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Malicote v. Don Alberto Corporation

United States District Court, E.D. Kentucky, Central Division, Lexington

October 2, 2018

DON ALBERTO CORPORATION, et al., Defendants.



         This matter is before the Court on Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). [DE 9.] For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART.


         For three years, Plaintiff Malicote was a night watchman at a Lexington, Kentucky thoroughbred horse farm known as Don Alberto Corporation (“DAC”). [DE 1, at 8.] Malicote, who was born in the U.S., claims he was discharged because of his national origin and in retaliation for suggesting that the employment practices of DAC violated the law.[1] [DE 1.]

         Malicote declares that on March 23, 2016, following a shakeup in DAC's management, Defendants Billy Rogers and George Mundy ascended to senior roles at the farm. Specifically, Mundy became the farm manager and Rogers became his assistant. [DE 1, at 9.] During that same month, Malicote claims that he was passed over for the position of broodmare manager, despite being more qualified than “Antonio, ” who was awarded the position. [DE 1, at 8.]

         Malicote alleges that at the time Rogers and Mundy assumed control over the farm's operations, DAC employed twenty-three Hispanics and only four Non-Hispanics. [DE 1, at 9.] Further, Malicote maintains that from March 23, 2016 until his termination, there were several meetings and luncheons held exclusively for the Hispanic employees. Specifically, Malicote points to a February 2017 deportation meeting from which Non-Hispanic employees were allegedly excluded. [DE 1, at 9.]

         On March 7, 2017, Malicote approached Mundy and asked if he should “call for an arbitrator from the E[E]OC, because he felt that he was being discriminated against.” [DE 1, at 9.] In response, Mundy promised to set up a meeting with the secretary at which point Malicote indicated that such action “would be okay” with him. [DE 1, at 9.]

         In the Complaint, Malicote alleges that in early March, 2017, he texted Rogers to inquire about the location of new check points that had been installed pursuant a newly enacted time clock procedure. Instead of responding to the text message, Malicote claims that Rogers instructed a co-worker to tell Malicote “not to worry about using the time clock.” [DE 1, at 10.] Despite this, Malicote maintains that he adhered to the new time clock procedures in the days leading up to his termination.

         On March 8, 2017, the farm secretary reached out to Malicote and informed him that she had been appointed as head of human resources. Malicote alleges that she asked him to attend a meeting on March 10, 2017. Although he was allegedly told that the meeting would be private, when he arrived at the farm's headquarters, Estaban Penaloza, and “Antonio” were also there. Malicote was fired at the meeting.

         Malicote states that he submitted his grievances to head of human resources before she fired him and that she glossed over his memorandum and stated, “[t]his doesn't matter, you are fired for not using the time clock.” Further, Malicote claims that she hinted that the decision was not hers, but rather came from the corporate headquarters in Chile. [DE 1, at 10.]

         After the meeting, Malicote telephoned Penaloza, who expressed surprise at Malicote's termination and suggested that Malicote hire “an attorney for discrimination.” Malicote did not hire an attorney. Instead, he filed a complaint with the Lexington-Fayette Urban County (“LFUC”) Human Rights Commission for national origin discrimination and retaliation. He also cross-filed his charge with the EEOC. Malicote's charge was dismissed by the LFUC Human Rights Commission on August 19, 2017 and by the EEOC on October 27, 2017. Specifically, the EEOC notified Malicote that it had adopted the finding of the LFUC Human Rights Commission and informed him of his right to sue. On January 24, 2017, Malicote filed this lawsuit.


         Defendants have now moved to dismiss all Malicote's claims in accordance with Fed.R.Civ.P. 12(b)(6). As to Malicote's claims pursuant to LFUC Local Ordinance 199-94, Defendants contend that no private right of action can exist under the Ordinance. Second, Defendants argue that the individual capacity claims asserted against Billy Rogers and George Mundy are precluded by Sixth Circuit precedent. Third, Defendants argue that the official capacity claims asserted against Rogers and Mundy are duplicative of the charges against DAC and should therefore be dismissed. Fourth, Defendants claim that Malicote's Title VII failure-to-promote claims are time-barred by the relevant statute. Fifth, Defendants ask this Court to dismiss the Title VII national origin discrimination claims because Malicote fails to describe the nationality of those who negatively impacted his employment at DAC. And lastly, as to the retaliation claim under Title VII, Defendants maintain that Malicote fails to plead a causal connection between the protected activity and his eventual termination. For the reasons stated below, Defendants' motion is GRANTED IN PART and DENIED IN PART.

         I. The Standard of Review

         The Federal Rules of Civil Procedure require a complaint to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ .P. 8(a)(2). In pro se matters, courts are to apply “less stringent” standards in determining whether Rule 8(a)(2) has been satisfied. Estelle v. Gamble, 429 U.S. 97, 106 (1976). This latitude, however, is limited. While courts apply less stringent standards in evaluating pro se ...

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