Opinion
CIVIL ACTION No. 01-2178-CM
June 19, 2003
MEMORANDUM AND ORDER
Plaintiff brings this cause of action against defendant alleging discrimination in violation of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-1 et seq., the Kansas Act Against Discrimination (KAAD), Kan. Stat. Ann. § 44-1001 et seq., and 42 U.S.C. § 1981 and 1983. This matter is before the court on defendant's Motion to Dismiss (Doc. 29).
I. Background
Plaintiff began his employment with defendant in February 1992 at the Board of Public Utilities (BPU). On November 9, 1999, defendant issued a memorandum (Conduct Memorandum) to plaintiff, which placed plaintiff on suspension pending a recommendation for termination. The Conduct Memorandum stated that plaintiff was in violation of the residency requirements of the BPU. On December 16, 1999, defendant issued a letter (Termination Letter) to plaintiff stating that plaintiff's employment with the BPU "is herewith terminated" for the residency requirement infraction. Notably, the parties never make clear to the court whether plaintiff was in fact terminated. However, based upon the allegations regarding events that occurred subsequent to the Termination Letter, the court presumes plaintiff was not ultimately terminated.
More than a year later, on December 18, 2000, plaintiff filled out an inquiry questionnaire and submitted it to the Equal Opportunity Employment Commission (EEOC). On the questionnaire, plaintiff stated that, during a routine residency check, he was singled out and treated differently in that normal proof of residency was accepted for other employees, but not for plaintiff. Plaintiff further stated that he became the target of a secret investigation, which resulted in a lengthy suspension from work. Plaintiff marked only the boxes on the questionnaire indicating "race" and "color" discrimination; plaintiff did not mark the available boxes for "retaliation" or "disability" discrimination. Further, plaintiff failed to fill out any information under the sections entitled "Harassment" or "Retaliation."
By letter dated January 4, 2001, the EEOC investigator informed plaintiff that the information provided had not been filed as a charge. The investigator stated that the evidence was insufficient to establish that defendant's actions were motivated by illegal bias and that, if plaintiff wished to proceed and file a charge of discrimination, the EEOC would immediately dismiss the case and issue a notice of right to sue letter.
On January 10, 2001, plaintiff submitted a charge of discrimination to the EEOC. In the charge, plaintiff checked only the box for "race" discrimination; plaintiff did not check the available boxes for "retaliation," "disability," or "other" discrimination. Plaintiff indicated that the date of the alleged violation occurred on November 15, 2000. That same day, the EEOC issued to plaintiff a notice of right to sue letter (Notice Letter). Plaintiff's Amended Complaint alleges that he received the Notice Letter on or about January 15, 2001.
On February 5, 2001, plaintiff's charge of discrimination was filed with the Kansas Human Rights Commission (KHRC), wherein he stated that he was currently employed by the BPU as a technician. In the KHRC charge, plaintiff again checked only the box for "race" discrimination. Further, the text of plaintiff's KHRC charge states that, on or about November 15, 2000, plaintiff was required to offer proof of residency beyond the documentation required of other employees and that, as a result, plaintiff was subjected to an internal investigation resulting in a lengthy suspension from work.
On April 12, 2001, plaintiff filed his original Complaint in this matter. The Complaint, however, failed to properly name the present defendant, the Unified Government of Wyandotte County/Kansas City, Kansas. Plaintiff added the present defendant by way of motion filed on December 6, 2001. Plaintiff's Amended Complaint asserts the following causes of action: Count I — race discrimination under Title VII; Count II — retaliation under Title VII; Count III — race discrimination under KAAD; Count IV — retaliation under KAAD; Count V — race discrimination under § 1981; Count VI — retaliation under § 1981; and Count VII — constitutional violations under § 1983.
II. Standard
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff, Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
III. Discussion
A. Exhaustion of Administrative Remedies
Exhaustion of administrative remedies is a prerequisite to instituting a Title VII action in federal court. Khader v. Aspin, 1 F.3d 968, 970 (10th Cir. 1993). A complainant must file a charge with the appropriate state or local agency, or have the EEOC refer the charge to that agency, within 240 days of the alleged discriminatory event to ensure that the claim may be filed with the EEOC within the 300-day limit set forth in Title VII. E.E.O.C. v. Commercial Office Prods. Co., 486 U.S. 107, 110 (1988); Waller v. Consol. Freightways Corp., 767 F. Supp. 1548, 1558 (D.Kan. 1991). In a deferral state such as Kansas, a plaintiff must file Title VII discrimination charges within 300 days after the alleged discriminatory act occurred. Peterson v. City of Wichita, Kan., 888 F.2d 1307, 1308 (10th Cir. 1989).
Moreover, as a condition precedent to maintaining an action under Title VII, a plaintiff must institute his civil action within ninety days of receiving notice of his right to sue. 42 U.S.C. § 2000e-5(f)(1); Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983) (compliance with ninety-day filing requirement is a condition precedent to suit that functions like a statute of limitations rather than a jurisdictional prerequisite).
1. 300-Day Charge Filing Requirement
Defendant moves to dismiss Counts I-IV of plaintiff's Amended Complaint. Defendant argues that plaintiff failed to file his charge of discrimination with the EEOC within 300 days of the alleged discriminatory conduct. Unfortunately, the court is not entirely clear on what conduct plaintiff basis this lawsuit.
Defendant reasonably presumes that plaintiff's complaint of discrimination is based upon defendant's termination, or attempted termination, of plaintiff's employment. If this were the case, the 300-day limitations period would run from either the November 9, 1999 Conduct Memorandum or the December 16, 1999 Termination Letter. Even if the latter of those two events is used, the 300th day following the Termination Letter fell on October 11, 2000. Plaintiff filed his charge of discrimination on January 10, 2001, three months later. Even if the court considered plaintiff's initial questionnaire filed on December 18, 2000 as a charge filing, plaintiff's charge is still untimely by over two months.
However, the face of the EEOC and KAAD charges state that the alleged discriminatory violation occurred on November 15, 2000. Plaintiff sets forth in the KAAD charge that, on that day, he was required to offer proof of residency beyond the documentation which other employees were required to provide. Plaintiff goes on to charge that he was then subjected to an internal investigation, which resulted in his suspension.
For purposes of a motion to dismiss, the court must accept as true the allegations of the complaint and the attached EEOC charge. The court therefore presumes that on November 15, 2000, a new set of events occurred with respect to plaintiff's proof of residency requirement, which resulted in (another) suspension from work. If this is the case, then plaintiff's EEOC and KAAD charges are timely filed, and plaintiff may move forward with his Title VII and KAAD claims. However, to the extent that plaintiff bases his Title VII discrimination claim on the events which occurred in late 1999, namely the proof of residency requirements resulting in the November 1999 suspension and December 1999 termination, those claims are time-barred. This is especially true in light of the nature of the alleged discriminatory conduct — suspension and attempted termination — both of which are discrete and salient events that put plaintiff on notice that defendant allegedly violated his rights.
To state a claim for the alleged discriminatory events occurring in late 1999, plaintiff would have had to file a charge of discrimination no later than October 11, 2000. Plaintiff's failure to file a charge of discrimination within the 300-day time frame bars plaintiff's claims with respect to those occurrences. Therefore, plaintiff may not state a claim for, nor may he seek any damages based upon, defendant's alleged discriminatory conduct in 1999. The only Title VII and KAAD race discrimination claims with which plaintiff may proceed in this lawsuit are those alleging race discrimination on November 15, 2000.
The court is aware that, under the law of this circuit, there is a distinction between a failure to timely file an administrative charge, which is not jurisdictional, and a failure to file an administrative charge at all, which is a jurisdictional bar. Sizova v. Nat'l Inst. of Standards Tech., 282 F.3d 1320, 1325 (10th Cir. 2002). Thus, the failure to timely comply with administrative prerequisites is subject to waiver, estoppel and equitable tolling. See Richardson v. Frank, 975 F.2d 1433, 1435 (10th Cir. 1991). However, in this case, plaintiff has put forth no argument that the 300-day filing requirement should be equitably tolled or that defendant somehow caused plaintiff to delay filing his charge, nor can the court find any evidence in the record supporting such an argument.
2. 90-Day Lawsuit Filing Requirement
Defendant next argues that plaintiff's Title VII claims should be dismissed because plaintiff failed to file suit against defendant within 90 days of receiving his Notice Letter. Plaintiff alleges that he received his Notice Letter on or about January 15, 2001. Thus, the filing of the original Complaint on April 12, 2001 was within 90 days. However, the original Complaint failed to name the present defendant; rather, the original Complaint mistakenly named the BPU. The present defendant was not named until plaintiff filed his Amended Complaint on December 6, 2001. To determine whether plaintiff timely filed the present lawsuit, the court must decide whether plaintiff's Amended Complaint relates back to the filing of plaintiff's original Complaint.
For an amendment adding a new party to relate back, all of the conditions set forth in Federal Rule of Civil Procedure 15(c)(3) must be met. Rule 15(c)(3) establishes that a claim will only relate back to the date of the original complaint if three conditions are met: (1) the amended complaint involves the same transaction or occurrence as the original complaint; (2) the new party had notice of the action such that the party will not be prejudiced in maintaining a defense on the merits; and (3) the new party knew or should have known that but for a mistake in identity, the action would have been brought against him. Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1226-27 (10th Cir. 1991). Moreover, the second and third requirements must have been fulfilled within the period for service process prescribed by Rule 4(m). Henry v. Fed. Deposit Ins. Corp., 168 F.R.D. 55, 59 (D.Kan. 1996).
Rule 15(c) provides:
An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m)for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Defendant argues that plaintiff's Amended Complaint does not relate back, thereby rendering the filing of the Amended Complaint outside the 90-day filing requirement. There is no dispute the Amended Complaint arises out of the same transaction or occurrence as the original Complaint. However, defendant contends that the Amended Complaint does not relate back because plaintiff failed to fulfill Rule 15(c)(3)'s requirement that plaintiff give notice to defendant of the present lawsuit "within the period provided by Rule 4(m) for service of summons and complaint."
After plaintiff filed his original Complaint, plaintiff had 120 days under Rule 4(m) to effectuate service of process on then defendant BPU. After having failed to serve BPU, the court issued a show cause order on September 13, 2001, and plaintiff timely responded. On October 29, 2001, the court granted plaintiff additional time in which to effectuate service upon defendant BPU. Plaintiff served defendant BPU on November 21, 2001, within the time allotted by the court. Defendant therefore asserts that, because defendant BPU did not receive notice of this lawsuit within the 120-day limit prescribed by Rule 4(m), the present defendant could not have had notice of the present action within the 120-day time frame. The court disagrees.
The court recognizes that defendant BPU was not served with process within 120 days of the filing of the original Complaint. However, the time to serve process was extended by court order pursuant to the court's discretionary powers under Rule 4(m). See Fed.R.Civ.P. 4(m) ("If service of the summons and complaint is not made upon the defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time." (emphasis added)). The court cannot, on one hand, order that the time for service be extended under Rule 4(m) and then, later, find that the process served in accordance with that order was not timely. Thus, the court determines that service on defendant BPU was made in accordance with Rule 4(m). Moreover, the court concludes that, since defendant BPU is an administrative agency of defendant Unified Government of Wyandotte County/Kansas City, Kansas, defendant had sufficient notice of the action at the time defendant BPU was served such that defendant would not be prejudiced in preparing a defense. The court further concludes that defendant knew or should have known that, but for plaintiff's mistake in identity, the action would have been brought against defendant.
The court also does not agree with defendant's argument that plaintiff's failure to promptly serve the present defendant after the Amended Complaint was filed precludes relation back. Defendant points out that, after plaintiff filed the Amended Complaint, plaintiff again failed to timely effectuate service within 120 days. The court again ordered plaintiff to show cause, to which plaintiff responded, and the court granted plaintiff additional time in which to serve defendant. Plaintiff then timely effectuated service in accordance with the court's order.
The court does not condone plaintiff's lack of diligence in serving process in a timely fashion. However, plaintiff's service on the present defendant was ultimately made according to this court's order and, therefore, such service complied with Rule 4(m). However, the issue for relation back purposes is not the length of time it took plaintiff to serve the Amended Compliant upon defendant. Rather, the issue is whether defendant had sufficient notice of the lawsuit within the time frame set forth in Rule 4(m) upon the filing of the original Complaint. Having concluded that defendant had such notice, the courts holds that the Amended Complaint, naming the present defendant as a party to this lawsuit, relates back to the original Complaint. Accordingly, the court considers plaintiff to have brought the instant action within 90 days of receiving his Notice Letter.
3. Exhaustion of KAAD Claims
Defendant next asserts that plaintiff filed the instant action prior to exhausting plaintiff's administrative remedies under KAAD. At the time plaintiff filed the original Compliant, plaintiff had not yet received a notice of right to sue letter from the KHRC. Interestingly, plaintiff stated in the Amended Complaint (filed December 6, 2001) that the KHRC had not yet issued a right to sue letter. However, plaintiff attached as an exhibit to his brief a letter from the KHRC, dated June 19, 2001, indicating that the KHRC had concluded its investigation and that plaintiff had exhausted his administrative remedies.
A plaintiff is not permitted to file, bring, or pursue an independent action based on KAAD prior to exhausting all administrative remedies. Sandlin v. Roche Labs., Inc., 268 Kan. 79, 88, 991 P.2d 883, 889 (1999). Moreover, plaintiff bears the burden of establishing that he has exhausted his administrative remedies. Young v. Desco Coatings, Inc., 179 F.R.D. 610, 613 (D.Kan. 1998).
Defendant is correct in asserting that plaintiff had not yet exhausted his administrative remedies under KAAD at the time plaintiff filed the original Complaint. By the time the Amended Complaint was filed, however, plaintiff had received notice of his right to sue. And while the Amended Compliant stated that plaintiff had not yet received such notice, plaintiff has come forward with documentation that the KHRC had issued a notice letter prior to plaintiff's filing of the Amended Complaint. The court therefore finds that plaintiff has overcome his burden of establishing that plaintiff had exhausted his administrative remedies under KAAD at the time the Amended Complaint was filed.
4. Claims Excluded from Plaintiff's Charge of Discrimination
Defendant next argues that the court should dismiss those claims which plaintiff excluded from his charges of discrimination filed with the EEOC and KHRC. With respect to both charges of discrimination, plaintiff indicated only "race" in the boxes provided on the forms. Plaintiff left blank the boxes available for "retaliation," "disability," and "other." Yet plaintiff alleged in the Amended Complaint that he was retaliated against, that he was discriminated against on the basis of his perceived disability, and that defendant created a hostile work environment.
The purpose of the exhaustion requirement is to provide notice of alleged violation to the charged party and give the agency information which it needs to investigate and resolve the dispute between the employer and the employee. Seymore v. Shawyer Sons, Inc., 111 F.3d 794, 799 (10th Cir. 1997). If a complaint were allowed to encompass allegations outside the scope of the charge, this would circumvent the administrative agency's investigatory role and deprive the charged party of notice. Thus, in general, a plaintiff may not bring a claim unless it was part of the timely-filed administrative charge. Wallace v. Beech Aircraft Corp., 87 F. Supp.2d 1138, 1146 (D.Kan. 2000). However, claims that are reasonably related to claims included in the EEOC charge may be asserted. Harrell v. Spangler, 957 F. Supp. 1215, 1219 (D.Kan. 1997).
Plaintiff's charges of discrimination made no mention of retaliation. The court is aware that any act committed by an employer in retaliation for the filing of an EEOC complaint is reasonably related to that complaint, and there is no need for a second EEOC complaint. Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994). In this case, the alleged retaliatory conduct occurred prior to the filing of the charges. Specifically, plaintiff alleges in the Amended Complaint that the December 16, 1999 Termination Letter was in retaliation for having raised the issue of discrimination. Plaintiff's charges of discrimination were filed after this alleged retaliatory act. Where, as here, a retaliatory act occurs prior to the filing of a charge, and the employee fails to allege the retaliatory act in the subsequent charge, the retaliatory act ordinarily will not be reasonably related to the charge. Simms v. Okla. ex rel. Dep't of Mental Health Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999). As such, plaintiff's claims of retaliation alleged in Counts II and IV are not properly before this court because plaintiff failed to exhaust his administrative remedies with respect to those claims. Counts II and IV are dismissed in their entirety.
The court notes that plaintiff's claims of retaliation also are subject to dismissal based upon plaintiff's failure to file a charge of discrimination within 300 days of the alleged discriminatory act as set forth supra, Section II.A.1.
Plaintiff's charges of discrimination also fail to identify any conduct forming the basis for a hostile work environment claim or a claim for disability discrimination. Although not set forth in a separate count, the Amended Complaint states that defendant created an abusive, hostile, intimidating, and offensive work environment. Also, set forth within Count I and Count III, plaintiff claims, respectively, that defendant discriminated against plaintiff based upon his perceived disability and perceived handicap.
Although a plaintiff's failure to mark the box for a particular type of discrimination is not dispositive, it creates a presumption that the plaintiff was not asserting claims represented by boxes not checked. Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir. 1998). The court therefore looks to the text of plaintiff's charges to determine whether plaintiff "clearly set forth" a claim for hostile work environment or disability discrimination. Id.
As previously set forth, the text of plaintiff's charges of discrimination state that plaintiff was required to offer proof of residency beyond the documentation required of other employees and that, as a result, plaintiff was subjected to an internal investigation resulting in a lengthy suspension from work. Plaintiff further stated that he was subjected to stricter standards of proof of residency, subjected to an investigation, and was suspended due to his race. The court determines that the claims set forth in plaintiff's discrimination charges are not reasonably related to plaintiff's allegations of hostile work environment or disability discrimination. See Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir. 1997) (finding wrongful discharge allegations not reasonably related to hostile work environment allegations). Thus, to the extent plaintiff claims he was subjected to a hostile work environment or disability discrimination, plaintiff failed to exhaust his administrative remedies. Those claims are dismissed from this lawsuit.
4. Failure to Cooperate
Defendant asserts that plaintiff's Title VII claims should be dismissed because plaintiff failed to cooperate with the EEOC. Exhaustion of administrative remedies requires a good faith effort by the employee to cooperate with the EEOC and to provide all relevant, available information. Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993).
After plaintiff filled out the initial questionnaire, the EEOC investigator corresponded by letter dated January 4, 2001, stating that the evidence was insufficient to establish illegal motive. Specifically, the investigator wrote, "[Y]ou did not indicate a nonblack who was believed by the employer to have violated the same or similar policy." (EEOC Letter at 1). The letter went on to state, "[Y]ou have the right to file a charge of discrimination concerning these events. The above facts suggest it is unlikely the Commission would be able to establish a violation of the law." (Id.). Defendant claims that plaintiff's failure to subsequently provide this information in his January 10, 2001 charge of discrimination constitutes failure to cooperate.
The evidence is insufficient to find that plaintiff failed to cooperate with the EEOC. The letter did not request information from plaintiff, nor did the letter state that plaintiff would be required to provide the information before plaintiff could file a charge of discrimination. Rather, the letter merely specified the evidence which plaintiff lacked. Thus, plaintiff's failure to include information relating to "a nonblack who was believed by the employer to have violated the same or similar policy" in the January 10, 2001 charge of discrimination does not amount to a failure to cooperate.
B. 42 U.S.C. § 1983 Claim
1. Statute of Limitations
Defendant argues that the statute of limitations bars plaintiff's § 1983 claim. The statute of limitations for § 1983 claims arising in Kansas is two years. Johnson v. Johnson County Common Bd., 925 F.2d 1299, 1300-01 (10th Cir. 1991) (explaining that the court applies the two-year statute of limitations provided by Kan. Stat. Ann. § 60-513(a)(4) to § 1983 claims). However, defendant's position is premised on the argument that plaintiff's Amended Complaint does not relate back to the original Complaint. Having found otherwise, the court concludes that plaintiff's § 1983 claims asserted against defendant relate back to the filing of the original Complaint and are not, therefore, barred by the statute of limitations.
2. State Constitutional Rights
The court notes that plaintiff's response wholly fails to address defendant's motion to dismiss plaintiff's claims based on state constitutional rights, statutory rights, substantive due process, and the First Amendment.
Plaintiff alleges in the Amended Complaint that defendant deprived plaintiff of his state constitutional rights in violation of § 1983. The court notes that plaintiff fails to identify the state constitutional rights to which he refers. In any event, the court finds that plaintiff cannot state a claim under § 1983 for violation of a state constitutional right. Section 1983 requires that a plaintiff allege a deprivation of a federally protected right under color of state law. A violation of state law alone does not give rise to a federal cause of action under § 1983. Malek v. Hahn, 26 F.3d 1013, 1016 (10th Cir. 1994). Therefore, to the extent plaintiff alleges defendant violated his state constitutional rights, those claims are dismissed.
3. Statutory Rights
Plaintiff alleges in the Amended Complaint that defendant deprived him of his "statutory rights" in violation of § 1983. Defendant contends that this allegation is too general to put defendant on notice of those claims stated against it.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The statement must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47. If the statement is sufficient to give the notice required, Rule 8(a)(2) is satisfied and "[i]t is not necessary to plead under what particular law the recovery is sought." United States v. Missouri-Kansas-Texas R.R. Co., 273 F.2d 474, 476 (10th Cir. 1959). Thus, notice pleading does not require a correct citation to a statute in order to state a claim for violation of that statute. Morton v. Dow, 525 F.2d 1302, 1306-07 (10th Cir. 1975) (complaint which did not allege violation of a specific statute or regulation nevertheless set forth sufficient facts to state a claim for relief under the Federal Aviation Act of 1958); Bartholet v. Reishauer, 953 F.2d 1073 (7th Cir. 1992) (pleading which gives sufficient notice of a claim showing that the pleader is entitled to relief under ERISA should not be dismissed for failure to expressly invoke ERISA). However, a plaintiff must allege facts sufficient to support a claim for a statutory violation.
At this juncture, defendant has failed to demonstrate that plaintiff cannot prove a set of facts in support of his § 1983 claim for violation of a statutory right. The court therefore declines to dismiss this claim upon the instant motion. However, if plaintiff intends to pursue this claim, the court orders that plaintiff file an amended complaint, setting forth the specific statute which plaintiff claims defendant violated. The court hereby grants plaintiff leave to file an amended complaint to specify the statute upon which plaintiff bases this claim. Plaintiff shall amend the complaint within 10 days of the date of this order. If plaintiff fails to timely amend the complaint specifying the statutory basis, plaintiff's claim based upon defendant's alleged violation of his statutory rights will be subject to dismissal upon motion by defendant.
4. Substantive Due Process
Defendant next moves to dismiss plaintiff's § 1983 claim for violation of substantive due process. The Due Process Clause "was intended to prevent government officials 'from abusing [their] power, or employing it as an instrument of oppression.'" Collins v. Harker Heights, 503 U.S. 115, 126 (1992) (quoting DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 196 (1989) (further quotation omitted)). The core of due process is to protect against arbitrary governmental action, but "only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense.'" County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998) (quoting Collins, 503 U.S. at 129). The Due Process Clause does not impose "liability whenever someone cloaked with [governmental] authority causes harm." Id. To state a substantive due process claim, a plaintiff must allege an abuse of power that shocks the contemporary conscience. See id. at 847 n. 8. Further, the Supreme Court has cautioned restraint in expanding the concept of substantive due process. See Collins, 503 U.S. at 125.
Plaintiff does not state a claim for violation of his substantive due process rights. The Amended Complaint fails to allege an abuse of governmental power that shocks the conscience, nor does the Amended Complaint set forth facts constituting "egregious" official conduct. Plaintiff's claim alleging a substantive due process violation is dismissed.
5. First Amendment
Finally, defendant moves to dismiss plaintiff's First Amendment claim. Defendant correctly points out that the only conduct identified in the Amended Complaint that could constitute conduct protected by the First Amendment is plaintiff's allegation that he told co-workers and supervisors on November 29, 1999 that "I am the recipient of discriminatory treatment." (Amended Complaint ¶ 14). Plaintiff alleges that his termination from employment was in retaliation for this statement. A plaintiff alleging a First Amendment retaliation claim must establish four elements, with the first two being legal rulings and the other two being factual findings. Wulf v. City of Wichita, 883 F.2d 842, 856-57 (10th Cir. 1989); Dill v. City of Edmond, Okla., 155 F.3d 1193, 1201-02 (10th Cir. 1998). The questions of law are whether an employee's speech involves a matter of public concern, and if so, whether the employee's interests in commenting on such matters, balanced "against the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees," outweigh the interests of the employer. Dill, 155 F.3d at 1201. If a court concludes that the employee's interests tip the balance, then a factfinder must consider whether a plaintiff has proven "that the speech was a substantial factor or a motivating factor in the detrimental employment decision." Id. at 1202 (quoting Gardetto v. Mason, 100 F.3d 803, 811 (10th Cir. 1996)). If a plaintiff makes such a showing, the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech. Id.
The first step is to determine whether the speech at issue can be "fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146 (1983). Speech relating to internal personnel disputes and working conditions ordinarily will not be viewed as addressing matters of public concern. Id. at 147-49. In David v. City and County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996), this circuit held that a public employee's statements about sexual harassment, retaliation, and unwarranted disciplinary action did not address matters of public concern. The court reasoned, "[Plaintiff's] allegations focus on the conditions of her own employment, and in neither [statement] does [plaintiff] allege that other employees have been subjected to harassment or retaliation or that the harassment and retaliation has interfered with the [public employer's] performance of its governmental responsibilities." Id.
In the case at hand, the court finds that plaintiff's alleged statement to coworkers and supervisors does not constitute a matter of public concern. Plaintiff's statement, that he was the recipient of discriminatory treatment, merely relates to a personal dispute. Accordingly, the court dismisses plaintiff's First Amendment claim.
C. 42 U.S.C. § 1981 Claims
In Count V and VI, plaintiff alleges race discrimination and retaliation in violation of 42 U.S.C. § 1981. Defendants contend that plaintiff's § 1981 claims should be dismissed because such claims must be brought pursuant to § 1983. The court agrees.
In Sims v. Unified Gov't of Wyandotte County/Kansas City, Kan., 120 F. Supp.2d 938, 953 (D.Kan. 2000), Judge Lungstrum held that § 1983 provides the exclusive remedy for pursuing damages against a state actor for claims arising under § 1981. Plaintiff in this case has not pled his § 1981 claims under § 1983. Plaintiff's § 1981 claims are, therefore, subject to dismissal. The court hereby grants leave to plaintiff to amend his complaint to clarify that he is pursuing his § 1981 claims, to the extent they allege municipal liability, solely through the remedies provided by § 1983. Plaintiff shall amend the complaint within 10 days of the date of this order. Plaintiff's failure to timely amend the complaint as directed by the court will preclude plaintiff from pursing a § 1983 claim based upon defendant's alleged violations of § 1981.
IT IS THEREFORE ORDERED that defendant's Motion to Dismiss (Doc. 29) is granted in part and denied in part. Specifically, the following claims are dismissed: plaintiff's Title VII claim based upon defendant's alleged discriminatory conduct in 1999; Counts II and IV alleging retaliation; plaintiff's claim of hostile work environment; plaintiff's claim of disability discrimination; plaintiff's § 1983 claims based upon alleged violations of state constitutional rights, substantive due process, and the First Amendment; and Counts V and VI alleging discrimination pursuant to § 1981. The court grants plaintiff leave to amend his complaint to specify the statute upon which plaintiff bases his § 1983 claim and to clarify that he is pursuing his § 1981 claims through § 1983. Plaintiff shall amend the complaint within 10 days of the date of this order.