful employment practice" of a racially hostile work environment. The court stated:
It is inherent in the definition of a racially hostile work environment, however, that the person against whom the hostility is directed must be in an employment relationship with the employer. . . . Because [plaintiff] did not introduce evidence that minority employees of the Department felt that they worked in a racially hostile environment, [plaintiff] could not reasonably have believed that he was protesting an unlawful hostile work environment.
Id. (citation omitted).
In the case at hand, plaintiff has alleged in her complaint that "derogatory comments were generally made about African American people." Indeed, plaintiff acknowledges in her response brief that these comments were not directed at African American employees or co-workers. Even accepting as true all of plaintiff's well-pleaded facts, the court finds that plaintiff cannot state a claim for retaliation in these circumstances. Plaintiff has failed to allege any facts to support her contention that she had a reasonable belief that defendant's conduct was unlawful. Rather, plaintiff's complaint contains no facts that defendant was engaged in an unlawful employment practice and, as such, plaintiff could not have reasonably believed that she was opposing such an unlawful practice. Accordingly, plaintiff cannot state a claim for retaliation.
IT IS THEREFORE ORDERED that defendant's motion to dismiss (Doc. 3) is granted. Plaintiff's cause of action is hereby dismissed.