Ginsburg

Filing 21

ORDER granting in part and denying in part 12 Motion to Dismiss. To the extent Concordia alleges the plaintiff's complaint fails to state a claim, the motion is granted. The plaintiff is given 15 days from the date of this order to file an a mended complaint which states a claim. If the plaintiff fails to timely file an amended complaint, or if his timely filed amended complaint is again successfully challenged by the defendant as failing to state a claim, Ginsburg's claims against Concordia will be dismissed pursuant to Rule 12(b)(6). Concordias motion to dismiss pursuant to Rule 12(b)(1), and its motion for attorney fees, are denied without prejudice. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

Gi n s bur g v. Concordia University

Do c. 21

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA R O B E R T GINSBURG, Plaintiff, V. C O N C O R D IA UNIVERSITY, Defendant. ) ) ) ) ) ) ) ) ) )

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M E M O R A N D U M AND ORDER

T h e plaintiff's complaint alleges the plaintiff, Robert Ginsburg ("Ginsburg"), served as the head women's softball coach for the defendant, Concordia University ("Concordia"). G in sb u rg , a Catholic, alleges he was subjected to religious discrimination in violation of Title V II , 42 U.S.C. §§ 2000e -1 to -17, when he was terminated from his coaching position at C o n c o rd ia . Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Concordia h a s moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Concordia also requests an award of attorneys' f e es , asserting Ginsburg's claims are frivolous and were brought in bad faith. For the reasons s e t forth below, the motion will be granted in part and denied in part. However, the granting o f Concordia's motion to court finds Ginsburg's complaint fails to state a claim. Rather than d ism iss in g the plaintiff's complaint at this time, Ginsburg will be afforded the opportunity to file an amended complaint.

A N A L Y SIS

In support of his claim, Ginsburg offers the following allegations in his complaint:

Dockets.Justia.com

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C o n c o rd i a University is a "Lutheran College" located in Seward, Nebraska (f ilin g no. 1, ¶3).

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O n or about October 4, 2008, Ginsburg was hired as the women's softball c o a ch at Concordia (Id. at ¶ 4).

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G in sb u rg is a member of the Catholic faith, and Concordia was aware G in s b u rg was not a Lutheran at the time he was hired (Id. at ¶ 4).

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A t the time Ginsburg was hired by Concordia he "agreed to be sensitive to the s c h o o l's beliefs, follow all religious guideline[s] in his coaching and do n o th i n g in his personal life that would discredit or disrespect Lutheran values" (Id . at ¶ 5). Ginsburg did not violate that condition of employment. Id.

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O n or about March 25, 2009, during the course of a Concordia softball game, G in s b u rg "made a coaching decision and a comment to assistant coach Randy F a u lk e rts " (Id. at ¶6). Faulkerts, a Lutheran, "immediately" resigned his p o s itio n as assistant coach (Id.).

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O n or about March 26, 2009, the president, athletic director, vice president of a d m is s io n s of Concordia, and Faulkerts met with the softball team (Id. at ¶6). G in sb u rg not invited to the meeting, nor was he present (Id.).

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O n or about March 27, 2009, Ginsburg was informed by the president of C o n c o rd ia that his employment was being terminated (Id. at ¶7).

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F a u lk e rts replaced Ginsburg as the head coach of the Concordia softball team (Id .). Faulkerts was not qualified for the position of head coach (Id.).

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G in sb u rg was more qualified for the head coaching position and his p e rf o rm a n c e was satisfactory or above during his employment with Concordia (Id . at ¶ 9).

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G in s b u rg filed a complaint with the Nebraska Equal Opportunity Commission o n or about June 4, 2009 (Id. at ¶10). Ginsburg received a Right to Sue Notice o n or about January 13, 2010 (Id.).

A.

T h e 12(b)(6) Motion.

C o n c o rd ia contends that Ginsburg's complaint should be dismissed for failure to state a claim for which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). T h e Eighth Circuit recently summarized how the court should analyze a Rule 12(b)(6) m o tio n :

F e d e ra l Rule of Civil Procedure 8 requires that a complaint present "a sh o rt and plain statement of the claim showing that the pleader is entitled to re lie f ." In order to meet this standard, and survive a motion to dismiss under R u le 12(b)(6), "a complaint must contain sufficient factual matter, accepted as tru e , to `state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, _ _ _ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed. 868 (2009) (quoting Bell Atl. v . Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). T h e plausibility standard requires a plaintiff to show at the pleading stage that su cc ess on the merits is more than a "sheer possibility." Id. It is not, however, a "probability requirement." Id. Thus, "a well pleaded complaint may proceed e v e n if it strikes a savvy judge that actual proof of the facts alleged is im p ro b a b le , and `that a recovery is very remote and unlikely.' "Twombly, 550

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U .S . at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 9 4 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A complaint states a plausible claim for relief if its "factual content . . . allows the court to draw the reasonable inference that the defendant is liable f o r the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Several principals guide u s in determining whether a complaint meets this standard. First, the court m u s t take the plaintiff's factual allegations as true. Id. at 1949-50. This tenet d o e s not apply, however, to legal conclusions or "formulaic recitation of the e le m e n ts of a cause of action"; such allegations may properly be set aside. Id. (q u o tin g Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In addition, some f a ctu a l allegations may be so indeterminate that they require "further factual e n h a n ce m e n t" in order to state a claim. Id. (quoting Twombly, 550 U.S. at 5 5 7 , 127 S.Ct. 1955;) see also Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2 0 0 9 ). Finally, the complaint should be read as a whole, not parsed piece by p iec e to determine whether each allegation, in isolation, is plausible. See Vila v . Inter-Am. Inv. Corp., 570 F.3d 274, 285 (D.C. Cir. 2009) (factual a lle g a tio n s should be "viewed in their totality"); cf. Tellabs, Inc. v. Makor Is s u e s & Rights, Ltd., 551 U.S. 308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2 0 0 7 ) . . . . Ultimately, evaluation of a complaint upon a motion to dismiss is " a context-specific task that requires the reviewing court to draw on its judicial e x p e rie n c e and common sense." Iqbal, 129 S.Ct. at 1950. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).

The Iqbal standard applies to all civil cases, including those based on employment d is c rim in a tio n . Iqbal, 129 S.Ct. at 1953. A plaintiff alleging employment discrimination n e e d not make out a prima facie case of discrimination in his or her complaint. See Fowler v . Scores Holding Co., Inc., 677 F. Supp. 2d 673, 679 (S.D.N.Y. 2009) (citing Swierkiewicz, 5 3 4 U.S. at 514). "An employment discrimination complaint `must include only a short and p lain statement of the claim . . . [that] gives[s] the defendant fair notice of what the plaintiff's c la im is and the grounds upon which it rests.' " Fowler, 677 F. Supp. 2d at 679 (quoting

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S w ierkiew icz, 534 U.S. at 512)). "Accordingly, while a complaint need not contain specific f a c ts establishing a prima facie case of employment discrimination to overcome a Rule 1 2 (b )(6 ) motion, the claim must be facially plausible, and must give fair notice to the d e f en d a n ts of the basis for the claim." Fowler, 677 F. Supp. 2d at 679. It is within this f ra m e w o rk that this court will evaluate the sufficiency of Ginsburg's complaint.

A lth o u g h the pleading requirements necessary to survive a Rule 12(b)(6) motion are n o t onerous, Ginsburg's complaint does not rise to the level of required specificity. G in s b u r g 's complaint can be boiled down to a few basic allegations: 1) Concordia is a L u th e ra n University; 2) Ginsburg is not a Lutheran; 3) Ginsburg made a "coaching decision a n d a comment" to his assistant coach; 4) Ginsburg's employment was terminated and he was re p la c ed by a less qualified Lutheran. These allegations, even if accepted as true, do not m e e t the "plausibility standard" required by Twombly and Iqbal.

The fatal flaw in Ginsburg's complaint is that he alleges no facts from which the court c a n infer he was dismissed due to his religion ­ a requirement under Iqbal. 129 S.Ct. at 1 9 4 9 . A plaintiff's factual allegations must "raise a right to relief above the speculative le v e l." Twombly, 550 U.S. at 556; compare Moore v. Metropolitan Human Service Dist., N o . 096470, 2010 WL 1462224 (E.D.La. April 8, 2010) (dismissing a hostile work e n v iro n m e n t claim where the plaintiff did not identify any adverse treatment connected to h e r religion), McDonald v. Overnite Express, No. 085069, 2009 WL 3517976 (D. Minn. 2 0 0 9 ) (dismissing a discrimination claim where the plaintiff provided no more than c o n c lu s o ry statements of the alleged discriminatory behavior), Foster v. Humane Society of R o c h e s te r and Monroe County, Inc., ___ F. Supp. 2d. ___, 2010 WL 2867325 (W.D.N.Y. 2 0 1 0 ) (dismissing a claim for hostile work environment because the plaintiff did not allege th e hostility she faced was causally related to her gender), and Cheatam v. Blanda, No. 1 :0 8 c v 2 9 9 , 2010 WL 2209217 (W.D. Tex. April 23, 2010) (dismissing a discrimination 5

c la im where no factual allegations were pled sufficient to raise an inference that the plaintiff w a s terminated due to her race), with Dolgaleva v. Virginia Beach City Public Schools, 364 F e d .A p p x . 820 (4th Cir. 2010)(allowing a discrimination complaint to survive a motion to d is m is s where the plaintiff was told that her ancestry was being held against her), and Ali v. D is tric t of Columbia Gov't, 697 F. Supp. 2d 88, 91-92 (plaintiff's discrimination claim su rv iv e d a 12(b)(6) because he alleged his supervisor told the plaintiff he would have to c h o s e between his job and his religion).

Although Ginsburg does not need to make a prima facie case in his complaint, he must p ro v id e the court with some basis to infer he was fired due to his religion. Iqbal, 129 S.Ct. a t 1949; Moore, 2010 WL 1462224 at *5; McDonald, 2009 WL 3517976 at *7; Cheatam, 2 0 1 0 WL 2209217 at *5. He has not done so. To the contrary, based on the allegations c o n ta in e d in his complaint, the only reasonable inference the court can draw is that G in s b u rg 's termination had to do with the unspecified coaching decision and/or the comment to his assistant coach and not his religion. It is simply not sufficient to allege he was term inated and replaced by a Faulkerts, a less qualified coach, but a Lutheran. Ginsburg m u st provide more factual context. See, e.g., Foster, ___ F. Supp. 2d. at ___, 2010 WL 2 8 6 7 3 2 5 at *6 (finding an allegation in an age discrimination suit that a worker was replaced b y a younger employee was, by itself, not enough to give rise to a claim without some factual su p p o rt for causal connection between the plaintiff's age and her termination). Ginsburg's fa ctua l allegations do little more than provide for the possibility that his religion played a part in his termination. A mere possibility of discriminatory conduct is not enough to survive a m o tio n to dismiss. See Iqbal, 129 S.Ct. at 1949.

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G in s b u r g will be afforded the opportunity to file an amended complaints within 15 d a ys of this order.1 If the plaintiff fails to timely file an amended complaint, or if his timely f iled amended complaint is again successfully challenged by the defendant as failing to state a claim, Ginsburg's claims against Concordia will be dismissed pursuant to Rule 12(b)(6).

B.

T h e 12(b)(1) motion.

C o n c o rd ia further argues that even if Mr. Ginsburg's pleading was not defective for th e reasons stated above, his complaint should be dismissed nonetheless because Concordia is statutorily exempt from Title VII; therefore, the court lacks subject matter jurisdiction to r u le on his claims.

T h e source of the argued exemption from Title VII is found in two sections of the u n d e rlyin g statutes. Pursuant to 42 U.S.C. §2000e-1(a), Title VII does not apply to:

[ A ] religious corporation, association, educational institution, or society with resp e c t to the employment of individuals of a particular religion to perform w o rk connected with the carrying on by such corporation, association, e d u c a tio n a l institution, or society of its activities. 42 U.S.C. §2000e-1(a).

F u rth e r, 42 U.S.C. §2000e-2(e)(2) permits a religious educational institution to:

[ H ]ire and employ employees of a particular religion if such school, college, u n iv e rsity, or other educational institution or institution of learning is, in whole

Pursuant to Federal Rule of Civil Procedure 15(a)(2) a party may amend a pleading with leave of the court and such leave is to be freely given"when justice so requires." 7

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o r in substantial part, owned, supported, controlled, or managed by a particular re lig io n or by a particular religious corporation, association, or society, or if th e curriculum of such school, college, university, or other educational in s titu tio n or institution of learning is directed toward the propagation of a p a rtic u la r religion. 42 U.S.C. §2000e-2(e)(2).

C o n c o rd ia argues federal courts have no subject matter jurisdiction to hear cases in v o lv in g allegations of religious discrimination in employment decisions by religious in s titu tio n s . Concordia asserts the aforementioned statutory exemptions "reflect a decision b y Congress that the government interest in eliminating religious discrimination by religious o rg a n iz a tio n s is outweighed by the rights of those organizations to be free from government interve n tio n ," ( Little, 929 F.2d at 951), and pursuant to the exemptions, 42 U.S.C. §§ 2000e1 to -17 do not apply to religious organizations. Concordia therefore argues the court lacks s u b je c t matter jurisdiction hear cases based on an alleged violation of 42 U.S.C. §§ 2000e e t. seq by a religious educational institution. Little, 929 F.2d at 951.

While it is entirely possible that Concordia falls under either or both of these e x c ep tio n s , the court currently does not have enough evidence before it regarding the s p e c if ic s of Concordia's relationship to the Lutheran Church, for the purposes of 42 U.S.C § 2 0 0 0 e-1 , to make such a finding.2 See, e.g., K illin g e r v. Samford University, 113 F.3d 196 (1 1 th Cir. 1997) (finding a University qualified for both exemptions after it provided "extensive " e v id e n c e regarding its history, funding and curriculum); Hall v. Baptist Memorial

While Ginsburg does describe Concordia as a "Lutheran College" and states he acknowledges he agreed to "be sensitive to the school's beliefs, follow all religious guidelines in his coaching and do nothing in his personal life that would discredit or disrespect the Lutheran values" the court does not take these statements to mean that Ginsburg is conceding that Concordia qualifies for the above cited exemptions in 42 U.S.C. §§ 2000e-1 to -2. 8

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H e a lth Care Corp., 215 F.3d 618 (6th Cir. 2000)(citing to evidence regarding the health care in stitu tio n 's funding, staff composition, purpose statement, bylaws, charter and operation in fin d ing that it qualified for the exemptions under 42 U.S.C. §§ 2000e-1 to -2). Thus, to the e x te n t that Concordia's motion to dismiss under 12(b)(1) is based on its alleged exemption fro m Title VII, the motion will be denied without prejudice to reconsideration upon a more th o ro u g h record.

C.

R e q u e s t for Attorneys' Fees.

A s part of its motion to dismiss, Concordia requests an award of attorneys' fees under 4 2 U.S.C. § 2000e-5(k), which provides:

In any action or proceeding under this subchapter the court, in its discretion, m a y allow the prevailing party, other than the Commission or the United S ta te s , a reasonable attorney's fee (including expert fees) as part of the costs, a n d the Commission and the United States shall be liable for costs the same as a private person. 42 U.S.C. § 2000e-5(k).

Successful defendants are entitled to an order of fees only if the plaintiff's claims are in itia lly frivolous or the plaintiff continues to litigate the case after it became clear his or her c a se had no merit. See Meriwether v. Caraustar Packaging Co., 326 F.3d 990, 993 (8th Cir. 2 0 0 3 ). At this stage in the pleadings, the court is not prepared to award Concordia its a tto rn e ys ' fees.3 Accordingly, Concordia's request for an award of attorney's fees is denied.

The court is providing Ginsburg an opportunity to cure the noted defects in his complaint provided such amendments can be made within the parameters of Rule 11 and the plaintiff wants to proceed with this case. However, the plaintiff is hereby notified that attorney fees may be awarded if his claim lacks a factual basis and he nonetheless continues to pursue this litigation. 9

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A c c o rd in g ly,

IT IS ORDERED:

C o n c o r d i a 's motion to dismiss and request for attorneys' fees, (filing no. 12), is g r a n te d in part and denied in parts as follows:

1.

T o the extent Concordia alleges the plaintiff's complaint fails to state a claim, th e motion is granted. The plaintiff is given 15 days from the date of this order t o file an amended complaint which states a claim. If the plaintiff fails to tim e ly file an amended complaint, or if his timely filed amended complaint is a g a i n successfully challenged by the defendant as failing to state a claim, G in sb u rg 's claims against Concordia will be dismissed pursuant to Rule 1 2 (b)(6 ). C o n c o rd ia 's motion to dismiss, pursuant to Rule 12(b)(1), is denied without p r e ju d ic e . C o n c o rd ia 's motion for attorneys' fees is denied without prejudice.

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DATED this 14th day of September, 2010.

B Y THE COURT: s/ Cheryl R. Zwart United States Magistrate Judge

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