Jones v. Kendall

Filing 11

ORDER granting in part and denying in part 6 Motion to Dismiss, as set forth herein.. Signed by Chief Judge Timothy D. DeGiusti on 3/11/2025. (jee)

Case 5:24-cv-00694-D

Document 11

Filed 03/11/25

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DENISE JONES,
Plaintiff,
v.
HONORABLE FRANK KENDALL,
SECRETARY, U.S. DEPARTMENT OF THE
AIR FORCE, in his official capacity,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 24-694-D

ORDER
Before the Court is the Motion to Dismiss with Brief in Support of Defendant
Honorable Frank Kendall [Doc. No. 6]. Defendant seeks dismissal pursuant to Fed. R. Civ.
P. 12(b)(6). For the reasons set forth herein, Defendant’s motion is denied in part and
granted in part.
Background
Plaintiff brought this employment discrimination action against her current
employer, Defendant, Honorable Frank Kendall, Secretary, U.S. Department of the Air
Force (“Defendant”). Plaintiff alleged disparate treatment on the basis of both sex and race
as prohibited by Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000.
In her complaint, Plaintiff, an African American female, alleges that, on October 28,
2021, Plaintiff applied for one of two open positions as a Supervisory Production
Controller. A selection panel, consisting of two white females and a white male, oversaw
hiring for the position. According to the complaint, the white male was solely responsible
1

Case 5:24-cv-00694-D

Document 11

Filed 03/11/25

Page 2 of 6

for scoring the candidates’ resumes.
After scoring, despite having more relevant experience, Plaintiff alleges that she
was tied with a dark-skinned black male and a white female. Plaintiff was ultimately passed
over for the promotion.
Plaintiff also claims that Defendant denied her overtime pay and that she “unfairly
received less than satisfactory appraisal ratings.” 1
Legal Standard
“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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (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.” Iqbal, 556 U.S. at 678. Determining whether a complaint
states a plausible claim for relief is a “context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id. at 679. In assessing
plausibility, a court should first disregard conclusory allegations and “next consider the
factual allegations in [the] complaint to determine if they plausibly suggest an entitlement

In her response to the instant motion, Plaintiff added allegations related to age
discrimination. She stated, “there is no dispute that Plaintiff is … a qualifying individual
under the ADEA.” Pl.’s Res. Mot. Dis. at 3. The Court, however, will not consider any
additional factual allegations raised by Plaintiff in briefing. See In re Qwest Commc'ns
Int’l, Inc., 396 F. Supp. 2d at 1203 (disregarding additional factual claims asserted in
briefing on a motion to dismiss, explaining that “plaintiffs may not effectively amend their
Complaint by alleging new facts in their response to a motion to dismiss”).
1

2

Case 5:24-cv-00694-D

Document 11

Filed 03/11/25

Page 3 of 6

to relief” under the legal theory proposed. Id. at 681; see Lane v. Simon, 495 F.3d 1182,
1186 (10th Cir. 2007).
Discussion
Title VII creates a cause of action for discrimination based on an individual’s “race,
color, religion, sex, or national origin.” Johnson v. Ry. Express Agency, Inc., 421 U.S. 454,
457 (1975) (internal citations omitted). A plaintiff can prove that an employer violated Title
VII “either (1) by direct evidence that a workplace policy, practice, or decision relies
expressly on a protected characteristic, or (2) by using the burden-shifting framework set
forth in [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)].” Young v. United
Parcel Serv., Inc., 575 U.S. 206, 213 (2015). Here, Plaintiff does not allege direct evidence
of discrimination and therefore relies on the McDonnell Douglas burden-shifting
framework.
To allege the failure to promote under McDonnell Douglas, Plaintiff must plead that
she “(1) belongs to a protected class; (2) she applied for an available promotion for which
she was qualified; [and] (3) she was rejected under circumstances which give rise to an
inference of unlawful discrimination.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir.
2013) (internal quotation marks omitted). 2
Defendant argues Plaintiff has failed to allege the third condition—that Plaintiff’s

It is unnecessary that a plaintiff allege facts outlining the whole prima facie case at the
pleading stage. As the Supreme Court has made clear, McDonnell Douglas provides “an
evidentiary standard, [and] not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534
U.S. 506, 510 (2002). The McDonnell Douglas framework does, however, assist judges to
resolve “motions to dismiss by providing an analytical framework to sift through the facts
alleged.” Morman v. Campbell Cnty. Mem’l Hosp., 632 F. App’x 927, 933 (10th Cir. 2015).

2

3

Case 5:24-cv-00694-D

Document 11

Filed 03/11/25

Page 4 of 6

application was rejected under circumstances giving rise to an inference of discrimination.
Defendant makes two arguments.
The first is that the presence of same-gender and same-race comparators eliminates
any inference of discrimination. Defendant points out that two of the three evaluators for
the promotion were women. Moreover, one of the applicants ultimately selected was an
African American male—the other was a white female. According to Defendant, because
women were involved at both the evaluation and selection stages of the promotion, no
discrimination could have occurred on the basis of sex. Furthermore, Defendant contends
that the promotion of an African American male eliminates the possibility of discrimination
on the basis of race.
The Court is unconvinced that the presence of these comparators demonstrates that
Plaintiff has failed to plead facts giving rise to an inference of discrimination. As the Tenth
Circuit has held, “Title VII [ ] prohibits discrimination based on a combination of protected
characteristics, such as ‘sex-plus-race,’ i.e., discrimination targeted only at employees of
a particular race and sex.” Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038,
1045 (10th Cir. 2020) (emphasis added). The Tenth Circuit went on to explain that courts
should therefore recognize “claims for ‘intersectional’ discrimination[,]” based on the
combination of multiple immutable characteristics, because such recognition “best
effectuates congressional intent to prohibit discrimination based on stereotypes.” Id. at
1049. Recognizing Tenth Circuit precedent and adopting all inferences in the light most
favorable to the nonmoving party, the Court cannot find that Plaintiff has here failed to
state a claim on which relief can be granted because of the presence of same-gender and
4

Case 5:24-cv-00694-D

Document 11

Filed 03/11/25

Page 5 of 6

same-race comparators.
Defendant’s second contention is that the complaint is “unclear on what basis
Plaintiff claims to have more relevant experience than [the ultimately selected
candidates.]” Moreover, the complaint does not state “in what way [Plaintiff] failed to
receive appropriate credit [for her resume.]” Df.’s Mot. Dis. at 9.
Although, the Court agrees the Plaintiff’s complaint lacks detail, “[s]pecific facts
are not necessary” at the pleading stage. Erickson v. Pardus, 551 U.S. 89, 93 (2007).
Plaintiff’s complaint “need only ‘give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Id. (quoting Twombly, 550 U.S. at 555). Though a close call,
the Court finds Plaintiff has pled sufficient facts to give Defendant fair notice of the claim.
Defendant’s motion to dismiss as to disparate treatment is therefore DENIED.
Plaintiff also alleges that Defendant retaliated against her for engaging in protected
activity. In her response to the instant motion, however, Plaintiff concedes “that her
retaliation claim [could have been] better pled[.]” According to Plaintiff, facts exist to
support the retaliation claim, but the requisite allegations are forthcoming and will only be
provided following a motion for leave to amend her complaint. Pl.’s Res. Mot. Dis. at 5.
At this point, Defendant’s motion to dismiss as to these allegations is GRANTED.
Lastly, Plaintiff alleges that she was passed up for “overtime pay” and that she
“unfairly received less than satisfactory appraisal ratings[.]” Having reviewed the
complaint, the Court agrees with Defendant that these allegations are conclusory and lack
sufficient detail to put Defendant on notice of the claim alleged. It is unclear, for example,
what occurred or if other employees were treated differently. Defendant’s motion to dismiss
5

Case 5:24-cv-00694-D

Document 11

Filed 03/11/25

Page 6 of 6

as to this claim is therefore GRANTED.
IT IS ORDERED that the Motion to Dismiss with Brief in Support of Defendant
Honorable Frank Kendall [Doc. No. 6] is GRANTED in part and DENIED in part, as set
forth herein. Plaintiff’s claims for disparate treatment as to overtime pay, “unsatisfactory
appraisal ratings,” and retaliation are DISMISSED without prejudice. Defendant’s request
for dismissal of Plaintiff’s claim for disparate treatment is, however, DENIED, as Plaintiff
made out a claim for which relief can be granted based on the failure to promote.
IT IS SO ORDERED this 11th day of March 2025.

. DeGIUSTI
Chief United States District Judge

6