UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

EDWIN ASEBEDO, Plaintiff-Appellant,

v. KANSAS STATE UNIVERSITY, Defendant-Appellee. No. 13-3206 (D.C. No. 6:12-CV-01373-EFM-KGG) (D. Kan.)

ORDER AND JUDGMENT *

Before PHILLIPS , McKAY , and ANDERSON , Circuit Judges.

Edwin Asebedo appeals the district court’s dismissal of his lawsuit against his employer, Kansas State Univer sity (KSU), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-5. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in pa rt and reverse in part.

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 17, 2014 Elisabeth A. Shumaker Clerk of Court- 2 - Background Mr. Asebedo is Hispanic. While he was employed in KSU’s Central Mail Services department, he comp lained that his supervisor and other employees used racial slurs and made derogatory remarks about him. KSU’s investigation found in his favor and against his supervisor. Bu t Mr. Asebedo alleges that the harassing behavior continued, and that he experienced retaliation. Accordingly, he filed another internal complaint. KSU’s inves tigation of that complaint concluded there was no retaliation, but the supervisor continue d to create a hostile work environment. KSU disciplined the supervisor, but Mr. As ebedo believed that the discipline was inadequate. He filed a charge with th e Equal Employment Opportunity Commission (EEOC), and later filed a second EEOC charge. This lawsuit followed. Mr. Asebedo’s amended complaint had tw o claims, one for race discrimination and one for retaliation. Af ter KSU filed its answer, it filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), or , in the alternative, for judgment on the pleadings under Fed. R. Civ. P. 12(c). The district co urt dismissed Mr. Asebedo’s complaint under Rule 12(b)(6). With regard to the race discrimination claim, the district court held that Mr. Asebedo failed to set forth sufficient facts to show that KSU did not respond reasonably to his intern al complaints. With regard to the retaliation claim, the di strict court held that he failed to set forth su fficient facts to show a causal connection between his comp laints and the allegedly retaliatory actions. Mr. Asebedo appeals.- 3 - Analysis Because KSU filed its motion to dismis s after it filed its answer, the motion was most appropriately considered as a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). See Jacobsen v. Deseret Book Co. , 287 F.3d 936, 941 n.2 (10th Cir. 2002). But it doe s not matter for purposes of this appeal, because “[w]e use the same standard when evaluating 12(b)(6) and 12(c) motions.” Id. That standard is de novo review. See id. at 941. “[O]nly a complaint that states a plausi ble claim for relief su rvives a motion to dismiss.” Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). In Iqbal and Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-57 (2007), the Supreme Court created “‘a middle ground between heightened fact plead ing, which is expr essly rejected, and allowing complaints that ar e no more than labels and conclusions or a formulaic recitation of the elements of a cause of ac tion, which the Court stated will not do.’” Khalik v. United Air Lines , 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma , 519 F.3d 1242, 1247 (10t h Cir. 2008)). Plaintif fs are not required to specifically allege all the elements of a prima facie case of discrimination. See Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 515 (2002). Nevertheless, “the elements of each alleged cause of action help to de termine whether Plaintiff has set forth a plausible claim.” Khalik , 671 F.3d at 1192. “[G]eneral assertions of discrimination and retaliation, without any details whatsoev er of events . . . , are insufficient to- 4 - survive a motion to dismiss. While specific facts are not necessary, some facts are.” Id. at 1193 (brackets, cita tion, and internal quot ation marks omitted). 1. Race Discrimination Claim “Although Title VII does not explicitly mention hostile work environment, a victim of a racially hostile work envir onment may nevertheless bring a cause of action under Title VII.” Tademy v. Union Pac. Corp. , 614 F.3d 1132, 1138 (10th Cir. 2008) (internal quotation marks omitted). The elements of a hostile work environment claim are: (1) the plaintiff is a member of a pr otected group; (2) the plaintiff was subjected to unwelcome ha rassment; (3) the harassment was based on the protected characteristic (in this case, race); and (4) the harassment was sufficiently severe or perv asive to alter a term, cond ition, or privilege of the plaintiff’s employment and created an abusive working environment. See Dick v. Phone Directories Co. , 397 F.3d 1256, 1262-63 (10th Cir. 2005). We identify the following specific facts in Mr. Aseb edo’s amended complaint: (1) he is Hispanic; (2) his supervisor a nd coworkers uttered ra cial slurs and made derogatory remarks about him, as well as other racial or ethnic groups; (3) such remarks were made “regularly,” Aplt. App. at 87; (4) he fi led an internal complaint; (5) KSU’s investigation of his complaint supported his allegatio ns and resulted in findings in his favor and agai nst his supervisor; (6) the s upervisor was counseled, but continued his harassing behavior; (7) Mr. Asebedo reported “con tinually harassing and retaliatory incidents to the Associat e Vice President for Human Resources and- 5 - Parking Services,” but then withdrew th e allegations due to pressure from that Vice President, id. at 88; (8) later, Mr. Asebedo again complained internally of discrimination and retaliation; (9) KSU’s investigation of that complaint found that the supervisor continued to engage in raci ally offensive behavior and violated KSU’s anti-discrimination policy; ( 10) KSU disciplined the s upervisor with a one-day suspension with pay, a written warning, an d a warning that his employment would be terminated if his behavior continued; ( 11) Mr. Asebedo considered the discipline inadequate and appealed it within KSU’s system; and (12) KSU’s Vice President for Administration and Finance issu ed a final determination. Although these facts are sp arse, they establish that Mr. Asebedo is a member of a protected class and he was repeatedly subjected to unwelc ome harassment by his supervisor based on his race. Mr. Asebedo could have se t forth additional facts to plausibly demonstrate that th e harassment was sufficiently severe or pervasive to constitute a hostile work environment. Importantly, however, he did plead that KSU’s own investigations concluded, twi ce, that Mr. Asebe do’s supervisor had created a hostile work environment in violation of KSU’s anti-discrimination policies. He also pleaded that in one inst ance, a university official pressured him to withdraw his report of harassment. Taken together, the amended complaint’s factual allegations state a plausible Title V II hostile work environment claim. The district court granted judgment to KSU because Mr. Asebedo did not plead sufficient facts to s how that KSU did not respond reasonably to his internal- 6 - complaints. But Mr. Asebedo was not requi red to plead such fa cts, because they arise in the context of an employer’s af firmative defense, a nd a plaintiff is not required to anticipate or plead agai nst an affirmative defense. In Faragher v. City of Boca Raton , 524 U.S. 775, 802 (1998), the Supreme Court held that “in implementing Title V II it makes sense to hold an employer vicariously liable for some to rtious conduct of a supervis or made possible by abuse of his supervisory authority.” To square this principle with an earlier holding that “an employer is not ‘automatically’ liable for harassment by a s upervisor who creates the requisite degree of discrimination,” id. at 804, the Court held that where a supervisor has not taken a tangible employment action against an employee, “a defending employer may raise an affirmativ e defense to liability or damages,” id. at 807; Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 765 (1998) . The first element of the Faragher / Ellerth affirmative defense is “t hat the employer exercised reasonable care to prevent and correct prom ptly any . . . harassing behavior.” Faragher , 524 U.S. at 807; Ellerth , 524 U.S. at 765. Therefore, after Faragher and Ellerth , the reasonableness of an employer’s res ponse is the first step in establishing the employer’s affi rmative defense. Plaintiffs have no obligation to pl ead against affirmative defenses. See Jones v. Bock , 549 U.S. 199, 216 (2007); Gomez v. Toledo , 446 U.S. 635, 640 (1980); see also Richards v. Mitcheff , 696 F.3d 635, 637 (7th Cir. 2012) (“What a complaint must plead is enough to show that the claim for relief is plausibl e. Complaints need- 7 - not anticipate defenses and attempt to def eat them.”). Therefore, Mr. Asebedo was not required to plead any facts regarding r easonableness, and the district court erred in dismissing the discrimina tion claim on that ground. KSU offers an alternativ e basis to affirm the dism issal of this claim—that Mr. Asebedo did not assert race discrimination as a gr ound for his EEOC charges, and therefore he failed to exhaust his administrative remedi es. Exhaustion of administrative remedies is a jurisdictional prerequisi te to a Titl e VII suit. See Shikles v. Sprint/United Mgmt. Co. , 426 F.3d 1304, 1317 (10th Cir. 2005). KSU points out that in his first EEO C charge, Mr. Asebedo checked only the box for retaliation, not the boxes for race or national origin discrimination. A failure to check a particular box cr eates a presumption that a cl aimant is not making a claim on that ground. See Gunnell v. Utah Valley State Coll. , 152 F.3d 1253, 1260 (10th Cir. 1998). We liberally construe an EEOC charge, however, see Jones v. U.P.S., Inc. , 502 F.3d 1176, 1186 (10th Cir. 2007), and the presumption can be rebutted by the claimant’s narrative statement, see id. ; Gunnell , 152 F.3d at 1260. Here, Mr. Asebedo’s attached narrative mentioned that his supervisor made racially focused remarks, KSU investigated, and the investigations found th at the supervisor had created a hostile work envi ronment. This could be re ad merely as background to the claim for retaliation, see Gunnell , 152 F.3d at 1260, but for an important point: the narrative concluded by specifically st ating that KSU had violated Title VII “because it has engaged in discrimination and retaliati on against [Mr. Asebedo],”- 8 - Aplt. App. at 121. Without anything more in the record, we cannot conclude that the charge was insufficient to put the EEOC and KSU on notice th at Mr. Asebedo was claiming discrimination as well as retaliation. See Jones , 502 F.3d at 1186 (a charge preserves a claim that is with in “the scope of the administ rative investigation that can reasonably be expected to follow from th e discriminatory acts alleged in the administrative charge” (emphasis omitted)); Foster v. Ruhrpumpen, Inc. , 365 F.3d 1191, 1195 (10th Cir. 2004) (filing requirement “is in tended to protect employers by giving them notice of the discrimination claims being brought against them, in addition to providing the EEOC with an opportunity to conc iliate the claims”); Gunnell , 152 F.3d at 1260 (allegations that id entified “the type of discrimination complained of, the allege d harasser, and an approx imate time period” were “minimally sufficient to sati sfy the requirements for the contents of a charge of discrimination and the purposes of the no tice requirement”). Accordingly, based upon the limited record before this court, we decline to affirm the dismissal of the discrimination claim for failure to exhaust administrative remedies. 2. Retaliation Claim The elements of a prima fa cie case for retaliation under Title VII are: (1) the plaintiff engaged in protected opposition to discrimination, (2) a reasonable employee would have found the alleged retalia tory action to be materially adverse, and (3) there is a causal connection between the protected activity and the alleged retaliatory action. Khalik , 671 F.3d at 1193.- 9 - Khalik held that the plaintiff failed to st ate a claim for retaliation where her factual allegations failed to establish a “n exus between the person(s) to whom she complained and the person who fired her,” and there was “nothing other than sheer speculation to link” the allegedly retalia tory actions “to a discriminatory or retaliatory motive.” Id. at 1194. Similarly, as th e district court explained, Mr. Asebedo’s complaint is devoid of a ny facts that would establish a causal connection between his compla ints and the allegedly reta liatory actions. “Rule 8 marks a notable and gener ous departure from the hype r-technical, code-pleading regime of a prior era, but it does not unl ock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal , 556 U.S. at 678-79. Accordingly, we affirm the dismissal of the retaliation claim for substantially the same reasons set forth by the district court. Conclusion The judgment of the district court is affirmed as to the retaliation claim. The judgment is reversed as to the employment discrimination claim, and that claim is remanded to the district c ourt for further proceedings.

Entered for the Court
Monroe G. McKay Circuit Judge