Stewart v. Secretary of the Air Force

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

BARBARA STEWART, )

)

Plaintiff, )

)

v. ) Case No. CIV-20-650-D

)

HONORABLE FRANK KENDALL,1 )

Secretary of the Air Force, )

)

Defendant. )

ORDER

Before the Court is Defendant’s Motion to Dismiss [Doc. No. 25] filed under Fed.

R. Civ. P. 12(b)(1) and (6). Plaintiff filed a response [Doc. No. 26], to which Defendant

replied [Doc. No. 27]. The matter is fully briefed and at issue.

BACKGROUND

Barbara Stewart was hired as a Child and Youth Program Assistant by Child

Development Center West in 2014. This action is filed against the Secretary of the Air

Force because the development center was located on Tinker Air Force Base in Oklahoma.

When she was hired, Plaintiff was pregnant; she did not inform her supervisors of her

pregnancy until a few months after her employment began. Plaintiff’s employment lasted

just over three years. In that period, Plaintiff alleges she suffered several negative and

adverse actions by Defendant because of her pregnancy and sex. Although the Amended

1 Pursuant to Fed. R. Civ. P. 25(d), Secretary Frank Kendall is substituted as a party because he is

Barbara Barrett’s successor as the United States Secretary of the Air Force.

Complaint is not a model of clarity, it appears Plaintiff was suspended and ultimately fired

after a co-worker reported her for some kind of violation. Plaintiff lists six claims against

Defendant: (1) pregnancy discrimination, (2) sex discrimination, (3) disability

discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., (4)

denial of FMLA benefits, (5) FMLA retaliation, and (6) Title VII retaliation.

STANDARD OF DECISION

“To survive a motion to dismiss [under Rule 12(b)(6)], 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 Atlantic Corp. v.

Twombly, 550 U.S. 544, 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.” Iqbal, 556 U.S. at 678. In assessing

plausibility, the Court first disregards conclusory allegations and “next consider[s] the

factual allegations in [the] complaint to determine if they plausibly suggest an entitlement

to relief.” Id. at 681. “[W]here the well-pleaded facts do not permit the court to infer more

than the possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’—

‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

“Motions to dismiss for lack of subject matter jurisdiction ‘generally take one of

two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject

matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter

jurisdiction is based.’” City of Albuquerque v. U.S. Dep’t of Interior, 379 F. 3d 901, 906

(10th Cir. 2004) (quoting Ruiz v. McDonnell, 299 F. 3d 1173, 1180 (10th Cir.

2002)); see Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). If the motion

challenges only the sufficiency of a plaintiff’s jurisdictional allegations, a district court

must confine itself to the complaint and accept the factual allegations as true. See Holt v.

United States, 46 F.3d 1000, 1002 (10th Cir. 1995); see also Peterson, 707 F.3d at 1206

(only “well-pleaded facts” are accepted). Where the motion challenges the facts on which

subject matter jurisdiction depends, however, the court “may not presume the truthfulness

of the complaint’s factual allegations” and “has wide discretion to allow affidavits, other

documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Holt,

46 F.3d at 1003; see Paper, Allied Indus., Chem. & Energy Workers Int’l Union v.

Continental Carbon Co., 428 F. 3d 1285, 1292 93 (10th Cir. 2005); Sizova v. Nat’l Inst. of

Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002); E.F.W., 264 F.3d at 1303. As

the party asserting federal jurisdiction, Plaintiff bears “the burden of alleging the facts

essential to show jurisdiction and supporting those facts with competent proof.” United

States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 797-98 (10th Cir.

2002); see Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010); Kokkonen v. Guardian Life

Ins. Co., 511 U.S. 375, 377 (1994).

Here, Defendant makes a facial attack on the sufficiency of the allegations contained

in the Amended Complaint, and thus, all well-pleaded factual allegations are accepted as

true. See Ruiz, 299 F.3d at 1180; Holt, 46 F.3d at 1002.

DISCUSSION

I. Plaintiff’s FMLA claims must be dismissed because they are barred by

Sovereign Immunity.

Plaintiff brings two claims under the Family and Medical Leave Act (FMLA): (1)

denial of benefits due under the FMLA and (2) retaliation in violation of the FMLA.

Defendant asserts that sovereign immunity bars Plaintiff’s FMLA claims, and Plaintiff

appears to concede that point. But, in attempt to circumvent the issue, she moved the Court

for leave to dismiss her FMLA claims voluntarily.

Under Fed. R. Civ. P. 41(a), plaintiffs are permitted to voluntarily dismiss actions.

But there is “no authority . . . to support the contention that Rule 41(a) applies to dismissal

of less than all claims in an action.” Gobbo Farms & Orchards v. Poole Chem. Co., 81

F.3d 122, 123 (10th Cir. 1996). Here, Plaintiff seeks to avoid the issue of sovereign

immunity by requesting an order dismissing her FMLA claims without prejudice. She does

not, however, seek dismissal of any of her other claims. “Hence, Rule 41(a) does not apply.

Instead, a plaintiff who wishes to dismiss some claims, but not others, should do so by

amending the complaint pursuant to Rule 15.” Royal Pac. Ltd. v. Faith Elec. Manufacture

Co., Ltd, 322 F. Supp. 3d 1178, 1183 (D.N.M. 2018) (quotations omitted). Therefore, the

Court will consider whether sovereign immunity bars Plaintiff’s FMLA claims.

It is “axiomatic that the United States may not be sued without its consent and that

the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463

U.S. 206, 212 (1983) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941); 14

Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure § 3654,

at 156-157 (1976)). “The party bringing suit against the United States bears the burden of

proving that sovereign immunity has been waived.” James v. United States, 970 F.2d 750,

753 (10th Cir. 1992).

Title II of the FMLA, 5 U.S.C. §§ 6381, et seq., governs federal civil-service

employees employed for more than twelve months, whereas Title I, 29 U.S.C. §§ 2601, et

seq., governs federal civil-service employees not covered by Title II. Although both Title

I and Title II employees are afforded the same substantive rights under the FMLA, only

Title I employees are granted a private right of action to enforce those substantive rights.

Schuman v. Perry, No. 16-CV-313-JED-FHM, 2017 WL 2951918, at *1 (N.D. Okla. July

10, 2017). “While it does not appear that the Tenth Circuit has addressed the issue, district

courts within this Circuit have determined that Title II employees may not maintain private

actions for alleged violations of the FMLA.” Id. (collecting cases).

Plaintiff worked at the child development center for over twelve months, and she

does not assert that her claims arise out of Title I. Further, Plaintiff appears to concede

sovereign immunity precludes her claims. Accordingly, the Court finds that her FMLA

claims should be dismissed for lack of jurisdiction.

II. Plaintiff failed to timely exhaust administrative remedies for certain

discrete incidents of discrimination.

As a federal employee, Plaintiff was required to initiate the administrative process

by contacting an Equal Employment Opportunity (EEO) counselor to attempt an informal

resolution within 45 days of either the allegedly discriminatory matter or the effective date

of a personnel action. See 29 C.F.R. § 1614.105(a). The process for achieving an informal

resolution of the allegedly discriminatory matter can last 90 days at most. See id. §

1614.105(d)–(f). At the end of that period, the EEO counselor must issue a notice informing

the individual of her right to file a formal administrative complaint. Id. Once the EEO

counselor issues that notice, the individual has 15 days to file the complaint. See id. §

1614.105(d); § 1614.106(b).

Plaintiff alleges she followed these requirements in initiating the administrative

process by contacting an EEO counselor regarding her allegations of discrimination. [Doc.

No. 24, Amend. Compl. at ¶ 7]. Plaintiff alleges she filed a complaint of discrimination on

or about November 22, 2017. Id. Accounting for the maximum period for which the pre-

complaint process could last, 90 days, and for which Plaintiff could file the formal

administrative complaint after receiving notice from the EEO officer, 15 days, the earliest

Plaintiff could have contacted the EEO counselor was August 9, 2017. Therefore, Plaintiff

timely exhausted her administrative remedies for any incident of discrimination occurring

within 45 days of that date, or June 25, 2017. Plaintiff, however, failed to timely exhaust

administrative remedies for all discrete incidents of discrimination that occurred before

June 25, 2017.

Where a plaintiff alleges that multiple discriminatory acts have occurred, “each

discrete incident of such treatment constitutes its own ‘unlawful employment practice’ for

which administrative remedies must be exhausted. Martinez v. Potter, 347 F.3d 1208, 1210

(10th Cir. 2003) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110–13

(2002)). “[D]iscrete discriminatory acts are not actionable if time barred, even when they

are related to acts alleged in timely filed charges.” Morgan, 536 U.S. at 113. Therefore,

Plaintiff may not base her employment discrimination claims on any alleged discriminatory

act for which she has not timely exhausted administrative remedies. Here, that means

discrete employment discrimination claims cannot be based on of the conduct she has

alleged that occurred before June 25, 2017.2

Plaintiff’s pregnancy discrimination claim relies on factual allegations relating to

her pregnancy in 2014; Plaintiff was pregnant when she started working for Defendant.

She alleges Defendant discriminated against her once Defendant found out she was

pregnant. The latest alleged discriminatory act by Defendant relating to Plaintiff’s

pregnancy occurred in 2015, well before June 25, 2017. Therefore, Plaintiff’s pregnancy

discrimination claim must be dismissed for failure to timely exhaust administrative

remedies.

III. Plaintiff’s sex discrimination claim must be dismissed because the Amended

Complaint lacks allegations giving the Court a basis to infer that Plaintiff

was discriminated against because of her sex.

Plaintiff is correct in pointing out that there is no heightened pleading standard for

employment discrimination claims. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510

(2002) (explaining that the McDonnell Douglas framework “is an evidentiary standard, not

a pleading requirement”). But the pleading standard set forth in Twombly and Iqbal still

requires a plaintiff to plead a plausible claim for relief. And in the absence of direct

2 Hostile work environment claims, on the other hand, work differently. “‘[A]s long as an act

contributing to a hostile work environment took place’ within the limitations period, ‘a court may

consider the complete history of acts comprising that hostile work environment.’” Aman v. Dillon

Companies, Inc., 645 F. App’x 719, 724 (10th Cir. 2016) (unpublished) (quoting Duncan v.

Manager, Dep’t of Safety, 397 F.3d 1300, 1308 (10th Cir. 2005)). The Court may thus consider

the complete history of acts contributing to Plaintiff’s hostile work environment claim.

evidence of discrimination, the only way for the Court to evaluate the plausibility of

Plaintiff’s employment discrimination claims is to “examine the first step of the McDonnell

Douglas framework: the elements [Plaintiff] would need to establish to prove” prima facie

cases for her pregnancy discrimination and sex discrimination claims. See Morman v.

Campbell Cnty. Mem’l Hosp., 632 F. App’x 927, 933 (10th Cir. 2015) (unpublished).

The Tenth Circuit has stated regarding employment discrimination claims that

“[w]hile the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in

her complaint, the elements of each alleged cause of action help to determine whether

Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192

(10th Cir. 2012); accord Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038,

1050 (10th Cir. 2020); see Jones v. Oklahoma City Pub. Sch., 617 F.3d 1273, 1278–79

(10th Cir. 2010) (approving continued application of burden-shifting framework

of McDonnell Douglas to age discrimination claims governed by a but-for causation

standard).

A plaintiff establishes a prima facie case of discrimination by showing that “(1) the

victim belongs to a class protected by Title VII, (2) the victim suffered an adverse

employment action, and (3) the challenged action took place under circumstances giving

rise to an inference of discrimination.” Throupe v. Univ. of Denver, 988 F.3d 1243, 1252

(10th Cir. 2021) (quoting EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007)).

“For the third element, a plaintiff can raise an inference of discrimination by showing

differential treatment. For example, it is sufficient to show that the employer treated the

plaintiff differently from similarly situated employees who are not part of the plaintiff’s

protected class.” Id.; see Jones, 617 F.3d at 1279 (substituting for third element, plaintiff

was qualified for the position and “was treated less favorably than others not in the

protected class”).

Further, to prove a hostile work environment claim, “‘a plaintiff must show (1) that

she was discriminated against because of her sex; and (2) that the discrimination was

sufficiently severe or pervasive such that it altered the terms or conditions of her

employment and created an abusive working environment.’” Pinkerton v. Colorado Dept.

of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009).

The allegations in the Amended Complaint do not give rise to a reasonable inference

that Plaintiff was discriminated against because of her sex. Plaintiff worked for Defendant

for over three years before she was terminated in 2017. She alleges she suffered numerous

negative actions by her supervisors throughout her employment, including disciplining

Plaintiff for behavior condoned for other employees, gossiping about Plaintiff to other

employees, assigning one of Plaintiff’s co-workers to monitor her conduct, encouraging

other employees to write complaints about Plaintiff, denying Plaintiff work breaks, and

denying Plaintiff appointment as a regular employee.

To be sure, these allegations do tend to suggest Plaintiff was treated differently than

other employees. But they do not give the Court any basis to infer that Plaintiff was treated

differently because of her sex. “Title VII does not make unexplained differences in

treatment per se illegal nor does it make inconsistent or irrational employment practices

illegal. It prohibits only intentional discrimination based upon an employee’s protected

class characteristics.” E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir. 1992)

(emphasis in original).

Therefore, Plaintiff’s sex discrimination claim must be dismissed. Further, since the

Amended Complaint contains no allegation giving rise to a reasonable inference that

Plaintiff was discriminated against because of her sex, any hostile work environment claim

based on sex discrimination must also fail.

IV. Plaintiff’s sexual harassment claim, to the extent she asserts one, must be

dismissed because the Amended Complaint lacks allegations giving the

Court a basis to infer that Plaintiff was forced to endure a severe or

pervasive working environment.

Sexual harassment is actionable under Title VII only if it is “so ‘severe or pervasive’

as to ‘alter the conditions of [the victim’s] employment and create an abusive working

environment.’” Faragher v. Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor

Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)); see also Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (Title VII “forbids only behavior so

objectively offensive as to alter the conditions of the victim’s employment.”).

Workplace conduct is not to be measured in isolation. Instead, “whether an

environment is sufficiently hostile or abusive” must be judged “by ‘looking at all the

circumstances,’ including the ‘frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.’” Faragher, 525

U.S. at 787–88.

In support of her sexual harassment claim, Plaintiff alleges a male co-worker told

children at the development center to point at Plaintiff and say, “Sexy, gorgeous, beautiful,

pretty.” [Doc. No. 24, Am. Compl. at ¶ 88]. The next day, Plaintiff contends the same co-

worker “made a comment about the jeans Plaintiff was wearing.” Id. at ¶ 90. Plaintiff

turned in a written report of these statements to her supervisor, and her supervisor told

Plaintiff another employee previously submitted a similar report about the same male co-

worker. Plaintiff claims her report and concerns were dismissed. Plaintiff further alleges

that this male co-worker “rubbed Plaintiff’s hand with his own while the two were

cleaning” a classroom. Id. at ¶ 95. Finally, Plaintiff claims this male employee harassed

her by watching her through her classroom window. Plaintiff alleges Defendant’s failure

to address her complaints interfered with her ability to perform her job. These incidents all

occurred within one month.

Plaintiff’s allegations do not show the kind of severe or pervasive work environment

that would give rise to a plausible sexual harassment claim. See Morris v. City of Colorado

Springs, 666 F.3d 654, 665–666 (10th Cir. 2012) (concluding that allegations that a surgeon

hit the plaintiff by twice flicking her head with his finger and threw bloody heart tissue at

her that struck her leg while she was not wearing reinforced protective gear in operating

room not sufficiently severe to state a plausible sexual harassment claim); Sprague v. Thorn

Americas, Inc., 129 F.3d 1355, 1365 (10th Cir. 1997) (concluding that “five separate

incidents of allegedly sexually-oriented, offensive comments either directed to [the

plaintiff] or made in her presence in a sixteen month period” were not sufficiently pervasive

to support a hostile work environment claim); Earles v. Cleveland, 418 F. Supp. 3d 879,

899–900 (W.D. Okla. 2019), aff'd, 825 F. App'x 544 (10th Cir. 2020) (finding allegations

that supervisor forced plaintiff to carry her own luggage from room to a hotel lobby, that

supervisor said plaintiff “was incompetent and worthless” and did not have a good work

ethic, and that supervisor wrongfully blamed plaintiff for his mistake were insufficient to

state a plausible sexual harassment claim).

At most, Plaintiff has alleged that there were a few incidents of behavior, all

occurring within a month, that she found to be offensive, and she makes only a general

allegation that Defendant’s failure to address her concerns interfered with her ability to

perform her job. Plaintiff’s sexual harassment claim, therefore, must be dismissed.

V. Plaintiff’s disability discrimination claim must be dismissed because

pregnancy, by itself, does not qualify as a disability under the meaning of

the Rehabilitation Act.

To make out a prima facie case of disability discrimination under the Rehabilitation

Act a Plaintiff must show: (1) she is a disabled person within the meaning of the Act, (2)

she is otherwise qualified for the job, and (3) she was discriminated against because of her

disability. Vidacak v. Potter, 81 F. App’x 721, 723 (10th Cir. 2003) (unpublished). The

Rehabilitation Act incorporates the standards of the Americans with Disabilities Act

(ADA) of 1990. See 29 U.S.C. § 791(f). Therefore, “decisions under both Acts apply

interchangeably to” the analysis of Plaintiff’s claim. Vidacak, 81 F. App’x 721 at 723.

Defendant disputes that Plaintiff was an individual with a disability. Plaintiff alleges

that her pregnancy was a disability under the ADA because it constituted an impairment

that limited her in one or more major life activities. However, pregnancy, by itself, is not a

disability under the ADA.3 “To constitute a disability under the ADAAA, plaintiff must

show she was pregnant and had a related mental or physical impairment.” Shaw v. T-

Mobile, No. 18-2513-DDC-GEB, 2020 WL 5231309, at *12 (D. Kan. Sept. 2, 2020) (citing

LaCount v. S. Lewis SH OPCO, LCC, No. 16-CV-0545-CVE-TLW, 2017 WL 1826696, at

*3 (N.D. Okla. May 5, 2017); see also Richards v. City of Topeka, 173 F.3d 1247, 1250

n.2 (10th Cir. 1999) (noting “that numerous district courts have concluded that a normal

pregnancy without complications is not a disability under 42 U.S.C. § 12102(2)(A)”);

Andrews v. Eaton Metal Prod., LLC, No. 20-CV-00176-PAB-NYW, 2020 WL 5821611,

at *7 (D. Colo. Sept. 8, 2020), report and recommendation adopted, No. 20-CV-00176-

PAB-NYW, 2020 WL 5815059 (D. Colo. Sept. 30, 2020) (collecting cases). Pregnancy

was the only disability Plaintiff alleged in the Amended Complaint. Her disability

discrimination claim, therefore, must be dismissed.

VI. Plaintiff asserts a plausible retaliation claim.

To establish a prima facie case of retaliation, a plaintiff must show that (1) she

engaged in protected employee activity; (2) she was subjected to an adverse action by an

employer either after or contemporaneous with the protected activity; and (3) there was a

causal connection between the employee’s activity and the employer’s adverse action.

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1234 (10th Cir. 2000).

3 Although Plaintiff’s child was diagnosed with a kidney disease resulting in intensive medical

treatment, Plaintiff does not allege that she experienced complications from the pregnancy.

Further, it does not appear that Plaintiff asserts an associational-disability discrimination claim.

Plaintiff’s allegations are clearly sufficient to meet the first two elements. A

complaint of sexual harassment “unquestionably constitutes protected activity.” Fye v.

Oklahoma Corp. Comm’n, 516 F.3d 1217, 1228 (10th Cir. 2008). Further, “any reasonable

employee would have found termination materially adverse.” Metzler v. Fed. Home Loan

Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006).

Defendant mainly disputes the third element: whether there was a causal connection

between Plaintiff’s complaints of harassment and her suspension and subsequent

termination. The Tenth Circuit has “repeatedly recognized temporal proximity between

protected conduct and termination as relevant evidence of a causal connection sufficient to

‘justify an inference of retaliatory motive.’” Id. (quoting Haynes v. Level 3 Commc’ns,

LLC, 456 F.3d 1215, 1228 (10th Cir. 2006)). Plaintiff was fired just over a month after she

submitted two reports of sexual harassment by a co-worker. This close temporal proximity,

at this stage of litigation, is sufficient for the court to draw a reasonable inference that there

was a causal connection between Plaintiff’s complaints and her termination. She has thus

stated a plausible retaliation claim.

CONCLUSION

For these reasons, the Court finds Plaintiff’s retaliation claim is the sole plausible

claim for relief asserted in the Amended Complaint. Therefore, Defendant’s Motion to

Dismiss [Doc. No. 25] is GRANTED IN PART and DENIED IN PART.

IT IS THEREFORE ORDERED that Plaintiff’s FMLA claims are dismissed for

lack of subject matter jurisdiction.

IT IS FURTHER ORDERED that Plaintiff's pregnancy discrimination, sex

discrimination, hostile work environment, sexual harassment, and disability discrimination

claims are DISMISSED without prejudice.

IT IS SO ORDERED this 5" day of January, 2022.

\ ty Q QP:

TIMOTHY D. DeGIUSTI

Chief United States District Judge

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