Delatorre v. Minner

• Citation: 238 F.Supp.2d 1280
• Decision Date: 13 December 2002
• Docket Number: No. 01-4065-SAC.,01-4065-SAC.
• Parties: Richard A. DELATORRE, Plaintiff, v. William V. MINNER, in his individual capacity, Defendant.
• Court: U.S. District Court — District of Kansas

238 F.Supp.2d 1280

Richard A. DELATORRE, Plaintiff, v. William V. MINNER, in his individual capacity, Defendant.

No. 01-4065-SAC.

United States District Court, D. Kansas.

December 13, 2002.

Pantaleon Florez, Jr., Topeka, KS, for plaintiff.

M.J. Willoughby, Scott B. Poor, Office of Attorney General, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on the defendant William Minner's motion to dismiss pursuant to Rules 12(b)(6) of the Federal Rules of Civil Procedure. (Dk.19). This is round two in the defendant's effort towards a a pretrial dismissal of this employment discrimination case brought under the civil rights statutes of 42 U.S.C. §§ 1981 and 1983. As a result of the defendant's first motion, the court dismissed the plaintiff's § 1983 claim based on the right to be free from retaliatory conduct, denied the motion without prejudice on the defense of qualified immunity and on the challenges to the sufficiency of the complaint, and denied the defendant's other legal challenges. (Dk.15). The court also directed the plaintiff to file an amended complaint addressing the pleading deficiencies discussed in that order. The plaintiff has filed an amended complaint (Dk.18), and the defendant again moves for dismissal for failure to state a claim upon which relief can be granted, (Dk.19).

AMENDED COMPLAINT

The plaintiff is of Mexican origin and ancestry, and he was employed as a special investigator with the Kansas Humans Rights Commission ("KHRC") from 1992 until his termination in July of 1999. The defendant is African American, and he served as the executive director of the KHRC during the relevant time periods. The plaintiff alleges he was denied benefits awarded to less deserving employees who were African American. Specifically, he was one of the top three producers in 1998 and 1999, and the defendant awarded trips to the national human rights conventions to lower-producing African American employees rather than the plaintiff. The plaintiff alleges he received more severe discipline than that given to employees who were African American. Specifically, as a result of unauthorized long distance telephone calls, the plaintiff was placed on strict probation for ninety days, restricted to office work, required to report to work during specified hours and restricted in his use of the telephone, but Robert Davis, an African American employee, did not receive as severe discipline for his unauthorized long distance telephone calls. The plaintiff also alleges that beginning in 1998 and continuing up to his termination, the defendant had directed the plaintiff not to have any contact with any KHRC commissioner especially those of Hispanic ancestry. The plaintiff further alleges the defendant ignored the regular chain of supervisory authority and directly supervised an African American investigator. Besides pleading that each of these actions denied him of equal rights and protection under the law, the plaintiff asserts the same along with other some other generally alleged actions resulted in his constructive discharge in July 1999.

In his amended complaint, the plaintiff also includes the following conclusory allegations:

19. From May 1998 through Plaintiff's constructive discharge in July 1999, Defendant subjected Plaintiff to disparate terms and conditions of employment on a continuous basis because of his Mexican ancestry. As noted above Plaintiff was not allowed the benefits earned because of his performance, was subjected to substantially more severe disciplinary action, was denied the right to speak to other Mexican or Hispanic employees of the KHRC including commissioners, was denied the special consideration afforded to the African American investigator directly supervised by the Defendant, was denied the opportunity to perform my duties in accord with the law, was ordered to change reports and findings on cases at the direction of the Defendant, and African American employees were given credit for completed investigations by Defendant in spite of the fact that they did not conduct investigations.

21. From at least May 1998 and continuing throughout the balance of Plaintiff's employment the above identified disparate treatment of Plaintiff by Defendant created a hostile work environment for Plaintiff because of his Mexican ancestry and origin.

22. Plaintiff was continuously subjected to the work environment heavily charged with racial bias and disparate treatment both directly towards him and in his presence. The hostile work environment was created by the Defendant, with the intent to cause Plaintiff to terminate employment.

23. Plaintiff alleges he was constructively discharged effective July 30, 1999 in that, the adverse disparate treatment he was subjected to over an extended period of time created intolerable working conditions such as that no reasonable person would be expected to continue in their employment.

24. From at least May 1998 until at least July 30, 1999 Defendant by engaging in the above identified unlawful racial discrimination created barriers to advancement and continued employment of Plaintiff by failing to equalize, privileges and other terms and conditions of employment for Plaintiff, as contrasted with similarly situated African American employees.

(Dk.18).¹ In relevant part, the plaintiff seeks to recover back pay and compensatory damages for both pecuniary and non-pecuniary losses.

RULE 12(B)(6) STANDARDS

The court incorporates by reference those standards set out in its prior order. (Dk.15). From that prior order, the court highlights that dismissal is inappropriate "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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). All well-pleaded factual allegations in the complaint must be accepted as true, see Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir. 1992), and viewed in the light most favorable to the nonmoving party, Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472 (10th Cir.1990). The court, however, is not 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, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (footnote omitted).

ARGUMENTS

The defendant Minner seeks dismissal on several bases. First, the plaintiff's amended complaint fails to cure the pleading deficiencies earlier found by the court. Second, the plaintiff's claims as alleged are barred by the applicable statute of limitations. Third, the defendant is entitled to qualified immunity on the plaintiff's claims. Finally, the plaintiff's allegations fail to state a claim upon which relief can be granted under 42 U.S.C. § 1981. In response, the plaintiff submits his allegations are sufficient to state a claim. He accepts the applicable limitations period as two years, but he points to his allegations that he sought equal treatment during the last fifteen months of his employment and was denied the same continuously and that the same acts of disparate treatment culminated in his constructive discharge in July 1999. The plaintiff contends the defendant's discriminatory actions violated clearly established law and the complaint alleges specific claims of constitutional violations. Finally, the plaintiff argues the district court should not change its mind about the proper interpretation and application of 42 U.S.C. § 1981(c) to a state employee sued in his individual capacity.

SUFFICIENCY OF FACTUAL ALLEGATIONS

In its prior order, the court offered the following in part as the law governing this issue:

Once a defendant asserts a defense of qualified immunity, the "court must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (citations omitted). The issue of "whether the plaintiff has asserted a violation of a constitutional right at all" is a "purely legal question." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277, (1991) ....

"In the context of a 12(b)(6) motion to dismiss, . . . the qualified immunity defense is limited to the pleadings," and "the allegations in the complaint and any reasonable inferences ... from them" are drawn in favor of the plaintiff. Dill v. City of Edmond, Okl., 155 F.3d 1193, 1203-04 (10th Cir.1998). In the past, the Tenth Circuit has required a plaintiff to meet a heightened pleading standard upon a defendant's assertion of qualified immunity. Currier v. Doran, 242 F.3d 905, 911 (10th Cir.), cert. denied, 534 U.S. 1019, 122 S.Ct. 543, 151 L.Ed.2d 421 (2000). The Tenth Circuit in Currier held, however, that this heightened pleading requirement does not survive the Supreme Court's opinion in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). 242 F.3d at 916. While accepting that its review is now limited to the customary 12(b)(6) standards, the Tenth Circuit observed that the Supreme Court recognized a trial judge's discretion to "require a plaintiff to plead `specific, non-conclusory factual allegations' to survive a prediscovery motion for dismissal." 242 F.3d at 916 (quoting Crawford-El, 523 U.S. at 598, 118 S.Ct. 1584). When faced with this requirement, the plaintiff "may amend his complaint to include additional `specific, non-conclusory allegations of fact' sufficient to allow the district court to determine whether Defendants are entitled to qualified immunity." Dill v....