Razavi v. Bethany City of

Filing 9

ORDER granting in part and denying in part 5 Motion to Dismiss. Plaintiff is granted leave to further amend his pleading within 14 days. Signed by Honorable Timothy D. DeGiusti on 9/24/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ALI RAZAVI,
Plaintiff,
v.
CITY OF BETHANY, OKLAHOMA,
a MUNICIPAL CORPORATION, ex.
rel. Bethany Police Department,
Defendant.

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Case No. CIV-14-562-D

ORDER
Before the Court is Defendant’s Motion for Partial Dismissal [Doc. No. 5], filed pursuant
to Rule 12(b)(1) and (6), Fed. R. Civ. P. Defendant City of Bethany has answered Plaintiff’s First
Amended Complaint, but moves for dismissal of certain claims. Defendant seeks dismissal of
Count II to the extent it asserts a Title VII claim for race discrimination because Plaintiff never filed
an EEOC charge alleging race discrimination.1 Defendant also seeks dismissal of Count I to the
extent it alleges national origin discrimination under 42 U.S.C. § 1981 on the ground that this statute
does not prohibit discrimination based on national origin.2 Finally, Defendant seeks dismissal of
Plaintiff’s claim for punitive damages as not recoverable against a municipality.3

1

In this circuit, administrative exhaustion is a jurisdictional requirement properly challenged under
Rule 12(b)(1). See Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005).
2

Dismissal under Rule 12(b)(6) is appropriate where “a complaint [does not] contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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Because Plaintiff does not assert a “claim” for punitive damages but simply prays for this relief,
the Court understands Defendant’s Motion as a request to strike Plaintiff’s prayer for punitive damages
pursuant to Rule 12(f).

In response to the Motion, Plaintiff disclaims asserting any claim for race discrimination
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Upon review of the First
Amended Complaint, the Court agrees that Plaintiff does not complain in Count II of racial
discrimination but of discriminatory harassment based on “his religion, national origin, color,
ancestry and ethnic characteristics.” See First Am. Compl. [Doc. No. 3], ¶ 6.5. Accordingly,
Defendant’s Motion directed to a claim of discrimination based on race is moot.
Plaintiff concedes that he cannot recover punitive damages from Defendant. Therefore, the
part of Defendant’s Motion seeking to strike Plaintiff’s prayer for punitive damages will be granted.
Plaintiff objects to the Motion only with regard to the application of 42 U.S.C. § 1981.
While the claim of constructive discharge asserted in Count I refers only to national origin
discrimination, Plaintiff contends it sufficiently states a claim under § 1981 because the
discriminatory harassment that allegedly led to his constructive discharge was based, in part, on his
ancestry and ethnic characteristics. The Supreme Court held in Saint Francis College v. AlKhazraji, 481 U.S. 604, 613 (1987), that § 1981 does not proscribe national origin discrimination
per se – that is, based “solely on the place or nation of [a person’s] origin, or his religion” – but it
does protect “identifiable classes of persons who are subjected to intentional discrimination based
on their ancestry or ethnic characteristics . . . whether or not it would be classified as racial in terms
of modern scientific theory.” Id. In Al-Khazraji, the Court held that the plaintiff could recover
under § 1981 if he was able to “prove that he was subjected to intentional discrimination based on
the fact that he was born an Arab.” Id.
Consistent with this broad interpretation of “race,” the court of appeals has held that § 1981
“extends to matters of ancestry which are normally associated with nationality, not race in a
biological sense” and that “a person of Iranian descent . . . was protected by § 1981’s bar against
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discrimination on the ground of race.” See Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379,
1987 n.7 (10th Cir. 1991); see also Aramburu v. Boeing Co., 112 F.3d 1398, 1411 (10th Cir. 1997)
(claim of discrimination based on Mexican-American ancestry fell within § 1981’s protection
against racial discrimination).
In this case, Plaintiff alleges that his father was Iranian and that he was subjected to
derogatory slurs directed at Arab ethnicity. In light of these factual allegations, the Court finds that
Plaintiff sufficiently alleges discriminatory harassment for which a claim may be brought under
§ 1981. However, Count I of the First Amended Complaint alleges only that “Plaintiff’s national
origin was a motivating factor in Plaintiff’s constructive termination of his employment.” See First
Am. Compl. [Doc. No. 3] ¶ 5.5 Accordingly, as pled in the First Amended Complaint, Count I is
predicated solely on Plaintiff’s national origin per se and fails to state a claim upon which relief can
be granted under § 1981. Therefore, the § 1981 claim asserted in Count I must be dismissed without
prejudice to amendment.
In accordance with the foregoing, Defendant’s Motion for Partial Dismissal [Doc. No. 5] is
GRANTED in part and DENIED in part. Defendant’s motion directed to a purported Title VII race
discrimination claim is DENIED as moot. In all other respects, Defendant’s motion is GRANTED.
Plaintiff is granted leave to further amend his pleading within 14 days from the date of this Order
to cure the defect in the § 1981 claim asserted in Count I.
IT IS SO ORDERED this 24th day of September, 2014.

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