UNITED STATES COURT 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 University (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 part and reverse in part. 

 

*

 After examining the briefs and appellate record, this panel 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 17, 2014

Elisabeth A. Shumaker 

Clerk of Court
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Background 

 Mr. Asebedo is Hispanic. While he was employed in KSU’s Central Mail 

Services department, he complained 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. But Mr. Asebedo alleges that the harassing 

behavior continued, and that he experienced retaliation. Accordingly, he filed 

another internal complaint. KSU’s investigation of that complaint concluded there 

was no retaliation, but the supervisor continued to create a hostile work environment. 

KSU disciplined the supervisor, but Mr. Asebedo believed that the discipline was 

inadequate. He filed a charge with the Equal Employment Opportunity Commission 

(EEOC), and later filed a second EEOC charge. This lawsuit followed. 

 Mr. Asebedo’s amended complaint had two claims, one for race discrimination 

and one for retaliation. After 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 court 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 internal complaints. With regard to the 

retaliation claim, the district court held that he failed to set forth sufficient facts to 

show a causal connection between his complaints and the allegedly retaliatory 

actions. Mr. Asebedo appeals. 
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Analysis 

 Because KSU filed its motion to dismiss 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 does 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 plausible claim for relief survives 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 pleading, which is expressly rejected, and 

allowing complaints that are no more than labels and conclusions or a formulaic 

recitation of the elements of a cause of action, 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 (10th Cir. 2008)). Plaintiffs 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 determine whether Plaintiff has set forth a 

plausible claim.” Khalik, 671 F.3d at 1192. “[G]eneral assertions of discrimination 

and retaliation, without any details whatsoever of events . . . , are insufficient to 
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survive a motion to dismiss. While specific facts are not necessary, some facts are.” 

Id. at 1193 (brackets, citation, and internal quotation marks omitted). 

1. Race Discrimination Claim 

 “Although Title VII does not explicitly mention hostile work environment, a 

victim of a racially hostile work environment 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 protected group; (2) the 

plaintiff was subjected to unwelcome harassment; (3) the harassment was based on 

the protected characteristic (in this case, race); and (4) the harassment was 

sufficiently severe or pervasive to alter a term, condition, 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. Asebedo’s amended complaint: 

(1) he is Hispanic; (2) his supervisor and coworkers uttered racial 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 filed an internal complaint; 

(5) KSU’s investigation of his complaint supported his allegations and resulted in 

findings in his favor and against his supervisor; (6) the supervisor was counseled, but 

continued his harassing behavior; (7) Mr. Asebedo reported “continually harassing 

and retaliatory incidents to the Associate Vice President for Human Resources and 
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Parking Services,” but then withdrew the 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 racially offensive behavior and violated KSU’s 

anti-discrimination policy; (10) KSU disciplined the supervisor with a one-day 

suspension with pay, a written warning, and 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 issued a final determination. 

 Although these facts are sparse, they establish that Mr. Asebedo is a member 

of a protected class and he was repeatedly subjected to unwelcome harassment by his 

supervisor based on his race. Mr. Asebedo could have set forth additional facts to 

plausibly demonstrate that the harassment was sufficiently severe or pervasive to 

constitute a hostile work environment. Importantly, however, he did plead that 

KSU’s own investigations concluded, twice, that Mr. Asebedo’s supervisor had 

created a hostile work environment in violation of KSU’s anti-discrimination 

policies. He also pleaded that in one instance, a university official pressured him to 

withdraw his report of harassment. Taken together, the amended complaint’s factual 

allegations state a plausible Title VII hostile work environment claim. 

 The district court granted judgment to KSU because Mr. Asebedo did not 

plead sufficient facts to show that KSU did not respond reasonably to his internal 
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complaints. But Mr. Asebedo was not required to plead such facts, because they 

arise in the context of an employer’s affirmative defense, and a plaintiff is not 

required to anticipate or plead against an affirmative defense. 

 In Faragher v. City of Boca Raton, 524 U.S. 775, 802 (1998), the Supreme 

Court held that “in implementing Title VII it makes sense to hold an employer 

vicariously liable for some tortious conduct of a supervisor 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 supervisor 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 affirmative 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 “that the employer exercised 

reasonable care to prevent and correct promptly 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 response is the first step in establishing 

the employer’s affirmative defense. 

 Plaintiffs have no obligation to plead 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 plausible. Complaints need 
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not anticipate defenses and attempt to defeat them.”). Therefore, Mr. Asebedo was 

not required to plead any facts regarding reasonableness, and the district court erred 

in dismissing the discrimination claim on that ground. 

 KSU offers an alternative basis to affirm the dismissal of this claim—that 

Mr. Asebedo did not assert race discrimination as a ground for his EEOC charges, 

and therefore he failed to exhaust his administrative remedies. Exhaustion of 

administrative remedies is a jurisdictional prerequisite to a Title VII suit. See Shikles 

v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005). 

 KSU points out that in his first EEOC 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 creates a presumption that a claimant 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 that the supervisor 

had created a hostile work environment. This could be read 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 stating that KSU had violated Title VII 

“because it has engaged in discrimination and retaliation against [Mr. Asebedo],” 
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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 that Mr. Asebedo was 

claiming discrimination as well as retaliation. See Jones, 502 F.3d at 1186 (a charge 

preserves a claim that is within “the scope of the administrative investigation that can 

reasonably be expected to follow from the discriminatory acts alleged in the 

administrative charge” (emphasis omitted)); Foster v. Ruhrpumpen, Inc., 365 F.3d 

1191, 1195 (10th Cir. 2004) (filing requirement “is intended 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 conciliate the claims”); 

Gunnell, 152 F.3d at 1260 (allegations that identified “the type of discrimination 

complained of, the alleged harasser, and an approximate time period” were 

“minimally sufficient to satisfy the requirements for the contents of a charge of 

discrimination and the purposes of the notice 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 facie 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 retaliatory 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. 
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Khalik held that the plaintiff failed to state a claim for retaliation where her 

factual allegations failed to establish a “nexus 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 retaliatory actions “to a discriminatory or 

retaliatory motive.” Id. at 1194. Similarly, as the district court explained, 

Mr. Asebedo’s complaint is devoid of any facts that would establish a causal 

connection between his complaints and the allegedly retaliatory actions. “Rule 8 

marks a notable and generous departure from the hyper-technical, code-pleading 

regime of a prior era, but it does not unlock 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 court for further proceedings. 

 Entered for the Court 

 Monroe G. McKay 

 Circuit Judge