Ross v. Pentair Flow Techs., Inc.
| Decision Date | 03 March 2020 |
| Docket Number | Case No. 19-2690-SAC |
| Parties | TONY B. ROSS, Plaintiff, v. PENTAIR FLOW TECHNOLOGIES, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
After the plaintiff Tony B. Ross ("Ross") filed his amended employment discrimination complaint asserting actions under 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 ("§ 1981"), and state common-law retaliation, the defendant Pentair Flow Technologies, Inc. ("Pentair") filed its Fed. R. Civ. P. Rule 12(b)(6) motion to dismiss with supporting memorandum. ECF## 13 and 14. On the plaintiff's count one action of "prohibited discrimination" in violation of Title VII and § 1981, (ECF# 10), Pentair argues the plaintiff has not administratively exhausted his "vague claim" for failure to promote under Title VII and has otherwise failed to allege facts adequate to sustain an inference of discrimination. ECF# 13. On the plaintiff's count two of "prohibited retaliation" in violation of Title VII and § 1981, (ECF# 10), Pentair argues the plaintiff has not alleged facts showing an actionable adverse action or a causal connection between any adverse action and alleged protected activity. ECF# 13. On the plaintiff's count three state common-law retaliation, Pentair argues the plaintiff has failed to allege Pentair's violation of any specific and definite rule, regulation or law. The matter is ripe for decision. ECF# 13.
Amended Complaint's Factual Allegations
Ross started working for Pentair on May 23, 2018, and he continues to be employed there. His allegations against Pentair concern actions taken against him while working as an "utility blaster." The first alleged action occurred in June of 2018, when Ross asked his manager Shane Faherty for a safety item. Faherty did provide Ross with a cooling vest but also said, "I take care of my good help." Ross alleges Faherty's statement was racially motivated, because he sees a connection between it and the contemporary movie, "The Help," which is "about Black servants who worked in white homes." ECF# 10, ¶ 32.
Later in June of 2018, Ross asked Faherty to signal him in order to get his attention when he was using the blaster. The plaintiff alleges Faherty then later threw a board hitting him. This led Ross to ask that Faherty stop throwing things at him, and he repeatedly complained to Faherty about this method of getting his attention. The plaintiff alleges Faherty did not throw and strike Non-African American employees who were "in the same position as Plaintiff when they were working." ECF# 10, ¶ 37.
In November of 2018, Ross asked Faherty for Pentair to provide him with insulated boots for safety and medical purposes. This upset Faherty who responded, "this job may not be for him [Ross]." ECF# 10, ¶ 41. Whenthe plaintiff explained he needed the boots due to a recent medical procedure, Faherty became "more furious" with this explanation. Id. at ¶ 43. Ross alleges "non-African American employees who were similarly situated to him" were given boots and other safety equipment without facing a manager's opposition. Id. at ¶ 44.
Ross reported Faherty's different treatment of him to management and Faherty's supervisor, Andrew Pepperdine. Id. at ¶¶ 45-46. Faherty's treatment of Ross then worsened in that he "micromanaged" Ross, "excessively and arbitrarily" criticized plaintiff's performance, and watched Ross use the bathroom on December 12. Id. at ¶¶ 47-49. Ross continued to report Faherty. Id. at ¶ 50. Ross experienced "great fear" when Faherty threw a bucket at him on December 17, and Ross again asked Faherty to stop throwing things because he has "PTSD and receives treatment for such condition." Id. at ¶¶ 51-52.
Faherty began reprimanding Ross over job speed and production and accusing Ross of policy violations for "common practices" in the workplace which "no non-African American similiarly situated employee had ever been disciplined." Id. at ¶¶ 53-54. Faherty "falsely accused" Ross of "misconduct," and Ross was questioned by Pepperdine and Steve Wilson without having union representation present. Id. at ¶¶ 55-56. Human resources questioned Ross over Faherty's claim of being afraid of Ross, and the plaintiff was suspended for three days during this investigation. Id. at ¶¶57-58. "When Plaintiff spoke to HR about his issues with Faherty, he was threatened with termination if he continued to pursue action." Id. at ¶ 60. "After making complaints to management and filing the EEOC charge, the treatment he received at work worsened and began to increase in frequency and severity." Id. at ¶ 61. "Ross is still employed by Pentair and continues to receive the treatment he has complained about without resolution." Id. at ¶ 62. "Ross along with several co-workers has repeatedly voiced their concerns regarding the dangerous working conditions and the extreme risk of danger but Pentair has taken no action to rectify the issues while unjustly reprimanding and denying Mr. Ross promotional opportunities despite his qualifications." Id. at ¶ 64. Finally, Ross alleges he "continues to work in a hostile environment that causes him fear, stress and anxiety." Id. at ¶ 65. The above are his factual allegations common to his three counts.
Under count one, Ross also alleges Pentair harassed him and intentionally discriminated against him "based on his race." Id. at ¶¶ 67-70. "Defendant denied and continues to deny Plaintiff of employment opportunities." Id. at ¶ 71. Pentair did not treat Ross equally and intentionally discriminated against him in its application of "workplace policies." Id. at ¶¶ 74-75. Management level employees racially discriminated against Ross by "repeated assaults . . . as a pattern or practice of getting Plaintiff's attention," by "failing to promote Plaintiff to a position he applied to and was qualified for and filling it with non-African Americanemployees who were not more qualified than Plaintiff," by "[a]rbitrarily reprimanding Plaintiff for engaging in . . . job performance and behaviors common with all employees," by "[h]olding Plaintiff to a higher standard" in managing and evaluating his performance; by "arbitrarily withholding safety equipment and training from Plaintiff" differently from non-African American similarly situated employees. Id. at ¶ 78. In summary, Ross alleges Pentair acted on racially discriminatory intent against him by applying workplace policies, by assaulting him to get his attention, by failing to promote, by managing and evaluating his performance, and by withholding safety equipment and training.
Under count two, Ross alleges he engaged in protected activity "by reporting discrimination, safety concerns and other issues within the facility" and by raising "numerous complaints of race discrimination and other lawful conduct with Defendant." Id. at ¶¶ 82-83. Pentair retaliated by ignoring and failing to investigate Ross's complaints and by his supervisor assaulting him, failing to promote him, managing and evaluating him by higher standards, by withholding safety equipment and training, by suspending and investigating him for misconduct, and by reprimanding and threatening to terminate him for continuing his reporting. Id. at ¶ 84. Ross alleges his protected activity opposing discrimination was a motivating factor behind Pentair's retaliation. Id. at ¶ 85.
Finally, under count three, Ross alleges he "engaged in protected activity by reporting safety issues and other workplace concerns to corporate management and outside the facility." Id. at ¶ 89. Ross "reported how management was arbitrarily and inconsistently applying safety rules toward non-African American similarly situated employees which was leading to increased injuries." Id. at ¶ 90. He asserts to having reasonably believed that Pentair was committing safety violations and in good faith reported them to Pentair's corporate management and union officials. Ross alleges his conduct is protected due to Kansas public policy on workplace safety, on providing safety devices, and on reporting safety violations to the secretary of labor. He also points to the Kansas statute that makes it unlawful for an employer to discharge or "to discriminate in any way against any employee because" of testifying before, petitioning for, or bringing to the attention of the secretary of labor a relevant "matter of controversy." Id. at ¶ 94. Ross alleges Pentair denied him "employment opportunities and other benefits" because of his reporting. Id. at ¶ 95.
Rule 12(b)(6) Standards
The court accepts as true the factual allegations in the complaint and draws reasonable inferences in favor of plaintiff. Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008). The court is not obliged to accept as true a legal conclusion couched as a factual allegation. Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elementsof a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. at 678 (2009) (citation omitted). To survive a motion to dismiss, the complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Twombley, 550 U.S. at 570. Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Simply put, a court is not to accept alleged legal conclusions as true. Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017).
"Plausibility" looks at whether the facts alleged in the complaint are so general or so innocent that the plaintiffs "'have not nudged their claims across the line from conceivable to plausible.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the...
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