Abouelenein v. Kan. City Kan. Cmty. Coll.
| Decision Date | 31 March 2020 |
| Docket Number | Case No. 18-2670-DDC-JPO |
| Parties | DR. MAHMOUD ABOUELENEIN, Plaintiff, v. KANSAS CITY KANSAS COMMUNITY COLLEGE, THE BOARD OF TRUSTEES OF KANSAS CITY KANSAS COMMUNITY COLLEGE, and DR. JACQUELINE VIETTI, Defendants. |
| Court | U.S. District Court — District of Kansas |
Before the court is defendants Kansas City Kansas Community College ("KCKCC"), the Board of Trustees of Kansas City Kansas Community College (the "Board"), and Dr. Jacqueline Vietti's ("Dr. Vietti," and together with KCKCC and the Board, "defendants") Motion for Partial Dismissal (Doc. 19). Defendants move under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss certain claims asserted against them by plaintiff Dr. Mahmoud Abouelenein. Plaintiff has responded (Doc. 25), and defendants have replied (Doc. 31). For reasons explained below, the court grants in part and denies in part defendants' Motion for Partial Dismissal.
The court takes the following facts from plaintiff's First Amended Complaint (Doc. 4-1) and views them in the light most favorable to plaintiff. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) ().
Plaintiff is an Egyptian-born, Muslim male. KCKCC employed plaintiff from 2005 through April 4, 2018. He was hired in 2005 as Director of Information Systems. In 2007, plaintiff was promoted to Dean of Information Services/Chief Information Officer. Since 2015, in plaintiff's role as Chief Information Officer, he reported to and was supervised by the President of KCKCC. He was also a member of the President's Cabinet, the executive management team for KCKCC. Plaintiff never received a negative performance review and was never the subject of any disciplinary action during his tenure at KCKCC. And, he received annual merit bonuses each year.
In 2016, KCKCC offered Chief Officer-level employees, including plaintiff, employment contracts. Plaintiff's employment contract (the "Employment Contract") had an effective date of July 1, 2016 and provided for a term of employment through June 30, 2019. It was signed by the then-current President of KCKCC, Dr. Dorris Givens. And, the Employment Contract provided terms and conditions governing plaintiff's compensation, health benefits, vacation leave, and various other benefits. Plaintiff alleges that the Board's policy was for the Board to hire the President, but then delegate responsibility for hiring all other employees to the President. The President then "ensure[s] that personnel policies, practices, and employment agreements are implemented and followed." Doc. 4-1 at 7 (Compl. ¶ 43). Dr. Vietti became KCKCC's President on July 19, 2017 and served in this role until June 30, 2018. During this time, she was plaintiff's supervisor. At some point, during a meeting with Dr. Vietti, Dr. Vietti told plaintiff he would continue to receive certain phone allowance and car allowance benefits because they were specified in the Employment Contract, even though other employees without contracts were losing these benefits.
In July and August of 2017, current and former members of the Board and KCKCC staff solicited anonymous complaints that made false and unsupported allegations about plaintiff and then-President Dr. Givens. These Board members and employees did this in an attempt to remove plaintiff and Dr. Givens from their current positions. The complaints involved allegations of criminal conduct and sparked an investigation. Plaintiff had to hire an attorney to represent him. Plaintiff requested copies of the complaints, but never received them. He contends "the allegations have been shown to be wholly meritless and no action has been taken as a result of the investigation." Id. at 8 (Compl. ¶ 49). But, despite plaintiff's requests, he has not received the resolution of the investigation or any report exonerating him.
Throughout plaintiff's employment at KCKCC, he "was routinely the target of inappropriate and disrespectful comments and was treated differently from other employees." Id. at 7 (Compl. ¶ 44). But plaintiff did not report many of these experiences for fear of retaliation by KCKCC. On September 8, 2017, he did make a written complaint to KCKCC's human resources department about discriminatory treatment.
In this human resources complaint, plaintiff provided examples of how he, "[a]s the only Muslim and person of Middle Eastern origin," was treated differently from his colleagues. Id. at 8 (Compl. ¶ 52). First, he described how he was investigated for spying on other employees based on anonymous, untrue, and unsupported allegations. He explained that no evidence supported these allegations and they were made to attack his integrity. But, even after cooperating with the investigation, the Acting President took away certain of plaintiff's job responsibilities based on these allegations. Next, he described a number of issues with the Vice President of Academic Affairs, Dr. Ed Kremer. Dr. Kremer told him to rub goat urine on his head for hair growth. In the complaint, plaintiff stated that this remark was "clearly based on[his] religious and ethnic background." Id. at 9. Plaintiff also asked Dr. Kremer to refer to him as "Dr. Baz" when addressing him in public forums where Dr. Kremer addressed other colleagues with doctoral degrees as "Dr." Plaintiff believed Dr. Kremer was not affording him this same respect because his last name was not of English origin. After asking Dr. Kremer to refer to him as "Dr.," a complaint was filed accusing plaintiff of sexism and plaintiff was investigated. Dr. Kremer also attempted to provide Christian counseling to plaintiff when plaintiff was going through a divorce, despite knowing he was Muslim. Plaintiff explained that, during these baseless investigations, he began to have job responsibilities taken away, while other non-Muslim/non-Egyptian employees were not reprimanded.
After filing the human resources complaint, plaintiff continued to be subjected to discriminatory and retaliatory treatment. His job duties continued to be reduced and entire departments that previously had reported to plaintiff were taken away. KCKCC then declared the Employment Contract to be invalid. KCKCC claimed it was unaware of the Employment Contract, notwithstanding the then-President's signature on the agreement and the fact that plaintiff and KCKCC had been operating under its terms since its execution. KCKCC even accused plaintiff of intentionally misappropriating college funds by agreeing to the Employment Contract, even though similar contracts were offered to all senior-level administrators. KCKCC's attorney has threatened plaintiff with a criminal investigation and legal action to recoup some of his compensation and benefits received under the Employment Contract. KCKCC also took away plaintiff's health benefits and failed to provide certain salary and other benefits agreed to in the Employment Contract.
On March 29, 2018, plaintiff notified KCKCC that he intended to file an EEOC charge on April 4, 2018. On April 3, 2018, KCKCC scheduled and held a special meeting of the Board.That evening, the Board voted and declared their intention to terminate plaintiff's employment. The next day, KCKCC's Chief Financial Officer—Michael Beach—and its Chief Human Resources Officer—Christina McGee—informed plaintiff that he was being terminated for failing to comply with KCKCC's policies, rules, and regulations or laws applicable to KCKCC, and for "other personal conduct that is detrimental to the interests of the College." Doc. 4-1 at 11 (Compl. ¶ 65). But, to date and despite his many requests, plaintiff has not been told what policies he failed to comply with or what conduct KCKCC deemed detrimental. He believes he was terminated without cause. And, plaintiff's final paycheck was significantly below what he was entitled to under the terms of the Employment Contract. He alleges KCKCC still owes him $54,886.63, plus applicable penalties under the Kansas Wage Payment Act.
On April 5, 2018, plaintiff filed a charge of discrimination against KCKCC with the Equal Employment Opportunity Commission ("EEOC"), asserting discrimination based on religion and national origin and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e-17 ("Title VII"). The charge also was forwarded to and filed with the Kansas Human Rights Commission ("KHRC"). Plaintiff requested a right to sue letter and the EEOC forwarded this request to the Department of Justice. Plaintiff then received the Notice of Right to Sue from the Department of Justice and, on December 6, 2018, filed this lawsuit.
Plaintiff asserts eight counts against defendants: (1) religious discrimination violating Title VII; (2) national origin discrimination violating Title VII; (3) retaliation violating Title VII; (4) breach of contract; (5) negligence; (6) estoppel; (7) unjust enrichment; and (8) Kansas Wage Payment Act violation, specifically for unpaid earned wages under Kan. Stat. Ann. § 44-315.
As explained in more detail below, defendants move to dismiss all claims asserted against Dr. Vietti, either because plaintiff failed to exhaust administrative remedies, failed to provide required notice, or failed to state a cognizable claim. And, they move to dismiss certain claims asserted against the Board and KCKCC, claiming that plaintiff failed to exhaust administrative remedies or failed to provide required notice. Defendants raise these arguments for dismissal under Federal Rule of Civil Procedure 12(b)(1) () and Federal Rule of Civil Procedure 12(b)(6) ().
Under Rule 12(b)(1), a defendant may move to dismiss for lack of...
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