Sherman v. Kendall

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

JERMELL SHERMAN, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-21-484-F

)

FRANK KENDALL, SECRETARY, )

U.S. DEPARTMENT OF THE AIR )

FORCE, in his official capacity, )

)

Defendant. )

ORDER

Plaintiff Jermell Sherman (Sherman) was formerly employed as a Logistics

Management Specialist at Tinker Air Force Base in Oklahoma City, Oklahoma. He

claims he was constructively discharged from his employment. He commenced this

action alleging employment discrimination claims under Title VII of the Civil Rights

Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq., and the Rehabilitation Act of

1973 (Rehabilitation Act), 29 U.S.C. § 701, et seq. Upon motion of defendant Frank

Kendall (Kendall), Secretary of the United States Department of the Air Force, the

court granted dismissal of the Title VII and Rehabilitation Act claims under Rule

12(b)(6), Fed. R. Civ. P., for failure to state plausible claims. The court, however,

granted Sherman leave to amend his complaint with respect to those claims.1 In

accordance with that leave, Sherman filed an amended complaint. Kendall again

seeks to dismiss Sherman’s Title VII and Rehabilitation Act claims, arguing that the

1 In its order, the court dismissed with prejudice under Rule 12(b)(6), Fed. R. Civ. P., any

discrimination claim alleged under 42 U.S.C. § 1981 as foreclosed by precedent and dismissed

without prejudice under Rule 12(b)(1), Fed. R. Civ. P., the state law claim of intentional infliction

of emotional distress for lack of subject matter jurisdiction.

amended complaint fails to state plausible Title VII and Rehabilitation Act claims.

See, doc. no. 18. Kendall also moves for dismissal under Rule 12(b)(6) on the

ground that Sherman failed to exhaust his administrative remedies for his claims.

Id. In the alternative, Kendall seeks summary judgment under Rule 56(a), Fed. R.

Civ. P., on the issue of failure to exhaust administrative remedies. Id. Sherman

opposes dismissal, asserting his amended complaint states plausible Title VII and

Rehabilitation Act claims and he timely and properly exhausted his administrative

remedies. See, doc. no. 21. He also opposes summary judgment. Id. Kendall has

replied. See, doc. no. 22. Upon due consideration of the parties’ submissions and

applicable law, the court makes its determination.

I.

Standards

“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) (citation and

internal quotation marks omitted). “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. “The plausibility standard is not

akin to a probability requirement, but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (internal quotation marks omitted).

In analyzing a Rule 12(b)(6) motion, the court “disregard[s] conclusory

statements and [looks] only to whether the remaining, factual allegations plausibly

suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191

(10th Cir. 2012).

Under Rule 56(a), summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Rule 56, Fed. R. Civ. P. The court “view[s]

all of the facts in the light most favorable to the non-movant and draw[s] all

reasonable inferences from the record in favor of the non-moving party.” Lounds v.

Lincare, Inc., 812 F.3d 1208, 1220 (10th Cir. 2015) (citation and quotation marks

omitted). However, the non-movant “must still identify sufficient evidence

requiring submission to the jury to survive summary judgment.” Id. (citation and

quotation marks omitted).

II.

Title VII Claims

Sherman is African American. He alleges that he was subjected to

“harassment and a hostile work environment” based upon his race, which “ultimately

[led] to his compulsory exit from the workplace.” Doc. no. 15, ECF p. 5.

A plaintiff proves a violation of Title VII either by direct evidence of

discrimination or by following the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See, Khalik, 671 F.3d at 1192. Under

McDonnell Douglas, a three-step analysis requires the plaintiff to first prove a prima

facie case of discrimination. To avoid dismissal, Sherman is not required to

specifically allege all the elements of a prima facie case of discrimination. See,

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). Nevertheless, “the

elements of each alleged cause of action help to determine whether [p]laintiff has set

forth a plausible claim.” Khalik, 671 F.3d at 1192. Thus, in pleading a Title VII

claim, Sherman need not set forth a prima facie case of discrimination that he would

need to prove in court, but Sherman must allege facts that make the Title VII claim

at least plausible. See, Morman v. Campbell County Memorial Hospital, 632 Fed.

Appx. 927, 933 (10th Cir. 2015) (unpublished).

To adequately plead that a racially hostile work environment existed, a

plaintiff must allege that: (1) he is a member of a protected group; (2) he was

subjected to unwelcome harassment; (3) the harassment was based on race; and (4)

the harassment was sufficiently severe or pervasive that it “‘“altered a term,

condition, or privilege of the plaintiff’s employment and created an abusive working

environment.”’” Lounds, 812 F.3d at 1222 (10th Cir. 2015) (quoting Harsco Corp.

v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007) (quoting Dick v. Phone Directories

Co., 397 F.3d 1256, 1262-63 (10th Cir. 2005)).

Upon review, the court again concludes that Sherman has failed to allege a

plausible race-based hostile work environment claim under Title VII. “Hostile work

environment ‘harassment must be racial or stem from racial animus.’” Hernandez v.

Valley View Hosp. Ass’n, 684 F.3d 950, 960 (10th Cir. 2012) (quoting Tademy v.

Union Pacific Corp., 614 F.3d 1132, 1139 (10th Cir. 2008)). Sherman alleges that

he was subjected to unwelcome harassment by his trainer while participating in a

three-year leadership program. The trainer was white. The amended complaint,

however, is devoid of any allegations of racially offensive comments, insults, or

jokes directed at Sherman or made to other co-workers by the trainer. It is also

devoid of any allegations enabling the court to reasonably infer that the trainer’s

alleged actions toward Sherman were racially motivated. Further, Sherman must

allege facts to show harassment “sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.”

Sandoval v. City of Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004) (citation and

quotation marks omitted). The facts alleged in the amended complaint, as discussed

below, fall short of making a showing of “severe or pervasive” harassment. The

court therefore concludes that Sherman fails to allege a plausible hostile work

environment claim based upon race.

Sherman also alleges a constructive discharge claim based on a race-based

hostile work environment. To state a constructive discharge claim on that basis,

Sherman “must allege facts sufficient to show both that a hostile work environment

existed and that this environment was ‘so intolerable that a reasonable person would

have felt compelled to resign.’” Brown v. LaFerry’s LP Gas Co., Inc., 708 Fed

Appx. 518, 523 (10th Cir. 2017) (quoting Penn. State Police v. Suders, 542 U.S. 129,

146-47 (2004)). Because Sherman fails to allege facts sufficient to establish a hostile

work environment based upon race, the court concludes that he necessarily fails to

state a plausible constructive discharge claim under Title VII. Id.

In his briefing, Sherman suggests that he sufficiently pleads a disparate

treatment claim under Title VII. To prove a prima facie case of disparate treatment

based on race, Sherman must allege: (1) he is a member of a protected class, (2) he

suffered an adverse employment action, (3) he qualified for the position at issue, and

(4) he was treated less favorably than others not in the protected class. Khalik, 671

F.3d at 1192. Sherman alleges facts to show he is a member of a protected class and

qualified for his position. Sherman, however, fails to allege facts to reasonably

support an inference of an adverse employment action and fails to allege facts to

reasonably support an inference that he was treated less favorably than others not in

the protected class. “An ‘[a]dverse employment action’ for purposes of a [Title VII]

discrimination claim is limited ‘to adverse actions that affect employment or alter

the conditions of the workplace.’” Lucas v. Office of Colorado State Public

Defender, 705 Fed. Appx. 700, 704 (10th Cir. 2017) (quoting Piercy v. Maketa, 480

F.3d 1192, 1203 (10th Cir. 2007) (quoting Burlington N. & Santa Fe Ry. v. White,

548 U.S. 53, 62 (2006)). These actions involve 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.” Id.

As discussed, Sherman fails to allege a plausible constructive discharge. And

Sherman fails to allege any other facts in the amended complaint which can

reasonably be inferred to constitute an adverse employment action. Further, there

are no allegations of similarly situated non-African American employees who were

treated differently. The court finds that Sherman fails to allege a plausible Title VII

disparate treatment claim.

In sum, the court concludes that dismissal of Sherman’s Title VII claims

pursuant to Rule 12(b)(6) is appropriate.

III.

Rehabilitation Act Claims

Sherman also alleges his trainer harassed him and he was subjected to a hostile

work environment because of his disability, which ultimately led to his constructive

discharge.

A hostile work environment claim under the Rehabilitation Act requires a

plaintiff to show that he is a “‘qualified individual with a disability.’” Clancy v.

Miller, 837 Fed. Appx. 630, 635 (10th Cir. 2020) (quoting 29 U.S.C. § 794(a)), cert.

denied sub nom., Clancy v. Austin, 121 S.Ct. 504 (2021). “When the claim is for

discrimination based on an actual disability, the plaintiff must show a physical or

mental impairment that substantially limits one or more major life activities.” Id.

(citations and quotation marks omitted). “Major life activities include, for example,

brain function, sleeping, reading, concentrating, thinking, communicating, and

working.” Id. (citation and quotation marks omitted). Although acknowledging the

quoted language from Clancy, Kendall does not specifically challenge whether

Sherman advances sufficient factual allegations in the amended complaint to

reasonably support an inference that he has a mental impairment that substantially

limits one or more major life activities. Instead, Kendall addresses the issue in his

reply. The court finds the issue waived. See, Reedy v. Werholtz, 660 F.3d 1270,

1274 (10th Cir. 2011) (“The general rule in this circuit is that a party waives issues

and arguments raised for the first time in a reply brief.”) (citation, internal quotation

marks, and brackets omitted).

Kendall argues that Sherman fails to plead a disability hostile work

environment claim because he fails to allege facts sufficient to show disability-based

discriminatory animus. According to Kendall, Sherman does not allege that his

trainer “disclosed his actual disability to coworkers or that she made any specific

derogatory remarks directed at him which referenced his disability or leave usage.”

Doc. no. 18, ECF p. 17. Rather, he only alleges that his trainer “asked him about his

leave usage [a month of unpaid leave] and disclosed to his coworkers that [he] took

medical leave.” Id. Further, Kendall argues that Sherman fails to advance factual

allegations sufficient to establish severe or pervasive harassment. Id. at ECF pp. 14-

15.

A plaintiff claiming a disability-based hostile work environment “must show

that a rational jury could find that the workplace [was] permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.” Williams v. FedEx Corp. Servs., 849 F.3d 889, 897 (10th

Cir. 2017) (citation and quotation marks omitted). “General harassment alone is not

actionable.” Id. (citation omitted). In assessing whether a plaintiff has made the

requisite showing, the court considers “‘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.’” Id. (quoting Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)).

In the amended complaint, Sherman alleges that he battled depression and

anxiety and took a month of unpaid leave for the purpose of seeking extensive

treatment and mental health recovery. He alleges that upon his return from leave,

he was subjected to a hostile work environment based on his disability because his

trainer

 continuously micromanaged him,

 badgered him for six months about how he was able to take unpaid

leave and whether he had outside employment and persisted in her

inquiries to him and other employees, despite being repeatedly told he

did not have outside employment,

 shared the fact that he took a month of medical leave with his peers,

 assigned him, during his second year of training, a futile task of

researching a weapons system, knowing that it would be impossible to

complete, and she forced him to brief the assignment in front of his

training group, humiliating and embarrassing him in front of his team

members,

 assigned him, during his third year of training, the task of researching

a secret weapons system, knowing he did not have the clearance to do

so, and halfway through the assignment, she completely changed the

assignment and sent him on a chase for information that did not exist,

and

 made him feel like he would face certain discipline for exercising his

rights to take medical leave.

Further, he alleges that because of his trainer’s actions and inappropriate disclosure

of his personal information, his peers ostracized him and treated him differently.

Taken together and viewing the allegations in his favor, the court cannot

reasonably infer that Sherman was subjected to hostile work environment based

upon his disability. While the allegations show Sherman faced adversity and

mistreatment in the workplace, the court cannot say Sherman’s workplace

atmosphere was “permeated with discriminatory intimidation, ridicule, and insult,”

Williams, 849 F.3d at 897 (citation and quotation marks omitted). There are no

allegations that the trainer knew or perceived that Sherman battled depression or

anxiety. Although she shared with his peers that he was on medical leave for a

month, there are no allegations that she informed his peers of his mental health

conditions. There are no allegations to reasonably support an inference that the

trainer engaged in the alleged behavior and conduct because of Sherman’s alleged

disability. In any event, the court cannot say the alleged incidents, viewed together

and objectively, are sufficient to be deemed “severe.” Morris v. City of Colorado

Springs, 666 F.3d 654, 666 (10th Cir. 2012). Moreover, they do not constitute the

“‘steady barrage’ of discriminatory conduct necessary to establish pervasiveness.”

See, Throupe v. University of Denver, 988 F.3d 1243, 1255 (10th Cir. 2021) (citing

Morris, 666 F.3d at 666). Therefore, the court concludes that Sherman’s allegations

fail to state a plausible disability-based hostile work environment claim.

Sherman also alleges a constructive discharge claim based on a

disability-based hostile work environment. To state a constructive discharge claim

on such basis, Sherman “must allege facts sufficient to show both that a hostile work

environment existed and that this environment was ‘so intolerable that a reasonable

person would have felt compelled to resign.’” Brown, 708 Fed Appx. at 523

(quoting Penn. State Police, 542 U.S. at 146-47). Because Sherman fails to allege

facts sufficient to establish a hostile work environment based upon disability, the

court concludes that he necessarily fails to state a plausible constructive discharge

claim under the Rehabilitation Act. Id. In any event, the court concludes that

Sherman fails to state a plausible constructive discharge claim because the facts

alleged do not show conditions that were objectively unbearable. See, Brown v.

Austin, 13 F.4th 1079, 1093 (10th Cir. 2021).

In his briefing, Sherman argues that his amended complaint meets the

standard for a plausible claim of discrimination based on disability. To establish a

disparate treatment claim under the Rehabilitation Act, Sherman must allege that he

suffered an adverse employment action because of his disability. Brown, 13 F.4th at

1092. An adverse employment action is one that causes a significant change in

employment status or benefits. Id. As discussed, Sherman fails to allege a plausible

constructive discharge. And Sherman fails to allege any other facts for which the

court can reasonably infer he suffered an adverse employment action. Therefore,

the court concludes that Sherman fails to allege a plausible disparate treatment claim

under the Rehabilitation Act.

In sum, the court finds that dismissal of Sherman’s Rehabilitation Act claims

pursuant to Rule 12(b)(6) is appropriate.

IV.

In his briefing, Sherman requests leave to amend his amended complaint. See,

doc. no. 21, ECF p. 5 (“In the alternative, Plaintiff should be granted leave to amend

his Complaint to more specifically plead his allegations.”). Courts are supposed to

give leave to amend “freely . . . when justice so requires.” Rule 15, Fed. R. Civ. P.

However, courts may deny leave to amend upon “‘a showing of undue delay, undue

prejudice to the opposing party, bad faith or dilatory motive, failure to cure

deficiencies by amendments previously allowed, or futility of amendment.’”

Warnick v. Cooley, 895 F.3d 746, 755 (10th Cir. 2018) (quoting Frank v. U.S. West,

Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)). In addition, courts may deny leave where

a party’s request for leave to amend does not rise to the level of a motion for leave

to amend. See, Calderon v. Kansas Dept. of Social and Rehabilitation Services, 181

F.3d 1180, 1187 (10th Cir. 1999).

The court concludes that leave to amend should be denied. The court

previously granted Sherman leave to amend to state plausible Title VII and

Rehabilitation Act claims and Sherman failed to cure the deficiencies. In addition,

the court concludes that Sherman’s single sentence request without a statement of

the grounds for an additional amendment does not rise to the level of a motion for

leave to amend. See, Calderon, 181 F.3d at 1187 (10 Cir. 1999).

V.

Given the court’s ruling that Sherman fails to state plausible Title VII and

Rehabilitation Act claims and dismissal under Rule 12(b)(6) is appropriate, the court

need not address Kendall’s failure-to-exhaust administrative remedies argument in

support of dismissal under Rule 12(b)(6), or alternatively, in support of summary

judgment under Rule 56. The court will deny as moot the Rule 12(b)(6) motion

based upon a failure to exhaust administrative remedies. The court will also deny as

moot the alternative motion for summary judgment

VI.

Based upon the foregoing, Secretary Kendall’s Motion to Dismiss (doc. no.

18) is GRANTED to the extent it seeks to dismiss plaintiff Jermell Sherman’s Title

VII and Rehabilitation Act claims pursuant to Rule 12(b)(6), Fed. R. Civ. P., based

upon a failure to state plausible claims and DENIED as MOOT to the extent it seeks

to dismiss the Title VII and Rehabilitation Act claims based upon a failure to exhaust

administrative remedies. The alternative Motion for Summary Judgment (doc. no.

18) is DENIED as MOOT.

The Title VII and Rehabilitation Act claims are dismissed with prejudice

pursuant to Rule 12(b)(6), Fed. R. Civ. P. Judgment will be entered separately.

IT IS SO ORDERED this 12™ day of April, 2022.

STEPHEN P. FRIOT

UNITED STATES DISTRICT JUDGE

21-0484p009.docx

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