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Zunie v. Azar

United States District Court, D. New Mexico

July 17, 2019

CLYBERT ZUNIE, Plaintiff,
v.
ALEX M. AZAR, II, SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITHOUT PREJUDICE AND ALLOWING PLAINTIFF TO AMEND COMPLAINT

         THIS MATTER comes before the Court upon Defendant's Motion to Dismiss, filed May 15, 2019 (Doc. 11). Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendant's motion is well-taken and, therefore, is granted.

         BACKGROUND

         Plaintiff works as an Emergency Management Specialist GS-11 for the United States Department of Health and Human Services. He alleges that he is the only male working in his department and that he was subjected to a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. In this motion, Defendant seeks an Order dismissing Plaintiff's complaint without prejudice and granting Plaintiff leave to amend in order to comply with the Federal Rules of civil Procedure.

         The Complaint alleges sex discrimination and retaliation (Counts I and II, respectively), both based on a hostile work environment. The facts in the complaint are discrete and few:

• The hostile work environment started in the spring of 2017, and consisted of being ignored in meetings, being subjected to derogatory comments, and being mocked by his supervisor.
• On May 11, 2017, Plaintiff was physically assaulted by his supervisor. The supervisor grabbed him and shook him violently and yelled at him that he was going to get fired.
• Plaintiff reported his supervisor to security and filed a report.
• After reporting, Plaintiff was told to move his office. Shortly after moving, Plaintiff was required to move back to his original office.
• During subsequent meetings, Plaintiff was ignored and not acknowledge at Department meetings. Plaintiff's supervisor joked with other female staff that they needed to come up with a code to yell at her the next time she physically assaulted Plaintiff.
• On May 24, 2017, Plaintiff was terminated.

Compl., ¶¶9-15. Defendant moves for dismissal without prejudice under Rule 12(b)(6) and Rule 8.

         DISCUSSION

         Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a case for failure to state a claim upon which relief can be granted. Rule 8(a)(2), in turn, requires a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, in order to survive a motion to dismiss, 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)). Although a court must accept all the complaint's factual allegations as true, the same is not true of legal conclusions. Id. Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).

         A complaint that violates Rule 8 must be dismissed under Federal Rule of Civil Procedure 12(b)(6). Plaintiff contends that his complaint is sufficient, apparently believing that the complaint contains enough facts from which the Court can connect the dots to form a plausible Title VII claim, but the ...


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