Rivera v. Southwestern Bell Telephone Company
Filing
20
MEMORANDUM AND ORDER granting in part and denying in part 7 Motion to Dismiss. SEE ORDER FOR DETAILS. Signed by District Judge Richard D. Rogers on 5/28/2013. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HENRY B. RIVERA,
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Plaintiff,
v.
SOUTHWESTERN BELL TELEPHONE
COMPANY dba AT&T,
Defendant.
Case No. 13-1039-RDR
MEMORANDUM AND ORDER
This is an employment action brought by plaintiff against his
former employer under Title VII of the Civil Rights Act of 1964, 42
U.S.C. ยง 2000e et seq.
Plaintiff claims he was discriminated against
during his employment based upon his gender and retaliated against
because he opposed an unlawful practice under Title VII. This matter
is presently before the court upon defendant=s motion to dismiss for
failure to state a claim upon which relief can be granted.
I.
The defendant initially contends that plaintiff has failed to
state a viable Title VII gender discrimination claim.
The defendant
argues that plaintiff has failed to plead any adverse employment
action that was purportedly motivated by gender.
The defendant
further contends that the plaintiff has failed to state a viable Title
VII retaliation claim.
The defendant contends that plaintiff has
failed to (1) sufficiently plead protected activity under Title VII;
(2) identify any adverse action as retaliation; and (3) allege facts
showing a causal connection between the protected activity and the
adverse employment action.
In response, plaintiff suggests that he has plausibly alleged
a Title VII discrimination claim.
He suggests that he properly pled
such a claim because he has alleged that he was subjected to
employment conditions that were Ahumiliating and degrading@ or
significantly altered his workplace environment.
He also contends
that he has plausibly alleged a Title VII retaliation claim.
He
points out that his complaint alleges that (1) he voiced his concern
about his supervisor=s discriminatory treatment to a superior
supervisor; (2) he was suspended and then terminated; and (3) there
was close proximity between the opposition to the discriminatory
treatment and the adverse employment actions.
Plaintiff has asked
that he be allowed to amend his complaint if the court finds that
he has not properly pleaded either of his claims.
II.
ATo survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to >state a claim for
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[T]he
mere
metaphysical
possibility
that
some
plaintiff could prove some set of facts in support of the pleaded
2
claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering
factual support for these claims.@
Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
AThe court's
function on a Rule 12(b)(6) motion is not to weigh potential evidence
that the parties might present at trial, but to assess whether the
plaintiff's complaint alone is legally sufficient to state a claim
for which relief may be granted.@
Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003). In determining whether a claim is facially
plausible, the court must draw on its judicial experience and common
sense.
Iqbal, 556 U.S. at 678.
All well-pleaded facts in the
complaint are assumed to be true and are viewed in the light most
favorable to the plaintiff.
See Zinermon v. Burch, 494 U.S. 113,
118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).
Allegations that merely state legal conclusions, however, need not
be accepted as true.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991).
A
complaint
alleging
employment-based
discrimination,
retaliation or harassment under Title VII must Amake at least minimal
factual allegations on every element@ of the claim.
Sims v.
Wyandotte Co./Kansas City, Kan., 120 F.Supp.2d 938, 967 (D.Kan.
2000).
Vague
references
to
discrimination,
retaliation
or
harassment without any indication that the alleged misconduct was
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motivated by gender or another category protected by Title VII will
be insufficient to support an employment-based claim.
See Anderson
v. Academy School Dist. 20, 122 Fed.Appx. 912, 916 (10th Cir. 2004).
III.
A. TITLE VIIB-Gender Discrimination
An employee may assert two theories under Title VII: disparate
treatment and hostile work environment.
treatment
claim,
plaintiff
must
show
employment action because of his sex.
To prove a disparate
he
suffered
an
adverse
Orr v. City of Albuquerque,
417 F.3d 1144, 1149 (10th Cir. 2005).
To prove a hostile work
environment claim, he must show his workplace was Apermeated with
discriminatory
intimidation,
ridicule,
and
insult,
that
is
sufficiently severe or pervasive to alter the conditions of the
victim=s employment and create an abusive working environment.@
MacKenzie v. City & County of Denver, 414 F.3d 1266, 1280 (10th Cir.
2005)(quotation omitted).
At the outset, the court notes that the complaint filed by
plaintiff is hardly a model to follow in drafting a Title VII
discrimination claim.
is
alleging
an
environment.
allegations.
The complaint is not clear whether plaintiff
adverse
The
employment
complaint
action
contains
a
or
a
litany
hostile
of
factual
The complaint then states that defendant
unlawfully
discriminated
against
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plaintiff
in
work
his
employment on the basis of sex in the following manner:
General Manager Rick Eddy treated attractive
female employees more favorably in the
conditions of their employment than Plaintiff
and other male employees and other female
employees.
Despite
allegations
that
plaintiff
was
suspended
and
terminated, plaintiff does not assert that these actions were taken
because of his gender.
Moreover, plaintiff has made no allegations
that he was subjected to a hostile work environment despite several
allegations of what plaintiff suggests is unfair treatment by his
supervisor.
Thus, the court finds that the complaint fails to give
defendant adequate notice of the specific discriminatory conduct
giving rise to his claims.
Plaintiff has requested in the alternative to amend his
complaint Ato correct any identified deficiencies.@
Because the
defendant has filed an answer, plaintiff may amend his complaint Aonly
with the opposing party=s written consent or the court's leave.@
Fed.R.Civ.P. 15(a)(2).
AThe court should freely give leave when
justice so requires,@ id., but our Local Rules require a motion to
amend to Aset forth a concise statement of the amendment sought to
be allowed,@ and to attach a copy of the proposed amended pleading.
D.Kan. Rule 15.1(a).
Plaintiff has not complied with either of these
requirements, so the court cannot properly assess the propriety of
any proposed amendment at this time. Plaintiff may file a motion for
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leave to amend in accordance with Federal Rule of Civil Procedure
15 and D.Kan. Rule 15.1 no later than June 11, 2013.
B.
TITLE VIIB-Retaliation
Retaliation under Title VII requires that a plaintiff allege
that: (1) he engaged in protected activity; (2) he suffered an adverse
employment action; and (3) there is a causal connection between the
exercise of protected activity and the adverse action.
See 42 U.S.C.
' 2000eB3; Vaughn v. Epworth Villa, 537 F.3d 1147, 1150 (10th Cir.
2008)(adverse employment actions, such as suspension, demotion, or
termination, while prohibited in retaliation, are no longer the only
actions that are considered adverse actions for Title VII retaliation
purposes.); see also Burlington N. & Santa Fe Ry. v. White, 548 U.S.
53, 68 (2006).
Protected activity for purposes of Title VII
retaliation includes either (1) participating in or initiating a
Title VII proceeding or (2) opposing discrimination made unlawful
by Title VII.
See Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1381 (10th
Cir. 1994)(citing Daniels v. Loveridge, 32 F.3d 1472, 1475 (10th Cir.
1994)).
Adverse actions are those actions a reasonable employee
could find Amaterially adverse,@ which in the context of retaliation,
means an action that Amight well dissuade a reasonable worker from
making or supporting a [protected claim].@
Id.
Although, as previously stated, the complaint is not a model
pleading, the court finds that it adequately states a claim for
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retaliation under Title VII.
Suspension and termination are actions
that would likely dissuade a reasonable employee from reporting Title
VII violations or participating in proceedings.
Thus, the court
concludes that these actions are materially adverse for purposes of
plaintiff=s claim.
In addition, plaintiff has alleged that he did
voice his concern about discriminatory treatment to a supervisor in
his office.
This allegation is a plausible assertion of opposition
under Title VII.
Finally, the close proximity between the alleged
protected activity and the adverse employment actions is sufficient
to establish an alleged causal connection.
Accordingly, this
portion of the defendant=s motion to dismiss shall be denied.
IT IS THEREFORE ORDERED that defendant=s motion to dismiss be
hereby granted in part and denied in part.
The court shall allow
plaintiff until June 11, 2013 in which to file a motion to amend his
complaint pursuant to Fed.R.Civ.P. 15 and D.Kan Rule 15.1 to allege
a claim of gender discrimination under Title VII.
If no motion is
filed by that date, the defendant=s motion to dismiss plaintiff=s
gender discrimination claim under Title VII will be granted and the
claim will be dismissed for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6).
The remainder of the defendant=s motion as
it applies to plaintiff=s claim of retaliation under Title VII shall
be denied.
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IT IS SO ORDERED.
Dated this 28th day of May, 2013, at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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