Stephens v. City of Topeka, Kan.

• Decision Date: 15 January 1999
• Docket Number: No. Civ.A. 97-2527-GLR.,Civ.A. 97-2527-GLR.
• Citation: 33 F.Supp.2d 947
• Parties: Victor A. STEPHENS, Plaintiff, v. CITY OF TOPEKA, KANSAS and its Agency the City of Topeka Housing Authority, Defendants.
• Court: U.S. District Court — District of Kansas

33 F.Supp.2d 947

Victor A. STEPHENS, Plaintiff, v. CITY OF TOPEKA, KANSAS and its Agency the City of Topeka Housing Authority, Defendants.

No. Civ.A. 97-2527-GLR.

United States District Court, D. Kansas.

January 15, 1999.

COPYRIGHT MATERIAL OMITTED

Joseph R. Colantuono, Wehrman & Colantuono, LLC, Leawood, KS, for Victor A Stephens, plaintiff.

David D. Plinsky, Office of City Attorney, Topeka, KS, for Topeka Housing Authority and City of Topeka, Kan., defendants.

MEMORANDUM AND ORDER

RUSHFELT, United States Magistrate Judge.

The court has under consideration a Motion for Summary Judgment of Defendant City of Topeka, Kansas (doc. 49). Pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6), defendant seeks an order to dismiss the action of plaintiff for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Alternatively, it seeks an order for summary judgment pursuant to Fed. R.Civ.P. 56. Plaintiff opposes the motion.

I. Subject Matter Jurisdiction

The court first addresses the motion to the extent it comes under Fed.R.Civ.P. 12(b)(1). That Rule allows defendant to assert, by motion, a defense that the court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3) directs that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."

Defendant suggests that the court lacks subject matter jurisdiction over racial discrimination claims of plaintiff, because he failed to exhaust administrative remedies. It claims he did not allege discrimination based upon race in his charge to the Equal Employment Opportunity Commission (EEOC). Plaintiff contends that he adequately exhausted administrative remedies. He contends that his charge to the EEOC clearly indicates that defendant treated him differently from white managers or employees. He suggests that his present claims are reasonably related to the allegations of discrimination in his charge to the EEOC.

A plaintiff must exhaust his or her administrative remedies before filing suit under Title VII. Jones v. Runyon, 91 F.3d 1398, 1399-1401 (10th Cir.1996), cert. denied, 520 U.S. 1115, 117 S.Ct. 1243, 137 L.Ed.2d 326 (1997). "The suit may include allegations of discrimination reasonably related to the allegations listed in the administrative charge, including new acts occurring during the pendency of the administrative charge." Aramburu v. Boeing Co., 112 F.3d 1398, 1409 (10th Cir.1997). "[C]onsideration of complaints not expressly included in an EEOC charge is appropriate where the conduct alleged would fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made." Martin v. Nannie & the Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir.1993). "A party may not complain to the EEOC of only certain instances of discrimination, and then seek judicial relief for different instances." Harrell v. Spangler, Inc., 957 F.Supp. 1215, 1219 (D.Kan.1997). Congress has established various administrative remedies, which a plaintiff must exhaust prior to filing an action in federal court. "Requiring exhaustion of these administrative remedies serves the dual purpose of providing the employer `notice of the charges and an opportunity to comply voluntarily with the statutes' and affording `the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, thus avoiding unnecessary judicial action.'" Schroder v. Runyon, 1 F.Supp.2d 1272, 1274 (D.Kan.) (citations omitted), aff'd, 161 F.3d 18 (10th Cir.1998). "Allowing a complaint to encompass allegations outside the ambit of the predicate charge would circumvent the administrative agency's investigatory and conciliatory role as well as deprive the charged party notice of the charge." Harrell, 957 F.Supp. at 1219. When the issue is not one of timeliness, but rather the adequacy and completeness of a filed charge of discrimination, exhaustion of administrative remedies is jurisdictional in nature. Schroder, 1 F.Supp.2d at 1278.

In this instance plaintiff has exhausted administrative remedies related to his asserted racial discrimination claims. The charge lodged with the EEOC provides adequate notice that he alleges discrimination based upon race. "[T]o effectuate the remedial purpose of Title VII", the court liberally construes charges filed with the EEOC. Harrell, 957 F.Supp. at 1219. "[T]he crucial inquiry is whether the claims set forth in the civil complaint fall within the scope of the investigation that could reasonably be expected to grow out of the EEOC charges." Id. Plaintiff failed to check the box labeled "Race" in his charge of discrimination, filed with the EEOC. It fairly encompasses, nevertheless, a claim for discrimination based upon race. The charge specifically states: "I believe I was treated differently because of my National Origin and my age, because younger, white managers/employees (specifically Theresa Lewis) were treated differently." (Charge of Discrimination, attached as Ex. A to Reply in Opp'n to Def.'s Mot. Summ.J., doc. 53.) The term "white" suggests racial discrimination rather than discrimination based upon national origin. Where as here the plaintiff filed the charge of discrimination pro se, the court, furthermore, accords reasonable leniency to the charge. See Moore v. Norfolk and Western Ry. Co., 731 F.Supp. 1015, 1017 (D.Kan. 1990). In the present context the scope of the investigation that one would reasonably expect to arise from the charge filed by plaintiff would encompass the allegations of racial discrimination in his civil complaint here. "[A]n investigation of plaintiff's national origin claims would necessarily include an investigation into potential race claims, where, as here, the alleged underlying conduct is the same for either claim." Daneshvar v. Graphic Technology, Inc., 18 F.Supp.2d 1277, 1284 (D.Kan.1998).

II. Failure to State a Claim Upon Which Relief Can be Granted

Defendant also refers to Fed.R.Civ.P. 12(b)(6). Under that Rule a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Rule 12(b) directs courts to treat motions under subsection (6) as one for summary judgment, however, if "matters outside the pleading are presented to and not excluded by the court." Defendant has presented matters outside the pleading. The court has considered them. It thus disregards the invocation of Fed. R.Civ.P. 12(b)(6) and considers the motion of defendant to be one solely for summary judgment, except for the challenge to subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).

III. Summary Judgment

Pursuant to Fed.R.Civ.P. 56(c), defendant seeks summary judgment on the claims of plaintiff. He alleges that defendant unlawfully discriminated against him on the basis of his race and national origin in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. (Pretrial Order, doc. 47, ¶¶ 2-4.) He further alleges that defendant unlawfully retaliated against him for bringing a lawsuit against a former employer, City of Columbia, Missouri. (Id. at ¶¶ 3-4.) The following facts are either uncontroverted or, if controverted, viewed in the light most favorable to the plaintiff. Applied Genetics Intern., Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). The court has ignored immaterial facts and those not properly supported in the record. To properly controvert an alleged uncontroverted fact, the party opposing summary judgment may not merely rely upon allegations or denials of his pleading or unsupported assertions that the fact is controverted. Conclusory allegations within a complaint, pretrial order, or affidavit do not suffice to create a controverted issue of fact. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (specifically mentioning complaint and affidavit). In placing a fact in controversy the party opposing summary judgment "shall refer with particularity to those portions of the record upon which [that] party relies." D.Kan. Rule 56.1. The court deems "[a]ll material facts set forth in the statement of the movant ... admitted for the purpose of summary judgment unless specifically controverted by the statement of [plaintiff]." Id.

1. Factual Background

Plaintiff is black. He originates from Jamaica. He applied for a position of Deputy Director of the Topeka Housing Authority (THA) with defendant City of Topeka, Kansas (City). He underwent interviews with a four-person committee of the City, consisting of Lana Balka, the Executive Director of THA and ultimately his direct supervisor, Nadine Birch, THA Commissioner; Al Bailey, Director of Planning and Community Development for the City and direct supervisor of Lana Balka; and Robert Bugg, Director of Personnel. Before offering plaintiff a position, the committee asked Ms. Balka to check his references.

Ms. Balka investigated some, but not all, listed references. She did not verify the employment history that plaintiff had with City of Columbia, Missouri. Unbeknownst to the committee at the time of hiring, allegations of sexual harassment against him had marred his tenure with Columbia. Such allegations would have concerned both Ms. Balka and Mr. Bailey as to the hiring decision. Had Mr. Bailey known of them, he would have recommended someone else for the position in Topeka. Ms. Balka first learned of the complaints by Columbia from a newspaper article. The newspaper published the article after the employment of plaintiff with defendant terminated.

When defendant hired plaintiff, furthermore, its failure to verify employment history with Columbia also left the committee without knowledge of a complaint and lawsuit he had against Columbia for alleged employment discrimination. Ms. Balka later learned that plaintiff had claims or a complaint against Columbia. She did not know the basis for the...