Opinion
Case No. 03-2431-JWL
November 13, 2003
MEMORANDUM AND ORDER
Plaintiff filed suit against defendants alleging violations of Title VH of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2611 et seq., and Kansas state law. This matter is presently before the court on defendants' motion to dismiss plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. #7). As set forth in more detail below, defendants' motion is denied in part, granted in part and retained under advisement in part. Specifically, the motion is denied with respect to plaintiffs disparate treatment and retaliation claims; is granted with respect to the individual liability of defendant Robert T. Broadway; and is retained under advisement, subject to plaintiffs amendment of her complaint, with respect to plaintiffs FMLA claims and implied contract claim.
The facts presented here are taken from plaintiffs complaint and, for purposes of defendant's motion to dismiss, the court accepts these facts as true. See Maker v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998).
Plaintiff Kimberley M. Wilson, began her employment with Training Plus, Inc. and Training Plus Foundation (collectively referred to herein as Training Plus) in November 1999. She worked as a Training Instructor from January 2000 to July 23, 2001. In the fall of 2000, plaintiff became pregnant. Training Plus's employee manual-a document that applied to plaintiff-provided that plaintiff would be entitled to take maternity leave and that she was entitled to return to the same or equal job as she had prior to taking maternity leave, with no loss of seniority. The employee manual further provided that plaintiff was entitled to take maternity leave pursuant to the Family and Medical Leave Act, which also required that plaintiff be returned to the same or equal job as she had prior to taking leave, with no loss of seniority.
In July 2001, plaintiff informed Training Plus that she would begin her maternity leave on Friday, July 13, 2001 because she was scheduled to have her labor induced on July 14, 2001. On July 16, 2001, defendant Robert T. Broadway became Training Plus's program director. As a condition of his assuming that position, he demanded that he be given total control over the day to day operations of Training Plus. As such, plaintiff contends that Mr. Broadway was the equivalent or near equivalent of plaintiffs employer, i.e. the alter ego of Training Plus. In any event, on July 16, 2001, Mr. Broadway reviewed plaintiffs personnel file and learned that plaintiff was on maternity leave for six weeks. According to plaintiff, Mr. Broadway told other Training Plus employees that Training Plus "can't have that, we need someone now, not 6 weeks from now. We are going to lay her off." When questioned as to the legality of such a course of action, Mr. Broadway apparently advised Training Plus employees that he was a lawyer, "he knew the law and that there was not a problem in doing this."
On July 23, 2001, Mr. Broadway sent plaintiff a letter informing her that her employment was being terminated due to a reorganization and that she had "done nothing wrong." The letter also informed plaintiff that she would receive certain benefits as a result of her discharge. Upon receipt of the letter, plaintiff contacted Training Plus to complain about the treatment she had received and indicated that she felt that her treatment was based upon her taking maternity leave and in violation of her rights. Thereafter, in September 2001, Mr. Broadway allegedly reported to the police that plaintiffs check had been stolen and indicated to police that plaintiff was somehow involved in stealing the check
After exhausting her administrative remedies, plaintiff filed this lawsuit asserting several claims. First, she asserts that Training Plus and Mr. Broadway discriminated against her on the basis of her gender and/or pregnant status in violation of Title VII and the Kansas Act Against Discrimination (KAAD), K.S.A. § 44-1001 et seq., by terminating her employment, failing to restore her to her position or an equivalent position, by denying her the benefits that were promised to her in Mr. Broadway's letter of July 23, 2001, and by denying her rights under the FMLA. She further asserts that Training Plus and Mr. Broadway unlawfully retaliated against her in violation of Title VII and the KAAD when, after plaintiff complained about her termination, they refused to pay plaintiff the benefits owed to her and then reported her to the police as a participant in stealing a check. Plaintiff also claims that Training Plus violated the FMLA by failing to restore plaintiff to her original pay, hours and benefits upon return from her maternity leave. Finally, plaintiff contends that Training Plus breached an implied contract of employment with her by failing to adhere to the provisions of the employee manual concerning maternity leave.
Standard
Defendants' motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(6). 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 his [or her] claims which would entitle him [or her] to relief," Poole v. County of Otero, 211 F.3d 955, 957 (10th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), 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, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Disparate Treatment Claims
Defendants move to dismiss plaintiffs Title VII and KAAD disparate treatment claims on the grounds that plaintiffs complaint contains no allegations of "intentional" discrimination. Defendants' motion is denied on this issue, as the allegations in plaintiffs complaint, if true, are more than sufficient to establish intentional discrimination. Specifically, plaintiff alleges that Mr. Broadway, upon learning that plaintiff was on maternity leave, stated that he was going to terminate her employment because Training Plus "needed someone now, not 6 weeks from now." Without deciding at this juncture whether such a statement would constitute direct evidence of discrimination, at a minimum the statement is sufficient to permit a jury to infer that plaintiffs employment was terminated because of a pregnancy-related condition. See Atchley v. Nordham Group, Inc., 180 F.3d 1143, 1148 (10th Cir. 1999) (while Title VII does not itself mandate that employers provide maternity leave, it does require that an employer hold open the job of an employee who is temporarily disabled by pregnancy-related conditions on the same basis as it holds open jobs of employees on sick or disability leave for other reasons).
Retaliation Claims
Defendants move to dismiss plaintiffs retaliation claims because, according to defendants, plaintiff "does not make an allegation that she engaged in protected activity opposing discrimination." This argument is frivolous. In paragraph 22 of her complaint, plaintiff states that she contacted Training Plus after her termination and indicated that "she felt her treatment was based upon her taking maternity leave and in violation of her rights." Clearly, she has sufficiently alleged that she opposed defendants' alleged discriminatory practices. Defendants also suggest that plaintiffs retaliation claims must fail because the alleged adverse actions-refusing to pay her benefits and reporting her to the police-occurred after her discharge. This argument, too, is meritless. See, e.g., Berry v. Stevinson Chevrolet, 74 F.3d 980, 984-85 (10th Cir. 1996) (holding that plaintiff stated a claim for retaliation under Title VII even though adverse employment action-reporting to police that plaintiff had committed a crime-occurred after plaintiffs discharge). Defendants' motion is denied, then, with respect to plaintiffs retaliation claims.
Individual Liability of Defendant Robert T. Broadway
Plaintiffs Title VII and KAAD claims are asserted against not only Training Plus but also Mr. Broadway. Mr. Broadway moves to dismiss these claims against him pursuant to the general rule that supervisors cannot be individually liable for violations of Title VII or the KAAD. See Haynes v. Williams, 88 F.3d 898, 900-01 (10th Cir. 1996) (applying general rule of no individual liability under Title VII); Parsells v. Manhattan Radiology Group, LLP, 255 F. Supp.2d 1217, 1234 (D. Kan. 2003) (discussing general rule in context of KAAD). In response, plaintiff acknowledges the general rule referenced by Mr. Broadway, but contends that her claims against Mr. Broadway are nonetheless appropriate because Mr. Broadway was, in effect, the alter ego of Training Plus-an allegation that she has made in her complaint. According to plaintiff, if she is able to pursue discovery on her alter ego theory, she will be able, at the summary judgment stage, to produce evidence showing that Mr. Broadway had such domination of the finances, policy and practices of Training Plus that it had no separate mind, will or existence of its own and was but a business conduit for Mr. Broadway. See Doughty v. CSX Transportation, Inc., 258 Kan. 493, 497 (1995) (courts will disregard the fiction of a separate legal entity when there is such domination of finances, policy, and practices that the controlled corporation has no separate mind, will, or existence of its own and is but a business conduit for the principal); NLRB v. Greater Kansas City Roofing, 2 F.3d 1047, 1052 (10th Cir. 1993) (in analyzing alter ego theory, court must examine whether the personalities and assets of the corporation and the individual are indistinct). The court agrees with Mr. Broadway that plaintiff may not assert claims against him in his individual capacity and, thus, Mr. Broadway's motion is granted to the extent plaintiff seeks to hold him individually liable for her discrimination and retaliation claims. See Haynes, 88 F.3d at 900-01. To the extent, however, that plaintiff alleges that Mr. Broadway is liable as the alter ego of Training Plus, then she is entitled to offer evidence on her alter ego theory. Assuming she is able to come forward with sufficient evidence to prove that Mr. Broadway is the alter ego of Training Plus, then she is entitled to have a jury determine whether in fact Mr. Broadway is the alter ego of Training Plus for purposes of holding Mr. Broadway jointly and severally liable for her claims in the event that Training Plus is unable to satisfy any judgment rendered against it. In other words, plaintiff will not be entitled at trial to a double recovery against both Mr. Broadway and Training Plus as the claims against Mr. Broadway operate as claims against Training Plus. See Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (suit against individual defendant who is the alter ego of his employer operates as a suit against the entity that employs him).
For whatever reason, defendants have not filed a reply brief to plaintiffs response and, thus, have offered no arguments in response to plaintiffs alter ego theory. Thus, the court expresses no opinion on whether the allegations in plaintiffs complaint are sufficient, if true, to establish that Mr. Broadway is the alter ego of Training Plus.
To reiterate, then, Mr. Broadway's motion to dismiss is granted to the extent plaintiffs Title VII and KAAD claims are asserted against him in his individual capacity. Plaintiff, however, will be permitted to conduct discovery on her alter ego theory and Mr. Broadway will remain a named defendant in this case as the purported alter ego of Training Plus.
FMLA Claims
Training Plus moves to dismiss plaintiffs FMLA claims on the grounds that plaintiff has failed to allege in her complaint that Training Plus is an employer with at least 50 persons. See 29 U.S.C. § 2611(4)(A)(i) (employer for purposes of FMLA means "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year"). While plaintiff acknowledges that she did not specifically allege that Training Plus was an employer that was subject to the FMLA by virtue of employing at least 50 employees, plaintiff highlights that her complaint alleges that Training Plus's employee manual provided for leave pursuant to the FMLA and, thus, because Training Plus had an FMLA policy, the inference must be drawn that Training Plus had at least 50 employees. In the alternative, plaintiff requests leave to amend her complaint to allege the requisite number of employees.
While the court agrees with plaintiff that her allegations certainly suggest that Training Plus has at least 50 employees, the court, because it is granting plaintiff leave to amend her complaint with respect to her implied contract claim (as explained below), will similarly afford plaintiff the opportunity to amend her complaint with respect to her FMLA claims-namely, to include an allegation concerning the number of persons employed by Training Plus. Plaintiff shall amend her complaint with respect to her FMLA claims no later than Friday, December 5, 2003. Assuming plaintiff does amend her complaint with respect to this claim, the court will issue a brief order denying Training Plus's motion to dismiss with respect to plaintiffs FMLA claims and Training Plus will need to file a subsequent motion to dismiss if it believes that plaintiffs complaint, as amended, still fails to state a claim.
Implied Contract Claim
Finally, Training Plus moves to dismiss plaintiffs implied contract claim because plaintiffs claim is based entirely on "a reference to an employee manual" and, thus, is not sufficient to state a claim under Kansas law. The court agrees with defendant that an employment manual does not by itself provide sufficient evidence of an intent to form a contract under Kansas law; additional evidence bearing on the issue of the defendant's intent is required. See Farthing v. City of Shawnee, 39 F.3d 1131, 1138-39 (10th Cir. 1994) (citing Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 138 (1991)); Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).
In support of her claim that she and Training Plus had a contract whereby plaintiff would be entitled to take maternity leave and would be entitled to return to the same or equal job as she had before leave with no loss of seniority, plaintiff alleges only that such "contractual" rights existed by virtue of her employee manual. Her complaint is devoid of any allegations bearing on Training Plus's intent, such as any conversations she may have had with her supervisors concerning maternity leave or Training Plus's general course of conduct with respect to maternity leave. Perhaps anticipating the court's analysis of plaintiffs implied contract claim, plaintiff, in her response to Training Plus's motion, requests leave to amend her complaint with respect to this claim. Thus, the court will provide plaintiff with an opportunity to amend her complaint to the extent additional facts exist to support this claim. Assuming additional facts exist, plaintiff shall file her amended complaint on or before December 5, 2003. If she does amend her complaint with respect to this claim, the court will issue a brief order denying Training Plus's motion to dismiss with respect to this claim and Training Plus will need to file a subsequent motion to dismiss if it believes that plaintiffs complaint, as amended, still fails to state a claim. If no additional facts exist to support her claim, plaintiff should refrain from filing an amended complaint with respect to her implied contract claim and the court will then enter an order dismissing that claim.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion to dismiss (doc. #7) is denied in part, granted in part and retained under advisement in part.
IT IS FURTHER ORDERED BY THE COURT THAT plaintiff shall file an amended complaint, as described in this order, no later than December 5, 2003.
IT IS SO ORDERED.