Bekkem v. McDonald
Filing
28
ORDER granting 17 defendant's partial motion to dismiss...plaintiff's hostile work environment claim and her disparate treatment claims, except for her unequal pay claim based on her gender are dismissed without leave to amend. Signed by Honorable Joe Heaton on 06/23/2015. (lam)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANUPAMA BEKKEM, M.D.,
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Plaintiff,
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vs.
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ROBERT A. MCDONALD, SECRETARY, )
U.S. DEPARTMENT OF VETERANS
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AFFAIRS,
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Defendant.
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NO. CIV-14-0996-HE
ORDER
Plaintiff Anupama Bekkem, M.D. sued Robert A. McDonald, Secretary of the
United States Department of Veterans Affairs, asserting hostile work environment,
disparate treatment and retaliation claims under Title VII of the Civil Rights Act of 1964
and a claim under the Equal Pay Act, 29 U.S.C. § 206(d). Defendant filed a partial
motion to dismiss, which the court granted in part. Plaintiff filed an amended complaint
and defendant has moved again to dismiss her claims for hostile work environment and
disparate treatment pursuant to pursuant to Fed.R.Civ.P. 12(b)(6).
The applicable standard is well established. All that is required is “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). The petition must, though, contain “enough facts to state a claim to relief that is
plausible on its face” and “raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 555 (2007).
“‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” S.E.C. v.
Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
The court previously dismissed plaintiff’s hostile work environment claim because
the complaint did not contain any facts from which it could “be inferred that defendant
harassed plaintiff because of a protected characteristic.” Doc. #14, p. 7. It found the
same problem existed with her disparate treatment claim. With the exception of her
disparate treatment claim based on unequal pay, there was “nothing other than sheer
speculation to link” the alleged acts supporting plaintiff’s disparate treatment “to a
discriminatory ... motive.” Khalik v. United Air Lines, 671 F.3d 1188, 1194 (10th Cir.
2012). Plaintiff has done nothing in her amended complaint to correct those deficiencies.
Hostile Work Environment Claim
To establish the elements of her hostile work environment claim plaintiff must
prove: “(1) she is a member of a protected group; (2) she was subject to unwelcome
harassment; (3) the harassment was based on [a protected characteristic]’ and (4) [due to
the harassment's severity or pervasiveness], the harassment altered a term, condition, or
privilege of the plaintiff's employment and created an abusive working environment.”
Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007) (internal quotations
omitted).” Once she establishes these elements, plaintiff must “identify one of three
alternative bases for holding . . . her employer liable under Title VII,” such as that her
employer “had actual or constructive knowledge of the hostile work environment but did
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not adequately respond to notice of the harassment.” Id.
Plaintiff bases her hostile work environment claim on the behavior of a RN, Nurse
Nale, who was assigned to plaintiff’s team, the alleged failure of the management team at
the VA to investigate plaintiff’s repeated claims of harassment by Nurse Nale and their
failure to reassign Nurse Nale despite plaintiff’s requests.1 Defendant contends plaintiff’s
hostile work environment claim should be dismissed because she fails to describe the
unwelcome harassment allegedly inflicted by Nale and fails to specify the protected
characteristic that elicited the harassment. Defendant also contends the alleged conduct
was not sufficiently severe or pervasive to be actionable. The court agrees.
In her amended complaint, plaintiff alleges that Nurse Nale failed to follow her
instructions, undermined her work relationships, failed to follow proper protocol, and
refused to perform tasks plaintiff assigned her, but “did not engage in similar behavior
with physicians and staff who did not share in any of Dr. Bekkem’s protected
characteristics.” Doc. #15, ¶12. She alleges her attempts to resolve the problem failed,
that no effort was made by her superiors to investigate or reassign Nurse Nale or address
her alleged abusive behavior, although “[s]imilarly situated physicians who did not share
in any of Dr. Bekkem’s protected characteristics, specifically female, from India, brown,
Asian-Indian, and/or of the Hindu religion, and who had not complained of unlawful
1
Plaintiff includes a lot of extraneous allegations in her hostile work environment claim –
complaints about an increase in her work load, being denied the opportunities to earn additional
pay, being subjected to increased scrutiny, etc. See Doc. #15, ¶ 40. Those allegations pertain to
plaintiff’s claims of disparate treatment, not to whether she was subjected to a hostile work
environment.
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harassment and discrimination, were not treated in this manner.” Id. at ¶14.
Plaintiff has alleged that Nurse Nale was difficult to work with and that her actions
affected patient care.
What she has not alleged is why Nale’s conduct was “‘so
objectively offensive as to alter the ‘conditions' of [her] employment.’” Harsco Corp., 475
F.3d at 1187 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998)). Merely claiming that “Nale’s behavior was abusive and created a discriminatory
hostile work environment for Dr. Bekkem,” Doc. #15, ¶12, is not sufficient. Plaintiff has
failed to allege what could be characterized as even one specific instance of harassment.
The court and defendant are left guessing as to what Nurse Nale did or said that was
sufficiently severe or pervasive to create “an environment that a reasonable person would
find hostile or abusive.” Harsco Corp., 475 F.3d at 1187. While plaintiff is not required
to describe every incident, or even most incidents that occurred, she must include some
details in her complaint.
The court and defendant also are left guessing as to which protected characteristic
(or characteristics) formed the basis for the alleged harassment of plaintiff – whether it
was her gender, race, religion, national origin, or color. All plaintiff alleges is that
“Nale’s behavior appeared to be motivated by a discriminatory animus based upon one or
more of Dr. Bekkem’s protected characteristics, specifically female, from India, brown,
Asian-Indian, and/or of the Hindu religion.” Doc. #15, ¶12. Again, that is not enough.
The harassment must be because of the protected characteristic. See Harsco Corp. 475
F.3d at 1186. Simply asserting that “Nale did not engage in similar behavior with
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physicians and staff who did not share in any of Dr. Bekkem’s protected characteristics,”
Doc. #15, ¶12, is insufficient when the plaintiff has listed five separate protected
characteristics and not identified any of the physicians or staff.
Without more, plaintiff’s hostile work environment claim is not plausible under the
Twombly/Iqbal standard.
Plaintiff has failed to allege a single example of abusive
behavior, much less the pervasive or severe conduct required to meet the threshold for a
hostile work environment claim. She also has failed to plausibly allege discriminatory
intent. Plaintiff’s hostile work environment claim will be dismissed.
Disparate Treatment Claims
The court previously concluded plaintiff had sufficiently alleged a disparate
treatment claim for unequal pay based on gender. In her amended complaint plaintiff
claims disparate treatment with respect to numerous employment actions, including a
reprimand and a negative performance evaluation. She also alleges that she was assigned
an increased work load, was denied the opportunity to earn additional pay and received
less support than her counterparts.2 These claims suffer from the same problem as
plaintiff’s hostile work environment claim – the absence of facts from which it can be
inferred that defendant discriminated against plaintiff because of a protected
2
Several of plaintiff’s grounds for her disparate treatment claim are insufficient because they
do not constitute adverse employment actions. See Hoko v. Huish Detergents, Inc., 453 Fed. Appx.
799, 802 (10th Cir. 2011) (“Adverse employment action includes significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.”) (internal quotations
omitted).
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characteristic.
To prevail on a disparate treatment claim, “the plaintiff must prove that [her]
employer acted with a discriminatory intent or motive.” Munoz v. St. Mary-Corwin
Hosp., 221 F.3d 1160, 1166 (10th Cir. 2000) (internal quotations omitted). While this can
be done by direct evidence of discrimination, it is usually accomplished by following the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Orr v. City Of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005). The first step of the
McDonnell Douglas analysis requires the plaintiff to prove a prima facie case of disparate
treatment by showing “(1) membership in a protected class, (2) adverse employment
action, and (3) disparate treatment among similarly situated employees.” Plaintiff does
not have to establish a prima facie case in her complaint to meet the 12(b)(6) standard, but
“the elements of each alleged cause of action help to determine whether Plaintiff has set
forth a plausible claim.” Khalik, 671 F.3d at 1192. Id. Here, plaintiff has not come close
to pleading the third element.
Plaintiff repeatedly compares her treatment to “[o]ther physicians, who did not
share in Dr Bekkem’s protected characteristics,” Doc. #15, ¶33, but she never identifies
the other physicians or discusses their circumstances and how or when they were treated
differently from her. Plaintiff does not specify whether she is referring to the same
physicians each time or provide any information regarding any of them. It is unclear if
they are all male, all non-brown, all non-Asian-Indian, and all non-Hindu or some
combination of the above. She simply provides no facts to support her conclusory
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allegations. The court cannot reasonably infer, merely from plaintiff’s comparison of her
treatment to “[s]imilarly situated physicians who did not share in Dr. Bekkem’s protected
characteristics,” that defendant discriminated against her. In one instance plaintiff does
not compare herself to other physicians, but just complains of the treatment she was given
and attributes it to “her protected characteristics.” Id. at ¶35.
Plaintiff “should know why she believed [the] action[s] [were] connected with
discriminatory animus,” Khalik, 671 F.3d at 1194, and she should be able to allege it. As
she has not done that, once again plaintiff’s attribution of a discriminatory intent to
defendant’s actions is nothing more than speculation. Therefore, plaintiff’s disparate
treatment claims will be dismissed.
Plaintiff asks in her response brief for leave to amend if defendant’s motion to
dismiss is granted. She states that she did not pleaded additional facts in her complaint
because she “believed that the specific details, including the identity of the similarly
situated employees and other specific details, were appropriate for discovery and not for
notice pleading.” Doc. #23, p. 15. Plaintiff further states that “if the Court requires a
heightened pleading standard, Plaintiff possesses facts to allege, which would satisfy the
heightened pleading standard that Defendant requests.” Id.
The court is not requiring a heightened pleading standard, but merely compliance
with Twombly/Iqbal. Dismissal with prejudice at this stage is also not a sanction or
unwarranted. The parties have already been through two sets of motions to dismiss and
the court was quite clear in its March 16, 2015, order that it was dismissing plaintiff’s
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hostile work environment and disparate treatment claims because she had failed to allege
discriminatory intent. Plaintiff is not proceeding pro se, but is represented by able
counsel. To now state, in response to a second motion to dismiss, that plaintiff can plead
facts to bolster her claims, see Doc. #23, p. 15 n 10, is too late. It is time for the case to
proceed on the claims that have been adequately pleaded.
Accordingly, defendant’s partial motion to dismiss [Doc. #17] is GRANTED.
Plaintiff’s hostile work environment claim and her disparate treatment claims, except for
her unequal pay claim based on her gender, are DISMISSED without leave to amend.
IT IS SO ORDERED.
Dated this 23rd day of June, 2015.
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