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Zunie v. Azar

United States District Court, D. New Mexico

December 11, 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

         THIS MATTER is before the Court on Defendant's Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 32.) This Court previously dismissed Plaintiff's initial Complaint and granted him leave to file an amended complaint to remedy the defects in his pleading. (Doc. 28.)

         Defendant now moves for dismissal of the First Amended Complaint (“FAC”) (Doc. 29), alleging that Plaintiff has not cured those fatal flaws. Have reviewed the parties' pleadings and considered the applicable law, the Court finds that Defendant's motion is well-taken and is, therefore, GRANTED.

         BACKGROUND

         This is an employment case wherein Plaintiff alleges that he was subjected to sex-based discrimination and retaliation. (Doc. 29 ¶ 1.) Plaintiff was employed as an Emergency Management Specialist (GS-11) and was the only male in his department, the location of which is unknown, as Plaintiff did not state where he worked in his FAC. (Id. ¶¶ 7, 8.) Plaintiff alleges that he was subjected to a hostile work environment by a “new supervisor, ” although he declined to identify the supervisor by name. (Id. ¶ 9.)

         In his initial Complaint, Plaintiff failed to specify facts regarding what mistreatment he was subject to and how the treatment was discriminatory. In his FAC, Plaintiff alleges that he was ignored in meetings, subjected to derogatory comments, and mocked. (Id. ¶¶ 10, 12, 14.) He further asserts that he was assigned extra duties and denied training. (Id. ¶¶ 11, 13.) He also alleges that he was not given any praise for his performance and that on one occasion his supervisor physically assaulted him, grabbing him by the arm and yelling at Plaintiff that he would be fired. (Id. ¶¶ 14, 15.) Plaintiff offers a general allegation tacked on to each claim that none of the female employees (which, according to Plaintiff's FAC, is all other employees) were subjected to similar mistreatment. (See generally id.)

         Defendant argues that none of Plaintiff's allegations state a plausible claim that he was mistreated because of his sex, nor that he was terminated in retaliation for reporting the alleged mistreatment. Defendant now moves for dismissal of both of Plaintiff's claims. (Doc. 32.)

         DISCUSSION

         I. Legal Standard under Federal Rule of Civil Procedure 12(b)(6)

         To survive a motion to dismiss under Rule 12(b)(6), the 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, 555, 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.” Id. (citing Twombly, 550 U.S. at 556). Complaints which are nothing more than “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Although a court must accept all the complaint's factual allegations as true, the same is not true of legal conclusions, including legal conclusions couched as factual allegations. Id. at 555-56.

         Accordingly, “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). In deciding whether the plaintiff has adequately stated a claim for relief, we view “the totality of the circumstances as alleged in the complaint in the light most favorable to [the plaintiff].” Jones v. Hunt, 410 F.3d 1221, 1229 (10th Cir. 2005). The key question is whether a plaintiff has nudged his or her claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         II. Plaintiff Has Failed to State Plausible Claims.

         A. Sex Discrimination

         Plaintiff's first claim is for sex discrimination. He alleges not only was he discriminated against in the terms and conditions of his employment, but also that he was subjected to a hostile work environment. (Doc. 29 ¶¶ 22-25.) Defendant challenges this claim as based on vague and conclusory allegations and because the allegations do not give rise to the inference that the (unnamed) supervisor was driven by an impermissible motive. As such, Defendant argues, Plaintiff failed to state a prima facie case for discrimination.

         The keystone of a sex discrimination claim is establishing that Plaintiff's “sex was a determining factor in the challenged decision.” Aquilino v. Univ. of Kan., 83 F.Supp.2d 1248, 1254 (D. Kan. 2000) (citing Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996)). Plaintiff may prove a violation “either by direct evidence of discrimination or by following the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Khalikv. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (internal citation omitted). McDonnell Douglas is a burden shifting framework which first requires the plaintiff to first prove a prima facie case of discrimination. Id. To establish a prima facie case, ...


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