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Everett Bad Wound v. Zinke

United States District Court, D. Minnesota

March 6, 2019

Everett Bad Wound, Plaintiff,
v.
The Honorable Ryan Zinke, Secretary of the U.S. Department of the Interior, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          Wilhelmina M. Wright United States District Judge

         Defendant moves to dismiss Plaintiff's amended complaint on alternative grounds, pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction or pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. (Dkt. 31.) For the reasons addressed below, the motion to dismiss is granted.

         BACKGROUND [1]

         From July 1999 until his termination in 2016, Plaintiff Everett Bad Wound was employed by the Bureau of Indian Education (BIE), which is a division of the United States Department of the Interior. In this lawsuit, Bad Wound alleges that his employer discriminated and retaliated against him because of Bad Wound's sex, sexual orientation, and age. Bad Wound alleges two specific instances of harassment. Bad Wound first alleges that his supervisor, Rosemarie Davis, referred to Bad Wound's appearance as “all dolled up.” The complaint does not state when this incident occurred. Second, in October 2016, Bad Wound alleges that Davis's assistant, Misty Ziegler, referred to him as a “girl scout.”

         Bad Wound reported discrimination and retaliation to BIE Human Resources Specialist Deanna Birdsbill-Lubarsky in April 2016. The details of the alleged discrimination and retaliation that Bad Wound reported in April 2016 are not included in the amended complaint. Two months later, in June 2016, Bad Wound contacted an Equal Employment Opportunity (EEO) investigator, but he declined to complete the EEO process because he had not been terminated. The BIE was aware of Bad Wound's efforts to report the discrimination and retaliation. In response to these efforts, Bad Wound alleges, his supervisors and co-workers “essentially ignored [him], singled him out, refused to allow him to perform his job duties, and subjected him to a hostile work environment up to and until the date of his termination.”

         The BIE terminated Bad Wound's employment on November 9, 2016. The BIE's stated reason for Bad Wound's employment termination was Bad Wound's failure to report an October 2013 car accident that resulted in the revocation of his driver's license. Without a driver's license, the BIE determined, Bad Wound could not perform his job responsibilities. Bad Wound claims that the BIE gave this reason as a pretext for discrimination based on his sex, sexual orientation, and age, and in retaliation for his efforts to report the discrimination.

         After his employment termination, Bad Wound initiated the EEO complaint process a second time. On or about November 13, 2017, Bad Wound received a Final Agency Decision (FAD) in favor of the BIE that notified Bad Wound of his right to file a civil action.

         Bad Wound commenced this employment discrimination lawsuit against Defendant the Honorable Ryan Zinke, Secretary of the U.S. Department of the Interior, on February 8, 2018. Bad Wound's amended complaint alleges three claims for relief. Count I alleges that his employer engaged in sex and sexual orientation discrimination in Bad Wound's employment and that his employer's actions of harassment and discrimination created a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Count II alleges that the BIE and its employees retaliated against Bad Wound for his efforts to report the discrimination and harassment he experienced. See 42 U.S.C. § 2000e-3; 29 U.S.C. § 623(d). Count III alleges that the BIE discriminated against Bad Wound because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34.

         ANALYSIS

         Zinke moves to dismiss Bad Wound's complaint for failure to state a claim on which relief can be granted. See Fed. R. Civ. P. 12(b)(6).[2] A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, a complaint must allege sufficient facts to state a facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Factual allegations that raise only a speculative right to relief are insufficient. Twombly, 550 U.S. at 555. A district court accepts as true all of the plaintiff's factual allegations and views them in the light most favorable to the plaintiff. Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008). But a court does not accept as true legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555. Moreover, mere “labels and conclusions” or a “formulaic recitation of the elements of a cause of action” do not state a claim for relief. Id.

         Title VII of the Civil Rights Act of 1964 “provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342 (2013) (citing Title VII, 42 U.S.C. §§ 2000e et seq.). Under Title VII, it is unlawful for an employer to discriminate against an individual with respect to “compensation, terms, conditions, or privileges of employment” because of that person's “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination on the basis of an individual's age. 29 U.S.C. § 623(a). The same enforcement mechanisms and administrative procedures apply to claims of employment discrimination under both Title VII and the ADEA. See 29 C.F.R. § 1614.103(a).

         Bad Wound alleges that he experienced discrimination and harassment in his workplace based on his sex, sexual orientation, and age, which created a hostile work environment, and he experienced retaliation for his efforts to report the discrimination. The merits of a claim of employment discrimination, retaliation, or hostile work environment are evaluated under the prima facie analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). At the pleading stage, Bad Wound need not prove a prima facie case. See Sweirkiewicz v. Sorema, N.A., 534 U.S. 506, 513 (2002); Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (“[T]he prima facie model is an evidentiary, not a pleading, standard.”). But the elements of a prima facie case may “shed light upon the plausibility of the claim.” Blomker, 831 F.3d at 1056 (internal quotation marks omitted). The Court addresses in turn each of Bad Wound's claims.

         I. Sexual Harassment/Sexual Orientation Discrimination Claim (Count I)

         Count I of Bad Wound's amended complaint alleges that he was subjected to discrimination and harassment based on his sex and sexual orientation, which created a hostile work environment in violation of Title VII. See 42 U.S.C. § 2000e-2(a)(1). A hostile-work-environment claim has five prima facie elements: (1) the employee is a member of a protected group; (2) the employee was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. See Blakley v. Schlumberger Tech. Corp., 648 F.3d 921, 933 (8th Cir. 2011). Actionable harassment “must be both objectively and subjectively offensive, such that a reasonable person would consider it to be hostile or abusive.” Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004) (internal quotation marks omitted). ‚ÄúSimple ...


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