Plaintiff Audra Moore sued defendants Board of Public Utilities Employees’ Club, Inc. and the Unified Government of Wyandotte County in the United States District Court for the District of Kansas raising claims of discrimination and retaliation based on race, sex, and age. Defendant Unified Government moved to dismiss any unexhausted claims, the age-based claim, the retaliation claims, and any claim for punitive damages.
Factual Overview
Plaintiff, an African American female over age 40, worked in a security position for Defendants since 2014. In August 2022, Plaintiff’s white manager, Randy, gave Plaintiff a position previously held by her husband because she was the most senior staff member. Unlike the normal two-guard staffing at this security post, Plaintiff was required to work alone for nine-hour shifts. She was instructed to close the gate and put up a sign when she needed to use the restroom, which caused employees to complain, line up at the gate, and honk their horns.
Randy and another white employee, Jeff, decided Plaintiff would not be allowed to take breaks. Randy would usher her back to work when her break started, and her requests for assistance and for a different position were denied. Randy also required Plaintiff to complete logs of everyone entering the property, which other employees did not have to do, and he obsessively monitored her.
The complaint further alleged that white employees ignored Plaintiff’s greetings, except for a black employee named Tony, whom white employees then teased by claiming he was dating Plaintiff. In June 2023, Randy texted Plaintiff’s husband asking if he would replace Plaintiff, and when Plaintiff called Randy about it, he told her he had to fire her because “the guys did not want her there.” After her termination, Plaintiff was told she was fired because of her clothes, and Defendant went back to having two guards at the station.
Legal Analysis
Failure to Exhaust
Defendant moved to dismiss any claims that fell outside the 300-day window for filing an administrative complaint, which started on June 9, 2023. Specifically, Defendant argued that Plaintiff’s claim regarding her termination should be dismissed because the complaint only vaguely stated it occurred in “June of 2023,” without specifying a date.
The court denied this portion of the motion, finding that failure to exhaust is an affirmative defense, and the court could not determine from the face of the complaint that Plaintiff’s termination fell outside the exhaustion period. The court noted that Plaintiff’s charge of discrimination stated the discrimination took place between July 7, 2014, and June 21, 2023, and Defendant had not shown on the current record that the termination occurred before June 9, 2023.
ADEA Claim
Defendant argued that Plaintiff failed to exhaust her age discrimination claim because, although she checked the box for age discrimination on her charge form, she did not include any factual allegations related to age discrimination.
The court agreed, finding that merely checking a box for age discrimination, without more, was insufficient to exhaust administrative remedies. The court noted that the only possible reference to age in the narrative portion of the charge was Plaintiff’s statement that she was given her position because she was the “most senior” employee, which did not necessarily equate to any specific age. Moreover, there were no allegations that any adverse actions were taken against her because of her seniority status or age. The court therefore dismissed the ADEA claim without prejudice for failure to exhaust.
Retaliation Claims
Defendant moved to dismiss Plaintiff’s retaliation claims, arguing that both the charge of discrimination and the complaint failed to state a claim for retaliation under either Title VII or the ADEA. Specifically, Defendant contended there were no allegations of protected activity or adverse action taken as a result.
The court found that Plaintiff had failed to state a claim for retaliation. At most, the complaint stated she requested assistance at the guard station and asked for a different position, but there were no facts suggesting that these requests were made in the context of complaining about race, sex, or age discrimination. The court emphasized that “general complaints about company management” are not protected activity, and there were no facts indicating that Plaintiff ever complained about or reported discrimination. Without protected opposition to discrimination, the court found there could be no retaliation. The court therefore dismissed the retaliation claims with prejudice for failure to state a claim.
Punitive Damages
Defendant argued that any claim for punitive damages must be dismissed because Plaintiff could not recover such damages against a public entity. Plaintiff conceded this point, and the court granted the motion on this issue.
The court granted in part and denied in part Defendant’s motion, dismissing Plaintiff’s ADEA discrimination claim without prejudice, dismissing her retaliation claims and claim for punitive damages with prejudice, but denying the motion to dismiss race and sex discrimination claims based on Plaintiff’s termination.
Schrag on Law 