Kil v. Wilkie

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

WHOON JONG KIL, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-19-0215-F

)

SECRETARY ROBERT WILKIE, )

U.S. DEPT. VETERANS AFFAIRS, )

)

Defendant. )

)

ORDER

Defendant Robert Wilkie, Secretary of U.S. Department of Veterans

Affairs, moves to dismiss this action under Rule 12(b)(6), Fed. R. Civ. P. Doc.

no. 11. Plaintiff Whoon Jong Kil responded, objecting to dismissal. Doc. no. 17.

Defendant filed a reply brief. Doc. no. 22.

Plaintiff brings claims under Title VII, 42 U.S.C. § 2000e et seq., arising

out of plaintiff’s employment as a doctor for the Department of Veterans Affairs

(the “VA” or “the agency”) in Oklahoma City. The complaint alleges a variety

of employment-related claims, specifically, race discrimination (count one),

national origin discrimination (count two), sex discrimination (count three),

retaliation for protected activity (count four), and hostile work environment (count

five). Defendant seeks dismissal of all of these claims and also asks the court to

dismiss the request for injunctive relief.

For the reasons stated in this order, the motion will be granted with respect

to the discrimination and hostile work environment claims and denied with respect

to the retaliation claim and the request for injunctive relief.

I. Standards

The inquiry under Rule 12(b)(6) is whether the complaint contains enough

facts to state a claim for relief that is plausible on its face. Ridge at Red Hawk,

L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir., 2007), quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 547 (2007). To survive a motion to dismiss, a

plaintiff must nudge his claims across the line from conceivable to plausible. Id.

The mere metaphysical possibility that some plaintiff could prove some set of

facts in support of the pleaded claims is insufficient; the complaint must give the

court reason to believe that this plaintiff has a reasonable likelihood of mustering

factual support for these claims. Ridge at Red Hawk, 493 F.3d at 1177. In

conducting its review, the court assumes the truth of the plaintiff’s well-pleaded

factual allegations and views them in the light most favorable to the plaintiff. Id.

Pleadings that are no more than legal conclusions are not entitled to the

assumption of truth; while legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations. Ashcroft v. Iqbal, 556

U.S.662, 664 (2009).

When there are well-pleaded factual allegations, a court should assume

their veracity and then determine whether they plausibly give rise to an

entitlement to relief. Id. The court will disregard mere “labels and conclusions”

and “[t]hreadbare recitals of the elements of a cause of action” to determine if

what remains meets the standard of plausibility. Twombly, 550 U.S. at 555; Iqbal,

556 U.S. at 678. Ultimately, “determining whether a complaint states a plausible

claim for relief will … be a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.” Id. at 679.

II. Summary of the Factual Allegations

The alleged facts are as follows.

According to the complaint, plaintiff is an “Asian male originally from

South Korea,” and an “oncologist and physician licensed in both the United States

and South Korea.” Doc. no. 1, ¶ 8. He worked at the VA in Oklahoma City as a

radiation oncology doctor from March 5, 2017 (id. at ¶ 9) until his termination on

December 20, 2017. Id. at ¶ 37.

A number of allegations deal with interactions between plaintiff and agency

staff (often radiation therapists, who are also described in the complaint as

technicians). The radiation therapists in question are female, Caucasian and

originally from the United States. Id. at ¶ 11.

One of the radiation therapists told plaintiff, “Dr. Kil, I am very sarcastic.

So you will have to listen, accept my sarcasm, and get used to it. Otherwise, you

will have a hard time working in this clinic.” Id. at ¶ 13. Radiation therapists

refused to say “good morning” to plaintiff, excluded plaintiff from staff birthday

celebrations, and failed to invite plaintiff to share food brought in by patients or

staff. Id. at ¶ 14. Radiation therapists did not follow plaintiff’s instructions for

patient care (for example, regarding positioning of patients), failed to

communicate plaintiff’s instructions to other radiation therapists, and gave false

accounts of these incidents. Id. at ¶¶ 15-16.

On one occasion in May of 2017, a radiation therapist did not provide

plaintiff with a computer mouse when plaintiff asked for it (although the therapist

eventually gave plaintiff the mouse). Radiation therapists then overrode

plaintiff’s instructions about how to adjust the radiation machine console to best

treat the patient. One of the therapists falsely complained to management that

plaintiff had forcefully taken the mouse and had interrupted the radiation

therapists’ work. Id. at ¶18.

On June 28, 2017, plaintiff met with a group consisting of George

Kurdgelashvili, Chief of Medicine; Darrell Raley, Administrative Officer; and

Elizabeth Syzek, a white female from the United States, Director of Radiation

Oncology, plaintiff’s direct supervisor, and the supervisor of one of the radiation

therapists (Ashley Arres, the radiation therapists’ supervisor). Id. at ¶¶ 10, 11. At

that meeting Kurdgelashvili told plaintiff there were multiple complaints about

him and warned that if he heard any more complaints, he would fire plaintiff.

Kurdgelashvili further stated, “I can fire you at any time without reason because

you are not a U.S. citizen.” Doc. no. 1, ¶ 19. One day later, when plaintiff asked

Syzek what the complaints were about and asked for an opportunity to respond,

Syzek told plaintiff that he was disrupting the radiation therapists’ jobs and that

plaintiff’s explanation did not matter because there were already complaints.

When plaintiff stated that the radiation therapists were not following his

instructions and were making false accusations against him, Syzek told plaintiff

that plaintiff was “paranoid” and should “visit a clinic for disrupted physicians.”

Id. at ¶ 20.

On August 3, 2017, Syzek yelled at plaintiff and pounded her hands on

plaintiff’s desk, claiming plaintiff had failed to support a receptionist who, the day

before, had been in an argument with a family about scheduling. Id. at ¶ 20.

In August of 2017, Syzek accused plaintiff of requesting, for his own

convenience, a procedure referred to as “block check time.” Id. at ¶ 23.

Also in August of 2017, a radiation therapist complained to Syzek that

plaintiff was not putting the proper codes in all of his patients’ charts, although it

was Syzek’s residents who were not putting in the codes. Id. at ¶ 24.

In September of 2017, plaintiff asked Syzek about discussing an agency

vacancy with qualified oncologists who would be attending a national oncologist

conference. Syzek instructed plaintiff not to meet with or contact any physicians

to discuss the vacancy. One day later, plaintiff found out by email that the agency

had offered a job to a physician (a Caucasian male from the United States) who

was not well qualified but who Syzek had known for years. Plaintiff had not been

previously informed about that hiring. Id. at ¶ 25.

In September and October of 2017, radiation therapists were not following

plaintiff’s instructions regarding certain patient treatment matters. They falsely

denied this. Id. at ¶¶ 26-27.

Plaintiff then emailed Chief of Staff Susan Bray-Hall and asked to meet to

discuss clinical issues. Bray-Hall never responded. Syzek told plaintiff that high

management officials would forward his email to Syzek and would not respond

directly to the plaintiff. Syzek, however, never asked plaintiff about the clinical

issues he had wished to discuss with Bray-Hall. Id. at ¶ 28.

About November 1, 2017, plaintiff became aware that radiation therapists

had placed an unauthorized penile clip on a patient as a joke, causing the patient

to undergo unnecessary radiation scans. Plaintiff confronted the radiation

therapists, who falsely reported they had received a verbal order from a rotating

resident. Plaintiff escalated the issue by taking it to Syzek, who sided with the

radiation therapists and chided plaintiff for raising the issue. Plaintiff reported the

issue to the agency’s union. Without any investigation, Raley reported that there

had been a verbal order from the rotating resident, who was a Caucasian from the

United States, although the resident acknowledged he had not issued the verbal

order. Id. at ¶¶ 29-30.

Also, in November of 2017, plaintiff emailed Syzek and Kurdgelashvili

asking if the therapists’ hours of duty had changed because many were leaving

early, which was affecting plaintiff’s ability to perform his job with adequate

support. Kurdgelashvili denied that therapists were leaving early and accused

plaintiff of targeting therapists. Id. at ¶ 32.

On November 17, 2017, plaintiff’s attendance at a lung tumor board

meeting was interrupted so that he could take care of a patient who needed

stereotactic body radiosurgery. This occurred although patients were not

supposed to be scheduled with plaintiff while he was attending lung tumor board

meetings. Plaintiff had to leave the meeting and run to the radiation oncology

clinic to take care of the patient, then return to the meeting. Syzek let the radiation

therapists leave early that day. Id. at ¶ 33.

On December 13, 2017, Syzek issued plaintiff a “negative proficiency

report,” which plaintiff refused to sign. In response to the report, plaintiff wrote

“this evaluation was done unfairly and prejudiced.” Syzek and Bray-Hall did not

allow plaintiff to appeal or dispute the negative proficiency report. Id. at ¶ 35.

On December 18, 2017, radiation therapists refused to follow plaintiff’s

clinical instructions. Plaintiff detailed the resulting delay in treatment and the

failure to follow his instructions in the patient’s medical record. One of the

therapists untruthfully reported to management that plaintiff had left radiation

therapists on the scene without direction regarding the patient’s care. Syzek

reported to Kurdgelashvili (her supervisor) that plaintiff was “out of control” and

also reported “ego fighting.” Id. at ¶ 36.

Two days after the December 18 incident, on December 20, 2017, “[t]he

Agency” terminated plaintiff’s employment. Id. at ¶ 37.

III. Defendant’s Arguments for Dismissal

A. Discrete Discrimination Claims Based on Certain Events Were Not

Exhausted in a Timely Manner.

As a federal employee working for the VA, plaintiff was required to exhaust

his remedies with respect to his discrete discrimination claims by initiating contact

with an Equal Employment Opportunity (EEO) counselor within forty-five days

of the alleged discriminatory conduct. See, Mayberry v. E.P.A., 366 Fed. Appx.

907, 908 (10th Cir. 2010) (Environmental Protection Agency employee was

required to make an informal charge to an EEO counselor at the EPA’s regional

office within 45 days; citing 29 C.F.R. § 1614.105; unpublished).

The complaint alleges that plaintiff initiated contact with the agency’s EEO

office on January 8, 2018. Doc. no. 1, ¶ 5. Accordingly, defendant argues that

alleged acts which pre-date November 24, 2017 (forty-five days before January

8, 2018) are time-barred as the basis of plaintiff’s discrete discrimination claims

of race, national origin and sex discrimination. See, Beene v. Delaney, 70 Fed.

Appx. 486, 490-91 (10th Cir. 2003) (affirming dismissal of action which alleged

discrimination and retaliation claims; plaintiff, a federal employee, did not contact

EEO counselor until after the forty-five day period had expired; unpublished).

The only alleged acts which defendant argues are not time-barred as a basis for

plaintiff’s discrimination claims are those set forth in paragraphs 35-37 of the

complaint. The gist of those paragraphs is: a negative proficiency report was

issued by Syzek to plaintiff on December 13, 2017, after which plaintiff was not

permitted to appeal or dispute the report (¶ 35); on December 18, 2017, radiation

therapists refused to follow plaintiff’s instructions regarding a patient’s treatment,

after which one therapist reported the event untruthfully to management and

Syzek sided with the therapists, reporting plaintiff to Kurdgelashvili as “out of

control” (¶ 36); and on December 20, 2017, plaintiff was terminated (¶ 37).

Plaintiff does not contest defendant’s argument that acts other than those

listed immediately above (acts alleged in ¶¶ 35-37, relating to the negative

proficiency report and plaintiff’s termination) were not timely exhausted and

therefore cannot serve as the basis for discrete discrimination claims. Plaintiff

does, however, argue that all of the acts alleged in the complaint support his

hostile work environment claim. (Defendant does not argue otherwise.) The

court finds that plaintiff has implicitly conceded defendant’s untimeliness

argument.1 Any discrete discrimination claims which plaintiff may have intended

to base on acts which allegedly occurred prior to November 24, 2017 (i.e. all acts

other than those alleged in ¶¶ 35-37) will be dismissed on the ground that they

were not timely exhausted.

B. For Purposes of the Discrete Discrimination Claims, Only Termination

Constitutes an Adverse Employment Action.

Of defendant’s remaining alleged acts (the acts described in ¶¶ 35-37,

relating to the negative proficiency report and plaintiff’s termination), only

plaintiff’s termination constitutes an adverse employment action for purposes of

plaintiff’s race, national origin and sex discrimination claims. Piercy v. Maketa,

480 F.3d 1192, 1203 (10th Cir. 2007) (adverse employment action includes a

significant change in employment status such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits); Calvin v. SMG, 2014 WL 321170, *7 (D. Colo.

1 And see, LCvR7.1(g) (any motion not opposed within 21 days may, in the discretion of the

court, be deemed confessed).

January 29, 2014) (negative job performance evaluation not an adverse

employment action, collecting cases).

The same is true of the earlier-occurring acts, which the court has already

found (in part A, supra) are subject to dismissal on other grounds (not timely

exhausted) to the extent they were intended as the basis for discrete discrimination

claims. Accordingly, any discrete discrimination claims which plaintiff may have

intended to base on those earlier-occurring acts are subject to dismissal on two

grounds (not timely exhausted, and no adverse employment action).

These conclusions mean that the only discrete discrimination claims which

survive defendant’s challenges considered to this point, are plaintiff’s race,

national origin and sex discrimination claims to the extent these claims are based

on termination of plaintiff’s employment.

C. All of the Discrete Discrimination Claims, Including the Discriminatory

Termination Claims, Fail Because No Plausible Link to Plaintiff’s Protected

Status is Alleged.

The next issue is defendant’s argument that plaintiff’s discrete

discrimination claims do not plausibly allege that plaintiff was treated more

harshly than other employees because of his race, his national origin, or his sex.

The paragraphs of the complaint which pertain exclusively to the discrete

discrimination claims indicate that to allege (and eventually prove)

discrimination, plaintiff relies on a comparison between how he was treated and

how other agency employees were treated.2 The complaint, however, provides

2 No direct evidence of discrimination is alleged, and the complaint (as well as plaintiff’s brief)

relies on the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to allege

discrimination. Plaintiff’s discrimination claims allege that plaintiff was treated more harshly

than other employees, a reference to the prima facie elements of these claims under a

only conclusory allegations in this regard. For example, the complaint does not

specify exactly which employees plaintiff contends were situated similarly to him,

although the court infers, from the allegations as a whole, that plaintiff would

identify the radiation therapists.3 Rather, the discrimination claims simply allege

that, “The Agency discriminated against Kil based on his [race, national origin or

sex] by treating Kil more harshly than it treated other non-Asian employees,” and

that the Agency’s “stated and forthcoming reasons are false and are pretext for

unlawful discrimination.” Doc. no. 1, ¶¶ 42-43, 48-49, 54-55.

Furthermore, focusing on the discriminatory termination claims in

particular, the closest the complaint comes to connecting plaintiff’s termination

to his protected status is the allegation that Chief of Medicine Kurdgelashvili

stated in the June 28, 2017 meeting that, “if I hear any more complaints, I will fire

you. I can fire you at any time without reason because you are not a U.S. citizen.”

Doc. no. 1, ¶ 19. But Kurdgelashvili’s alleged statement that he could fire plaintiff

at any time because plaintiff was not a U.S. citizen, came immediately after his

warning that he would fire plaintiff if he heard any more complaints, which is

exactly what the complaint alleges happened. The complaint alleges that on or

after December 18, 2017, Kurdgelashvili heard from Syzek that plaintiff was “out

of control,” and plaintiff was then terminated on December 20, 2017. Id. at ¶¶36-

McDonnell Douglas analysis. The prima facie elements of each of plaintiff’s discrimination

claims include membership in a protected class, an adverse employment action, and disparate

treatment among similarly situated employees. Although Rule 12(b)(6) does not require

plaintiff to allege all of the elements of a claim, an understanding of the elements helps the court

determine whether plaintiff has set forth a plausible claim. Khalik v. United Air Lines, 671

F.3d 1188, 1192 (10th Cir. 2012).

3 Presuming that is the case, it is not plausible to argue that therapists are subject to the same

performance and discipline standards as physicians. See, Aramburu v. Boeing Co., 112 F.3d

1398, 1404 (10th Cir. 1997) (similarly situated employees deal with the same supervisor “and

are subject to the same standards governing performance evaluation and discipline.”)

37. Nothing in these or any other alleged facts (including any of the alleged

complaints received after Kurdgelashvili’s warning) plausibly links plaintiff’s

protected status to his termination.

Read as a whole, the complaint details a good deal of impolite and

undesirable behavior in the workplace, aimed at plaintiff. Title VII, however,

does not set forth a general civility code for the American workplace. Burlington

Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), citing Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). And see, Ordonez v.

Canyons School District, 2014 WL 4092900, *1 (D. Utah Aug. 18, 2014) (“no

connection between the actions taken against Plaintiff and her gender, race, or

national origin”; conduct was “disagreeable” but it did not provide a basis for a

discrimination claim or a hostile work environment claim; granting motion to

dismiss); Aliyev v. Fedex Ground Package System, Inc., 2014 WL 1338583, **1,

7 (D. Utah April 3, 2014) (native of Russia who spoke with heavy accent alleged

national origin discrimination; “the difficulty with that argument [plaintiff’s

argument for discovery] is that Mr. Aliyev does not point to even one situation

where a similarly-situated co-worker may have been treated differently”; without

at least one factual allegation from which to infer disparate treatment, “the court

cannot justify granting Mr. Aliyev permission to conduct what would essentially

be a fishing expedition”).

Nothing in the complaint plausibly links the decision to terminate plaintiff’s

employment, or the manner in which plaintiff was otherwise treated, to plaintiff’s

protected status. Accordingly, plaintiff’s claims that he was terminated and

otherwise treated more harshly than other employees based on his race, national

origin and gender (counts one, two and three) do not state a plausible claim for

relief and will be dismissed on that basis (in addition to the other reasons stated

in this order, to the extent they apply).

D. The Hostile Work Environment Also is Not Plausible.

To state a hostile environment claim, the allegations must show that the

harassment is based on plaintiff’s protected class or that it stems from a

discriminatory animus toward the protected class. See, Faragalla v. Douglas

County School Dist. RE 1, 411 Fed. Appx. 140, 152 (10th Cir. 2011) (summary

judgment case, unpublished), citing Tademy v. Union Pacific Corp., 614 F. 3d

1132, 1139 (10th Cir. 2008). And see, Bekkem, M.D. v. McDonald, 2015 WL

3872358 (W.D. Okla. June 23, 2015) (noting a prior order had dismissed a hostile

work environment claim brought by a doctor against the VA because the

complaint did not contain any facts from which it could be inferred that defendant

harassed plaintiff based on a protected characteristic, at *1; finding the

subsequently amended hostile work environment claim also not plausible, at *2).

In support of the hostile environment claim, the complaint alleges: that

therapists refused to follow plaintiff’s instructions, made-up false accounts and

excluded plaintiff from staff celebrations; that Syzek sided with the therapists,

called plaintiff paranoid, excluded plaintiff from the hiring process for a new

doctor and gave plaintiff a negative rating on his proficiency report; that Syzek

scheduled a patient during plaintiff’s lung tumor board meeting; and that Syzek

did not allow plaintiff to appeal a negative proficiency report. Id. at ¶ 67.4

Although the complaint alleges these incidents to support the hostile work

environment claim, it does not plausibly link these hostilities to plaintiff’s race,

4 Paragraph 67 also alleges that Syzek and the radiation therapists treated female, non-Asian

employees who were not of Korean origin differently than plaintiff was treated, and that “higher

management” (Kurdgelashvili and Bray-Hall) dismissed plaintiff’s complaints. However, these

allegations are conclusory.

national origin, or gender. Because there are no allegations which show, if

proven, that the work environment was hostile to the plaintiff based on his

protected characteristics, the hostile work environment claim is not plausible and

will be dismissed on that basis.

E. The Retaliation Claim Survives.

The complaint alleges that plaintiff’s termination was in retaliation for

protected activity. Id. at ¶61. Defendant argues this claim is not plausible. The

court disagrees.

Under 42 U.S.C. § 2000e-3(a) it is unlawful for an employer to discriminate

against an employee because the employee has opposed any practice made an

unlawful employment practice by Title VII. Fye v. Oklahoma Corp. Comm’n,

516 F.3d 1217, 1224 (10th Cir. 2008). Accordingly, a plaintiff asserting a

retaliation claim must allege facts to show illegal retaliation played a part in the

employment decision in question. See, id. at 1224-25 (to prevail on a Title VII

retaliation claim, plaintiff must establish that retaliation played a part in the

employment decision; this may be done by directly establishing that retaliation

played a motivating part in the employment decision or the plaintiff may rely on

the framework of McDonnell Douglas to prove retaliation indirectly.) Fye at

1225; and 1227 (noting that one of the prima facie elements of retaliation is a

causal connection between the protected activity and the adverse employment

action). Furthermore, regardless of the framework used to show causation, all

retaliation claims require the plaintiff to have engaged in protected opposition to

discrimination, i.e. protected activity. See, 42 U.S.C. § 2000e-3(a) (employee

must have “opposed any practice made unlawful” by Title VII).

The complaint alleges that plaintiff engaged in protected activity on

December 13, 2017, when, after being shown a negative proficiency report and

refusing to sign it, plaintiff wrote: “This evaluation was done unfairly and [is]

prejudiced.” Id. at ¶ 60. Arguably, an accusation that an evaluation was “done

unfairly” is not specific enough to constitute protected activity. But plaintiff’s

statement that the negative proficiency report was “prejudiced” stands on firmer

ground. “Prejudiced” is a word which may suggest illegal workplace

discrimination protected against by Title VII. This is a plausible interpretation of

“prejudiced” as used by the plaintiff on December 13, 2017, in light of allegations

that, among other things, plaintiff is an “Asian male originally from South Korea”

(id. at ¶8); that plaintiff told the radiation therapists “English was not his first

language” and they should ask him to repeat his instructions if they did not

understand him (id. at ¶17); and that Kurdgelashvili told plaintiff, “I can fire you

at any time without reason because you are not a U.S. citizen.” Id. at ¶19.

Given that this case is at a very early stage, the court will presume that

plaintiff’s “prejudiced” statement conveyed to his employer plaintiff’s opposition

to an unlawful employment practice and thus could constitute protected activity.

See, Hinds v. Sprint/United Management Co., 523 F.3d 1187, 1203 (10th Cir.

2008) (“Although no magic words are required, to qualify as protected opposition

the employee must convey to the employer his or her concern that the employer

has engaged in a practice made unlawful by [in that case] the ADEA.”)

In addition to alleging protected activity, a plaintiff asserting illegal

retaliation must allege facts which, if proven, show retaliation played a part in the

employment decision in question (termination). Fye, 516 F.3d at 1224. To prove

this causal connection, a plaintiff must eventually show that the individual who

took the adverse action against him knew of plaintiff’s protected activity.

Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (summary judgment in

defendant’s favor on retaliation claim affirmed where plaintiff had not provided

any evidence to show he made the complaints in question or that the person who

allegedly made the decision to remove the plaintiff knew about those

complaints).5

A causal connection may be established by evidence of circumstances

which justify an inference of retaliatory motive, such as protected conduct closely

followed by adverse action. Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir.

2004). Here, the alleged adverse action (plaintiff’s termination on December 20,

2017) occurred within a week of the alleged protected activity (plaintiff’s

statement, on or about December 13, 2017, that the negative proficiency report

was “prejudiced”). Given the closeness in time between these alleged events, the

court will not dismiss the retaliation claim.

E. The Request for Injunctive Relief Will Not Be Dismissed.

Defendant asks the court to dismiss the complaint’s request for injunctive

relief. Defendant’s reply brief, however, concedes that injunctive relief is

potentially available under Title VII, and the court has now found that the

retaliation claim survives the motion to dismiss. Accordingly, the court declines

to dismiss the request for injunctive relief at this stage. See, Rutherford v.

Regional Hyundai, LLC, 2011 WL 4496653, *3 (N.D. Okla. Sept. 27, 2011) (Title

VII authorizes the court to order reinstatement or front pay in lieu of reinstatement

even if those specific remedies are not requested in the complaint; where plaintiff

has stated a claim for retaliation under Title VII, it would be premature to prevent

plaintiff from seeking particular types of relief at the motions to dismiss stage).

5 The complaint does not allege which individual(s) made the decision to terminate plaintiff.

At this stage, plaintiff may not know who made that decision. Moreover, the complaint

identifies several individuals who could have been responsible for that decision. The complaint

will not be dismissed for failure to identify the specific individual(s) who terminated plaintiff’s

employment.

IV. Conclusion

After careful consideration, the motion to dismiss is GRANTED IN PART

and DENIED IN PART, as follows. Doc. no. 11.

The motion is GRANTED with respect to the discrete discrimination

claims alleged in count one (race discrimination), count two (national origin

discrimination) and count three (gender discrimination), as well as the hostile

work environment claim alleged in count five. Absent a successful amendment,

leave for which is not given in this order,° these claims are DISMISSED with

prejudice under Rule 12(b)(6), Fed. R. Civ. P.

The motion is DENIED with respect to the retaliation claim, a claim which

alleges that plaintiff was terminated in retaliation for his assertion that a negative

proficiency report was “prejudiced.” The motion is also DENIED to the extent

that it asks the court to dismiss the request for injunctive relief.

IT IS SO ORDERED this 23" day of August, 2019.

STEPHEN P. FRIOT . =

UNITED STATES DISTRICT JUDGE

19-0215p003 rev_.docx

6 Leave to amend has not been sought. Moreover, nothing in plaintiffs response brief suggests

he could successfully amend the dismissed claims to overcome all of the insufficiencies

identified in this order. In these circumstances, the court is not required to give leave to amend

sua sponte. That said, this order does not preclude plaintiff from seeking leave to amend if,

consistent with Rule 11, Fed. R. Civ. P., he believes he can overcome deficiencies identified in

this order with respect to some or all of the dismissed claims.

16