United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS WITHOUT PREJUDICE AND ALLOWING PLAINTIFF TO
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.
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.
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
• 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.
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).
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