United States District Court, D. Minnesota
ORDER GRANTING DEFENDANT'S MOTION TO
Wilhelmina M. Wright United States District Judge
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.
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
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.”
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.
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.
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.
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). 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.
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).
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.
Sexual Harassment/Sexual Orientation Discrimination Claim
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). “Simple ...