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United States District Court for the District of Kansas
October 28, 2013, Decided
Case No. 12-2788-CM
MEMORANDUM AND ORDER
This matter is before the court on a joint motion to dismiss filed by defendants Landers McClarty Olathe, KS, LLC ("LM") and RLJ-McClarty-Landers Automotive Holdings, LLC ("RLJ") (Doc. 56). Plaintiff Hubert Yousif alleges violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., with claims of discrimination based on actual and perceived race, color, religion, and national origin. Plaintiff also alleges violations of 42 U.S.C. § 1981 ("Section 1981") with claims of discrimination based on actual and perceived race. In addition, plaintiff brings a claim of retaliatory discharge under Kansas common law. Defendants' motion argues that plaintiff's "perceived" claims should be dismissed for failure to state a claim and for lack of subject matter jurisdiction. For the reasons below, [*2] defendants' motion is granted.
I. Factual Background1
In approximately May 2009, plaintiff began working for defendants. Defendants employed Jeff Briggs ("Briggs") and Dale Wethered ("Wethered"), both of whom had supervisory authority over plaintiff. Plaintiff suffered injuries at work on December 17, 2010, and March 4, 2011. Plaintiff reported the December 17, 2010 incident to both Briggs and Wethered. Both refused to report the injury or otherwise turn it in for the purpose of workers' compensation benefits, and plaintiff was forced to continue to work full-time for defendants and seek medical care through his own [*3] physicians. When plaintiff reported the March 4, 2011 incident to Wethered, Wethered reported this injury to workers' compensation, as well as plaintiff's earlier December 17, 2010 incident. Briggs did not assist plaintiff in seeking workers' compensation benefits.
Defendants subjected plaintiff to offensive, derogatory, and retaliatory comments regarding plaintiff's work-related injuries. Briggs also subjected plaintiff to severe and unwelcome conduct because of plaintiff's actual and perceived race, actual and perceived color, actual and perceived religion, and actual and perceived national origin, including, but not limited to, offensive comments and innuendo. Briggs refused to accommodate plaintiff's physical limitations and restrictions that were sustained as a result of his work-related injuries, telling plaintiff "you can either be a car washer or just leave." Briggs and Wethered subjected plaintiff to increased scrutiny and supervision through unscheduled drug and alcohol testing not otherwise administered to other employees of defendants. After plaintiff's second work-related injury, Briggs told plaintiff "I need you to either resolve your issues with your doctors or quit and [*4] sue me."
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2013 U.S. Dist. LEXIS 154504 *; 120 Fair Empl. Prac. Cas. (BNA) 830; 2013 WL 5819703
HUBERT YOUSIF, Plaintiff, v. LANDERS MCCLARTY OLATHE KS, LLC, and RLJ-McCLARTY-LANDERS AUTOMOTIVE HOLDINGS, LLC, Defendants.
Prior History: Yousif v. Landers McLarty Olathe KS, LLC, 2013 U.S. Dist. LEXIS 79340 (D. Kan., June 5, 2013)
discrimination claim, administrative remedy, disability, exhausted, national origin, religion, color, subject matter jurisdiction, defendants', injuries, cases, protected class, work-related, allegations