Ross v. Pentair Flow Technologies, LLC, No. 2:2019cv02690 - Document 18 (D. Kan. 2020)
Court Description: MEMORANDUM AND ORDER granting in part and denying in part 13 Motion to Dismiss. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 3/3/20. (msb)
Download PDF
<![CDATA[
Ross v. Pentair Flow Technologies, LLC Doc. 18 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS TONY B. ROSS, Plaint iff, vs. Case No. 19- 2690- SAC PENTAI R FLOW TECHNOLOGI ES, I NC., Defendant . MEMORANDUM AND ORDER Aft er t he plaint iff Tony B. Ross ( “ Ross” ) filed his am ended em ploym ent discrim inat ion com plaint assert ing act ions under 42 U.S.C. § 2000e, et seq. ( “ Tit le VI I ” ) , 42 U.S.C. § 1981 ( “ § 1981” ) , and st at e com m on- law ret aliat ion, t he defendant Pent air Flow Technologies, I nc. ( “ Pent air” ) filed it s Fed. R. Civ. P. Rule 12( b) ( 6) m ot ion t o dism iss wit h support ing m em orandum . ECF# # 13 and 14. On t he plaint iff’s count one act ion of “ prohibit ed discrim inat ion” in violat ion of Tit le VI I and § 1981, ( ECF# 10) , Pent air argues t he plaint iff has not adm inist rat ively exhaust ed his “ vague claim ” for failure t o prom ot e under Tit le VI I and has ot herwise failed t o allege fact s adequat e t o sust ain an inference of discrim inat ion. ECF# 13. On t he plaint iff’s count t wo of “ prohibit ed ret aliat ion” in violat ion of Tit le VI I and § 1981, ( ECF# 10) , Pent air argues t he plaint iff has not alleged fact s showing an act ionable adverse act ion or a causal connect ion bet ween any adverse act ion and alleged prot ect ed act ivit y. ECF# 13. On t he plaint iff’s count t hree st at e com m on- law ret aliat ion, Pent air argues t he plaint iff has 1 Dockets.Justia.com failed t o allege Pent air’s violat ion of any specific and definit e rule, regulat ion or law. The m at t er is ripe for decision. ECF# 13. Am e n de d Com pla in t ’s Fa ct u a l Alle ga t ion s Ross st art ed working for Pent air on May 23, 2018, and he cont inues t o be em ployed t here. His allegat ions against Pent air concern act ions t aken against him while working as an “ ut ilit y blast er.” The first alleged act ion occurred in June of 2018, when Ross asked his m anager Shane Fahert y for a safet y it em . Fahert y did provide Ross wit h a cooling vest but also said, “ I t ake care of m y good help.” Ross alleges Fahert y’s st at em ent was racially m ot ivat ed, because he sees a connect ion bet ween it and t he cont em porary m ovie, “ The Help,” which is “ about Black servant s who worked in whit e hom es.” ECF# 10, ¶ 32. Lat er in June of 2018, Ross asked Fahert y t o signal him in order t o get his at t ent ion when he was using t he blast er. The plaint iff alleges Fahert y t hen lat er t hrew a board hit t ing him . This led Ross t o ask t hat Fahert y st op t hrowing t hings at him , and he repeat edly com plained t o Fahert y about t his m et hod of get t ing his at t ent ion. The plaint iff alleges Fahert y did not t hrow and st rike Non- African Am erican em ployees who were “ in t he sam e posit ion as Plaint iff when t hey were working.” ECF# 10, ¶ 37. I n Novem ber of 2018, Ross asked Fahert y for Pent air t o provide him wit h insulat ed boot s for safet y and m edical purposes. This upset Fahert y who responded, “ t his j ob m ay not be for him [ Ross] .” ECF# 10, ¶ 41. When 2 t he plaint iff explained he needed t he boot s due t o a recent m edical procedure, Fahert y becam e “ m ore furious” wit h t his explanat ion. I d. at ¶ 43. Ross alleges “ non- African Am erican em ployees w ho were sim ilarly sit uat ed t o him ” were given boot s and ot her safet y equipm ent wit hout facing a m anager’s opposit ion. I d. at ¶ 44. Ross report ed Fahert y’s different t reat m ent of him t o m anagem ent and Fahert y’s supervisor, Andrew Pepperdine. I d. at ¶¶ 45- 46. Fahert y’s t reat m ent of Ross t hen worsened in t hat he “ m icrom anaged” Ross, “ excessively and arbit rarily” crit icized plaint iff’s perform ance, and wat ched Ross use t he bat hroom on Decem ber 12. I d. at ¶¶ 47- 49. Ross cont inued t o report Fahert y. I d. at ¶ 50. Ross experienced “ great fear” when Fahert y t hrew a bucket at him on Decem ber 17, and Ross again asked Fahert y t o st op t hrowing t hings because he has “ PTSD and receives t reat m ent for such condit ion.” I d. at ¶¶ 51- 52. Fahert y began reprim anding Ross over j ob speed and product ion and accusing Ross of policy violat ions for “ com m on pract ices” in t he workplace which “ no non- African Am erican sim iliarly sit uat ed em ployee had ever been disciplined.” I d. at ¶¶ 53- 54. Fahert y “ falsely accused” Ross of “ m isconduct ,” and Ross was quest ioned by Pepperdine and St eve Wilson wit hout having union represent at ion present . I d. at ¶¶ 55- 56. Hum an resources quest ioned Ross over Fahert y’s claim of being afraid of Ross, and t he plaint iff was suspended for t hree days during t his invest igat ion. I d. at ¶¶ 3 57- 58. “ When Plaint iff spoke t o HR about his issues wit h Fahert y, he was t hreat ened wit h t erm inat ion if he cont inued t o pursue act ion.” I d. at ¶ 60. “ Aft er m aking com plaint s t o m anagem ent and filing t he EEOC charge, t he t reat m ent he received at work worsened and began t o increase in frequency and severit y.” I d. at ¶ 61. “ Ross is st ill em ployed by Pent air and cont inues t o receive t he t reat m ent he has com plained about wit hout resolut ion.” I d. at ¶ 62. “ Ross along wit h several co- workers has repeat edly voiced t heir concerns regarding t he dangerous working condit ions and t he ext rem e risk of danger but Pent air has t aken no act ion t o rect ify t he issues while unj ust ly reprim anding and denying Mr. Ross prom ot ional opport unit ies despit e his qualificat ions.” I d. at ¶ 64. Finally, Ross alleges he “ cont inues t o work in a host ile environm ent t hat causes him fear, st ress and anxiet y.” I d. at ¶ 65. The above are his fact ual allegat ions com m on t o his t hree count s. Under count one, Ross also alleges Pent air harassed him and int ent ionally discrim inat ed against him “ based on his race.” I d. at ¶¶ 67- 70. “ Defendant denied and cont inues t o deny Plaint iff of em ploym ent opport unit ies.” I d. at ¶ 71. Pent air did not t reat Ross equally and int ent ionally discrim inat ed against him in it s applicat ion of “ workplace policies.” I d. at ¶¶ 74- 75. Managem ent level em ployees racially discrim inat ed against Ross by “ repeat ed assault s . . . as a pat t ern or pract ice of get t ing Plaint iff’s at t ent ion,” by “ failing t o prom ot e Plaint iff t o a posit ion he applied t o and was qualified for and filling it wit h non- African Am erican 4 em ployees who were not m ore qualified t han Plaint iff,” by “ [ a] rbit rarily reprim anding Plaint iff for engaging in . . . j ob perform ance and behaviors com m on wit h all em ployees,” by “ [ h] olding Plaint iff t o a higher st andard” in m anaging and evaluat ing his perform ance; by “ arbit rarily wit hholding safet y equipm ent and t raining from Plaint iff” different ly from non- African Am erican sim ilarly sit uat ed em ployees. I d. at ¶ 78. I n sum m ary, Ross alleges Pent air act ed on racially discrim inat ory int ent against him by applying workplace policies, by assault ing him t o get his at t ent ion, by failing t o prom ot e, by m anaging and evaluat ing his perform ance, and by wit hholding safet y equipm ent and t raining. Under count t wo, Ross alleges he engaged in prot ect ed act ivit y “ by report ing discrim inat ion, safet y concerns and ot her issues wit hin t he facilit y” and by raising “ num erous com plaint s of race discrim inat ion and ot her lawful conduct wit h Defendant .” I d. at ¶¶ 82- 83. Pent air ret aliat ed by ignoring and failing t o invest igat e Ross’s com plaint s and by his supervisor assault ing him , failing t o prom ot e him , m anaging and evaluat ing him by higher st andards, by wit hholding safet y equipm ent and t raining, by suspending and invest igat ing him for m isconduct , and by reprim anding and t hreat ening t o t erm inat e him for cont inuing his report ing. I d. at ¶ 84. Ross alleges his prot ect ed act ivit y opposing discrim inat ion was a m ot ivat ing fact or behind Pent air’s ret aliat ion. I d. at ¶ 85. 5 Finally, under count t hree, Ross alleges he “ engaged in prot ect ed act ivit y by report ing safet y issues and ot her workplace concerns t o corporat e m anagem ent and out side t he facilit y.” I d. at ¶ 89. Ross “ report ed how m anagem ent was arbit rarily and inconsist ent ly applying safet y rules t oward non- African Am erican sim ilarly sit uat ed em ployees which was leading t o increased inj uries.” I d. at ¶ 90. He assert s t o having reasonably believed t hat Pent air was com m it t ing safet y violat ions and in good fait h report ed t hem t o Pent air’s corporat e m anagem ent and union officials. Ross alleges his conduct is prot ect ed due t o Kansas public policy on workplace safet y, on providing safet y devices, and on report ing safet y violat ions t o t he secret ary of labor. He also point s t o t he Kansas st at ut e t hat m akes it unlawful for an em ployer t o discharge or “ t o discrim inat e in any way against any em ployee because” of t est ifying before, pet it ioning for, or bringing t o t he at t ent ion of t he secret ary of labor a relevant “ m at t er of cont roversy.” I d. at ¶ 94. Ross alleges Pent air denied him “ em ploym ent opport unit ies and ot her benefit s” because of his report ing. I d. at ¶ 95. Ru le 1 2 ( b) ( 6 ) St a n da r ds The court accept s as t rue t he fact ual allegat ions in t he com plaint and draws reasonable inferences in favor of plaint iff. Gann v. Cline, 519 F.3d 1090, 1092 ( 10t h Cir. 2008) . The court is not obliged t o accept as t rue a legal conclusion couched as a fact ual allegat ion. Bell At lant ic Corp. v. Twom bley, 550 U.S. 544, 555 ( 2007) . “ Threadbare recit als of t he elem ent s 6 of a cause of act ion, support ed by m ere conclusory st at em ent s, do not suffice.” Ashcroft v. I qbal, 556 U.S. at 678 ( 2009) ( cit at ion om it t ed) . To survive a m ot ion t o dism iss, t he com plaint m ust cont ain enough allegat ions of fact “ t o st at e a claim t o relief t hat is plausible on it s face.” Twom bley, 550 U.S. at 570. Thus, in ruling on a m ot ion t o dism iss, a court should disregard all conclusory st at em ent s of law and consider whet her t he rem aining specific fact ual allegat ions, if assum ed t o be t rue, plausibly suggest t he defendant is liable.” Kansas Penn Gam ing, LLC v. Collins, 656 F.3d 1210, 1214 ( 10t h Cir. 2011) . Sim ply put , a court is not t o accept alleged legal conclusions as t rue. Safe St reet s Alliance v. Hickenlooper, 859 F.3d 865, 878 ( 10t h Cir. 2017) . “ Plausibilit y” looks at whet her t he fact s alleged in t he com plaint are so general or so innocent t hat t he plaint iffs “ ‘have not nudged t heir claim s across t he line from conceivable t o plausible.’“ Robbins v. Oklahom a, 519 F.3d 1242, 1247 ( 10t h Cir. 2008) ( quot ing Twom bly, 550 U.S. at 570) . “ A claim has facial plausibilit y when t he plaint iff pleads fact ual cont ent t hat allows t he court t o draw t he reasonable inference t hat t he defendant is liable for t he m isconduct alleged.” Ashcroft v. I qbal, 556 U.S. 662, 678 ( 2009) . To det erm ine whet her a plausible claim has been st at ed, t he court perform s “ a cont ext - specific t ask” drawing on it s “ j udicial experience and com m on sense.” I d. a 679 ( cit at ion om it t ed) . And, “ where t he well- pleaded fact s do not perm it t he court t o infer m ore t han t he m ere possibilit y of m isconduct , 7 t he com plaint has alleged—but it has not ‘show[ n] ’—‘t hat t he pleader is ent it led t o relief.’“ I d. at 679 ( quot ing FED.R.CI V.P. 8( a) ( 2) ) . Rule 12( b) ( 6) does not creat e a prim a facie case pleading requirem ent , but t he court m ay look t o t hose elem ent s in det erm ining plausibilit y. Khalik v. Unit ed Air Lines, 671 F.3d 1188, 1192 ( 10t h Cir. 2012) . The elem ent s for racial discrim inat ion suit s under Tit le VI I and § 1981 are t he sam e. Payan v. Unit ed Parcel Service, 905 F.3d 1162, 1168 ( 10t h Cir. 2018) . The plaint iff’s com plaint does not allege a direct - evidence violat ion and so t he follow ing elem ent s t o a prim a facie case of disparat e t reat m ent discrim inat ion m ay be helpful in det erm ining plausibilit y, t hat he is: ( 1) a m em ber of a prot ect ed class, ( 2) who suffered an adverse em ploym ent act ion, ( 3) who was qualified for t he posit ion at issue, and ( 3) who was t reat ed less favorably t han ot hers not in t he prot ect ed class. See Khalik, 671 F.3d at 1192. Sect ion 1981 “ prohibit s not only racial discrim inat ion but also ret aliat ion against t hose who oppose it .” Parker Excavat ing, I nc. v. Lafarge W., I nc., 863 F.3d 1213, 1220 ( 10t h Cir. 2017) . Tit le VI I principles for ret aliat ion claim s “ apply wit h equal force” t o § 1981 claim s. I d. ( int ernal quot at ion m arks om it t ed) . Absent direct evidence, t he prim a facie case under t he burden- shift ing fram ework applies. To st at e a prim a facie case of ret aliat ion under Tit le VI I , a plaint iff would need t o prove t hat he: ( 1) engaged in prot ect ed opposit ion t o discrim inat ion, ( 2) sust ained what a 8 reasonable em ployee would find t o be a m at erially adverse act ion, and ( 3) has evidence support ing a reasonable inference of a causal connect ion bet ween t he prot ect ed act ivit y and t he m at erially adverse act ion. I d. at 1220. The court will discuss t he Kansas com m on- law ret aliat ion claim lat er. The Tent h Circuit recent ly sum m arized what suffices for pleading a discrim inat ion claim : A com plaint raising a claim of discrim inat ion does not need t o conclusively est ablish a prim a facie case of discrim inat ion, but it m ust cont ain m ore t han “ ‘[ t ] hreadbare recit als of t he elem ent s of a cause of act ion, support ed by m ere conclusory st at em ent s.’” Khalik [ v. Unit ed Air Lines] , 671 F.3d [ 1188] at 1193 [ ( 10t h Cir. 2012) ] ( quot ing Ashcroft v. I qbal, 556 U.S. 662, 678, 129 S.Ct . 1937, 173 L.Ed.2d 868 ( 2009) ) . “ While we do not m andat e t he pleading of any specific fact s in part icular,” a plaint iff m ust include enough cont ext and det ail t o link t he allegedly adverse em ploym ent act ion t o a discrim inat ory or ret aliat ory m ot ive wit h som et hing besides “ sheer speculat ion.” I d. at 1194. “ [ A] plaint iff should have” —and m ust plead—“ at least som e relevant inform at ion t o m ake t he claim s plausible on t heir face.” I d. at 1193. Thus, it is insufficient for a plaint iff t o allege, for inst ance, t hat she did not receive an em ploym ent benefit t hat “ sim ilarly sit uat ed” em ployees received. Hwang v. Kan. St at e Univ., 753 F.3d 1159, 1164 ( 10t h Cir. 2014) . A plaint iff's assert ion t hat she is “ sim ilarly sit uat ed” t o ot her em ployees is “ j ust a legal conclusion—and a legal conclusion is never enough.” I d. Rat her, a plaint iff m ust allege “ som e set of fact s” —not j ust legal conclusions—“ t hat t aken t oget her plausibly suggest different ial t reat m ent of sim ilarly sit uat ed em ployees.” I d. “ Pleadings t hat do not allow for at least a reasonable inference of t he legally relevant fact s are insufficient .” Burnet t v. Mort g. Elec. Regist rat ion Sys., I nc., 706 F.3d 1231, 1236 ( 10t h Cir. 2013) ( int ernal quot at ion m arks om it t ed) . Bekkem v. Wilkie, 915 F.3d 1258, 1274–75 ( 10t h Cir. 2019) . Con clu sor y Alle ga t ion s The court follows t he Tent h Circuit ’s lead in Khalik and set s out t he plaint iff’s allegat ions t hat will not be assum ed t rue because t hey are 9 conclusory in large part . Due t o t he num ber of t he plaint iff’s allegat ions subj ect t o t his rule, t hey are list ed by t heir paragraph num ber: 29, 45, 55, 63- 64, 71- 79, 82- 87, and 89- 98. ECF# 10. The court underst ands t he plaint iff m ay not have int ended what appears aft er ¶ 65 t o be fact ual allegat ions. St ill, t he plaint iff chooses t o incorporat e conclusory fact ual allegat ions t here which do not appear and are not expounded upon elsewhere in his pleading. The court , in det erm ining plausibilit y, shall disregard t he plaint iff’s speculat ion t hat he experienced race discrim inat ion and harassm ent and his conclusory allegat ions t hat he was sim ilarly sit uat ed, t hat he was “ falsely accused,” t hat he was “ required t o w ork in dangerous condit ions,” and t hat he was put “ in t he ext rem e risk of danger . . . while unj ust ly reprim anding and denying . . . prom ot ional opport unit ies despit e his qualificat ions.” I d. These allegat ions are fact ually t hreadbare legal conclusions devoid of a fact ual cont ext from which t o draw reasonable inferences. The court will discuss t hese pleading deficiencies m ore lat er in t he order. Tit le VI I Fa ilu r e t o Pr om ot e Cla im —Cou n t s On e a n d Tw o Pent air argues t he plaint iff want s t o bring a failure t o prom ot e claim wit hout alleging he applied for and was qualified for a prom ot ion and wit hout alleging who received t his prom ot ion inst ead of him . Pent air first challenges t hat Ross did not allege any failure t o prom ot e claim in his adm inist rat ive charge of discrim inat ion. Therefore, he is barred from 10 bringing t his claim under Tit le VI I for failure t o exhaust adm inist rat ive rem edies. Ross at t aches a copy of his adm inist rat ive charge of discrim inat ion t o his am ended com plaint . ECF# 10- 1, p. 5. On a Rule 12( b) ( 6) m ot ion, t he court m ay consider “ not only t he com plaint it self, but also at t ached exhibit s and docum ent s incorporat ed int o t he com plaint by reference.” Sm it h v. Unit ed St at es, 561 F.3d 1090, 1098 ( 10t h Cir. 2009) ( cit at ions om it t ed) . His adm inist rat ive charge plainly does not allege t he denial of a prom ot ion. “ Failure t o file an EEOC charge regarding a discret e em ploym ent incident m erely perm it s t he em ployer t o raise an affirm at ive defense of failure t o exhaust .” Lincoln v. BNSF Railway Com pany, 900 F.3d 1166, 1185 ( 10t h Cir. 2018) . Therefore, “ t he court m ust dism iss only if t he issue has been properly present ed for decision.” McQueen ex rel. McQueen v. Colorado Springs School Dist . No. 11, 488 F.3d 868, 873 ( 10t h Cir. 2007) ( cit ing Jones v. Bock, 549 U.S. 199, 127 S.Ct . 910, 918- 19 ( 2007) ) . The plaint iff does not cont est t he propriet y in deciding t his affirm at ive defense on t he filings and record as present ed. The Tent h Circuit recent ly sum m arized t he principles guiding t his det erm inat ion: The exhaust ion rule derives from t wo principal purposes: “ 1) t o give not ice of t he alleged violat ion t o t he charged part y; and 2) t o give t he EEOC an opport unit y t o conciliat e t he claim , which effect uat es Tit le VI I ’s goal of securing volunt ary com pliance.” I ngels v. Thiokol Corp., 42 F.3d 616, 625 ( 10t h Cir. 1994) , abrogat ed on ot her grounds by Mart inez v. Pot t er, 347 F.3d 1208 ( 10t h Cir. 2003) . To advance t hese 11 purposes, aft er a plaint iff receives a not ice of her right t o sue from t he EEOC, t hat plaint iff’s claim in court “ is generally lim it ed by t he scope of t he adm inist rat ive invest igat ion t hat can reasonably be expect ed t o follow t he charge of discrim inat ion subm it t ed t o t he EEOC.” MacKenzie [ v. Cit y & Ct y. of Denver] , 414 F.3d [ 1266] at 1274 [ ( 10t h Cir. 2005) ] . While we “ liberally const rue” t he plaint iff’s allegat ions in t he EEOC charge, “ t he charge m ust cont ain fact s concerning t he discrim inat ory and ret aliat ory act ions underlying each claim [ .] ” Jones v. U.P.S., I nc., 502 F.3d 1176, 1186 ( 10t h Cir. 2007) ( em phasis added) . The ult im at e quest ion is whet her “ t he conduct alleged [ in t he lawsuit ] would fall wit hin t he scope of an EEOC invest igat ion which would reasonably grow out of t he charges act ually m ade [ in t he EEOC charge] .” Mart in v. Nannie & Newborns, I nc., 3 F.3d 1410, 1416 n.7 ( 10t h Cir. 1993) , overruled on ot her grounds as recognized by Davidson v. Am erica Online, I nc., 337 F.3d 1179, 1185 ( 10t h Cir. 2003) . Sm it h v. Cheyenne Ret irem ent I nvest ors L.P., 904 F.3d 1159, 1164- 65 ( 10t h Cir. 2018) . Because his claim s are generally lim it ed t o t hose com ing wit hin t he scope of his adm inist rat ive charge, it is crit ical t o not e first t hat Ross did not include any fact s or allegat ions in t hat charge point ing t o a discrim inat ory or ret aliat ory failure t o prom ot e. More im port ant ly, t he court does not find t hat t he plaint iff’s failure t o prom ot e claim “ was wit hin t he scope of t he adm inist rat ive invest igat ion t hat would ‘reasonably be expect ed t o follow from t he discrim inat ory act s alleged in t he adm inist rat ive charge.’” I d. at 1165 ( quot ing Jones, 502 F.3d at 1186 ( em phasis in original) ) . “ [ T] he reasonable and likely scope of t he invest igat ion is det erm ined by t he allegat ions cont ained in t he Charge it self.” I d. at 1165 ( cit at ion and em phasis om it t ed) . “ Because EEOC Charges are t radit ionally filed by non- at t orneys, we have repeat edly em phasized t hat t he Charges should be liberally const rued at all 12 levels of t heir review.” Sm it h, 904 F.3d at 1166 ( int ernal quot at ion m arks and cit at ions om it t ed) . The plaint iff’s adm inist rat ive charges here allege his supervisor harassed and discrim inat ed against him by t hrowing t hings, by referring t o him as “ good help,” by writ ing him up and report ing him t o hum an resources in Novem ber of 2018, and by writ ing him up and coercing him t o sign a st at em ent adm it t ing t o a j ob perform ance deficiency in January of 2019. ECF# 10- 1, p. 5. He also alleges t hat he has report ed t hese incident s and no correct ive act ion has been t aken. A liberal const ruct ion of t hese charges does not include a failure t o prom ot e claim based on racial discrim inat ion or ret aliat ion. See, e.g., Ross v. Pent air, 2019 WL 6700402 at * 3 ( D. Kan. Dec. 19, 2019) ; Tilm on v. Ralph Lauren Ret ail, I nc., 2019 WL 2103176 at * 6 ( D. Kan. May 14, 2019) . “ ‘Discret e act s such as t erm inat ion, failure t o prom ot e, denial of t ransfer, or refusal t o hire are easy t o ident ify. Each incident of discrim inat ion and each ret aliat ory adverse em ploym ent decision const it ut es a separat e act ionable “ unlawful em ploym ent pract ice.” ’” Mart inez v. Pot t er, 347 F.3d 1208, 1210 ( 10t h Cir. 2003) ( in Tit le VI I cont ext , quot ing Nat 'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 ( 2002) ) . As t he Tent h Circuit has said, “ dism issal based on a failure t o exhaust adm inist rat ive rem edies should be wit hout prej udice.“ Sm it h, 904 F.3d at 1166 ( em phasis and cit at ion om it t ed) . Thus, t he court dism isses w it hout prej udice t he plaint iff’s 13 Tit le VI I claim s for failure t o prom ot e based on racial discrim inat ion and/ or ret aliat ion. § 1 9 8 1 D iscr im in a t ion Cla im for Fa ilu r e t o Pr om ot e —Cou n t s One a n d Tw o For a prim a facie claim of discrim inat ory failure t o prom ot e, t he elem ent s are t hat t he plaint iff ( 1) belongs t o a prot ect ed class, ( 2) applied for an available prom ot ion for which he was qualified, and ( 3) was “ rej ect ed under circum st ances which give rise t o an inference of unlawful discrim inat ion.” Tabor v. Hilt i, 703 F.3d 1206, 1216 ( 10t h Cir. 2013) ( int ernal quot at ion m arks and cit at ion om it t ed) . The plaint iff alleges no m ore t han t he conclusions t hat t he defendant failed t o prom ot e him “ t o a posit ion he applied t o and was qualified for and filling it wit h non- African Am erican em ployees who were not m ore qualified t han” him . ECF# 10, ¶ 78. While t hese allegat ions recit e t he elem ent s of a prim a facie case, t hey are fact ually t hreadbare. These allegat ions are insufficient because t hey offer no m ore t han “ t he m ere m et aphysical possibilit y” of t he plaint iff proving “ som e set of fact s.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 ( 10t h Cir. 2007) . There is not hing alleged from which one could ident ify t he available prom ot ions in quest ion. Nor could one know t hat Ross eit her expressed an int erest in an available prom ot ion for which he was qualified or t hat Pent air knew he was int erest ed in such a prom ot ion. Consequent ly, one cannot infer, but only speculat e, unlawful discrim inat ion from t he prom ot ion going t o anot her. See Robles v. Am arr Garage Doors, 2012 WL 4867289, at 14 * 6 ( D. Kan. Oct . 15, 2012) , aff’d, 509 Fed Appx. 741 ( 10t h Cir.) , cert . denied, 571 U.S. 838 ( 2013) ; Sm it h v. Unit ed Parcel Serv., 2014 WL 1213466, at * 5 ( D. Colo. Feb. 27, 2014) , report and recom m endat ion adopt ed in part , rej ect ed in part , 2014 WL 1213806 ( D. Colo. Mar. 24, 2014) . The plaint iff’s excuse for not alleging m ore det ails is t hat he was not privy t o t he defendant ’s decision- m aking process. This excuse rings hollow when he does not allege t he following basic, but essent ial, det ails t hat should be well wit hin his scope of knowledge. Specifically, he should be able t o allege which prom ot ional opport unit ies he was passed over, what qualificat ions he had for t hem , and who received t he prom ot ions. The plaint iff also charact erizes t his claim as “ one of several cont inuing act ions alleged against t he Defendant , which also includes allegat ions of unlawful suspension, and ot her arbit rary disciplinary act ions.” ECF# 16, p. 8. The plaint iff’s com plaint fails t o allege any circum st ances connect ing t hese “ ot her act ions” t o any denial of prom ot ion. Wit hout any det ails about t hese m issed prom ot ions, any alleged connect ion rem ains sheer speculat ion. Having failed t o allege t he fact s necessary for an inference of discrim inat ion, t he plaint iff does not st at e a plausible denial of prom ot ion claim for relief under 42 U.S.C. § 1981 and Tit le VI I , in eit her count one or count t wo. Pent air’s m ot ion t o dism iss is grant ed. Tit le VI I a n d § 1 9 8 1 Cla im for D ispa r a t e Tr e a t m e n t - Cou n t On e 15 When “ t he m et hod chosen by [ t he plaint iff] t o raise an inference of discrim inat ion” is disparat e t reat m ent of sim ilarly sit uat ed persons, t he court m ay properly evaluat e t he plaint iff’s claim against t hat st andard. Sorbo v. Unit ed Parcel Service, 432 F.3d 1169, 1173- 74 ( 10t h Cir. 2005) . As already st at ed, a prim a facie case of disparat e t reat m ent discrim inat ion, using t he m et hod chosen by t he plaint iff, requires proof t hat he is a m em ber of a prot ect ed class, has sust ained an adverse em ploym ent act ion, was qualified for his posit ion, and was t reat ed less favorably t han ot hers not in t he prot ect ed class. Khalik, 671 F.3d at 1192. Pent air argues t hat t he plaint iff’s conclusory allegat ion t hat he was t reat ed different ly from a sim ilarly sit uat ed non- prot ect ed em ployee is insufficient t o creat e an inference of discrim inat ion wit hout addit ional fact ual det ails “ such as who was t reat ed different ly, when t hey were t reat ed different ly, or how t hey were t reat ed different ly.” ECF# 14, p. 9 ( quot ing Richardson v. Kellogg Co., 2014 WL 7338844, at * 8 ( D. Kan. Dec. 22, 2014) ( “ There is not hing but ‘sheer speculat ion’ t o link t he denial of ret irem ent and m edical benefit s t o discrim inat ion or ret aliat ion.” ( quot ing Khalik, 671 F.3d at 1194) ) . Pent air not es t hat t he plaint iff has not alleged any inform at ion ident ifying who was sim ilarly sit uat ed and what were t he relevant circum st ances under which t hey were t reat ed different ly. Pent air asks t he court t o dism iss t he plaint iff’s conclusory allegat ions under count one. 16 This court recent ly sum m arized t he Tent h Circuit law governing t his issue: A plaint iff m ust include enough cont ext and det ail t o link t he alleged discrim inat ory act ion t o a discrim inat ory m ot ive wit h som et hing besides sheer speculat ion. Bekkem v. Wilkie, 915 F.3d 1258, 1274- 75 ( 10t h Cir. 2019) . An allegat ion of sim ilarly sit uat ed persons is j ust a legal conclusion which is not sufficient t o support a claim . I d. at 1275. Here, t he am ended com plaint fails t o allege fact s showing sim ilarly sit uat ed t enant s were t reat ed different ly. See id. at 1275 ( allegat ion t hat non- reprim anded doct ors were sim ilarly sit uat ed because t hey sent sim ilar em ails on sim ilar issues is t oo conclusory t o perm it a reasonable inference of different ial t reat m ent ) ; Hwang v. Kansas St at e Universit y, 753 F.3d 1159, 1164 ( 10t h Cir. 2014) ( t hat som e nondisabled Universit y em ployees received sabbat icals is not sufficient t o allege a disabled plaint iff who did not receive a sabbat ical is sim ilarlysit uat ed t o t hose em ployees) ; see also McGow an v. Cit y of Eufala, 472 F.3d 736, 745 ( 10t h Cir. 2006) ( officers who m ade different m ist akes and engaged in different conduct wit h regard t o a prison suicide were not sim ilarly sit uat ed for t he purposes of show ing disparat e t reat m ent ) . Ngiendo v. Pep- KU, LLC, No. 18- 4127- SAC- TJJ, 2019 WL 3430570, at * 6 ( D. Kan. July 30, 2019) ¸ appeal filed, ( 10t h Cir. Oct . 23, 2019) . I n affirm ing dism issal for failure t o allege a plausible claim , t he Tent h Circuit in Khalik sim ilarly observed, “ [ t ] here are no allegat ions of sim ilarly sit uat ed em ployees who were t reat ed different ly.” 671 F.3d at 1194. The panel explained it s ruling in t hese t erm s: While we do not m andat e t he pleading of any specific fact s in part icular, t here are cert ain det ails t he Plaint iff should know and could properly plead t o sat isfy t he plausibilit y requirem ent . For inst ance, Plaint iff should know when she request ed FMLA leave and for what purpose. She should know who she request ed leave from and who denied her. She should know generally when she com plained about not receiving leave and when she was t erm inat ed. She should know det ails about how Defendant t reat ed her com pared t o ot her non- Arabic or 17 non- Muslim em ployees. She should know t he reasons Defendant gave her for t erm inat ion and why in her belief t hose reasons w ere pret ext ual. She should know who grabbed her by t he arm , what t he cont ext for t hat act ion was, and when it occurred. She should know why she believed t hat act ion was connect ed wit h discrim inat ory anim us. She should know who she com plained t o about t he discrim inat ion, when she com plained, and what t he response was. She should know who crit icized her work, what t hat crit icism was, and how she responded. But in fact , Plaint iff offers none of t his det ail. To be sure, we are not suggest ing a court necessarily require each of t he above fact s. But a plaint iff m ust include som e furt her det ail for a claim t o be plausible. Plaint iff's claim s are based solely on t he fact t hat she is Muslim and Arab–Am erican, t hat she com plained about discrim inat ion, t hat she com plained about t he denial of FMLA leave, and t hat Defendant t erm inat ed her. Wit hout m ore, her claim s are not plausible under t he Twom bly/ I qbal st andard. Khalik, 671 F.3d at 1194. The Tent h Circuit has said: “ Sim ilarly sit uat ed em ployees are t hose who deal w it h t he sam e supervisor and are subj ect t o t he sam e st andards governing perform ance evaluat ion and discipline.” Aram buru v. The Boeing Com pany, 112 F.3d 1398, 1404 ( 10t h Cir.1997) ( cit at ion om it t ed) ( discussing disparat e t reat m ent claim ) ; see Sm ot hers v. Solvay Chem icals, I nc., 740 F.3d 530, 540- 41 ( 10t h Cir. 2014) ( sim ilarly sit uat ed m eans sharing t he sam e supervisor or decision m aker and being “ disciplined for conduct of com parable seriousness” ) . The plaint iff repeat edly refers t o “ sim ilarly sit uat ed” em ployees but provides no fact ual cont ext t o support his legal conclusion t hat t hey are “ sim ilarly sit uat ed.” The plaint iff put s forward no alleged det ails of “ any com parable incident ( s) or behavior” of ot her em ployees of a different race t hat were handled different ly. Gerald v. Locksley, 785 F. Supp. 2d 1074, 1119 ( D.N.M. 2011) . General allegat ions of different t reat m ent wit h no 18 furt her det ail regarding who t hese em ployees are or why t hey are sim ilarly sit uat ed “ is insufficient t o raise a viable claim of discrim inat ion because t hey are wholly conclusory and provide only a form ulaic recit at ion of t he elem ent s of a claim .” Koppenhaver v. Unified Sch. Dist . No. 500, 2013 WL 1704917, at * 5 ( D. Kan. Apr. 19, 2013) ; see Sham aleki v. Kansas St at e Universit y, 147 F. Supp. 3d 1239, 1245 ( D. Kan. 2015) ( “ Plaint iff does not allege t hat t he non- I ranian st udent s who were afforded appeals were sim ilarly sit uat ed t o him , or provide any det ails as t o who t hese st udent s were.” ) . The am ended com plaint offers no fact ual cont ext from which t his court could infer t hat non- African Am erican em ployees were dealing wit h t he sam e supervisor and were being held t o t he sam e perform ance evaluat ion and discipline st andards as t he plaint iff. See Palm er v. Pent air, 2019 WL 3239350, at * 6- * 7 ( D. Kan. Jul. 18, 2019) ( “ Alt hough plaint iff alleges t hat non- African- Am erican coworkers were not subj ect ed t o discipline, t here is no allegat ion t hat any of t hose coworkers were sim ilarly- sit uat ed t o plaint iff t o support an inference of discrim inat ion.” ) . I n responding t hat his allegat ions are sufficient and t hat he believes t he different t reat m ent was due t o his race, t he plaint iff does not m ove his claim s from speculat ive t o plausible. He argues t hat he has “ st at ed how m anagem ent t reat ed him in com parison t o sim ilarly sit uat ed em ployees such as but not lim it ed t o ‘t hrowing and st riking him wit h it em s while working, and not providing him wit h safet y equipm ent were a few exam ples 19 given.’” ECF# 16, p. 9 ( cit ing ¶¶ 26- 65 of t he am ended com plaint ECF# 10) . A plain reading of t he am ended com plaint reveals what t he plaint iff calls “ a few exam ples” m ay be t he only inst ances when he com es close t o alleging enough for inferring a discrim inat ory m ot ive from t he t reat m ent of sim ilarly sit uat ed em ployees. Wit h regards t o t he safet y equipm ent , t he plaint iff’s am ended com plaint , however, does not affirm at ively allege which of his request s for safet y equipm ent were denied, when t hey were denied, who denied t hem , and how his request s were like t he safet y equipm ent request s m ade by sim ilarly sit uat ed non- African Am erican em ployees t hat were grant ed. He does allege request ing safet y boot s from Fahert y, but he does not allege t hat Fahert y denied his request , but only opposed it . Nor does he allege any det ails as t o when Fahert y did not oppose safet y equipm ent request s m ade by non- prot ect ed em ployees, who t he request ing em ployees were, and what were t he safet y equipm ent request s. Wit hout such det ails, t he claim is not plausible in showing a discrim inat ory m ot ive. Wit h regards t o Fahert y t hrowing t hings at him , t he plaint iff alleges t hat “ Fahert y did not t hrow and st rike non- African Am erican em ployees wit h it em s in t he sam e posit ion as Plaint iff when t hey were working.” ECF# 10, ¶ 37. And t hen at ¶ 39, t he plaint iff alleges, “ No ot her non- African Am erican ut ilit y blast er w as t reat ed in t he sam e m anner or subj ect ed t o sim ilar host ile w orking condit ions despit e num erous com plaint s 20 bot h t o Fahert y, HR, and ot her m em bers of m anagem ent about t he t reat m ent he was receiving.” While t hese allegat ions are st ill lacking in det ail, t he court accept s t he plausibilit y of t he plaint iff knowing from his own work experience t hat Fahert y t hrew t hings at him t o get his at t ent ion or t o harass him and did not t hrow t hings at ot her ut ilit y blast ers in t he sam e way. The sim ple inference t o be drawn from t his allegat ion of Fahert y’s fact specific behavior is not subj ect t o t he sam e varying circum st ances as t he plaint iff’s ot her alleged incident s of discrim inat ion. As for t he plaint iff’s rem aining allegat ions of t he “ defendant ’s” t reat m ent of ot her em ployees, t he plaint iff does not allege enough det ails t o show sim ilarly sit uat ed em ployees being t reat ed different ly as t o creat e an inference of discrim inat ion. The allegat ion of Fahert y’s st ray reference t o “ good help” is not enough t o push his ot her allegat ions from possible t o plausible. See St one v. Aut oliv ASP, I nc., 210 F.3d 1132, 1140 ( 10t h Cir.) ( com m ent s t hat are isolat ed or am biguous m ay be t reat ed as t oo abst ract t o sust ain an inference of discrim inat ion) , cert . denied, 531 U.S. 876 ( 2000) . Nor has t he plaint iff alleged a connect ion bet ween Fahert y t hrowing t hings and t he ot her allegat ions against t he “ defendant ” as t o sust ain an inference of discrim inat ion. While t he court ’s discussion of t his count leaves t he plaint iff wit h a disparat e t reat m ent claim based on Fahert y t hrowing t hings at him , t he next sect ion of it s order has t he court concluding t hat t he t hrowing of t hings does not const it ut e an adverse em ploym ent act ion. Thus, court finds 21 t he plaint iff does not assert a plausible disparat e t reat m ent claim for race discrim inat ion. See Jackson- Cobb v. Sprint Unit ed Mgt ., 173 F. Supp. 3d 1139, 1146 ( D. Colo. 2016) , j udgm ent ent ered, 15- CV- 01308- MJW, 2016 WL 1296192 ( D. Colo. Mar. 29, 2016) . Count one is dism issed. Tit le VI I a n d § 1 9 8 1 Cla im for Re t a lia t ion—Count Tw o Pent air seeks t o dism iss t his count arguing Ross “ has not sufficient ly alleged any act ionable adverse act ion . . ., let alone any adverse act ion t hat is causally connect ed t o any alleged prot ect ed act ivit y.” ECF# 14, p. 10. Thus, Pent air t akes aim at t wo elem ent s of t he prim a facie case of ret aliat ion: t hat Ross has alleged fact s showing t hat a reasonable em ployee would find t he challenged act ion t o be m at erially adverse, and t hat Ross has alleged fact s showing a causal connect ion bet ween t he prot ect ed act ivit y and t he m at erially adverse act ion. Parker Excavat ing, I nc. v. Lafarge W., I nc., 863 F.3d at 1220. I n keeping wit h t he purposes behind t hese st at ut ory rem edies, t he Tent h Circuit “ broadly define[ s] adverse em ploym ent act ion” : We have st at ed t hat adverse em ploym ent act ions “ const it ut e[ ] a significant change in em ploym ent st at us, such as hiring, firing, failing t o prom ot e, reassignm ent wit h significant ly different responsibilit ies, or a decision causing a significant change in benefit s.” St innet t v. Safeway, I nc., 337 F.3d 1213, 1217 ( 10t h Cir. 2003) ( int ernal quot at ion and cit at ion om it t ed) . We have also recognized t hat m onet ary losses t ake a variet y of form s including shift s in com pensat ion or benefit s. See Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 ( 10t h Cir. 1998) . 22 Orr v. Cit y of Albuquerque, 417 F.3d 1144, 1150 ( 10t h Cir. 2005) . “ I n so defining t he phrase, we consider act s t hat carry a significant risk of hum iliat ion, dam age t o reput at ion, and a concom it ant harm t o fut ure em ploym ent prospect s.” Annet t v. Univ. of Kan., 371 F.3d 1233, 1239 ( 10t h Cir. 2004) ( int ernal quot at ion m arks and cit at ion om it t ed) . The Tent h Circuit t akes “ a case- by- case approach” looking at t he fact ors unique t o t he sit uat ion, but wit hout considering what are “ m ere inconvenience[ s] or an alt erat ion of j ob responsibilit ies.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 ( 10t h Cir. 1998) ( int ernal quot at ion m arks and cit at ion om it t ed) . An adverse act ion “ is not lim it ed t o discrim inat ory act ions t hat affect t he t erm s and condit ions of em ploym ent .” Burlingt on N. & Sant a Fe Ry. Co. v. Whit e, 548 U.S. 53, 64, 126 S.Ct . 2405, 165 L.Ed.2d 345 ( 2006) . On t he ot her hand, The Tent h Circuit has found: Moreover, wit h regard t o MacKenzie's claim t hat Gourley's “ silent t reat m ent ” t owards her was in ret aliat ion for her filing a grievance against him , we conclude m ere passive t reat m ent does not const it ut e an adverse em ploym ent act ion. See Flannery v. Trans World Airlines, I nc., 160 F.3d 425, 428 ( 8t h Cir.1998) ( shunning is not an adverse em ploym ent act ion where t he plaint iff did not allege t hat t he ost racism result ed in a reduced salary, benefit s, seniorit y, or responsibilit ies) ; Manning v. Met ro. Life I ns. Co., 127 F.3d 686, 693 ( 8t h Cir.1997) . “ While adverse em ploym ent act ions ext end beyond readily quant ifiable losses, not everyt hing t hat m akes an em ployee unhappy is an act ionable adverse act ion. Ot herwise, m inor and even t rivial em ploym ent act ions t hat an irrit able, chip- on- t he- shoulder em ployee did not like would form t he basis of a discrim inat ion suit .” Sm art v. Ball St at e Univ., 89 F.3d 437, 441 ( 7t h Cir.1996) ( quot at ion om it t ed) . Last ly, MacKenzie's claim t hat Gourley ret aliat ed by m oving her desk fort y- five degrees is equally wit hout m erit . Even if ret aliat ory, ( unlikely given t he explanat ion) , it is de m inim is. 23 Consequent ly, we are left only t o consider whet her MacKenzie's “ below expect at ions” j ob perform ance rat ing and one- day suspension, which are adverse em ploym ent act ions, were ret aliat ory. MacKenzie v. Cit y and Count y of Denver, 414 F.3d 1266, 1279 ( 10t h Cir. 2005) , abrogat ed on ot her grounds by, Lincoln v. BNSF Ry. Co., 900 F.3d 1166 ( 10t h Cir. 2018) . “ ’[ A] plaint iff m ust show t hat a reasonable em ployee would have found t he challenged act ion m at erially adverse, which in t his cont ext m eans it w ell m ight have dissuaded a reasonable worker from m aking or support ing a charge of discrim inat ion.’” Reinhardt v. Albuquerque Public Schools Bd. of Educ., 595 F.3d 1126, 1133 ( 10t h Cir. 2010) ( quot ing Burlingt on N. & Sant a Fe Ry. Co. v. Whit e, 548 U.S. at 68.) . Pent air point s t o t he plaint iff’s opening allegat ions t hat t he defendant ret aliat ed by ignoring and not invest igat ing his repeat ed com plaint s of discrim inat ion and ret aliat ion. Cit ing Johnson v. Weld Count y, Colo., 594 F.3d 1202, 1216 ( 10t h Cir. 2010) , Pent air argues conduct like ignoring an em ployee’s com plaint s is not adverse act ion. The Tent h Circuit ’s analysis in Johnson was grounded on t his, t hat “ ’Tit le VI I prot ect s individuals “ not from all ret aliat ion” but only from ret aliat ion “ t hat produces an inj ury or harm ” ’ t hat it self raises t o a “ ’level of seriousness.” ’ I d. ( quot ing William s v. W.D. Sport s, N.M., I nc., 497 F.3d 1079, 1086 ( 10t h Cir. 2007) ( quot ing in t urn Burlingt on N. & Sant a Fe Ry. Co. v. Whit e, 548 U.S. at 67) ) . Thus, requiring a level of adversit y t hat a reasonable em ployee would regard m at erially adverse “ is necessary t o separat e significant from t rivial harm s, 24 pet t y slight s, m inor annoyances, and sim ple lack of good m anners, . . . [ and] [ o] t herwise, m inor and even t rivial em ploym ent act ions t hat an irrit able, chip- on- t he- shoulder em ployee did not like.” I d. ( int ernal quot at ion m arks and cit at ions om it t ed) . The court held t hat supervisors giving t he cold shoulder or silent t reat m ent , snubbing and shunning an em ployee are not enough t o st at e a claim for ret aliat ion. I d. The court agrees t hat on t he fact s as alleged here, t he plaint iff has not st at ed a plausible claim for ret aliat ion based on ignoring him and not invest igat ing his com plaint s. See Daniel v. Unit ed Parcel Service, I nc., 797 F. Supp. 2d 1163, 1195- 96 ( D. Kan. 2011) , aff’d, 701 F.3d 620 ( 10t h Cir. 2012) . The plaint iff’s am ended com plaint list s t he following as ret aliat ory behavior: t hrowing t hings at him , “ nit picking his work and m icrom anaging him ,” wit hholding safet y equipm ent and t raining, suspending and invest igat ing him for m isconduct , and reprim anding him and t hreat ening t erm inat ion. The court agrees wit h Pent air t hat m ost of t his alleged behavior sim ply does not reach what a reasonable em ployee could regard as m at erially adverse. The plaint iff’s allegat ions of Fahert y occasionally t hrowing t hings at him sim ply do not show t hat a reasonable em ployee operat ing a ut ilit y blast er could regard such behavior t o be inj urious or t o be anyt hing m ore t han m inor, irrit able, and annoying behavior. I t is not t he plaint iff’s “ fears” t hat m at t er but whet her t he fact s show circum st ances t hat Fahert y’s conduct rose t o t he level of seriousness such t hat a reasonable 25 em ployee would regard it as serious t oo, and not m erely annoying. The court concludes t he sam e as t o t he plaint iff’s conclusory allegat ions about nit picking and m icrom anaging. There is not hing alleged t o show here such seriousness t hat a reasonable em ployee would be dissuaded from m aking or support ing a com plaint of discrim inat ion. See Keller v. Crown Cork & Seal USA, I nc., 491 Fed. Appx. 908, 914 ( 10t h Cir. Aug. 8, 2012) ( “ st rict applicat ion of policies, increased supervision, writ e- ups, m eans and m et hods of com m unicat ion wit h her supervisors,” do not rise t o m at erially adverse act ions because t hey “ are in t he nat ure of ordinary workplace t ribulat ions.” ) , cert . denied, 568 U.S. 1230 ( 2013) ; DeWalt v. Meredit h Corp., 288 Fed. Appx. 484, 494 ( 10t h Cir. Jul. 31, 2008) ( feeling nit picked does not qualify as an adverse em ploym ent act ion) . As t o t he wit hholding of safet y equipm ent and t raining, t he court again is in t he dark as t o what t he plaint iff is alleging here. The court is given no fact ual cont ext for knowing what kind of safet y equipm ent was wit hheld and under what circum st ances. The court will not speculat e t hat a reasonable em ployee could be dissuaded from m aking a discrim inat ion com plaint by reason of being denied som et hing t hat t he plaint iff does not allege in adequat e det ail. As for Fahert y opposing plaint iff’s request for safet y boot s, t here is not hing alleged here t o show t hat t his reaches t he significant level of adversit y needed t o be an adverse em ploym ent act ion rat her t han m erely annoying and insensit ive behavior. 26 This leaves plaint iff’s allegat ions of Fahert y reprim anding him , of HR suspending and invest igat ing him for m isconduct on Fahert y’s com plaint , and of HR t hreat ening his t erm inat ion, while he discussed his issues wit h Fahert y, “ if he cont inued t o pursue act ion,” ( ECF# 10, ¶ 60) . These allegat ions have Fahert y m anufact uring reprim ands, com plaint s and m isconduct against t he plaint iff t hat result ed in HR invest igat ing t hese m at t ers, suspending him for t hree days, and t hen t hreat ening his t erm inat ion. The court is sat isfied t hat t hese are adverse em ploym ent act ions. See MacKenzie v. Cit y and Count y of Denver, 414 F.3d at 1279 ( “ MacKenzie's ‘below expect at ions’ j ob perform ance rat ing and one- day suspension . . . are adverse em ploym ent act ions” ) ; Medina v. I ncom e Support Div., New Mexico, 413 F.3d 1131, 1137 ( 10t h Cir. 2005) ( a reprim and is an adverse em ploym ent act ion “ if it affect s t he likelihood t hat t he plaint iff will be t erm inat ed, underm ines t he plaint iff’s current posit ion, or affect s t he plaint iff’s fut ure em ploym ent opport unit ies.” ) ; Equal Em ploym ent Opport unit y Com m ission v. JBS USA LLC, 339 F. Supp. 3d 1135, 1187 ( D. Kan. 2018) ( “ cert ain t hreat s of fut ure adverse act ion can const it ut e a m at erially adverse em ploym ent act ion” under t he Burlingt on N. & Sant a Fe Ry. Co. st andard.) , reconsiderat ion denied, 2019 WL 4778796 ( D. Colo. Sep. 30, 2019) . This alleged series of ret aliat ory supervisory act ions by Fahert y t hat result ed in t he invest igat ion, plaint iff’s suspension and a t hreat ened t erm inat ion st at e a plausible claim for ret aliat ion. See Reinhardt v. 27 Albuquerque Pub. Schools Bd. of Educ., 595 F.3d 1126, 1134 ( 10t h Cir. 2010) ( prot ect ed conduct closely followed by adverse act ion m ay be circum st ances j ust ifying an inference of ret aliat ory m ot ive) . Thus, t he defendant ’s m ot ion t o dism iss count t wo is grant ed except for t he claim of ret aliat ion based on t he alleged adverse em ploym ent act ions of Fahert y reprim anding him , of HR suspending and invest igat ing him for m isconduct on Fahert y’s com plaint , and of HR t hreat ening his t erm inat ion during t hat invest igat ion. Ka n sa s Com m on - La w Cla im of Re t a lia t ion —Cou n t Th r e e The plaint iff alleges “ prot ect ed act ivit y by report ing safet y issues and ot her workplace concerns t o corporat e m anagem ent and out side t he facilit y.” ECF# 10, ¶ 88. He furt her alleges report ing t hat “ safet y rules” were being applied unfairly and inconsist ent ly based on race and t hat Pent air had com m it t ed “ workplace safet y violat ions t hat creat ed increased danger for him and his co- workers.” I d. at ¶¶ 90- 92. The plaint iff assert s his report s qualifies as prot ect ed act ivit y under Kansas st at ut es t hat aut horize t he Secret ary of Labor t o invest igat e business and order changes for t he safet y and prot ect ion of em ployees. I d. at ¶ 93. He also point s t o a Kansas st at ut e t hat prohibit s an em ployer from discharging or discrim inat ing against an em ployee who t est ifies before, signs a pet it ion, or is “ inst rum ent al in bringing t o t he” Secret ary of Labor “ any m at t er of cont roversy bet ween t he” em ployer and em ployee. He finally alleges t hat because of his report ing of 28 “ safet y and ot her workplace issues” Pent air denied him “ em ploym ent opport unit ies and ot her benefit s as well as relief from a host ile work environm ent .” I d. at ¶ 95. Pent air want s t he court t o dism iss t his count because t he plaint iff has failed t o allege t he clear violat ion of a st at e law, rule or regulat ion. “ [ G] eneral allegat ions of ‘safet y issues and ot her workplace concerns’ are sim ply not sufficient t o est ablish a plausible claim for ret aliat ion under Kansas com m on law.” ECF# 14, p. 15. I n response, Ross argues t hat K.S.A. 44- 615 “ m akes it unlawful t o discharge or discrim inat e in any way against an em ployee,” and t hat he “ exercise[ d] free speech regarding safet y concerns t hat were not being addressed by m anagem ent which significant ly increased t he risk of work- relat ed inj uries and racially discrim inat ory t reat m ent as it pert ained t o safet y violat ions.” ECF# 16, p. 11. I n t he plaint iff’s j udgm ent , “ [ a] ny m at t er t hat relat es t o work relat ed inj uries, discrim inat ion or ret aliat ion is a m at t er of public policy.” I d. Pent air replies t hat t his is not t he law in Kansas and t hat m ore is required t o allege a ret aliat ion claim for whist leblowing. The plaint iff’s conclusory allegat ions of “ safet y rule” violat ions are indist inguishable from allegat ions found in ot her cases where t he court s have dism issed such claim s: A whist leblowing claim under t his t ort “ m ust be based on violat ions of specific and definit e rules, regulat ions, or laws.” Goodm an v. Wesley Med. Ct r., L.L.C., 78 P.3d 817, 822–23 ( Kan. 2003) ( “ I t would be bot h t roublesom e and unset t ling t o t he st at e of t he law if we were t o allow 29 a ret aliat ory discharge claim t o be based on a personal opinion of wrongdoing.” ) ; see Diebold v. Sprint / Unit ed Mgm t . Co., No. 01- 2504KHV, 2002 WL 1071923, at * 3 ( D. Kan. Apr. 29, 2002) ( collect ing cases where plaint iffs clearly ident ified allegedly unlawful act ion giving rise t o whist leblowing) . . . . . Plaint iff cit es t wo provisions of Kansas law, but provides no addit ional fact s in his allegat ions which would explain how defendant s violat ed any law relat ing t o “ safet y issues and ot her workplace concerns.” The first of plaint iff’s cit ed provisions is Kan. St at . Ann. § 44- 636, which provides t he secret ary of labor t he power t o inspect businesses for violat ions of occupat ional healt h and safet y regulat ions, and furt her provides not ice, hearing, and penalt y provisions when a violat ion is found. See Kan. St at . Ann. § 44- 636. The second provision is Kansas’s general bar against ret aliat ory discharge based on an em ployee’s involvem ent in prot ect ed conduct as a wit ness or lit igant in an em ploym ent invest igat ion. I d. § 44- 615. Plaint iff neit her ident ifies any conduct by defendant s t hat violat ed eit her of t hese st at ut es, nor which conduct by defendant s he act ually report ed and why. Such general allegat ions of workplace safet y violat ions, absent any specific violat ion by defendant s giving rise t o t he report , are not sufficient t o show a plausible claim for ret aliat ion. Because plaint iff has not clearly alleged a violat ion of specific and definit e rules, regulat ions, or laws by defendant s, t he court dism isses plaint iff’s st at e law claim for ret aliat ory discharge in violat ion of public policy. Palm er v. Pent air, 2019 WL 3239350, at * 4, * 8 ( D. Kan. Jul. 18, 2019) ; see William s v. CoreCivic, I nc., 2019 WL 7372002, * 11- * 12 ( D. Kan. Dec. 31, 2019) ( allegat ions of “ safet y issues” or pract ices as “ illegal under Kansas law” wit hout point ing t o specific conduct const it ut ing a violat ion of a rule, regulat ion, or law fails t o st at e a prim a case of ret aliat ory discharge) ; Ross v. Pent air, 2019 WL 6700402, at * 5 ( D. Kan. Dec. 8, 2019) ( Wit hout fact ual allegat ions “ about what safet y rules w ere violat ed, t he t im e fram e of t hose violat ions, t o whom he report ed t hem , or what st eps he t ook t o report t hem ,” t he plaint iff has not st at ed a plausible claim for relief) . These cases 30 and t heir holdings are on all fours w it h what t he plaint iff alleges here. The fact ual allegat ions here do not m ove t he st at e law claim from conceivable t o plausible. The court grant s t he m ot ion t o dism iss t his count . I T I S THEREFORE ORDERED t hat t he Pent air’s m ot ion t o dism iss ( ECF# 13) is grant ed except for t he plaint iff’s count t wo ret aliat ion claim under Tit le VI I and § 1981 based on t he alleged adverse em ploym ent act ions of Fahert y reprim anding him , of HR suspending and invest igat ing him for m isconduct on Fahert y’s com plaint , and of HR t hreat ening his t erm inat ion during t hat invest igat ion. I n all ot her respect s, Pent air’s m ot ion is grant ed. Dat ed t his 3 rd day of March, 2020, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 31
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
