Hively v. Ivy Tech Community College
Filing
14
OPINION AND ORDER granting 8 Motion to Dismiss for Failure to State a Claim. The Clerk is ORDERED to DISMISS Plaintiffs complaint WITH PREJUDICE in its entirety, and to CLOSE this case. Signed by Judge Rudy Lozano on 3/3/2015. (rmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KIMBERLY HIVELY,
Plaintiff,
vs.
IVY TECH COMMUNITY COLLEGE,
Defendant.
)
)
)
)
) No. 3:14-cv-1791
)
)
)
)
OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss,
filed by Defendant, Ivy Tech Community College (“Ivy Tech”), on
September 29, 2014 (DE #8).
motion (DE #8) is GRANTED.
For the reasons set forth below, the
The Clerk is ORDERED to DISMISS
Plaintiff’s complaint WITH PREJUDICE in its entirety, and to CLOSE
this case.
BACKGROUND
Pro
se
Plaintiff,
Kimberly
Hively,
filed
complaint against Ivy Tech on August 15, 2014.
her
two-count
(DE #1.)
She
alleges she was “[d]enied fulltime employment and promotions based
on sexual orientation” in violation of Title VII of the Civil
Rights Act of 1964 and 42 U.S.C. § 1981.
(DE #1, p. 2.)
She
attached her administrative charge of discrimination which stated
as follows:
I have applied for several positions at IVY TECH,
fulltime, in the last 5 years.
I believe I am
being blocked from fulltime employment without just
cause. I believe I am being discriminated against
based on my sexual orientation. I believe I have
been discriminated against and that my rights under
the Title VII of the Civil Rights Act of 1964 were
violated.
(DE #1-1, p. 2.)
Ivy Tech filed the instant motion to dismiss on September 29,
2014 (DE #8), arguing Plaintiff failed to set forth a claim upon
which relief may be granted, and the complaint should be dismissed
under Federal Rule of Civil Procedure Rule 12(b)(6). Specifically,
Ivy Tech contends that sexual orientation is not a protected class
under Title VII or Section 1981.
(DE #9.)
Hively filed a response in opposition on November 12, 2014 (DE
#12).
In it, she sets forth facts about the percentage of states
recognizing same sex marriages/civil unions, and argues that sexual
orientation should be protected.
Additionally, she quotes Ivy
Tech’s employee handbook, which states that the College “will not
discriminate
against
orientation. . . .”
any
person
(DE #12, p. 2.)
because
of
.
.
.
sexual
Finally, in the last sentence
of her response, Hively requests permission “to amend the initial
complaint to include the state and local rules and Ivy Tech
Community College’s employment policy.”
(Id., p. 3.)
Ivy Tech filed a reply in support of its motion to dismiss on
November 21, 2014 (DE #13).
As such, this motion is fully briefed
and ripe for adjudication.
2
DISCUSSION
Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of a complaint, or any portion of a complaint, for
failure to state a claim upon which relief can be granted.
“To
survive a 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) (internal quotations omitted); see also Ray v. City of
Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011) (citation omitted)
(“While the federal pleading standard is quite forgiving . . . the
complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.”).
A complaint should not be dismissed for failure to state a
claim “unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Plus, Iqbal
requires that a plaintiff plead content which allows this Court to
draw a reasonable inference that the defendant is liable for the
alleged misconduct.
556 U.S. at 678.
In ruling on a motion to dismiss brought pursuant to Federal
Rule
of
Civil
reasonable
Procedure
inferences
that
12(b)(6),
favor
3
the
the
court
must
plaintiff,
draw
all
construe
the
allegations of the complaint in the light most favorable to the
plaintiff,
and
accept
as
true
allegations in the complaint.
Regulation,
300
F.3d
750,
all
well-pleaded
a
motion
to
and
Thompson v. Ill. Dep't of Prof'l
753
(7th
Cir.
2002);
Silverstein, 939 F.2d 463, 466 (7th Cir. 1991).
withstand
facts
dismiss,
a
complaint
v.
In order to
must
“operative facts” upon which each claim is based.
Perkins
allege
the
Kyle v. Morton
High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner,
967 F.2d 1166, 1168 (7th Cir. 1992).
A plaintiff is required to
include allegations in the complaint that “plausibly suggest that
the plaintiff has a right to relief, raising that possibility above
a ‘speculative level’ ” and “if they do not, the plaintiff pleads
itself out of court.”
E.E.O.C. v. Concentra Health Servs., Inc.,
496 F.3d 773, 776 (7th Cir. 2007) (quoting in part Twombly, 550
U.S. at 569 n. 14 (2007)).
“Factual 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).”
Twombly, 550 U.S. at 555 (quotation marks,
ellipsis, citations and footnote omitted). Thus, a “plaintiff must
do better than putting a few words on paper that, in the hands of
an imaginative reader, might suggest that something has happened to
her that might be redressed by the law.”
Swanson v. Citibank,
N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).
The Court notes that Plaintiff is appearing pro se in this
4
matter. Generally, although "pro se litigants are masters of their
own complaints," and "[d]istrict judges have no obligation to act
as counsel or paralegal to pro se litigants," Myles v. United
States, 416 F.3d 551, 552 (7th Cir. 2005), a document filed pro se
is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S.
89, 94 (2007). However, “on a motion to dismiss, courts are not
bound to accept as true a legal conclusion couched as a factual
allegation.”
Twombly, 550 U.S. at 555 (citing Papasan v. Allain,
478 U.S. 265, 286 (1986) (quotation marks omitted)).
Title VII
Title VII states that:
It shall be unlawful employment practice for an
employer - (1) to fail or refuse to hire or to
discharge
any
individual,
or
otherwise
to
discriminate against any individual with respect to
his compensation, terms, conditions, or privileges
of employment, because of such individual’s race,
color, religion, sex, or national origin[.]
42 U.S.C. § 2000e-2(a)(1).
While Title VII expressly prohibits
employers from refusing to hire employees “because of [their] sex,”
the Seventh Circuit has held that “Congress intended the term ‘sex’
to mean ‘biological male or biological female,’ and not one’s
sexuality or sexual orientation.
Hamner v. St. Vincent Hosp. and
Health Care Center, Inc., 224 F.3d 701, 704 (7th Cir. 2000). Thus,
5
“harassment based solely upon a person’s sexual preference or
orientation . . . is not an unlawful employment practice under
Title VII.”
Id., see also Wright v. Porters Restoration, Inc.,
2:09-CV-163-PRC, 2010 WL 2559877, at *4 (N.D. Ind. June 23, 2010)
(granting dismissal of claim alleging discrimination for sexual
orientation, stating “[t]o the extent the Plaintiff may be alleging
discrimination based on sexual orientation, the Seventh Circuit has
unequivocally held that this type of discrimination is not, under
any circumstances, proscribed by Title VII”); Hamzah v. Woodmans
Food Market, Inc., No. 13-cv-491, 2014 WL 1207428, at *2 (W.D. Wis.
Mar.
24,
2014)
(finding
“[t]o
the
extent
[plaintiff]
claims
harassment due to his heterosexuality - that is, his sexual
orientation, not his sex - he cannot bring a Title VII claim
against [defendant] for these alleged instances of harassment, and
the court will dismiss that claim with prejudice.”).
While this Court is sympathetic to the arguments made by
Hively in her response brief, this Court is bound by Seventh
Circuit precedent. Because sexual orientation is not recognized as
a protected class under Title VII, that claim must be dismissed.
Section 1981
Although Hively has alleged a claim under Section 1981, it is
clear that section 1981 covers only racial discrimination. “[O]nly
race discrimination claims may be brought under [Section 1981]” and
6
“sexual orientation based claims are not cognizable under § 1981.”
Perez v. Norwegian-American Hosp., Inc., 93 Fed. Appx. 910, 913 n.1
(7th Cir. 2004); Bratton v. Roadway Package Sys., Inc., 77 F.3d
168, 177 (7th Cir. 1996) (Section 1981 also “does not provide a
cause
of
action
for
sex
discrimination
claims”);
Madison, 832 F.2d 965, 967 n. 1 (7th Cir. 1987).
Friedel
v.
As such, Hively’s
section 1981 claim must also be dismissed for failure to state a
claim.
Request to Amend the Complaint
At the end of her response in opposition to the motion to
dismiss, Hively requests “permission to amend the initial complaint
to include the state and local rules and Ivy Tech Community
College’s employment policy.”
(DE #12, p. 3.)
She references
“regulations that govern both the State and City” in which Ivy Tech
operates, Indiana’s constitution, and an employee handbook.
pp. 1-2.)
(Id.,
First, this request is procedurally improper as motions
should not be combined (N.D. Ind. L.R. 7-1(a)), and Hively did not
include
a
accordance
“signed
with
proposed
N.D.
Ind.
amendment would be futile.
amendment
L.R.
as
15-1(a).
an
attachment”
Additionally,
in
any
This Court would have no jurisdiction
over the proposed amendment “to include the state and local rules
and [an] employment policy” as these would be purely state claims
and diversity is lacking.
See Ind. Code § 21-22-2-2 (“Ivy Tech
7
Community
College
institution”);
Indiana).
DE
Here,
of
#1
Indiana”
is
(Plaintiff’s
where
an
a
“state
address
amendment
is
would
in
be
educational
South
futile,
Bend,
it
is
appropriate to dismiss the case without leave to amend. See, e.g.,
Braun v. Gonzales, No. 13-3183, 2013 WL 3038630, at *1 (E.D. Pa.
June 18, 2013) (denying pro se motion to amend as “amendment would
be futile because it is apparent that this case concerns matters of
state law and that there is no basis for diversity jurisdiction”);
Disanto v. Genova Prods., Inc., No. 1:10-cv-120, 2011 WL 90243, at
*1 (N.D. Ind. Jan. 10, 2011)(finding it futile to grant motion to
amend where proposed amended complaint does not establish diversity
jurisdiction).
Moreover, if Hively attempted to articulate a
different federal claim, Ivy Tech, as an arm of the state, would
likely be immune under the Eleventh Amendment.
See McCullough v.
IPFW Univ., No. 1:12-cv-398, 2013 WL 587886, at *1-*2 (N.D. Ind.
Feb.
11,
2013)
(denying
motion
to
amend
university was immune from federal claims).
complaint
as
state
As such, Plaintiff’s
request to amend her complaint is futile, and is DENIED.
CONCLUSION
For the reasons stated above, the Motion to Dismiss (DE #8) is
GRANTED.
The Clerk is ORDERED to DISMISS Plaintiff’s complaint
WITH PREJUDICE in its entirety, and to CLOSE this case.
DATED:
March 3, 2015
/s/ RUDY LOZANO, Judge
United States District Court
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