Sandowski v. Kelly et al

Filing 54

ORDER Granting Defendant Kirstjen Nielsen's Motion To Partially Dismiss Plaintiff's Complaint and Granting Leave To Amend re 37 ."Nielsen's motion to partially dismiss the Complaint is granted. As a result, the only r emaining Defendant is Nielsen, and Sandowski's remaining Title VII claims are the claims of unequal treatment, retaliation, and wrongful termination. Sandowski may filed an amended complaint on or before September 28, 2018."Sig ned by JUDGE SUSAN OKI MOLLWAY on 9/6/2018. (cib, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RICHARD J. SANDOWSKI,

)
)
Plaintiff,
)
)
vs.
)
)
KIRSTJEN M. NIELSEN; DOUG
)
ROLEFSON; GENOA LOPEZ; JOAN
)
DE LA CRUZ; MARC MAYAKAWA;
)
and STAN TADAKI,
)
)
Defendants.
_____________________________ )

Civ. No. 17-00469 SOM-RLP
ORDER GRANTING DEFENDANT
KIRSTJEN NIELSEN’S MOTION TO
PARTIALLY DISMISS PLAINTIFF’S
COMPLAINT AND GRANTING LEAVE
TO AMEND

ORDER GRANTING DEFENDANT KIRSTJEN NIELSEN’S MOTION TO PARTIALLY
DISMISS PLAINTIFF’S COMPLAINT AND GRANTING LEAVE TO AMEND
I.

INTRODUCTION.
Before the court is Defendant Kirstjen Nielsen’s

Motion to Partially Dismiss Plaintiff’s Complaint.
37.

See ECF No.

Plaintiff Richard Sandowski, proceeding pro se, was

formerly employed by the Transportation Security Administration
(“TSA”), an agency of the United States Department of Homeland
Security (“DHS”).

He filed a complaint (“Complaint”) against

Nielsen, 1 who is the Secretary of DHS, and against five current
or former TSA employees.

See ECF No. 1, PageID # 5.

The

Complaint asserts that Defendants discriminated against him in
violation of Title VII of the Civil Rights Act of 1964.
1

See id.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
Secretary Nielsen is substituted as a defendant in place of
former Secretary John F. Kelly, who was originally named in the
Complaint. See ECF No. 37, PageID # 222. All future docket
filings should reflect this change.

Nielsen’s motion seeks to dismiss Sandowski’s claims
of perjury, obstruction of justice, physical assault, and abuse
of authority for failure to exhaust administrative remedies or,
in the alternative, for failure to state a claim upon which
relief can be granted.

See ECF No. 37-1, PageID # 225.

Additionally, Nielsen argues that the Complaint should be
dismissed as to the TSA employee defendants because she, as head
of DHS, is the only proper defendant.

See id. at 225-26.

This court grants Nielsen’s motion for partial
dismissal.

The court further grants Sandowski leave to file an

amended complaint should he wish to do so.
II.

BACKGROUND.
Sandowski was employed by TSA on the island of Lanai

until his termination on August 30, 2006.
#s 2-7.

See ECF No. 1, PageID

On January 18, 2007, Sandowski filed an employment

discrimination complaint against TSA and DHS with the Equal
Employment Opportunity Commission (“EEOC”). 2

See id. at 20.

After a hearing, an EEOC Administrative Judge (“AJ”) issued a
decision finding no discrimination, which was adopted by the DHS
Office of Civil Rights and Civil Liberties (“CRCL”) in a final
order issued on January 28, 2016.

2

See id. at 10, 20-21; ECF No.

The EEOC complaint is not in the record, but the procedural
history of the administrative proceedings was described in the
EEOC’s decision of July 7, 2017, attached to the Complaint. See
ECF No. 1, PageID #s 20-21.
2

37-4.

On February 29, 2016, Sandowski appealed to the EEOC’s

Office of Federal Operations (“OFO”), and on July 7, 2017, the
OFO affirmed the CRCL’s final order adopting the AJ’s decision.
See ECF No. 1, PageID # 21.

The OFO’s decision stated that

Sandowski had a right to file a civil action in federal district
court.

See id. at 22.
On September 19, 2017, Sandowski filed his Complaint

in this court, asserting employment discrimination claims
against Defendants under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to 2000e-17.

See id. at 2-5.

He

alleges that, between October 2004 and August 2006, Defendants
discriminated against him on the basis of his race and religion
and that he was wrongfully terminated.

See id. at 2-7, 20.

The

Complaint attaches Sandowski’s appeal letter to the EEOC dated
February 29, 2016, and the OFO’s decision dated July 7, 2017.
See id. at 7, 10-23.
The Complaint lists the following seven claims:
unequal treatment, retaliation, wrongful termination, perjury,
obstruction of justice, physical assault, and abuse of
authority.

Id. at 6-7.

As relief, Sandowski seeks

reinstatement, back pay for wages and benefits, and to be “made
whole.”

Id. at 8.
On June 29, 2018, Nielsen filed the present motion.

See ECF No. 37-1.

The motion attaches two documents: (1) a TSA
3

letter dated April 24, 2007, informing Sandowski that TSA
accepted and would investigate certain claims from his EEOC
complaint, and (2) the CRCL’s final order of January 28, 2016,
adopting the AJ’s decision.

See ECF Nos. 37-3, 37-4.

The court

held a hearing on the motion on August 13, 2018.
III.

STANDARD OF REVIEW.
Nielsen’s motion was brought under both Federal Rule

of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction and Rule 12(b)(6) for failure to state a claim upon
which relief can be granted.

See ECF No. 37-1, PageID # 229.

The citation to Rule 12(b)(1) was likely due to the prior
treatment of a failure to exhaust administrative remedies under
Title VII as a jurisdictional defect.

See Lyons v. England, 307

F.3d 1092, 1103 (9th Cir. 2002) (“To establish federal subject
matter jurisdiction, a plaintiff is required to exhaust his or
her administrative remedies before seeking adjudication of a
Title VII claim.”).
However, in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006),
the Supreme Court clarified that administrative exhaustion
requirements were not prerequisites to subject matter
jurisdiction unless “the Legislature clearly states that a
threshold limitation on a statute’s scope shall count as
jurisdictional.”

Id. at 515 (“[W]hen Congress does not rank a

statutory limitation on coverage as jurisdictional, courts
4

should treat the restriction as nonjurisdictional in
character.”).
Consistent with this holding, the Ninth Circuit has
stated that a Title VII exhaustion requirement “is not a
jurisdictional prerequisite for suit in federal court,” but that
failure to comply with the requirement may be fatal to the
claim.

Kraus v. Presidio Tr. Facilities Div./Residential Mgmt.

Branch, 572 F.3d 1039, 1043 (9th Cir. 2009); see also Daniels v.
Donahoe, 901 F. Supp. 2d 1238, 1245 (D. Haw. 2012) (stating that
“[t]he exhaustion requirement is a condition of bringing a Title
VII claim in court,” but is not a jurisdictional limitation). 3
The Ninth Circuit in Kraus did not cite Arbaugh, but the Ninth
Circuit has applied Arbaugh in several non-Title VII cases to
hold that prerequisites to a statute’s applicability are not
jurisdictional.

See, e.g., Trader Joe’s Co. v. Hallatt, 835

F.3d 960, 968–69 (9th Cir. 2016) (“We hold that the
extraterritorial reach of the Lanham Act is a merits question
that does not implicate federal courts’ subject-matter
jurisdiction.”); Leeson v. Transamerica Disability Income Plan,

3

Any confusion over the standard of review may have related to
the Ninth Circuit’s continued citation to Lyons (even after
Arbaugh) for the proposition that administrative exhaustion is a
prerequisite for subject matter jurisdiction over Title VII
cases. See Robinson v. Geithner, 359 F. App’x 726, 728 (9th
Cir. 2009); Toyama v. Sebelius, 329 F. App’x 175, 176 (9th Cir.
2009); Lama v. Fred Meyer, Inc., 247 F. App’x 45, 46 (9th Cir.
2007).
5

671 F.3d 969, 971 (9th Cir. 2012) (holding that whether
plaintiff was a plan participant under ERISA is “a substantive
element of his claim, not a prerequisite for subject matter
jurisdiction”); Forester v. Chertoff, 500 F.3d 920, 928–29 (9th
Cir. 2007) (holding that the 30-day waiting period in 29 U.S.C.
§ 633a(d) is “not jurisdictional in the sense that a district
court lacks any authority to grant relief when a complaint is
filed prematurely”).

And at the hearing on the motion,

Nielsen’s counsel recognized that recent Ninth Circuit case law
stated that failure to exhaust is not an issue of subject matter
jurisdiction.

Thus, this court reviews Nielsen’s motion under

Rule 12(b)(6).
Under Rule 12(b)(6), a complaint may be dismissed for
failure to state a claim upon which relief can be granted.

The

court’s review is generally limited to the contents of a
complaint.

Sprewell v. Golden State Warriors, 266 F.3d 979, 988

(9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479
(9th Cir. 1996).

If matters outside the pleadings are

considered, the Rule 12(b)(6) motion is treated as one for
summary judgment.

Keams v. Tempe Tech. Inst., Inc., 110 F.3d

44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934
(9th Cir. 1996).

However, the court may take judicial notice of

and consider matters of public record without converting a Rule
12(b)(6) motion to dismiss into a motion for summary judgment.
6

Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001);
Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.
1988).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988;

Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Dismissal under Rule 12(b)(6) may be based on either “lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”

Balistreri v.

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citing
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34
(9th Cir. 1984)).
To survive a Rule 12(b)(6) motion to dismiss,
“[f]actual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“[T]he pleading standard . . . does not require detailed
7

factual allegations, but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” (internal quotation
marks omitted)).

“[A] plaintiff’s obligation to provide the

grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Twombly, 550 U.S. at 555

(internal quotation marks omitted).

A complaint must “state a

claim to relief that is plausible on its face.”

Id. at 570.

“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.”
Iqbal, 556 U.S. at 678.
IV.

ANALYSIS.
To help evaluate the arguments in Nielsen’s motion for

partial dismissal, the court provides its understanding of
Sandowski’s claims in the Complaint.

All of Sandowski’s claims

are based on employment discrimination in alleged violation of
Title VII.

Title VII requires that “[a]ll personnel actions

affecting [federal] employees . . . be made free from any
discrimination based on race, color, religion, sex, or national
origin.”

42 U.S.C. § 2000e-16(a).

In asserting Title VII

claims, Sandowski lists unequal treatment, retaliation, wrongful
termination, perjury, obstruction of justice, physical assault,

8

and abuse of authority.

See ECF No. 1, PageID #s 2-7.

The

Complaint’s sparse statement of facts says:
Doug Rolefson refused to provide
accom[m]odations as a Catholic. I was told
to use annual leave to attend c[h]urch
services. Payroll errors are not corrected.
Doug Rolefson yelled at me many times. I
saw Doug Role[f]son and Genoa Lopez fighting
in the TSA office. I saw Doug Role[f]son
provoke Genoa Lopez leading to physical
assault in the TSA office on August 11,
2017.
See id. at 7.

However, the Complaint incorporates Sandowski’s

letter of February 29, 2016, to the EEOC, discussing the alleged
factual background and providing some context for his claims.
See id. at 7, 10-23.
Reading the Complaint and its attachments together,
the court discerns that Sandowski is alleging that the following
events occurred while he was employed at TSA and were the result
of discrimination on the basis of his Caucasian race and
Catholic religion: (1) Rolefson, Sandowski’s then-supervisor,
told Sandowski that he needed to use leave time if he wanted to
attend Catholic services; (2) Rolefson and TSA officers Genoa
Lopez, Joan Delacruz, and Mark Mayakawa made negative comments
about Caucasian people and Sandowski’s frequent attendance at
Catholic services; (3) Rolefson and Lopez did not correct
payroll and scheduling errors that Sandowski reported to them;
(4) Lopez physically assaulted Sandowski on August 11, 2006;

9

(5) Rolefson did not report Sandowski’s complaints of
discrimination and harassment to Stan Tadaki, TSA Assistant
Federal Security Director, and (6) Sandowski was wrongfully
terminated following the alleged physical assault by Lopez.
id. at 10-17.

See

He also asserts that Rolefson, Lopez, Delacruz,

and Mayakawa gave false testimony at the hearing before the AJ.
See id.
The court dismisses claims against Rolefson, Lopez,
Mayakawa, and Delacruz.

The perjury, obstruction of justice,

physical assault, and abuse of authority claims against Nielsen
are dismissed for failure to state a claim upon which relief can
be granted.

The court further grants Sandowski leave to file an

amended complaint by September 28, 2018.
A.

Title VII Claims Cannot Be Brought Against the
TSA Employee Defendants.

Under Title VII, a federal employee complaining of
employment discrimination may commence a civil action only after
following certain EEOC administrative procedures.
§ 2000e-16(c).

See 42 U.S.C.

“A Title VII action against the federal

government is the exclusive judicial remedy for discrimination
in federal employment.”

See Nishibayashi v. England, 360 F.

Supp. 2d 1095 (D. Haw. 2005) (citing Brown v. Gen. Servs.
Admin., 425 U.S. 820, 835 (1976); Brazil v. U.S. Dept. of the
Navy, 66 F.3d 193, 197–98 (9th Cir. 1995)).

10

In such a civil

action, “the head of the department [that employed the
plaintiff] . . . shall be the defendant.”

42 U.S.C. § 2000e-

16(c).
Sandowski’s Complaint appropriately names Nielsen,
head of DHS, as defendant.

Sandowski additionally sues five TSA

employees who allegedly discriminated against him, but Title VII
liability does not extend to individual federal employees.
“We have long held that Title VII does not provide a
separate cause of action against supervisors or co-workers.”
Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir.
2007) (citing Holly D. v. Cal. Inst. Of Tech., 339 F.3d 1158,
1179 (9th Cir. 2003); Pink v. Modoc Indian Health Project, Inc.,
157 F.3d 1185, 1189 (9th Cir. 1998); Miller v. Maxwell’s Int’l
Inc., 991 F.2d 583, 587-88 (9th Cir. 1993)).

This limitation

reflects Congress’s intent “to create ‘an exclusive, preemptive
administrative judicial scheme for the redress of federal
employment discrimination.’”

White v. Gen. Servs. Admin., 652

F.2d 913 (9th Cir. 1981) (quoting Brown, 425 U.S. at 835).
“[A]llowing additional individual remedies would interfere with
that carefully devised scheme.”

Id.; see also Miller, 991 F.2d

at 587 (“The statutory scheme [of Title VII] indicates that
Congress did not intend to impose individual liability on
employees.”).

11

Thus, the Complaint is dismissed as to Defendants
Rolefson, Lopez, Mayakawa, and Delacruz.

The only remaining

Defendant is Nielsen in her capacity as head of DHS.
B.

There is No Evidence that Sandowski Failed to
Exhaust His Administrative Remedies Prior to
Filing the Complaint.

Nielsen argues that Sandowski failed to
administratively exhaust his Title VII claims based on perjury,
obstruction of justice, physical assault, and abuse of
authority.

See ECF No. 37-1, PageID #s 232-34.

As mentioned

above, before commencing a Title VII civil action against the
federal government, a plaintiff must exhaust the EEOC
administrative remedies set forth in Title VII and its
implementing regulations.
1614.

See 42 U.S.C. § 2000e-16; 29 CFR Part

The purpose of these exhaustion requirements is “to

provide an opportunity to reach a voluntary settlement of an
employment discrimination dispute.”

Jasch v. Potter, 302 F.3d

1092, 1094 (9th Cir. 2002) (quoting Blank v. Donovan, 780 F.2d
808, 809 (9th Cir. 1986)).
Sandowki’s EEOC complaint is not part of the record in
this case.

In asserting a failure to exhaust, Nielsen relies on

a TSA letter dated April 24, 2007, and on the CRCL’s final
order, which state that the claims at issue are whether
Sandowski was discriminated against when Sandowski’s work hours
were reduced from 40 to 39.75 hours a week and whether Sandowski
12

was discriminated against when it was terminated.

See id. at

244.
However, whether a claim was addressed or investigated
in the EEOC proceedings is “irrelevant” to whether Sandowski
exhausted his administrative remedies with regard to that claim.
Yamaguchi v. U.S. Dep’t of the Air Force, 109 F.3d 1475, 1480
(9th Cir. 1997).

An allegation of discrimination is considered

exhausted if it “fell within the scope of the EEOC’s actual
investigation or an EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination.”

Id.

(quoting EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.
1994)).

Thus, the attachments to Nielsen’s motions, while

relevant to a determination of the nature and scope of
Sandowski’s EEOC claims, and to the exhaustion issue, are not
dispositive with respect to those matters.
Moreover, Title VII claims brought in EEOC
administrative proceedings need not be identical to the claims
brought in a subsequent civil action.

“Incidents of

discrimination not included in an EEOC charge” may be considered
by the civil action if “the new claims are like or reasonably
related to the allegations contained in the EEOC charge.”
Lyons, 307 F.3d at 1104 (quoting Green v. LA Cty. Superintendent
of Schs., 883 F.2d 1472, 1475–76 (9th Cir. 1989)).

13

EEOC charges

“must be construed ‘with the utmost liberality.’”

Yamaguchi,

109 F.3d at 1480 (quoting Farmer Bros., 31 F.3d at 899).
A plaintiff’s claims in a civil action are reasonably
related to allegations in the EEOC charge “to the extent that
those claims are consistent with the plaintiff’s original theory
of the case, as reflected in the plaintiff’s factual allegations
and his assessment as to why the employer’s conduct is
unlawful.”

Id. (internal quotation marks omitted).

While

Sandowski’s EEOC complaint is not in the record, the attachments
to the Complaint make clear that at issue in the EEOC
proceedings were several acts that involved Rolefson and Lopez
and that occurred before Sandowski was terminated on August 30,
2006.

See ECF No. 1, PageID #s 10-20.

These appear to be same

acts that are at issue before this court, and nothing in the
record indicates anything to the contrary.
Thus, viewing the allegations in the Complaint as true
and in the light most favorable to Sandowski, the court is not
persuaded that Sandowski failed to exhaust administrative
remedies.

The claims are not dismissed on that ground.
C.

The Claims at Issue are Dismissed for Failure to
State a Claim Upon Which Relief Can Be Granted.

Nielsen also argues that the perjury, obstruction of
justice, physical assault, and abuse of authority claims should
be dismissed for failure to state a claim upon which relief can

14

be granted.

See ECF No. 37-1, PageID #s 234-38.

The court

agrees.
Sandowski’s perjury and obstruction of justice claims
appear to relate to allegedly false statements given by the
named TSA employees in the events leading to Sandowski’s
termination and in the administrative proceedings before the AJ.
See id. at 10-17.
Title VII.

However, perjury is not a viable claim under

See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

521 (1993) (“Title VII is not a cause of action for perjury; we
have other civil and criminal remedies for that”).

Neither is

obstruction of justice, which is a criminal charge.

See Haw.

Rev. Stat. § 710-1072.5 (2017) (Obstruction of justice); 18
U.S.C. § 1505 (Obstruction of Proceedings Before Departments,
Agencies, and Committees).
For the physical assault claim, Sandowski alleges that
he was the victim of physical assault in an August 11, 2006
incident involving Lopez.

See ECF No. 1, PageID # 7.

Title VII

does not prohibit physical assault generally, but “prohibits
offensive ‘physical conduct of a sexual nature’ when that
conduct is sufficiently severe or pervasive.”

Rene v. MGM Grand

Hotel, Inc., 305 F.3d 1061, 1065 (9th Cir. 2002) (quoting
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)).
Nowhere in the Complaint or its attachments does Sandowski
allege that the assault was sexual in nature or that he was the
15

victim of sexual harassment.

As a result, Sandowski’s physical

assault claim fails to assert “sufficient facts alleged under a
cognizable legal theory.”

Balistreri v. Pacifica Police Dep’t,

901 F.2d 696, 699 (9th Cir. 1988).
Sandowski’s abuse of authority claim appears to apply
generally to his complaints regarding his supervisor Rolefson’s
actions, including Rolefson’s alleged handling of Sandowki’s
requests for leave to attend Catholic services, failure to
correct payroll errors, and failure to report Sandowski’s
complaints of discrimination and harassment.
PageID #s 10-17.

See ECF No. 1,

Title VII does include 42 U.S.C. § 1981a,

which applies to intentional discrimination and could
conceivably apply to Sandowski’s complaints.

Section

1981a(b)(1) states that punitive damages are available “if the
complaining party demonstrates that the respondent engaged in a
discriminatory practice or discriminatory practices with malice
or with reckless indifference to the federally protected rights
of an aggrieved individual.”

However, § 1981a does not provide

a separate cause of action, but rather provides an additional
remedy for discrimination.

See Pimentel v. Orloff, No. C-08-

0249 MMC, 2008 WL 3876173, at *2 (N.D. Cal., Aug. 19, 2008); .
Thus, no “abuse of authority” claim is available under Title
VII.

16

Sandowski listed Title VII as the only basis for this
court’s jurisdiction over the Complaint.
# 5.

See ECF No. 1, PageID

There may be other federal laws that are applicable to the

facts alleged in the Complaint, and as discussed below, the
court grants Sandowski leave to amend should he wish to bring
these claims under other laws.

However, because Sandowski’s

claims of perjury, obstruction of justice, physical assault, and
abuse of authority are asserted only under Title VII and are not
viable under that law, the claims are dismissed.
D.

The Court Grants Sandowski Leave to File An
Amended Complaint.

On or before September 28, 2018, Sandowski may file an
amended complaint should he wish to bring additional viable
claims against the named individuals or under other federal
laws.

Sandowski may of course opt not to amend the Complaint,

in which case this matter will proceed with the Title VII claims
of unequal treatment, retaliation, and wrongful termination
against Nielsen.
If Sandowski files an amended complaint, he may not
reassert Title VII claims against the individual TSA employees.
Any non-Title VII claims or newly alleged Title VII claims must
take into account the issues raised by the present order.

In

assessing whether other viable claims exist, Sandowski may well

17

want to keep in mind any time limitations or other bars set by
the applicable law.
Any amended complaint must be complete in itself and
may not simply incorporate by reference any other material
previously-filed in this case.

In other words, the amended

complaint must be free-standing and encompass all claims that
Sandowski wishes to pursue; the amended complaint would
effectively replace the original Complaint.
V.

CONCLUSION.
Nielsen’s motion to partially dismiss the Complaint is

granted.

As a result, the only remaining Defendant is Nielsen,

and Sandowski’s remaining Title VII claims are the claims of
unequal treatment, retaliation, and wrongful termination.
Sandowski may filed an amended complaint on or before September
28, 2018.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 6, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Richard J. Sandowski v. Kirstjen M. Nielsen, et al., Civ. No.
17-00469 SOM-RLP; ORDER GRANTING DEFENDANT KIRSTJEN NIELSEN’S
MOTION TO PARTIALLY DISMISS PLAINTIFF’S COMPLAINT AND GRANTING
LEAVE TO AMEND.

18