Zhang v. Tiptop Energy Production US LLC

Filing 18

ORDER denying 11 Defendants Motion to Dismiss in Part. Signed by Honorable Timothy D. DeGiusti on 11/30/16. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JIDONG ZHANG,
Plaintiff,
vs.
TIPTOP ENERGY PRODUCTION U.S.,
LLC,
Defendant.

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Case No. CIV-16-1044-D

ORDER
Before the Court is Defendant’s Motion to Dismiss in Part [Doc. No. 11], filed
pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff has responded in opposition to the Motion,
which is fully briefed.
Plaintiff is a female former employee of Defendant in Oklahoma, who allegedly was
a victim of discrimination because of pregnancy and her Chinese national origin. She brings
suit under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq.
(“Title VII”), and the Oklahoma Anti-Discrimination Act, Okla. Stat. tit. 25, § 1101 et seq.
Plaintiff claims she was subjected to adverse employment actions by Defendant – alleged to
be a United States subsidiary of an oil company owned by the Chinese government – which
were designed to enforce China’s one-child policy. Plaintiff also claims Defendant retaliated
against her for filing an EEOC charge and opposing discrimination, which resulted in her
constructive discharge in January 2016.
By the instant Motion, Defendant challenges only the sufficiency of the Complaint
to state a claim of national origin discrimination; Defendant does not seek dismissal of claims

of gender discrimination or retaliation. Defendant argues that Plaintiff fails to allege all
elements of a prima facie case of discrimination based on her Chinese national origin
because she does not state any facts to show she was treated less favorably than non-Chinese
employees. Defendant also argues that the factual allegations of the Complaint show only
discrimination based on citizenship and alienage, which are not statutorily protected
classifications. In support of this argument, Defendant points to allegations of the Complaint
stating that Plaintiff was demoted from a position of financial manager to general accountant
in March 2015 because she and her husband refused to give up their permanent resident
status under United States immigration law. See Compl. [Doc. No. 1], ¶ 16.
Standard of Decision
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see Robbins v. Oklahoma, 519 F. 3d 1242, 1247 (10th
Cir. 2008). “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.” Iqbal, 129 S. Ct. at 1949. Determining the sufficiency of a complaint
is “a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Id. at 1950; see Robbins, 519 F.3d at 1248 (degree of specificity
needed to establish plausibility “depends on context”). The question to be decided is
“whether the complaint sufficiently alleges facts supporting all the elements necessary to

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establish an entitlement to relief under the legal theory proposed.” Lane v. Simon, 495 F.3d
1182, 1186 (10th Cir. 2007) (internal quotation omitted).
Discussion
The asserted grounds for dismissal of Plaintiff’s national origin discrimination claim
are two-fold. Defendant first asserts that Plaintiff fails to allege sufficient facts to establish
a prima facie case under the burden-shifting analysis of McDonnell Douglas v. Green, 411
U.S. 792, 802-04 (1973). See Def.’s Mot. Dismiss [Doc. No. 11], pp.3-4; Reply Br. [Doc.
No. 17], p.3. Defendant argues that the Complaint contains no allegation that Plaintiff was
treated less favorably than non-Chinese employees, or even non-Chinese women. From this,
Defendant asserts that Plaintiff fails to allege sufficient facts from which a reasonable
inference of discrimination based on Chinese national origin can be drawn.
The Supreme Court has held that McDonnell Douglas established an evidentiary
standard and not a pleading requirement; it need not be satisfied in order to state a
discrimination claim. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002). This
holding is unaffected by recent decisions regarding Rule 12(b)(6). See Twombly, 550 U.S.
at 569-70 (finding the plausibility standard to be consistent with Swierkiewicz); Khalik v.
United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (“the 12(b)(6) standard does not
require that Plaintiff establish a prima facie case in her complaint”). However, “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.

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Upon consideration of Plaintiff’s pleading, the Court finds that the Complaint contains
sufficient factual allegations to state a plausible claim that Defendant discriminated against
Plaintiff based on her national origin and her gender or pregnancy.1 The Complaint contains
numerous statements, which must be accepted as true, regarding adverse actions taken by
Defendant after learning Plaintiff was pregnant with her second child and stating she was in
violation of China’s one-child policy. A reasonable inference may be drawn from Plaintiff’s
factual allegations that Defendant’s actions against her were motivated by her Chinese
national origin and her pregnancy. The Court finds that the Complaint gives Defendant fair
notice, as required by Rule 8(a), of Plaintiff’s claim of national origin and pregnancy
discrimination and the ground upon which it rests. See Khalik, 671 F.3d at 1193; see also
Erickson v. Pardus, 551 U.S. 89, 93 (2007).
Second, Defendant asserts that discrimination based on citizenship or alienage is not
prohibited by Title VII or state law, and that Plaintiff expressly alleges she was demoted
because she would not give up her federal immigration status. In making this argument,
Defendant focuses on a single allegation, isolated from the remainder of the Complaint.
Viewed in context of the remaining allegations, Plaintiff’s statement that she was penalized
for refusing to surrender her permanent resident status provides support for the claim that
Defendant ordered Plaintiff to transfer back to China before the birth of her child but she
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Plaintiff’s claim is that Defendant was motivated by both pregnancy and her Chinese national
origin. This type of claim, in which two protected classes combine to produce discrimination prohibited by
Title VII, has been expressly approved by the Tenth Circuit. See Hicks v. Gates, 833 F.2d 1406, (10th Cir.
1987) (“We are persuaded that the Jeffries ruling is correct.”) (discussing Jeffries v. Harris Cty. Cmty. Action
Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980)). This is different from a “gender-plus” discrimination claim
discussed in Coleman v. B-G Maintenance Management of Colo., Inc., 108 F.3d 1199, 1203 (10th Cir. 1997),
in which discrimination against a subclass of women (such as married women) is alleged.

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refused to return to China (based on a physician’s instructions not to engage in overseas
travel), and Defendant then demoted Plaintiff and stopped paying her living expenses in the
United States. See Compl. [Doc. No.1], ¶¶ 12-17. Viewing the Complaint as a whole, the
Court finds that Plaintiff adequately alleges Defendant engaged in employment
discrimination based on Plaintiff’s national origin, and not merely citizenship or alienage.
Conclusion
For these reasons, the Court finds that the Complaint is sufficient to state a plausible
claim of national origin discrimination.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss in Part [Doc.
No. 11] is DENIED.
IT IS SO ORDERED this 30th day of November, 2016.

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