Eberra v. Wal-Mart Associates, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK D. EBERRA,
Plaintiff,
v.
WAL-MART ASSOCIATES, INC., et al.,
Defendants.
Case No. 25-2307-DDC-ADM
MEMORANDUM AND ORDER
Pro se1 plaintiff Mark D. Eberra brings this employment-discrimination lawsuit against
defendants Walmart, Inc.; Wal-Mart Stores East, LP; and Wal-Mart Associates Inc. (collectively,
“Walmart”). He also has sued a series of individual defendants who worked at Walmart.
Walmart has filed a Motion to Dismiss (Doc. 21). And seven of the individual defendants—
Dennis Hensley, Kasonga Ellis, Francine Carter, Anne Serino, Josh Holden, Malak Mohammed,
and Regina Jesmore—also have filed a Motion to Dismiss (Doc. 23).
For reasons explained, below, the court grants Walmart’s Motion to Dismiss (Doc. 21)
and grants in part and denies in part the individual defendants’ Motion to Dismiss (Doc. 23).
Also before the court is plaintiff’s Emergency Motion for Temporary Restraining Order and
Preliminary Injunction (Doc. 9). The court previously denied plaintiff’s request for a TRO. This
1 	Plaintiff proceeds pro se. The court construes plaintiff’s filings liberally and “hold[s] [them] to
less stringent standards than formal pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519,
520–21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court doesn’t assume the
role of advocate for the pro se litigant. Hall, 935 F.2d at 1110. And our Circuit “‘has repeatedly insisted
that pro se parties follow the same rules of procedure that govern other litigants.’” Kay v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007) (quoting Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005)).
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Order now denies plaintiff’s request for a preliminary injunction. The court explains these
results, below, starting with a brief overview of plaintiff’s Complaint.
I. 	Background
The court “accept[s] as true all well-pleaded factual allegations in the complaint and
view[s] them in the light most favorable to [plaintiff], the non-moving party.” Purgatory
Recreation I, LLC v. United States, 157 F.4th 1173, 1182 (10th Cir. 2025) (quotation cleaned
up). Plaintiff’s Complaint is long; it spans 63 pages and alleges hundreds of facts. Trying to use
the court’s resources efficiently, the court confines its background discussion to a top-level
summary of the Complaint, adding supplemental facts, as necessary, throughout.
Plaintiff is an African American male who previously worked at Walmart store number
1151 in Kansas City, Kansas. Doc. 1 at 1–2 (Compl. Intro. ¶ 2). The Complaint alleges a years-
long discrimination and retaliation campaign at that Walmart store. Plaintiff alleges that he
repeatedly complained about racial discrimination and unlawful retaliation through a variety of
channels—filing internal complaints with Walmart Global Ethics and Walmart’s Code of
Conduct Team; complaining to managers and supervisors verbally and by email; and sending
emails to Walmart CEO Doug McMillon. Id. at 8, 10, 12, 13, 14, 15, 16, 19, 21, 25, 27, 29, 32–
33, 34, 35 (Compl. ¶¶ 22, 43, 52, 53, 55, 57, 60, 65, 69, 72, 74–76, 80, 82, 94, 95, 102, 104, 124,
135, 147–48, 165–66, 168, 170, 182, 188). As plaintiff tells it, before and after he filed these
complaints, defendants orchestrated a sweeping campaign of discrimination and retaliation.
Among other incidents, the Complaint alleges that defendants:
• 	offloaded extra work onto plaintiff and forced him to work overtime while other
employees sat and socialized, id. at 22–23 (Compl. ¶¶ 112–13);
• 	yelled at plaintiff, disparaged plaintiff as incompetent, and called plaintiff derogatory
names, id. at 23, 28 (Compl. ¶¶ 116, 142–44);
• 	changed plaintiff’s schedule and gave him unfavorable shift times and assignments, id. at
9, 19, 26 (Compl. ¶¶ 29–33, 95, 130);
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• 	publicly reprimanded plaintiff and blamed him for errors caused by white female
coworkers, id. at 13 (Compl. ¶ 58);
• 	threatened to terminate plaintiff after he filed an internal complaint, id. at 27 (Compl.
¶ 136);
• 	vocally discussed pushing plaintiff out of his job in front of plaintiff’s coworkers, id. at
26 (Compl. ¶ 131);
• 	spread and repeated false rumors about plaintiff stealing or mishandling money, id. at 29
(Compl. ¶¶ 146–47);
• 	solicited negative information about plaintiff and spread negative commentary about him,
id. at 30 (Compl. ¶¶ 155–56);
• 	held “whites only” meetings with plaintiff’s coworkers, excluding him, id. at 35 (Compl.
¶ 185).
Eventually, Walmart fired plaintiff for allegedly violating the company’s cash-handling
policy. Id. at 35 (Compl. ¶ 189). But it was plaintiff’s managers who singled him out and
directed him to violate company policy by moving large sums of money from registers to the
money office. Id. at 35–38 (Compl. ¶¶ 190–208).
Plaintiff also alleges that Walmart employed a testing protocol to filter promotion
eligibility, and that this testing resulted in a racially disparate impact. Walmart uses a
computerized testing policy to screen applicants for promotion to Team Lead and Coach
positions. Id. at 51 (Compl. Count IV ¶ 3). Plaintiff alleges that Walmart gave white candidates
assistance on the test, allowed them to retake the test, and promoted them despite failing the test.
Id. (Compl. Count IV ¶¶ 4, 5). Black candidates were denied this preferential treatment and
consequently lost out on promotion opportunities. Id. at 51, 52 (Compl. Count VI ¶¶ 4, 5, 8).
Plaintiff asserts five claims:
• 	Title VII race discrimination against Walmart, id. at 43–44;
• 	Title VII retaliatory hostile work environment against Walmart, id. at 45–47;
• 	§ 1981 retaliatory hostile work environment against all defendants, id. at 47–50;
• 	Title VII disparate impact against Walmart, id. at 51–52; and
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• 	Kansas Act Against Discrimination race discrimination and retaliation against Walmart,
id. at 53–54.
Plaintiff seeks declaratory, legal, and injunctive relief—including a far-reaching injunction
requiring Walmart to revamp its corporate structure and training processes. Id. at 55–57.
The court turns first to defendants’ Motions to Dismiss.
II. 	Motion to Dismiss Legal Standard
Defendants’ motions ask for relief under three Federal Rules of Civil Procedure—Rule
12(b)(6), Rule 12(b)(1), and Rule 12(e). The court outlines the legal standard for each of these
rules.
A. 	12(b)(6)
Under Rule 12(b)(6), a party may move the court to dismiss an action for failing “to state
a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). To survive a Rule
12(b)(6) motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
at 556); see also Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir.
2009) (“The question is whether, if the allegations are true, it is plausible and not merely possible
that the plaintiff is entitled to relief under the relevant law.” (citation omitted)).
When considering a Rule 12(b)(6) motion to dismiss, the court must assume that factual
allegations in the complaint are true, but it’s “‘not bound to accept as true a legal conclusion
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couched as a factual allegation[.]’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
And, while this pleading standard doesn’t require “‘detailed factual allegations,’” it demands
more than a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action’” which, as the Supreme Court explained, “‘will not do.’” Id.
(quoting Twombly, 550 U.S. at 555).
B. 	12(b)(1)
Under Rule 12(b)(1), a defendant may move the court to dismiss for lack of subject
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited jurisdiction
and, as such, [they] must have a statutory basis to exercise jurisdiction.” Montoya v. Chao, 296
F.3d 952, 955 (10th Cir. 2002). “A court lacking jurisdiction cannot render judgment but must
dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is
lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). The party
invoking federal jurisdiction—here, plaintiff—bears the burden to prove it exists. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Siloam Springs Hotel, L.L.C.
v. Century Sur. Co., 906 F.3d 926, 931 (10th Cir. 2018) (presuming “no jurisdiction exists absent
an adequate showing by the party invoking federal jurisdiction”).
Rule 12(b)(1) motions take one of two forms: a facial attack or a factual attack. Stuart v.
Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). “A facial attack asserts that the
allegations in the complaint, even if true, are insufficient to establish subject matter jurisdiction.
By contrast, a factual attack on the complaint challenges the veracity of the allegations upon
which subject matter jurisdiction depends.” Cnty. Comm’rs v. U.S. Dep’t of the Interior, 614 F.
Supp. 3d 944, 951 (D.N.M. 2022) (quotation cleaned up).
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C. 	12(e)
A party may move for a more definite statement under Rule 12(e) when the complaint “is
so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P.
12(e). Rule 12(e) motions generally are disfavored and “are properly granted only when a party
is unable to determine the issues” to which he must respond. Resol. Tr. Corp. v. Thomas, 837 F.
Supp. 354, 356 (D. Kan. 1993); see also Smith v. Swift Transp., Co., No. 13-2247-RDR, 2013
WL 5551804, at *3 (D. Kan. Oct. 7, 2013) (granting Rule 12(e) motion in part because “framing
a response to the plaintiff’s complaint would be extremely difficult”). A court shouldn’t grant a
motion for a more definite statement “merely because the pleading lacks detail;” instead, the
court should determine “whether the claims alleged are sufficiently specific to enable a
responsive pleading in the form of a denial or admission.” Advantage Homebuilding, LLC v.
Assurance Co. of Am., No. 03-2426-KHV, 2004 WL 433914, at *1 (D. Kan. Mar. 5, 2004).
III. 	Walmart’s Motion to Dismiss (Doc. 21)
Walmart asks the court to dismiss plaintiff’s disparate-impact claim and his claims for
injunctive relief. The court starts with Walmart’s argument that plaintiff’s disparate-impact
claim isn’t plausible.
A. 	Disparate Impact
“Unlike a claim for disparate treatment, a claim for disparate impact doesn’t require proof
of intentional discrimination.” Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685
F.3d 917, 922 (10th Cir. 2012). Ordinarily, plaintiffs show discriminatory effect with statistical
evidence. Mountain Side Mobile Estates P’ship v. Sec’y of Hous. & Urban Dev., 56 F.3d 1243,
1253 (10th Cir. 1995). Although the Supreme Court has eschewed “any rigid mathematical
formula,” it has “consistently stressed that statistical disparities must be sufficiently substantial
that they raise . . . an inference of causation.” Watson v. Ft. Wor. Bank & Tr., 487 U.S. 977, 995
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(1988); see also Ricci v. DeStefano, 557 U.S. 557, 587 (2009) (explaining that “a prima facie
case of disparate-impact liability” is “essentially[] a threshold showing of a significant statistical
disparity”).
Plaintiff has failed to plead a plausible disparate-impact claim. Plaintiff hasn’t pleaded
any facts about the population of people who applied to and were eligible for Team Lead and
Coaching positions. Nor has plaintiff pleaded any facts about the population of people who
Walmart promoted to Team Lead and Coaching positions. Without facts about these two
populations, plaintiff hasn’t alleged plausibly that the testing protocol produced a disparate
impact. See Carpenter v. Boeing Co., 456 F.3d 1183, 1197 (10th Cir. 2006) (“[A]bsent a close
fit between the population used to measure disparate impact and the population of those qualified
for a benefit, the statistical results cannot be persuasive.”); see also Tex. Dep’t of Hous. & Cmty.
Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 543 (2015) (“A plaintiff who fails to allege
facts at the pleading stage or produce statistical evidence demonstrating a causal connection
cannot make out a prima facie case of disparate impact.”).
Specifically, the Complaint cites just two employment decisions to prove the disparate
impact of defendants’ testing program: (1) that defendant passed over plaintiff for promotion,
Doc. 1 at 10 (Compl. ¶ 39), and (2) that one white associate, K.V., attained promotion even after
she confessed to failing the test, id. at 51 (Compl. Count IV ¶ 4).2 These two data points are
2 	Plaintiff’s briefing alleges that another white associate told plaintiff that a supervisor gave her
answers to the computerized test while she was taking it. Doc. 28 at 5. But the Complaint doesn’t
mention this associate. And the allegations in the Complaint—not plaintiff’s briefing—control. See
Rezac Livestock Comm’n Co. v. Pinnacle Bank, 255 F. Supp. 3d 1150, 1164 (D. Kan. 2017) (“The court
does not consider allegations made in parties’ briefs when deciding a motion to dismiss.”); see also
Smallen v. W. Union Co., 950 F.3d 1297, 1305 (10th Cir. 2020) (explaining that courts “only consider
facts alleged in the complaint itself in evaluating the sufficiency of the complaint”). Regardless,
defendant affording favorable treatment to white applicants supports plaintiff’s disparate-treatment claim.
But it doesn’t support his disparate-impact claim.
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insufficient to plead a plausible disparate-impact claim. The Tenth Circuit routinely rejects
disparate-impact theories resting on similarly thin datasets. E.g., Thomas v. Metroflight, Inc.,
814 F.2d 1506, 1509 (10th Cir. 1987) (“[A] sample of two is too small to make even a 100%
impact rate significant” for a Title VII disparate-impact claim.); Fallis v. Kerr-McKee Corp., 944
F.2d 743, 746 (10th Cir. 1991) (explaining that a sample size of nine “is too small to provide
reliable statistical results” and that “such a small statistical sample carries little or no probative
force to show discrimination”); Drake v. City of Fort Collins, 927 F.2d 1156, 1171 (10th Cir.
1991) (“A sample of one is too small to demonstrate significant impact.”).3
The Complaint also alleges that Walmart promoted two white associates to Team Lead in
Fall 2021. Doc. 1 at 10 (Compl. ¶ 40). Plaintiff’s response brief never cites this allegation or
explains how it fits into his disparate-impact theory. See Doc. 28 at 5. But even supposing that
this allegation adds two more data points, the Complaint fails to set out a plausible disparate-
impact theory. The Complaint doesn’t allege—even in general terms—the racial composition of
the qualified pool of applicants for Team Lead and Coach positions. Nor does it allege the racial
composition of the population who Walmart promoted to Team Lead and Coaching positions.
Without allegations about those populations, the Complaint’s disparate-impact claim can’t
withstand Rule 12(b)(6) scrutiny. See Carpenter, 456 F.3d at 1197 (“[A] statistical analysis
3 	The Complaint alleges that despite “comprising approximately 28.8% of Walmart’s hourly
workforce, Black employees account for just 9% of its corporate officers. Conversely, White employees,
who make up roughly 52.3% of hourly workers, occupy approximately 74.5% of Walmart’s officer-level
leadership roles.” Doc. 1 at 52 (Compl. Count IV ¶ 6). But this data can’t support plaintiff’s disparate-
impact claim because plaintiff wasn’t seeking a corporate officer role. See Doc. 28 at 9 (conceding this
point and explaining that plaintiff included this “data to illustrate the broader context in which biased
testing practices occur”); see also Carpenter, 456 F.3d at 1197 (“[A]bsent a close fit between the
population used to measure disparate impact and the population of those qualified for a benefit, the
statistical results cannot be persuasive.”). In other words, this data about the racial composition of
Walmart’s hourly workforce and corporate officers says nothing about the racial composition of the
population of people who applied and were qualified for Team Lead and Coach positions.
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cannot establish a plaintiff's prima facie case unless it is based on data restricted to qualified
employees, or (1) reliable data with respect to that group are unavailable and (2) the plaintiff
establishes that the statistical analysis uses a reliable proxy for qualification.”).4
Plaintiff’s response brief asserts that “no African Americans were promoted to Coach at
Walmart Store 1151 in 5.3 years.” Doc. 28 at 1. Even if this allegation were included in the
Complaint—and the court can’t locate it—it wouldn’t change the result. Plaintiff hasn’t alleged
any facts about Black applicants for Coaching and Team Lead positions. So, plaintiff hasn’t
offered a plausible theory that Walmart’s testing program screened out Black candidates at a
disparate rate. Instead, plaintiff alleges only that he didn’t get the position after applying. But,
as the court already has explained, evidence that one applicant didn’t get a position is insufficient
to make out a plausible disparate-impact theory.
The Complaint also alleges that Walmart’s “administration of the testing policy has the
effect of disproportionately excluding African American employees from advancement
opportunities[.]” Doc. 1 at 51 (Compl. Count IV ¶ 5). But this assertion is conclusory. Plaintiff
hasn’t pleaded any facts making this version of his disparate-impact claim plausible. “Disparate-
impact plaintiffs are permitted to rely on a variety of statistical methods and comparisons to
support their claims.” Adams v. City of Indianapolis, 742 F.3d 720, 733 (7th Cir. 2014). Still,
some basic allegations about statistics or comparisons are necessary. See id. And here, outside
4 	As the court reads it, the Complaint alleges that Walmart administered its testing program in a
disparate fashion. The Complaint alleges that Walmart would allow non-Black candidates to retake the
exam; provide assistance to non-Black candidates while taking the exam; and promote non-Black
candidates despite them failing the exam. See Doc. 1 at 51 (Compl. Count IV ¶ 4). These allegations
reasonably may support plaintiff’s Title VII disparate-treatment claim. But they don’t support his
disparate-impact claim because they aren’t descriptions of a neutral program resulting in disparate impact.
See Worrell v. Colo. Cmty. Bank, No. 10-cv-00671-ZLW-BNB, 2010 WL 2943487, at *2 (D. Colo. July
21, 2010) (explaining that allegation that defendant selectively applied a policy or more harshly applied a
policy to a protected group could support a disparate-treatment claim but not a disparate-impact claim).
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of the allegation that plaintiff didn’t attain promotion while a white colleague did, the Complaint
is devoid of facts that support a disparate-impact theory.
Plaintiff cites Adams, for the proposition that he only needs to plead a plausible claim—
not provide definitive proof of it. Doc. 28 at 9. This point is uncontroversial. But the problem
remains: plaintiff hasn’t pleaded a plausible disparate-impact claim. And Adams proves the
point. The Seventh Circuit there dismissed the complaint for failing to plead a plausible
disparate-impact claim, explaining that it “contain[ed] no factual allegations” about “a relevant
and statistically significant disparity between black and white applicants for promotion.” Adams,
742 F.3d at 733. Adams required “some basic allegations” about statistical comparisons to
survive a motion to dismiss. Id. Like the plaintiff in Adams, plaintiff here has failed to plead
even “basic allegations” comparing the population of applicants to the population of persons
receiving promotions. Id. His disparate-impact claim thus fails, and the court dismisses it
without prejudice. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (“[O]rdinarily the
dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice[.]”).
The court now turns to Walmart’s argument that plaintiff lacks standing to seek
injunctive relief.
B. 	Standing for Injunctive Relief
Walmart asks the court to dismiss plaintiff’s claims that seek injunctive and equitable
relief against it. Doc. 22 at 8–10. Plaintiff’s Complaint seeks a sweeping injunction against
Walmart in the form of a court order directing
Defendant to cease and desist from all discriminatory and retaliatory practices, and
to implement appropriate policies, training, and oversight to prevent future
violations. 	Including requiring Walmart to commence an immediate large scale
systemic change and corporate restructuring process to dismantle the illegal racial
employment hierarchy in which whites maintain the top executive positions, with
brown and Latin races in the middle management positions, and mostly Blacks at
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the bottom of hourly employment that has been maintained by Walmart for 62
years.
Doc. 1 at 56 (Compl. Prayer ¶ 3). Plaintiff also asks for equitable relief in the form of a court
order directing Walmart to revamp its testing program. Id. (Compl. Prayer ¶ 4).
The court agrees with Walmart. Plaintiff lacks standing to seek this relief, so the court
dismisses plaintiff’s claims for injunctive and equitable relief. The court explains this result,
starting with a brief overview of standing doctrine.
“Article III of the Constitution permits federal courts to decide only ‘Cases’ or
‘Controversies.’” Laufer v. Looper, 22 F.4th 871, 876 (10th Cir. 2022) (quoting U.S. Const. art.
III, § 2). “‘To establish a case or controversy, a plaintiff must possess standing to sue.’” Id.
(quoting S. Furniture Leasing, Inc. v. YRC, Inc., 989 F.3d 1141, 1145 (10th Cir. 2021)). “For
Article III standing, a plaintiff must have (1) ‘suffered an injury in fact,’ (2) that is ‘fairly
traceable to the challenged action of the defendant,’ and (3) that is likely to be ‘redressed by a
favorable decision.’” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
Standing doctrines apply equally to plaintiffs seeking injunctive relief. Only “a person exposed
to a risk of future harm may pursue forward-looking, injunctive relief to prevent the harm from
occurring, at least so long as the risk of harm is sufficiently imminent and substantial.”
TransUnion LLC v. Ramirez, 594 U.S. 413, 435 (2021).
Here, plaintiff lacks standing to seek injunctive relief. Plaintiff hasn’t alleged that he
faces any “risk of harm” that “is sufficiently imminent and substantial.” Id. at 435. “An alleged
future injury is sufficiently imminent ‘if the threatened injury is certainly impending, or there is a
substantial risk that the harm will occur.’” Laufer, 22 F.4th at 879 (quoting Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 158 (2014)). The Complaint offers no allegation that plaintiff
faces a “certainly impending” injury from Walmart’s conduct. Id. (quotation cleaned up). The
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Complaint alleges only that Walmart harmed him in the past. But the Complaint doesn’t provide
any reason to believe that such harms will reoccur.
Courts routinely dismiss plaintiffs’ requests for injunctive relief against their former
employers. E.g., Young v. Colo. Dep’t of Corr., No. 22-cv-00145-NYW-KLM, 2023 WL
1437894, at *12 (D. Colo. Feb. 1, 2023) (collecting cases); Savage v. Gee, 665 F.3d 732, 740
(6th Cir. 2012) (“[Plaintiff], who is no longer employed by the University and is not entitled to
reinstatement, cannot demonstrate harm by claiming imminent enforcement of the policy.”);
Roberts v. Target Corp., No. CIV-11-951-HE, 2012 WL 2357420, at *3 (W.D. Okla. June 20,
2012) (explaining that “former employees do not have standing to seek prospective injunctive
relief”). Plaintiff argues he might reapply for employment at Walmart. Doc. 28 at 13. But the
Complaint doesn’t allege that plaintiff has any intent to reapply, so the court declines to consider
this assertion. Regardless, a vague intent to reapply suggests that any future harm plaintiff could
face is “conjectural or hypothetical[,]” which won’t do. Rocky Mountain Gun Owners v. Polis,
121 F.4th 96, 109 (10th Cir. 2024) (quotation cleaned up).
Plaintiff insists he has standing. Doc. 28 at 13–14. He cites his TRO allegations to
support this position. Id. at 13. But plaintiff hasn’t asserted claims based on these allegations,
which invoke witness chilling, evidence destruction, celebrating alleged harassers, and
blacklisting plaintiff. And it’s not at all clear that the sweeping injunction plaintiff seeks would
have any effect on his TRO allegations. See Rocky Mountain Gun Owners, 121 F.4th at 111
(explaining that redressability “requires it be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision” (quotation cleaned up)). At best, the requested
injunction might redress his injuries, but that’s not good enough. Id. (“A showing that the relief
requested might redress the plaintiff's injuries is generally insufficient to satisfy the redressability
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requirement[.]” (emphasis in original) (quotation cleaned up)). So, the court rejects plaintiff’s
assertion that he has standing based on his TRO allegations.
In sum, plaintiff lacks standing to seek sweeping injunctive relief against Walmart. The
court thus lacks jurisdiction over his claims to the extent they seek this form of relief. The court
now dismisses without prejudice plaintiff’s claims for injunctive relief. See Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (instructing that dismissals for lack
of jurisdiction “must be without prejudice”).5
The court next addresses the individual defendants’ Motion to Dismiss (Doc. 23).
IV. 	Individual Defendants’ Motion to Dismiss (Doc. 23)
Three of the individual defendants ask the court to dismiss plaintiff’s § 1981 retaliatory-
hostile-work-environment claim. The individual defendants also ask the court to dismiss
plaintiff’s Title VII and KAAD claims. In the alternative, they’ve moved for a more definite
statement on the issue whether plaintiff has asserted Title VII and KAAD claims against them.
The court takes up each request in turn, below.
A. 	§ 1981 Retaliatory Harassment
A § 1981 retaliation claim requires a plaintiff to “prove that [he] engaged in protected
activity, that the defendants took adverse action against[him], and that there was a causal
5 	The court denies plaintiff’s Motion for Leave to File Sur-Reply (Doc. 33). “Our court’s local
rules limit briefing on motions to the motion (with memorandum in support), a response, and a reply.”
Hampton v. Barclays Bank Del., 478 F. Supp. 3d 1113, 1142 (D. Kan. 2020) (citing D. Kan. Rule 7.1(a),
(c)), aff’d, No. 20-3175, 2021 WL 3237082 (10th Cir. July 30, 2021). “‘Surreplies are typically not
allowed.’” Id. (quoting Taylor v. Sebelius, 350 F. Supp. 2d 888, 900 (D. Kan. 2004), aff’d, 189 F. App’x
752 (10th Cir. 2006)). Plaintiff asserts that his sur-reply is warranted because, in its reply, Walmart made
new arguments about his disparate-impact claim and Supreme Court precedent governing injunctions.
Doc. 33 at 1–2. The court disagrees. Walmart made a fulsome argument that plaintiff’s disparate-impact
claim failed the Rule 12(b)(6) standard in its opening brief. See Doc. 22 at 3–8. Likewise, in its opening
brief, Walmart explicitly argued that plaintiff lacks standing to seek injunctive relief. See id. at 8–10.
Whatever gloss defendant applied in its reply brief doesn’t amount to new arguments. The court, in its
discretion, thus denies plaintiff’s Motion for Leave to File Sur-Reply (Doc. 33).
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relationship between the protected activity and the adverse action.” Lindsay v. Denv. Pub. Schs.,
88 F.4th 1323, 1327 (10th Cir. 2022). “To show an adverse action for a retaliation claim under
§ 1981, ‘a plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, which . . . means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.’” Parker Excavating, Inc. v. Lafarge W.,
Inc., 863 F.3d 1213, 1224 (10th Cir. 2017) (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006)). “The action must be materially adverse to separate significant from
trivial harms, such as petty slights, minor annoyances, and simple lack of good manners.” Id. at
1225 (quotation cleaned up). A hostile work environment may rise to the level of a materially
adverse employment action and thus support a retaliation claim. See Gunnell v. Utah Valley
State Coll., 152 F.3d 1253, 1264–65 (10th Cir. 1998). A hostile-work-environment claim
requires conduct that is “sufficiently severe or pervasive that it could well dissuade a reasonable
worker from engaging in protected activity.” Adcox v. Brennan, No. 15-cv-9258-JWL, 2017 WL
2405326, at *7 (D. Kan. June 2, 2017). 6
Unlike Title VII, individuals may face liability under § 1981. “A claim seeking personal
liability under section 1981 must be predicated on the actor’s personal involvement.” Allen v.
Denv. Pub. Sch. Bd., 928 F.2d 978, 984 (10th Cir. 1991), overruled on other grounds by,
6 	The individual defendants have cited some case law about Title VII hostile-work-environment
claims. E.g., Doc. 24 at 5–6. But the legal standard governing those claims isn’t the same as the standard
governing retaliatory-hostile-work-environment claims. The standard for a retaliatory-hostile-work-
environment claim is whether the harassment is “‘sufficiently severe or pervasive that it could well
dissuade a reasonable worker from engaging in protected activity.’” Bermudez v. City of Topeka, No. 18-
CV-4141-HLT-ADM, 2020 WL 206766, at *7 (D. Kan. Jan. 14, 2020) (quoting Adcox, 2017 WL
2405326, at *7). This differs from the standard for a hostile-work-environment claim, which asks
whether “the defendant’s conduct was so severe or pervasive as to alter the terms or conditions of
employment.” Throupe v. Univ. of Denv., 988 F.3d 1243, 1252 (10th Cir. 2021); see also Babb v. Sec’y,
Dep’t of Veterans Affs., 992 F.3d 1193, 1207 (11th Cir. 2021) (explaining statutory origins of this
difference).
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Kendrick v. Penske Transp. Servs. Inc., 220 F.3d 1220, 1228 (10th Cir. 2000). “There must be
some affirmative link to causally connect the actor with the discriminatory action.” Id. So, “an
individual defendant can be held liable under § 1981 if the individual defendant was personally
involved in the discriminatory conduct.” Flores v. City and County of Denver, 30 F. App’x 816,
819 (10th Cir. 2002); see also Al-Khazraji v. Saint Francis Coll., 784 F.2d 505, 518 (3d Cir.
1986) (explaining that individuals who “intentionally caused” a violation of plaintiff’s § 1981
rights or who “authorized, directed, or participated in the alleged discriminatory conduct . . . may
be held liable”), aff’d on other grounds, 481 U.S. 604 (1987).7
The court thus starts by determining whether plaintiff has stated a plausible retaliatory-
hostile-work-environment claim. Concluding that he has, the court then explains the specific
facts that plaintiff has alleged against Carter, Mohammed, and Jesmore. For each defendant, the
court assesses whether plaintiff has alleged a sufficient affirmative link between the defendant’s
conduct and the retaliatory hostile work environment.
Viewed in the light most favorable to plaintiff, the Complaint plausibly alleges that
plaintiff suffered a hostile work environment that was sufficiently severe or pervasive to
dissuade a reasonable worker from engaging in protected activity. Plaintiff alleges that
defendants gave him unfavorable assignments and shifts; disparaged him publicly; threatened to
fire him; reprimanded him for errors caused by his coworkers; and held “whites only” meetings
that excluded him. Cumulatively, these allegations plausibly might dissuade a reasonable worker
7 	The individual defendants might have argued that they can’t incur liability because their
actions—alone—couldn’t create a hostile work environment. Doc. 24 at 5–10. The key word there?
Might. Defendants’ briefing on this issue is thin. The proper causation standard matters too much for the
court to weigh in without more fulsome briefing. And defendants, of course, have the burden on a motion
to dismiss. 5B Wright & Miller’s Federal Practice & Procedure § 1357 (4th ed. 2025) (“Ultimately, the
burden is on the moving party to prove that no legally cognizable claim for relief exists.”). So, to the
extent defendants have made this argument, the court rejects it as underdeveloped.
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from filing a charge of discrimination. See Adcox, 2017 WL 2405326, at *8 (concluding that
evidence that defendant subjected plaintiff to heightened scrutiny, criticized her over minor flaws
in the presence of coworkers, denied leave requests, interrupted breaks, and threw mail at her
was sufficient to survive summary judgment on retaliatory-hostile-work-environment claim);
Wilson v. Mercury Mgmt., LLC, No. 23-2245-KHV, 2023 WL 6961987, at *4 (D. Kan. Oct. 20,
2023) (finding allegation that “plaintiff experienced unequal job assignments and unequal
application of policies and rules” sufficient to survive motion to dismiss). So, at this early stage
of these proceedings, plaintiff’s allegations suffice. They state a plausible § 1981 retaliatory-
hostile-work-environment claim.
The court now turns to the three defendants who have asked the court to dismiss
plaintiff’s § 1981 claim—Carter, Mohammed, and Jesmore.
1. 	Carter
Plaintiff’s allegations assert that Carter, a Team Lead, unfairly forced plaintiff to swap
roles with a white associate. Doc. 1 at 9 (Compl. ¶¶ 28–33). Plaintiff also alleges that Carter
mocked his work ethic when he tried to resist this change. Id. (Compl. ¶ 28). He further asserts
that Carter assigned plaintiff false attendance points, solicited negative information about
plaintiff from coworkers, and falsely accused plaintiff of terminating an associate. Id. at 21
(Compl. ¶ 107). Cumulatively, these allegations suggest that Carter played a role in the alleged
hostile work environment. Plaintiff has thus alleged a sufficient “affirmative link” between
Carter and the retaliatory hostile work environment to survive her motion to dismiss. Allen, 928
F.2d at 984.
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2. 	Mohammed
Mohammed, a Team Lead and then Coach, Doc. 1 at 7, 28–29 (Compl. ¶¶ 16, 144–145),
allegedly influenced an associate to spread negative commentary about plaintiff’s competence.8
She also continuously circulated false rumors that Walmart was about to fire plaintiff for losing
or stealing $2,500. Id. at 29 (Compl. ¶¶ 146–47). Again, these allegations suffice. Viewed in
the light most favorable to plaintiff, the Complaint alleges that Mohammed had a substantial role
in cultivating a hostile work environment for plaintiff. The court thus denies Mohammed’s
request to dismiss plaintiff’s § 1981 claim.
3. 	Jesmore
Finally, Jesmore, another former Team Lead at Walmart, also allegedly contributed to
creating a hostile work environment. Id. at 7 (Compl. ¶ 17). She, for instance, spread rumors
that plaintiff made up his medical condition when he took leave. Id. at 19 (Compl. ¶ 92).
Plaintiff also alleges that Jesmore physically blocked him from supervising and communicating
with an associate. Id. (Compl. ¶ 93). Jesmore falsely accused plaintiff of posing a threat to her
over the store’s walkie system. Id. (Compl. ¶ 94). And Jesmore yelled at plaintiff and ordered
him around as though he were a subordinate, even though plaintiff and Jesmore were both Team
Leads. Id. at 23 (Compl. ¶¶ 115–16). Once more, taking these allegations as true, a reasonable
factfinder reasonably could find or infer that Jesmore played an active role in bullying plaintiff
and creating a hostile work environment. So, the court denies Jesmore’s request to dismiss
plaintiff’s § 1981 claim against her.
8 	Mohammed asserts that plaintiff’s use of the word “influence” is “meaningless.” Doc. 24 at 8.
The court disagrees. Although a clearer factual allegation is preferable, plaintiff has alleged adequately
that Mohammed played a part in associates gossiping negatively about plaintiff by inducing that conduct.
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In short, according to the Complaint’s allegations, Carter, Mohammed, and Jesmore each
played a substantial role in creating a hostile work environment on their own. At this early stage
of these proceedings, that suffices to survive a motion to dismiss. The court thus denies these
defendants’ request to dismiss plaintiff’s § 1981 retaliatory-hostile-work environment claim
against them.
B. 	Title VII Claims
The individual defendants assert that Title VII and KAAD claims aren’t available against
individuals. They thus ask the court to dismiss these claims or, alternatively, for a more definite
statement under Rule 12(e) to clarify that plaintiff’s Title VII and KAAD claims aren’t asserted
against them. Doc. 24 at 3–4. Plaintiff asserts that the Complaint clearly asserts its Title VII
claims against the corporate defendants only. Doc. 29 at 13. But he doesn’t oppose a court order
clarifying that he doesn’t assert his KAAD claim against the individual defendants.
The court agrees with plaintiff’s reading of the Complaint. Plaintiff’s Title VII claims—
listed in Counts I, II, and IV—don’t name any individual defendants. See Doc. 1 at 43–47, 51–
52. So, the court needn’t dismiss these claims, and plaintiff needn’t clarify his claim further.
But plaintiff’s KAAD claim does name some of the individual defendants. Id. at 53 (Compl.
Count V ¶ 4). Because plaintiff doesn’t oppose it, the court now grants defendants’ motion and
clarifies that plaintiff doesn’t assert his KAAD claim against any individual defendant. After
this Order, everyone agrees that plaintiff doesn’t intend to assert his Title VII or KAAD claims
against any individual defendant.9
9 	The court denies plaintiff’s second Motion for Leave to File Sur-Reply (Doc. 35). Again,
whatever new gloss that defendants have spun in their reply brief isn’t the same as raising new arguments.
The court, in its discretion, denies plaintiff’s request for leave to file an additional brief on this matter.
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The court takes up plaintiff’s request for a preliminary injunction, next, starting with the
governing legal standard for such a motion.
V. 	Preliminary Injunction Standard
A litigant seeking a preliminary injunction must show: (1) that he’s substantially likely
to succeed on the merits; (2) that he will suffer irreparable injury if the court denies the requested
relief; (3) that his threatened injury without the restraining order outweighs the opposing party’s
injury under the restraining order; and (4) that the requested relief is not adverse to the public
interest. Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir. 2019).
To secure preliminary relief, a “movant must make a clear and unequivocal showing” on
all four requirements. Colorado v. EPA, 989 F.3d 874, 883 (10th Cir. 2021) (quotation cleaned
up). And, in our Circuit, when “the failure to satisfy one factor is dispositive, a court need not
consider the other factors” for preliminary relief. Id. at 890 (declining to consider the remaining
factors where plaintiff failed to show irreparable harm). The decision whether to issue
“preliminary injunctive relief is within the sound discretion of the district court.” Sac & Fox
Nation of Mo. v. LaFaver, 905 F. Supp. 904, 906 (D. Kan. 1995).
VI. 	Preliminary Injunction Analysis
The court denies plaintiff’s Motion for Preliminary Injunction (Doc. 9) for the same
reason that it denied his request for a temporary restraining order—viz., he’s failed to carry his
heavy burden to prove he’s entitled to it. Specifically, plaintiff hasn’t demonstrated that he’ll
face irreparable or imminent harm in the absence of preliminary relief. See Doc. 17 at 4–9. The
court’s TRO analysis applies equally here. See id. Because the court already has provided a
fulsome explanation why plaintiff hasn’t shown that he’s entitled to the “extraordinary remedy”
of a preliminary injunction, the court won’t reinvent that wheel now. Leachco, Inc. v. Consumer
Prod. Safety Comm’n, 103 F.4th 748, 752 (10th Cir. 2024) (quotation cleaned up).
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But summarizing briefly, the court has concluded that plaintiff couldn’t carry his
preliminary-relief burden. Plaintiff’s motion describes several categories of purported abuse by
Walmart—witness chilling, celebrating alleged perpetrators, destroying evidence, and
blacklisting plaintiff. Doc. 9 at 4–8. None of these allegations suffice to overcome the exacting
standard for preliminary relief. Specifically, plaintiff’s assertions about witness chilling and
evidence destruction are speculative and don’t suggest imminent and irreparable harm. Plaintiff
hasn’t explained why the ordinary discovery process won’t suffice to overcome any harm he’d
face from witness chilling and evidence destruction. Nor has plaintiff asserted a basis for the
court to conclude that he’ll suffer imminent harm based on these allegations in the absence of
preliminary relief. Likewise, plaintiff’s assertion that Walmart celebrated an alleged perpetrator
was insufficient because this allegation didn’t cause a concrete harm to plaintiff, and plaintiff
didn’t allege that Walmart likely would repeat this action. Finally, plaintiff failed to support his
blacklisting allegation with any evidence.
This rationale all applies to plaintiff’s request for a preliminary injunction, too. As
alleged, plaintiff won’t suffer imminent and irreparable harm in the absence of preliminary relief.
The court thus denies his Motion for Preliminary Injunction (Doc. 9).
VII. 	Conclusion
Plaintiff hasn’t pleaded a plausible disparate-impact claim. So, the court dismisses it
without prejudice. Plaintiff also lacks standing to seek injunctive relief, so the court dismisses
without prejudice his claims for injunctive relief against Walmart. In contrast, plaintiff has
pleaded a plausible § 1981 retaliatory-hostile-work-environment claim. And he has alleged
plausible facts tying Carter, Mohammed, and Jesmore to that hostile work environment. So the
court denies those defendants’ request to dismiss plaintiff’s § 1981 claim. Plaintiff now has
clarified that he doesn’t intend to bring his Title VII or KAAD claims against any individual
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defendant, so the court grants the individual defendants’ motion to the extent it seeks that
clarification. Finally, the court denies plaintiff’s request for a preliminary injunction because
plaintiff hasn’t shouldered his burden to prove he’s entitled to it.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants Walmart, Inc.;
Wal-Mart Stores East, LP; and Wal-Mart Associates Inc.’s Motion for Partial Dismissal (Doc.
21) is granted.
IT IS FURTHER ORDERED THAT defendants Francine Carter, Kasonga Ellis,
Dennis Hensley, Josh Holden, Regina Jesmore, Malak Mohammed, and Anne Serino’s Motion
for Partial Dismissal (Doc. 23) is granted in part and denied in part.
IT IS FURTHER ORDERED THAT plaintiff’s Emergency Motion for Temporary
Restraining Order and Preliminary Injunction (Doc. 9) is denied.
IT IS FURTHER ORDERED THAT plaintiff’s Motion for Leave to File Sur-Reply
(Doc. 33) is denied.
IT IS FURTHER ORDERED THAT plaintiff’s Motion for Leave to File Sur-Reply
(Doc. 35) is denied.
IT IS SO ORDERED.
Dated this 27th day of February, 2026, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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