Little Bear v. Silk et al

Filing 11

ORDER re dismissal of action unless a paid complaint is filed on or before 4/15/2015. By Magistrate Judge Charles S. Miller, Jr. (BG) Distributed on 3/20/2015 (jt).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Conrad Little Bear,
Plaintiff,
vs.
Earl Silk, BIA Superintendent, officially
and personally, BIA, Ken Salazar,
Secretary, Dept. Of Interior,
Defendants.

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ORDER

Case No. 1:11-cv-103

This matter is currently before the Court for a review pursuant to 28 U.S.C. § 1915(e)(2)(B).
For the reasons set forth below, the undersigned concludes that plaintiff, Conrad Little Bear, has
failed to articulate a cognizable federal claim and that this action is therefore subject to dismissal.
I.

BACKGROUND
Little Bear initiated the above-entitled action pro se with the submission of a motion for

leave to proceed in forma pauperis and a complaint. He alleged in his complaint that he “was an
employee of the BIA and was wrongfully terminated by the BIA superintendent for retaliatory
conduct.” Docket No. 1-1. However, he did not identify the date on which his employment with
the BIA was terminated, describe with any particularity the events precipitating his termination, or
otherwise articulate a statutory or constitutional basis for his claim. Rather, he made an oblique
reference to an April 29, 2010, confrontation between himself and Bureau of Indian Affairs (“BIA”)
Superintendent Earl Silk over his job performance.
An “Incident Report” dated September 29, 2010, was attached to Little Bear’s complaint.
It stated:
I arrived at the BIA, Agency Office #194 at approximately 2:35 p.m. in Wednesday,
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September 29, 2010, and started my routine of housekeeping at this building checking downstairs and then I moved up the 2nd floor lavel (obtained mop and
accessories). Shortly thereafter I began to gather the trash from the offices on the
2nd floor. While I gathered the trash several Bureau employees asked about a fight
that occurred outside the building between the Superintendent’s (Earl Silk) son and
a student from the high school. Mr. Silk’s son was working at this time in a
“temporary” BIA employment status with the ARRA Part if BIA, Facilities
Management Branch.
I completed with the 2nd floor and went downstairs and started picking up the trash
in Social Services. Jackie (Social Services Administration Assistant) stopped me and
asked “If I saw the fight outside”, I said no, but I heard about it. I told her earlier
when I was at the Fort yates Police Department, I did see him there (Superintendent’s
son) - answering questions. She then asked me if he got arrested and I told her I
didn’t know.
During the above discussion the Superintendent was in the work station of Jerilyn
White Mountain and he undoubtedly heard what was said. I did not realize that he
was in the Social Services office area until I saw him rush out of Ms. White
Mountain’s office. I proceeded to continue to pick up trash in this office.
At 4:10 my supervisor, Steve Yellow, Facilities Manager, came looking for me and
told me to follow him to the Superintendent’s office. When we arrived at the
Superintendent’s office I saw that Mr. Silk was angry as he was pacing back and
forth in his office, all the while he was breathing very heavily (a form of venting his
anger). He told Steve Yellow to write down the time, then he started to chew me out
about this building being filthy. During this episode I stood by the water cooler and
he shouted at me to sit down! I looked at him and I said do I have to? Still
hyperventilating and in a uncontrollable tone of voice, he spoke loudly and said “I
want my office done every day, I looked at him and he had his head down and I said
“is this uncontrolled anger all about your son?” He didn’t say anything, nor did he
respond to my question. I then told him I am the only one cleaning three (3)
buildings, he stated he realized that. He then stated, look at the front entrance - it’s
filthy.
After he got done chewing me out, he was still breathing uncontrollably with heavily
breathing and he said no go - get back to work.
The incident at this office took about ten (10) minutes, at 4:30 pm is when I left to
continue my job. My supervisor Steve Yellow looked straight ahead and didn’t
make nay remarks or offer to give my any directive(s).
A few days later (Monday October 4, 2010), I was handed a change of hours which
I contested and wrote a separate response to.
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(Docket No. 1-2) (errors in original).
Also attached to Little Bear’s complaint was a letter from Little Bear to the Equal
Employment Opportunity Commission (“EEOC”) dated September 28, 2011. The letter stated:
The purpose of this notice is my request for withdraw of EEO hearing per telephonic
conference of 9-21-2011.
As I am the aggrieved person, I may bypass the administration complaint and process
the file civil action directly in United States District Court provided by EEO upon
written notice of intent to sue under the age discrimination in the Employment Act
of 1967.
(Docket No. 1-3).1
On March 12, 2012, the court issued an order granting Little Bear’s motion for leave to
proceed in forma pauperis and further directing Little Bear to file an amended complaint, opining:
Little Bear’s complaint is deficient to the extent that it does not provide any
detail as to when, why, or how his employment was allegedly terminated. The
“Incident Report” attached to the complaint is of little help as it says nothing about
Little Bear’s alleged termination. Rather, it indicates that Little Bear’s hours were
changed days after his confrontation with Silk on September 29, 2011. [footnote
omitted]
This lack of specificity is problematic in at least two respects. First, the
complaint in its present form does not provide defendants with sufficient notice of
Little Bear’s claim. Second, the complaint does not clearly articulate the legal basis
on which Little Bear’s claims rest. [footnote omitted]. Thus, Little Bear has not
provided defendants fair notice of what his claim or whether his purported right to
relief is at least plausible.
(Docket No. 4).

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A federal employee may, under certain circumstances, appeal his termination to the U.S. Merit System
Protection Board (hereinafter the “Board”), an independent executive agency that serves as the guardian of Federal
merit systems. A list of actions or decisions that are appealable to the Board, and the laws, rules, and regulations that
authorize these appeals, can be found in the Board's regulation at 5 C.F.R. § 1201.3. Discrimination allegations that
do not involve actions within the Board's jurisdiction may only be pursued through the employing agency and the
EEOC. It is unclear from the facts alleged whether the Board would have jurisdiction over an appeal from Little
Bear. In any event, it appears that Little Bear sought recourse with the EEOC.

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On September 17, 2012, Little Bear filed a document that contained the following
handwritten narrative:
I believe that I was targeted for retaliatory discharge by my former employer
the B.I.A. for the following reasons;
1. Was asked by another person about his son who or if he got arrested for fight that
occurred on the BIA park lot and that the superintendent Earl Silk was in Jerrilyn
White Mountain’s office which was in hearing distance (see attached)
2. I wrote an EEOC complaint on the incident with Earl Silk’s and me and sent to
Washington D.C. because was avised that another person did an EEOC on Mr. Earl
Silk and sent it to Aberdeen S.D. (the regional office) a year or two earlier and
nothing was done about it. It stop there in Aberdeen Regional office. a few months
later after & wrote the EEO on Mr. Earl Silk he was detailed to the Regional Office
(for what reason I don’t know). around March or April of 2011 I was in the facilities
Management office and Steve Yellow Walks in. There was myself Ernest thunde
hawk and Steve Yellow in the office.
Steve Yellow stated “well it’s official, he can’t come back” he referring to
the Superintendent Earl Silk (the word on the street that he was to get back to
Standing Rocky agency by having people from tribal government talk for him in or
to the Aberdeen Regional Office)
3. With all of these advserse action’s that were out towards me “namely another
time in hours change” and due to the fact that I worked in pain “back and both
knee’s” & kept going to the Indian Health Service Clinilic and put in a request for
Workmen’s comp. claim which was denied (I really got depressed) that’s when they
started to work on my discharge from the B.I.A., I got fired to me what seem’s like
because of disability. unable to proform my duties as janitor. but to date this position
has not been filled. in my memo that the B.I.A. sends to me in the mail about my
firing states “that they need this position at Standing Rock agency
4. had meeting with “acting Supt. Wayne Labelle, and Steve Yellow (Eric Thunder
Hawk, Foreman) Clarence Skye
have notes on that meeting. was told that I can’t go back to work because I mights
reinjury my myself as told to me by the shop foreman Ernie thunder Hawk. In my
note’s the acting Supt. Wayne Laballe asked why I won’t reporting to work as stated
above by Mr. Ernie thunde Hawk “ you might hurt yourself again”
5. was told by a former Eldly employee “who also had an incident with Mr. Earl
Silk” you were fired because of Earl Silk
6. most of the handling of my firing was handled in Aberdeen Regional office
human Resources’s ofice
7. Was advised by Steve Yellow to put in for SSI and Disability Retirement. So I
put in for both and currently getting SSI and waiting for disability retirement, and to
find out I was fired 4 days before the OPM got my paperwork for disability
retirement
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* Fired 8-15-11
* OPM received paperwork 8-18-11
8. Earl Silk and Steve Yellow had a meeting on me on 11-05-10
***
Hostile Work Environment
1. Was told I was fired because of Earl Silk - Standing Rock Agency Supt.
2. A. was to by Martin Walker “mainence man” Earnest Thunder hawk “shop
Foreman” he sent them to find me and bring that van back because Ernie through I
was driving around.
B. was told by Martin Walker that he was going to take some trash bags which
I put in the 2nd floor stairwell for later removal to the dumpster and Ernie told him
“don’t help him.”
C. was assigned to strip the conference floor room because it is going to be the
new records room and instead of using a floor striping compound I used soft scrub.
The compound has a very strong smell and soft scrub has a very clean smell to it, and
was told by Ernest Thunder hawk to stop using it because it smells bad to someone
D. was advised by shop foreman that there was a piece of paper in the Supt.
Office that has been there for 2 weeks - a person in admin said it sounds like a setup
E. every time I use the vacuum the 1st floor hallway, the admin secateray would
slam her office door
3. the main people who complian are in the investigation report done in the EEOC
process in which I a copy and seems to me that these people were pick by someone
within Standing Rock agency to give very negitive report’s about me
BUT!
they didn’t ask any one else who also works in building #19 adminaseration and
there is about 40-50 other employee’s . . . I could link Earl Silk’s actions to may
damage (firing)
witness list
1. Steve Yellow - Facilities Manger
2. Jerrilyn White Mountion - Social Worker . . .
Have two Bill’s from Dept of Interior B.I.A.
worked in a very hostile work environment
(Docket No. 9) (errors in original). Sandwiched in the middle of the handwritten narrative were four
typed pages in which Little Bear briefly recounted his employment history with the BIA, ostensibly
summarized the contents of the “Incident Report” that he had filed with his original complaint, and
shared that, on February 19, 2012, at 5:30 p.m. he had “observed Steve Yellow in a white Chevy
(new) truck turning down a street going N-S down the south side of town where Earl Silk lives.”
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(Id.).
In addition to the aforementioned document, Little Bear filed a copy of the BIA’s “Report
of Investigation” (Docket No. 9-1). According to this report, Little Bear had filed an administrative
complaint in which he had asserted claims of age and disability discrimination arising out of the
decision to change his duty hours on October 4, 2010. (Id.).2
On October 9, 2012, Little Bear filed a copy of correspondence he had received from the
Office of Personnel Management (“OPM”). This correspondence, dated September 9, 2012, advised
that his application for disability retirement under the Federal Employees Retirement System
(“FERS”) had been approved.
Little Bear also filed a copy of a BIA memorandum on October 9, 212. In the memorandum,
Acting Agency Supervisor Dwight Archambault advised that Little Bear was being removed from
his position as a custodial worker at the Standing Rock Agency effective August 11, 2011, on
account of the fact that his medical condition prevented him from performing critical duties of his
position. Archambault then proceeded to summarize Little Bear’s medical history along with the
myriad work restrictions imposed by Little Bear’s physicians. In so doing, Archambault noted that
Little Bear had not actually been to work since December 7, 2010, had exhausted all of his annual
and sick leave, had been “charged 400 hours of AWOL because of [his] failure to properly request
and obtain approval for [his] absences,” and had been prescribed medication that precluded him
from operating a government vehicle. (Id.).3

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According to the report, Little Bear advised investigators that the relief he was seeking was a disability
retirement. (Docket No. 9-1).
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At the conclusion of his memorandum, Archambault advised that Little Bear of his right to appeal the
BIA’s findings–that his medical condition precluded him from performing essential job duties, that there was no
reasonable expectation that he would be able to return to work any time soon, and that there were no vacant positions

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Little Bear subsequently contacted the court to advise that he was endeavoring to obtain legal
assistance with respect to this case. As a consequence, the court held this matter in abeyance.
II.

STANDARD OF REVIEW
Proceedings in forma pauperis are governed by 28 U.S.C. § 1915, which provides that the

court may authorize the commencement of a suit without prepayment of fees by a person submitting
a financial affidavit evincing an inability to pay. See 28 U.S.C. § 1915(a)(1). Notwithstanding
financial eligibility, the court may deny an application if it concludes the action is frivolous or
malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. § 1915(e)(2) see also McCaslin v. First Nat. Bank of York-Main
Branch, 43 F.3d 1182, 1183 (8th Cir. 1994) (stating that "the magistrate or district court judge
should determine whether plaintiffs may proceed in forma pauperis in terms of whether the
complaint was frivolous and warranted dismissal before ordering the plaintiffs to pay a partial filing
fee) (emphasis added); see also Leverett v. Bishop Furniture Co., Inc., 451 F. Supp. 289, 293 (D.
S.C. 1978) (opining that "the nature of the cause of action is a legitimate factor to consider in
exercising its discretion under § 1915"); cf. Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir.
1982) (stating with respect to prisoners seeking to proceed in forma pauperis: "There is a two step
process to be followed by the district court in considering whether a pro se plaintiff should be
permitted to proceed in forma pauperis. First, a determination of whether the plaintiff qualifies by
economic status under § 1915(a), and, if so, to permit the complaint to be filed. Second, a
determination of whether the cause of action stated in the complaint is . . . frivolous or malicious

to which he could be reassigned. (Id.). Notably, there is nothing in the materials submitted by Little Bear to indicate
whether he ever exercised this right.

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and, if so, to dismiss the complaint.").
In applying the provisions of § 1915(e)(2), the court must give the pro se complaint the
benefit of a liberal construction and not dismiss the complaint unless it is clear beyond doubt that
there is no set of facts that would entitle the plaintiff to relief. Haines v. Kerner, 404 U.S. 519, 520
(1972) (pro se complaints are "subject to less stringent standards than formal pleadings drafted by
lawyers"); Atkinson v. Bohn, 91 F.3d 1127, 1128-29 (8th Cir. 1996). While these pleadings
requirements are minimal and do not require a detailed recitation of the facts, even a pro se litigant
must state enough in terms of the facts and grounds for relief to give the defendant fair notice of
what the claim is and to indicate that the right to relief is at least plausible, even if the chances for
success are remote. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); King v. Houston, 556
Fed.Appx. 561, 562-63 (8th Cir. 2014) (unpublished per curiam) (allegations that certain individuals
discriminated against plaintiff were too conclusory to state a claim, citing Ashcroft v. Iqbal, 556
U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Stone v. Harry, 364 F.3d 912, 914
(8th Cir.2004)); Carter v. Hassel, 316 Fed.Appx. 525, 526 (8th Cir. 2008) (unpublished per curiam)
(allegations insufficient to describe the violation of a constitutional right with respect to certain of
the claims); Kozikowski v. C.I.R., 258 Fed.Appx. 60 (8th Cir. 2007) (unpublished per curiam)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), for the proposition that a
complaint must plead enough facts to state a claim for relief that is plausible and dismissing a pro
se complaint.
In construing the complaint, the court must weigh all factual allegations in favor of the
plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 31-33
(1992) (court may disregard factual allegations that are clearly baseless, fanciful, fantastic, or

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delusional). "A complaint is frivolous if it lacks an arguable basis in law or fact." Martinez v.
Turner, 977 F.2d 421, 423 (8th Cir. 1992) (citing Nietske v. Williams, 490 U.S. 319, 325 (1989)).
“It lacks an arguable basis in law if the claim is based on an indisputable meritless legal theory.”
Id.
III.

DISCUSSION
A.

Retaliatory discharge

Little Bear asserts that he was “was targeted for retaliatory discharge.” In so doing, he it
takes the position that he was terminated as a result of his encounter with Silk on September 29,
2010.4
This claim is frivolous on its face. Little Bear has been afforded ample opportunity to
address the deficiencies in his original pleadings. However, other than conclusory allegations, he
has presented nothing to date to even remotely suggest that decisions regarding his employment had
anything to do with his encounter with Silk or that Silk had any hand in the termination of his
employment. What materials he has submitted reveal that the decision regarding his employment
was made well after his encounter with Silk by Silk’s replacement.
As an aside, it should be noted that Little Bear appears to have qualified for a disability
retirement under FERS. According to the supplemental materials filed by Little Bear on October
9, 2012, he submitted an application for disability retirement at the urging of his superiors. On
September 12, 2012, he received a letter from OPM advising, inter alia: (1) his application for
disability had been approved; (2) that he had not been separated from federal service; and (3) that

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Little Bear does, in the narrative filed on September 17, 2012, state at one point that he was removed
from federal service on account because of a perceived disability. Nevertheless, he has made it abundantly clear his
claim as one of retaliatory discharge in “connection of my firing and incident on 9-29-10.” (Docket No. 10).

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that OPM would notify the BIA that his disability retirement had been approved and further ask that
the BIA separate him from federal service. (Docket No. 10).
B.

Hostile Work Environment
Little Bear next asserts that he was subjected to a hostile work environment. In order to

state a cause of action for hostile work environment, a plaintiff must allege that: (1) his workplace
was permeated with conduct that was “sufficiently severe or pervasive to alter the conditions of her
work environment;” and (2) “a specific basis exists for imputing the conduct that created the hostile
environment to the employer.” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d
Cir.1996). The conduct in question “must be severe or pervasive enough to create an environment
that ‘would reasonably be perceived, and is perceived, as hostile or abusive.’ ” Schwapp v. Town
of Avon, 118 F.3d 106, 110 (2d Cir.1997). In other words, the first element of a hostile work
environment claim requires allegations that demonstrate that the environment was both objectively
and subjectively hostile or abusive. See Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir. 2001).
The basis for Little Bear’s claim are stray comments others made about him that he learned
of third hand, once instance when he was told not to use a particular floor cleaner, and one incident
with a superior who was subsequent transferred. As alleged, this conduct is not sufficiently severe
or pervasive enough to constitute a viable claim. See Faragrher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (conduct must amount to something more than simple teasing, offhand comments,
or isolated incidents (unless extremely serious)). As a consequence, his claim that he was subjected
to a hostile work environment is subject to dismissal for failure to state a claim.
IV.

CONCLUSION
Little Bear has not asserted a cognizable federal claim. As a consequence, this action will

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be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2) unless a paid
complaint is filed on or before April 15, 2015.
IT IS SO ORDERED.
Dated this 20th day of March, 2015.

/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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