Zhang et al v. Federal Home Loan Bank of Topeka et al, No. 5:2019cv04073 - Document 47 (D. Kan. 2020)
Court Description: MEMORANDUM AND ORDER denying 35 Motion to Dismiss for Failure to State a Claim. Signed by U.S. District Senior Judge Sam A. Crow on 3/10/20. (msb)
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Zhang et al v. Federal Home Loan Bank of Topeka et al Doc. 47 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS QI NGHUA ZHANG, and STEVEN CRAI G HEI LAND, Plaint iffs, vs. Case No. 19- 4073- SAC FEDERAL HOME LOAN BANK OF TOPEKA, Defendant . MEMORANDUM AND ORDER On Decem ber 30, 2019, t his court filed it s order t hat , int er alia, grant ed t he defendant s’ m ot ion t o dism iss t he plaint iff St even Craig Heiland’s claim but also grant ed 20 days for Heiland t o am end his com plaint t o cure t he pleading deficiencies. ECF# 31. Upon t he am ended com plaint ’s filing, t he defendant Federal Hom e Loan Bank of Topeka ( “ FHLB” ) filed it s answer t o t he am ended com plaint ( ECF# 34) and a m ot ion t o dism iss t he plaint iff Heiland’s claim pursuant t o Fed. R. Civ. P. 12( b) ( 6) ( ECF# 35) . This m ot ion is ripe for ruling. FHLB cont ends t hat t he am ended com plaint “ is not m at erially different ” from t he deficient original com plaint and t hat t he addit ional allegat ions are “ conclusory” offering only t hat Heiland “ observed” and “ opposed” discrim inat ion. ECF# 35, p. 2. I n FHLB’s est im at ion, t he new allegat ions are am biguous and conclusory and fail t o offer enough det ails t o st at e a plausible claim for ret aliat ion. More specifically, FHLB cont ends t he Dockets.Justia.com plaint iff’s allegat ions do not show t hat he engaged in prot ect ed act ivit y or t hat FHLB int erpret ed his conduct as prot ect ed opposit ion. The m ere observat ion of discrim inat ion does not equat e wit h opposing what one observes. Ot her t han alleging he “ report ed his observat ions and opposit ion t o t he sam e t o m anagem ent ,” Heiland does not allege any det ails about his voiced opposit ion as t o whom his report s were m ade, how t hey were m ade, and what was report ed. Making observat ions is not prot ect ed unless it is t o oppose unlawful conduct . The conclusory allegat ion t hat he “ report ed his observat ions and opposit ion t o t he sam e t o m anagem ent ” is fact ually t hreadbare and does not cont ain enough fact s t o m ove his claim from conceivable t o plausible. His conclusory allegat ions are m ade wit hout any fact ual cont ext t o support a plausible claim . I n response, Heiland cont ends his am ended com plaint cures t he pleading deficiencies by adding allegat ions t hat he m ade m ult iple st at em ent s t o supervisors affirm at ively report ing unlawful discrim inat ion. Specifically, Heiland reads his com plaint t o allege t hat on m ult iple occasions he report ed t o m anagem ent having seen Ms. Schult z not only engage in discrim inat ory t reat m ent of Asian em ployees in t he Quant it at ive Analysis Depart m ent but also exhibit dem eaning behavior t oward Mr. Zhang, t he Asian Direct or of t hat sam e Depart m ent . Heiland alleges he was nicknam ed, “ Mot her Hen,” by t he Asian em ployees because he act ively support ed t he Asian em ployees and opposed unlawful discrim inat ion against t hem . As for t he det ails about 2 his report ing t o m anagem ent , t he how, when and t o whom , t he plaint iff argues t hese quest ions are t o be explored in discovery and do not keep his am ended com plaint from st at ing a plausible claim of ret aliat ion. I n reply, FHLB reit erat es t he plaint iff’s allegat ions are conclusory and lack t he det ail sufficient t o push t hem across t he line t o plausible. Am e n de d Com pla in t Most of t he fact ual allegat ions t o t he plaint iff’s am ended com plaint appear in a single narrat ive paragraph organized som ewhat chronologically. Because it is a sum m ary of event s wit h only occasional allegat ions, it does not read like a t ypical com plaint and does not facilit at e applying Rule 12( b) ( 6) . The court set s fort h below t he am ended com plaint as allegat ions. I n her ret irem ent int erview in Sept em ber of 2018, Peg Schult z alleged t he plaint iff Qinghua Zhang, t he Direct or of Quant it at ive Analysis, direct ed derogat ory rem arks t oward wom en and assigned adm inist rat ive work t o t hem . Mr. Zhang’s m anager, Michael Surface, verbally counseled Zhang in Novem ber of 2018 about t hese allegat ions. Ms. Schult z had been t he “ t he only non- m inorit y on Mr. Zhang’s t eam .” ECF# 33, p. 7. “ Over t he years, Mr. Zhang report ed Ms. Schult z’s discrim inat ory t reat m ent of m inorit ies and relat ed dem eaning behavior t owards him and his st aff t o his m anager, Mr. Surface.” I d. The com plaint alleges Mr. Surface t ook no act ion t o st op Ms. Schult z’s discrim inat ion. 3 Aft er t he verbal counseling wit h Mr. Surface, Mr. Zhang wrot e a report disput ing Ms. Schult z’s allegat ions and com plaining about her discrim inat ory behavior against m inorit y m em bers of his t eam . Mr. Zhang m et wit h Hum an Resource represent at ives on t wo occasions and discussed also his report s of Mr. Surface’s discrim inat ory behavior t oward m inorit ies. I n t hose discussions, Mr. Zhang report ed t hat a co- worker, t he plaint iff St even Heiland, Direct or of Market Risk Operat ions, was a “ wit ness of t hose behaviors.” I d. The em ployer did not int erview any of t he alleged m inorit y vict im s or Mr. Heiland even t hough Mr. Zhang had st rongly encouraged it . The am ended com plaint next alleges: Mr. Heiland observed Ms. Schult z’s discrim inat ory t reat m ent of m inorit ies and relat ed dem eaning behaviors t oward Mr. Zhang and his st aff and he report ed his observat ions and opposit ion t o t he sam e t o m anagem ent . Mr. Heiland observed Mr. Surface’s discrim inat ory t reat m ent of m inorit ies and he report ed his observat ions and opposit ion t o t he sam e t o m anagem ent . Mr. Heiland openly and act ively support ed m inorit y em ployees and m ade m anagem ent aware of his opinon regarding t he unlawful discrim inat ory t reat m ent of t he sam e. Mr. Heiland was frequent ly and com m only referred t o as t he “ Mot her Hen” of t he m inorit y workers because of his open and act ive support and opposit ion t o unlawful discrim inat ion. Mr. Heiland, age 57, was repeat edly confront ed by his co- worker, Cat hy Parcaro, and his superior, Michael Surface, t o inquire about his plans for ret irem ent . On April 3, 2019, Mr. Zhang provided t he bank a list of em ail exchanges bet ween Mr. Zhang, Mr. Heiland and Mr. Surface. I n t hose em ail exchanges, Mr. Zhang and Mr. Heiland report ed Ms. Schult z’s discrim inat ory behaviors t oward m inorit ies and som e pot ent ial fraudulent act ivit ies in t he depart m ent t o Mr. Surface. I d. D iscu ssion 4 To survive a m ot ion t o dism iss, a plaint iff does not have t o est ablish a prim a facie case of ret aliat ion in his or her com plaint , but “ t he elem ent s of each alleged cause of act ion help t o det erm ine whet her [ t he] [ p] laint iff has set fort h a plausible claim .” Khalik v Unit ed Air Lines, 671 F.3d 1188, 1192 ( 10t h Cir. 2012) . That t he plaint iff “ engaged in prot ect ed opposit ion t o discrim inat ion” is an elem ent . I d. at 1193 ( int ernal quot at ion m arks om it t ed) . The Tent h Circuit has sum m arized: The Suprem e Court has defined “ oppose” in t his cont ext by looking t o it s ordinary m eaning: “ t o resist or ant agonize; t o cont end against ; t o confront ; resist ; wit hst and, ... t o be host ile or adverse t o, as in opinion.” Crawford v. Met ro. Gov't of Nashville & Davidson Ct y., 555 U.S. 271, 276, 129 S.Ct . 846, 172 L.Ed.2d 650 ( 2009) ( cit at ions and ellipsis om it t ed) . Under t his broad definit ion, “ [ w] hen an em ployee com m unicat es t o her em ployer a belief t hat t he em ployer has engaged in a form of em ploym ent discrim inat ion, t hat com m unicat ion virt ually always const it ut es t he em ployee’s opposit ion t o t he act ivit y.” I d. ( quot at ion m arks, ellipsis, em phasis, and cit at ion om it t ed) ; see also Hert z v. Luzenac Am ., I nc., 370 F.3d 1014, 1015 ( 10t h Cir. 2004) ( “ Prot ect ed opposit ion can range from filing form al charges t o voicing inform al com plaint s t o superiors.” ) . Hansen v. SkyWest Airlines, 844 F.3d 914, 925–26 ( 10t h Cir. 2016) . For t he m ost part , t he plaint iff’s allegat ions of prot ect ed act ivit y are lacking in det ail but are not ent irely conclusory in charact er. He does allege t hat he report ed t o m anagem ent t he discrim inat ory t reat m ent by Ms. Schult z and Mr. Surface which he had observed. Even m ore specifically, he alleges having exchanged em ails wit h Mr. Surface report ing Ms. Schult z’s discrim inat ory behavior and t hen provided FHLB a copy of his em ails on April 3, 2019. The plaint iff’s allegat ions could be m ore specific as t o when he 5 observed t his discrim inat ory conduct and t o whom he report ed it . See Goddard v. Art isan Eart hworks, LLC, No. 09- 2336- EFM, 2010 WL 3909834, at * 6 ( D. Kan. Oct . 1, 2010) . And yet , t he court is m indful t hat “ [ a] lt hough no m agic words are required, t o qualify as prot ect ed opposit ion t he em ployee m ust convey t o t he em ployer his or her concern t hat t he em ployer has engaged in [ an unlawful] pract ice.” Hinds v. Sprint / Unit ed Managem ent Co., 523 F.3d 1187, 1203 ( 10t h Cir. 2008) . Heiland’s allegat ions put forward t hat he has personally com m unicat ed com plaint s of observed discrim inat ion t o his supervisor and t o m anagem ent . The Tent h Circuit has held, however, t hat “ [ p] rot ect ed opposit ion can range from filing form al charges t o voicing inform al com plaint s t o superiors.” E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 804 ( 10t h Cir. 2007) ( int ernal cit at ion and quot at ion m arks om it t ed) . Drawing all inferences in plaint iff’s favor, t he court will accept t he plaint iff’s allegat ions as enough t o avoid dism issal at t his j unct ure. I T I S THEREFORE ORDERED t hat t he defendant FHLB’s Rule 12( b) ( 6) m ot ion t o dism iss t he plaint iff Heiland’s claim s ( ECF# 35) is denied. Dat ed t his 10 t h day of March, 2020, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 6
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