JULIE A. ROBINSON, Chief District Judge.
Plaintiff Rachel Ailin brings suit against the Leavenworth County Sheriff's Office (the "Sheriff's Office") and the Board of County Commissioners of the County of Leavenworth, Kansas (the "Board"). She asserts claims of sex discrimination and retaliation. Defendants filed a Motion to Dismiss (Doc. 8) contending that the Sheriff's Office is an entity that cannot be sued. In addition, Defendants assert that the Court lacks jurisdiction over the Board because the Board was not included in Plaintiff's Equal Employment Opportunity Commission ("EEOC") Charge. For the reasons stated in detail below, the Court grants in part and denies in part Defendants' motion.
To survive a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), a complaint must contain factual allegations that, assumed to be true, "raise a right to relief above the speculative level"
The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the Court "must take all of the factual allegations in the complaint as true, [but is] `not bound to accept as true a legal conclusion couched as a factual allegation.'"
Plaintiff Rachel Ailin was hired as a sheriff's deputy in 2013. Throughout her employment, she was qualified for her position. Plaintiff also performed her work satisfactorily.
Plaintiff worked with Tyler Reavis, another sheriff's deputy at the Sheriff's Office. Throughout Plaintiff's employment, several employees of the Sheriff's Office, including but not limited to Reavis, participated in a work environment that included sexually-charged jokes that were humiliating and demeaning towards women. Reavis made sexually-charged comments about female staff members, including Plaintiff, as well as female inmates. Plaintiff had sexually-charged encounters with male employees, including being backed into a corner, being shushed by a supervisor for offering a different opinion than her husband's, and witnessing a male employee call a female inmate "a bitch."
In January 2018, Reavis approached Plaintiff at work wanting to discuss the extent of their relationship. Plaintiff stated that she did not want to talk about it at work. Reavis came to her house that evening, and Plaintiff said that she wanted to be friends. Reavis allegedly cornered her and sexually assaulted her. The following day at work, Reavis cornered Plaintiff and attempted to kiss her.
In March 2018, Plaintiff told her supervisor of the unwanted sexual activity. Plaintiff's supervisor, Brandon Masoner, immediately reported the information to the Leavenworth County Sheriff, Andy Dedeke. A criminal investigation was opened. Reavis was suspended for two months.
In May 2018, Reavis returned to work and was put on a different shift than Plaintiff, but Plaintiff still had to see him. When Plaintiff inquired into the status of the investigation, she received no answers. At the end of May 2018, Plaintiff was informed that the prosecutor declined to press criminal charges against Reavis. Plaintiff was also informed that Reavis would not be fired due to "employment laws" but that he had been warned to stay away from Plaintiff.
In June, Plaintiff had frequent panic attacks. She requested another meeting with Sheriff Dedeke. He agreed to transfer Plaintiff but rescinded the offer two weeks later without explanation. Instead, he offered her a different position as a "civilian" that included a pay cut. Plaintiff rejected the position and contends that she was constructively discharged on July 13, 2018.
On or about November 20, 2018, Plaintiff filed a Charge of Discrimination with the EEOC and KHRC. In this charge, she named the Sheriff's Office and Reavis as the entity and/or person who discriminated against her. She received a Dismissal and Notice of Rights, dated April 16, 2019.
On July 8, 2019, she filed suit in this Court, naming the Sheriff's Office and the Board as Defendants. Plaintiff brings claims of sex discrimination and retaliation. Defendants have now filed a Motion to Dismiss. They assert that the Sheriff's Office is not an entity that can be sued. In addition, they assert that the Court should dismiss the Board because the Board was not named in Plaintiff's EEOC Charge.
As an initial matter, Defendants contend that they bring their Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Defendants state that the exhaustion of administrative remedies is a jurisdictional prerequisite to filing a Title VII action in federal court. Although this used to be the law in this circuit, that is no longer the case. In 2018, the Tenth Circuit Court of Appeals held that the failure to exhaust administrative remedies is not a jurisdictional bar to a plaintiff's Title VII lawsuit.
Defendants first assert that the Sheriff's Office should be dismissed because it is not amenable to suit. The sheriff's department is an agency of the county.
As to the Board, Defendants concede that it is an appropriately-named Defendant. But, they contend, the Court should dismiss Defendant Board because it was not named in Plaintiff's EEOC charge.
Indeed, at least two District of Kansas cases have held that the county's board of commissioners was a proper defendant when a plaintiff sued the county sheriff's department and functionally sued the county.
"As a general rule, a plaintiff must file a charge against a party with the EEOC before she can sue that party under Title VII."
As to the first factor, Plaintiff simply states that the unnamed party's role was not easily ascertainable. Defendants argue that it was simple to determine the board's role because case law from this district demonstrates the role of the board. Defendants are correct. Yet, there is also some conflicting caselaw discussing the distinction between the board of county commissioners and the sheriff's office.
"The purpose of the filing requirement is to provide notice of the alleged violation to the charged party and to provide the administrative agency with the opportunity to conciliate the claims."
The second Romero factor considers whether the interests of the named party and the unnamed party are so similar that it was unnecessary to include the unnamed party. Defendants note statutory separation of powers exist between the Board and the Sheriff. While that may be true, the naming of the Board in this lawsuit is simply to include the county as the defendant.
As to the third Romero factor, the Court finds the absence of the Board from the EEOC proceeding did not result in actual prejudice. As noted above, the inclusion of the Board is simply a way to assert suit against the county. The Sheriff's Office, acting as the county's agent, was fully involved in the EEOC proceedings and was provided with an opportunity to conciliate the claims at that level.
Finally, as to the fourth Romero factor, Defendants contend there is nothing in the pleadings to indicate that the Board represented to Plaintiff that its relationship should be through the Sheriff's Office. Although that is true, whether the Board made representations to Plaintiff appears to be immaterial. Again, the Board is simply named in the lawsuit so that Plaintiff can maintain suit against the county. Furthermore, Plaintiff contends that during her time at the Sheriff's Office, she was paid by Leavenworth County. If true, this demonstrates the county's representations as Plaintiff's employer. This fact, however, is not contained in the Complaint and is outside the pleadings. Accordingly, the Court finds this factor as neutral.
In sum, the Court finds that the Romero factors weigh in favor of Plaintiff. Because the Court is instructed to liberally construe EEOC complaints, the dismissal of the Board serves no purpose except to dismiss on technical pleading deficiencies. Accordingly, the Court concludes there is an identity of interest and declines to dismiss Defendant Board.
