Johnson v. Shinseki

Filing 9

MEMORANDUM: As a result, because plaintiff is plainly making a Title VII claim on the basis of her sexual orientation, a characteristic not protected by Title VII, plaintiff's complaint must be dismissed. A separate Order will be filed. Signed by District Judge Stephen N. Limbaugh, Jr on 5/13/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

DOROTHY A. JOHNSON,
Plaintiff,
vs.
ERIC E. SHINSEKI, Secretary,
Department of Veterans Affairs,
Defendant.

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No. 1:12-CV-00187SNLJ

MEMORANDUM
Plaintiff filed her complaint pro se against defendant Eric Shinseki, who is the Secretary
of plaintiff’s employer, the Department of Veterans Affairs. Plaintiff alleges that her employer
discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq., on the basis of her sexual orientation, when it promoted someone else over her.
Defendant filed this motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff has not responded, and the time for doing so has passed.
I.

Background
For purposes of the motion to dismiss, the Court accepts as true plaintiff’s allegations.

Plaintiff was employed by the Veterans Affairs Medical Center in Poplar Bluff, Missouri.
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. She applied
to be promoted to two positions in the same department (one in 2008 and one in 2010), and she
was not selected. Plaintiff alleges that her application was “clearly superior” to the application of
the individual who received the appointment. Plaintiff claims that she was not promoted because

she is a lesbian. Plaintiff filed a timely complaint with the Equal Employment Opportunity
Commission (“EEOC”) and, following the EEOC’s determination that plaintiff failed to establish
a claim of discrimination under Title VII, she filed a timely complaint in this Court.
II.

Legal Standard
Defendant has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test
the legal sufficiency of a complaint so as to eliminate those actions which are fatally flawed in
their legal premises and designed to fail, thereby sparing litigants the burden of unnecessary
pretrial and trial activity. Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (quoting
Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). A complaint must be dismissed for failure to
state a claim if it does not plead enough facts to state a claim to relief that is plausible on its face.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 560 (2007) (abrogating the traditional “no set of
facts” standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A petitioner need not
provide specific facts to support her allegations, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam), but “must include sufficient factual information to provide the grounds on which the
claim rests, and to raise a right to relief above a speculative level.” Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (quoting Twombly, 550 U.S. at 555-56 & n.3).
In ruling on a motion to dismiss, a court must view the allegations of the complaint in the
light most favorable to the petitioner. Scheuer v. Rhodes, 416 U.S. 232 (1974); Kottschade v. City
of Rochester, 319 F.3d 1038, 1040 (8th Cir. 2003). Although a complaint challenged by a Rule
12(b)(6) motion does not need detailed factual allegations, a petitioner must still provide the
grounds for relief, and neither “labels and conclusions” nor “a formulaic recitation of the elements
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of a cause of action” will suffice. Twombly, 550 U.S. at 555 (internal citations omitted). “To
survive a motion to dismiss, a claim must be facially plausible, meaning that the factual content . .
. allows the court to draw the reasonable inference that the respondent is liable for the misconduct
alleged.” Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009)). When determining the facial plausibility of a claim, the
Court must “accept the allegations contained in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039
(8th Cir. 2005)). Finally, where a court can infer from those factual allegations no more than a
“mere possibility of misconduct,” the complaint must be dismissed. Id. (quoting Iqbal, 129 S.Ct.
at 1950).
III.

Discussion
Title VII provides that “[i]t shall be an unlawful employment practice ... to discriminate

against any individual ... because of ... sex.” 42 U.S.C. § 2000e 2(a)(1). Plaintiff claims she was
discriminated against because of her sexual orientation. Specifically, she alleges that she was not
promoted because she is a lesbian. But Title VII does not mention “sexual orientation,” and the
Eighth Circuit has held that “Title VII does not prohibit discrimination against homosexuals.”
Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989). The Williamson
decision was at least in part affected by the United States Supreme Court’s decision in Oncale, in
which that Court unanimously rejected a per se rule that same-sex sexual harassment was noncognizable under Title VII. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998); see
also Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 864 n.3 (8th Cir. 1999) (reversing district
court’s dismissal of a same-sex harassment case in which the district court had relied on
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Williamson, and observing that Williamson was a pre-Oncale case). However, Oncale did not
change the requirement that plaintiffs demonstrate that the discrimination or harassment took
place “because...of sex.” See Schmedding, 187 F.3d at 865.
Few courts have addressed situations like plaintiff’s, in which she alleges only that she
was not promoted because of her sexual orientation. Plaintiff does not allege harassment of any
kind, by any individual or group. Although the Eighth Circuit does not appear to have opined on
the matter of whether Oncale suggests a different result from that required by Williamson under
these circumstances, other Circuits have stated that Oncale did not change the “well-settled
precedent that ‘sex’ refers to membership in a class delineated by gender.” Simonton v. Runyon,
232 F.3d 33, 36 (2d Cir. 2000); see also Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257 (3d
Cir. 2001). Although there may be a Title VII claim in cases that involve same-sex harassment,
“Title VII does not proscribe harassment simply because of sexual orientation.” Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (citing Hopkins v. Baltimore Gas &
Elec. Co., 77 F.3d 745, 751-52 & n. 3 (4th Cir. 1996); Williamson, 876 F.2d at 70). Indeed,
“Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual
orientation.” Bibby, 260 F.3d 261 (citing, e.g., Employment Nondiscrimination Act of 1996,
S.2056, 104th Cong. (1996); Employment Non Discrimination Act of 1995, H.R. 1863, 104th
Cong. (1995); Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994)). It
is thus clear that non-harassment, discrimination claims may not be made on the basis of sexual
orientation, as well. See Williamson, 876 F.2d at 70; see also Vickers v. Fairfield Med. Ctr., 453
F.3d 757, 762 (6th Cir. 2006) (“sexual orientation is not a prohibited basis for discriminatory acts
under Title VII”).
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As a result, because plaintiff is plainly making a Title VII claim on the basis of her sexual
orientation, a characteristic not protected by Title VII, plaintiff’s complaint must be dismissed. A
separate Order will be filed.
Dated this 13th day of May, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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