Bragorgos v. Chao

Filing 27

ORDER that defendant's motion to dismiss ECF No. 11 is GRANTED in-part and DENIED in-part; Plaintiff's first cause of action for a violation of the ADEA, third cause of action for a violation of the ADA, and fourth cause of action for a hostile work environment in violation of Title VII are DISMISSED in their entirety from plaintiffs complaint ECF No. 1 . Signed by Judge Larry R. Hicks on 10/10/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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STEVEN BRAGORGOS,

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Plaintiff,
Case No. 3:17-cv-0358-LRH-(VPC)

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v.
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ORDER
ELAINE CHAO, in her capacity as
SECRETARY OF TRANSPORTATION,

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Defendant.

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Before the court is defendant Elaine Chao’s (“Chao”), in her capacity as Secretary of

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the United States Department of Transportation (“DOT”), motion to dismiss. ECF No. 11.

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Plaintiff Steven Bragorgos (“Bragorgos”) filed an opposition (ECF No. 14) to which Chao

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replied (ECF No. 18).

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I.

Facts and Procedural Background

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On or about November 30, 2014, Bragorgos was hired by the DOT to work in the

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Federal Highway Administration as a Finance Manager in Carson City, Nevada. Prior to

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working with the DOT, Bragorgos served active duty in the United States Army Reserve for

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over twenty years. During that time, Bragorgos suffered several physical and mental injuries

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which left him partially disabled. DOT allegedly knew of Bragorgos’s disability at the time he

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was hired.

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For the next several years, Bragorgos allegedly performed his job satisfactorily and
received three satisfactory job performance evaluations. Beginning in early 2016, Bragorgos’s
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disabilities intensified culminating in a request for accommodation from the DOT in July 2016.

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However, Bragorgos alleges that DOT did not provide any accommodation for his disabilities.

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Instead, on August 8, 2016, Bragorgos was relieved of his supervisory position as a Finance

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Manager and given duties that he could not easily perform due to his disability. In October

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2016, Bragorgos filed an EEOC complaint alleging discrimination based on his age and

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disability. Then, on or about December 7, 2016, Bragorgos was denied a step increase and

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given a notice that his performance was no longer satisfactory. He was subsequently placed on

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a Performance Improvement Plan in January 2017. At the time he was removed as Finance

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Manager, given new duties that he allegedly could not perform, denied a step increase, and

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placed on the performance plan, Bragorgos was 53 years old.
On June 8, 2017, Bragorgos filed a complaint against Chao in her official capacity

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alleging four causes of action: (1) age discrimination in violation of the Age Discrimination

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Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; (2) violation of the Rehabilitation Act of

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1973, 29 U.S.C. § 701, et seq.; (3) violation of the Americans with Disabilities Act (“ADA”),

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42 U.S.C. § 12101, et seq.; and (4) a hostile and abusive work environment in violation of Title

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VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000(e), et seq. ECF No. 1.

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Thereafter, Chao filed the present motion to dismiss. ECF No. 11.

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II.

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Legal Standard
Defendant Chao seeks dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil

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Procedure for failure to state a legally cognizable cause of action. See FED. R. CIV. P. 12(b)(6)

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(stating that a party may file a motion to dismiss for “failure to state a claim upon which relief

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can be granted[.]”). To survive a motion to dismiss for failure to state a claim, a complaint must

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satisfy the notice pleading standard of Rule 8(a)(2) of the Federal Rules of Civil Procedure. See

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Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). Under

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Rule 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Rule 8(a)(2) does not require detailed

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factual allegations; however, a pleading that offers only “‘labels and conclusions’ or ‘a

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formulaic recitation of the elements of a cause of action’” is insufficient and fails to meet this
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broad pleading standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

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

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To sufficiently allege a claim under Rule 8(a)(2), viewed within the context of a

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Rule 12(b)(6) motion to dismiss, a complaint must “contain sufficient factual matter, accepted

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as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S.

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at 570). A claim has facial plausibility when the pleaded factual content allows the court to

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draw the reasonable inference, based on the court’s judicial experience and common sense, that

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the defendant is liable for the alleged misconduct. See Id. at 678-679 (stating that “[t]he

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plausibility standard is not akin to a probability requirement, but it asks for more than a sheer

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possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are

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merely consistent with a defendant’s liability, it stops short of the line between possibility and

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plausibility of entitlement to relief.”) (internal quotation marks and citations omitted). Further,

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in reviewing a motion to dismiss, the court accepts the factual allegations in the complaint as

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true. Id. However, bare assertions in a complaint amounting “to nothing more than a formulaic

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recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v.

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U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 698) (internal

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quotation marks omitted). The court discounts these allegations because “they do nothing more

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than state a legal conclusion—even if that conclusion is cast in the form of a factual

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allegation.” Id. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory

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‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a

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claim entitling the plaintiff to relief.” Id.

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III.

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Discussion
In her motion to dismiss, Chao contends that all four causes of action fail to state a

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claim upon which relief can be granted. See ECF No. 11. Bragorgos concedes in his opposition

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that his first cause of action for a violation of the ADEA and third cause of action for a

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violation of the ADA should be dismissed for failure to state a claim. See ECF No. 14, p. 12.

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Therefore, the court shall only address Bragorgos’s claims for a violation of the Rehabilitation

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Act and for a Title VII hostile working environment claim.
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A. Rehabilitation Act

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In her motion to dismiss, Chao contends that Bragorgos has failed to exhaust his

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administrative remedies related to his Rehabilitation Act claim and therefore, the court is

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without jurisdiction over this claim. See ECF No. 11. As addressed below, the court disagrees

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and finds that Bragorgos has sufficiently exhausted his administrative remedies as to this claim.

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The Rehabilitation Act, codified at 29 U.S.C. § 701 et seq., prohibits discrimination in

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employment on the basis of an employee’s disability. In order for a district court to have

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subject matter jurisdiction over a claim under the Rehabilitation Act, a plaintiff must have

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exhausted all available administrative remedies. See B.K.B. v. Maui Police Dept., 276 F.3d

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1091, 1099 (9th Cir. 2002); see also, Bullock v. Berrien, 688 F.3d 613, 616 (9th Cir. 2012). To

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exhaust all administrative remedies, a plaintiff must timely file a charge with the EEOC

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identifying the alleged discrimination. Id.; see also, Vasquez v. County of Los Angeles, 349

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F.3d 634, 644 (9th Cir. 2004). Generally, allegations of discrimination not included in the

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administrative charge “may not be considered by a federal court.” Id. at 1100. (quoting Green

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v. Los Angeles County Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989).

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However, a federal court’s subject matter jurisdiction extends over all allegations of

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discrimination that fall within the scope of the EEOC charge and are thus “like or reasonably

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related to the allegations contained in the EEOC charge.” Id. EEOC charges are construed with

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“utmost liberality since they are made by those unschooled in the technicalities of formal

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pleading.” Id. (quoting Kaplan v. Int’l Alliance of Theatrical & Stage Employees, 525 F.3d

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1354, 1359 (9th Cir. 1975).

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The court has reviewed the documents and pleadings on file in this manner and finds

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that although Bragorgos did not specifically allege a claim under the Rehabilitation Act in his

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EEOC charge, he did raise a general claim for disability discrimination in that charge and

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alleges that he told his employers of his disability before the alleged adverse employment

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actions. See ECF No. 13, Ex. 1 (identifying a claim for discrimination based on disability (post-

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traumatic stress disorder and depression). The court finds that Bragorgos’s claim for violation

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of the Rehabilitation Act is reasonably related to this charge of discrimination based on
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disability such that an EEOC investigation on his claim could have been reasonably expected to

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grow out of that charge. As such, the court finds that Bragorgos’s claim under the

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Rehabilitation Act was properly exhausted and therefore, the court has subject matter

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jurisdiction over this claim. See e.g., Leong v. Potter, 347 F.3d 1117 (9th Cir. 2003) (holding

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that a claim not specifically mentioned in an EEOC charge, but was likely to grow out of an

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EEOC investigation into the underlying charge was properly exhausted to invoke the court’s

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subject matter jurisdiction). Accordingly, the court shall deny Chao’s motion to dismiss as to

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this claim.
B. Title VII

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Chao also contends that Bragorgos has failed to exhaust his administrative remedies as

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to his Title VII claim and therefore, the court is likewise without jurisdiction over this claim.

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See ECF No. 11. The court agrees.
Title VII prohibits discrimination against an employee on the basis of race, color,

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religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). Although not explicitly included

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in the text of Title VII, claims based on a hostile work environment fall within Title VII’s

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protections. See Harris v. Forklift Sys., 510 U.S. 17, 21 (1993).
In his EEOC charge, Bragorgos does not raise any claim for a hostile work

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environment. Although Bragorgos does mention his sex at one point in the charge, his charge

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of discrimination does not describe any allegedly discriminatory conduct related to his sex.

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Further, Bragorgos did not tie any of his alleged adverse employment actions in his EEOC

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charge to his sex. Rather, he relates these employment actions to discrimination based on his

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age and disability. Further, his hostile working environment claim relies on different theories

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and different statutes than his other claims. Thus, in contrast to his Rehabilitation Act claim, an

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EEOC investigation into a claim of a hostile working environment would be unlikely to grow

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out of his charge of discrimination. Therefore, the court finds that Bragorgos has failed to

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exhaust his administrative remedies as to his hostile working environment claim. Accordingly,

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the court shall grant Chao’s motion to dismiss this claim.

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IT IS THEREFORE ORDERED that defendant’s motion to dismiss (ECF No. 11) is

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GRANTED in-part and DENIED in-part in accordance with this order. Plaintiff’s first cause of

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action for a violation of the ADEA, third cause of action for a violation of the ADA, and fourth

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cause of action for a hostile work environment in violation of Title VII are DISMISSED in

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their entirety from plaintiff’s complaint (ECF No. 1).

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IT IS SO ORDERED.

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DATED this 10th day of October, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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