“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.”
How later courts described this case
- “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.”
- “[G]eneral assertions of discrimination and retaliation, without any details of the events leading up to her termination, are insufficient to survive a motion to dismiss. While specific facts are not necessary, some facts are.” (alteration, citation, and internal quotation marks omitted)
- upholding Rule 12(b)(6) dismissal of discrimination claims and noting that “lacking any facts, we cannot assume that these physicians were similarly situated simply because Plaintiff has asserted that they were so”
- affirming dismissal pursuant to Rule 12(b)(6) when the complaint included “no allegations of similarly situated employees who were treated differently”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GREGORY BROWN, )
)
Plaintiff, )
)
v. ) Case No. CIV-21-763-G
)
DENIS MCDONOUGH, )
Secretary of Veterans Affairs, )
)
Defendant. )
ORDER
Now before the Court is a Motion to Dismiss (Doc. No. 4) filed by Defendant Denis
McDonough, the Secretary of Veterans Affairs. Plaintiff Gregory Brown has responded
(Doc. No. 5), and Defendant has filed a Reply (Doc. No. 6).1
I. Plaintiff’s Allegations
Plaintiff’s Complaint (Doc. No. 1) raises several federal discrimination claims based
upon his employment with the U.S. Department of Veterans Affairs (“DVA”). As relief,
Plaintiff seeks monetary damages, as well as attorney’s fees and costs. See id. at 7.
Plaintiff alleges as follows:
Plaintiff is a Black male who was born in 1968. Id. ¶ 10. Plaintiff began working
at the Oklahoma City Veterans Medical Center (“VAMC”) in 1997. Id. ¶ 9. In 2015,
1 The parties also have submitted additional documents as exhibits to their filings, which
the Court has reviewed. See Def.’s Mot. Exs. 1-4 (Doc. Nos. 4-1, -2, -3, -4); Pl.’s Resp.
Ex. 1 (Doc. No. 5-1). The Court need not decide whether these documents can properly
be considered or noticed for determination of Defendant’s Motion, because their contents
would not affect any of the findings and conclusions set forth herein.
Plaintiff began working as a sergeant with the DVA Police Department at VAMC. Id. ¶¶
4, 9, 13-14. Plaintiff’s supervisors rated his performance and production highly, and he
“did not experience problems in work performance.” Id. ¶ 11.
In December of 2018, David Castoe, the Deputy Chief of Police, assigned another
sergeant to Plaintiff’s watch. Deputy Chief Castoe assigned the other sergeant to oversee
Plaintiff and to serve as Watch Supervisor, although Plaintiff was the more senior sergeant.
Id. ¶ 15.
On January 28, 2019, Deputy Chief Castoe failed to select Plaintiff for either of two
unannounced Lieutenant/Police Officer positions and instead promoted two white officers
to those positions. Id. ¶ 16.
On March 3, 2019, Deputy Chief Castoe assigned Plaintiff to the night shift effective
March 17, 2019. Id. ¶ 17. Also in March of 2019, Deputy Chief Castoe permitted another
sergeant to “verbally counsel” Plaintiff and “speak to [Plaintiff] in a derogatory manner
even though Plaintiff was more senior in time and grade” than the other sergeant. Id. ¶ 15.
On July 5, 2019, Plaintiff filed a formal EEO complaint against Deputy Chief
Castoe. Id. ¶ 18.
On December 3, 2019, Deputy Chief Castoe required Plaintiff to have union
representation at a meeting “even though . . . Plaintiff did not have time to contact the
union.” Id. ¶ 19 (alleging that Deputy Chief Castoe “obtained union representation for
Plaintiff” in violation of “the Notice of Meeting Provision”).
On January 22, 2020, DVA Assistant Director Jeff Bennett issued Plaintiff a five-
day suspension. Id. ¶ 20.
On February 13, 2020, and on March 20, 2020, Plaintiff amended his administrative
complaint. Id. ¶ 6. Plaintiff alleged that he was subjected to a hostile work environment
“based on sex (male), race (black), color (black), age (YOB 1968) and reprisal.” Id.
On May 17, 2020, Deputy Chief Castoe issued Plaintiff a three-day suspension and
required Plaintiff to take 6 hours of annual leave. Id. ¶¶ 21-22.
On May 23, 2020, Deputy Chief Castoe proposed removal of Plaintiff from his
position “based on [a] single allegation[] of failure to follow policy.” Id. ¶ 23. “Plaintiff
was removed from his position on March 15, 2021.” Id.
On May 6, 2021, DVA issued its Final Agency Decision regarding Plaintiff’s
administrative complaint. Id. ¶ 7.
II. Applicable Standard
Citing Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendant seeks
dismissal of Plaintiff’s claims for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). 2 In analyzing a motion to dismiss under Rule 12(b)(6),
the court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s]
them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys.,
Inc., 706 F.3d 1231, 1235 (10th Cir. 2013).
2 Defendant also invokes Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff’s
alleged failure to fully exhaust certain claims deprives this Court of subject-matter
jurisdiction over those claims. “[T]he Tenth Circuit has specifically rejected th[is]
contention,” however. Harp v. Garland, No. CIV-19-1138-G, 2022 WL 989064, at *4 n.3
(W.D. Okla. Mar. 31, 2022) (citing Cirocco v. McMahon, 768 F. App’x 854, 857 n.2 (10th
Cir. 2019)); see also Hickey v. Brennan, 969 F.3d 1113, 1118 (10th Cir. 2020); Cummings
v. U.S. Postal Serv., No. 20-7066, 2021 WL 4592271, at *4 (10th Cir. Oct. 6, 2021).
“[T]o withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough
allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.’”
Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). While the Rule 12(b)(6) standard does not require
that a plaintiff establish a prima facie case in the pleading, the court discusses the essential
elements of each alleged cause of action to better “determine whether [the plaintiff] has set
forth a plausible claim.” Id. at 1192. A complaint fails to state a claim on which relief
may be granted when it lacks factual allegations sufficient “to raise a right to relief above
the speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S. at 555 (footnote and citation omitted). Bare
legal conclusions in a complaint are not entitled to the assumption of truth; “they must be
supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009).
III. Defendant’s Motion to Dismiss
A. Plaintiff’s Age Discrimination Claim
Plaintiff’s first claim “incorporates by reference . . . all facts and every allegation”
as summarized above and asserts, without further explanation, that these “acts and
omissions of the Defendant” constituted unlawful discrimination on the basis of age.
Compl. ¶¶ 25-26 (citing the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 633a).3
Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). Generally, to establish a prima facie case of age
discrimination, a plaintiff must prove that “1) she is a member of the class protected by the
ADEA; 2) she suffered an adverse employment action; 3) she was qualified for the position
at issue; and 4) she was treated less favorably than others not in the protected class.” Jones
v. Okla. City Pub. Schs., 617 F.3d 1273, 1279 (2010) (alteration and internal quotation
marks omitted); see also Hare v. Denver Merch. Mart, Inc., 255 F. App’x 298, 301-02
(10th Cir. 2007).
Additionally, ADEA claims require that a plaintiff prove, by either direct or
circumstantial evidence, that age was the “but-for” cause of the adverse employment
action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). The Tenth Circuit has
clarified that “the [‘but-for’] causal standard does not require plaintiffs to show that age
was the sole motivating factor in the employment decision.” Jones, 617 F.3d at 1277
3 This is the approach Plaintiff takes with each of his legal claims. Because Plaintiff is not
proceeding pro se, he is not entitled to a liberal construction of his Complaint. The Court,
however, is mindful of its obligation under Rule 12(b)(6) to view the factual allegations in
the light most favorable to Plaintiff and of the Supreme Court’s instruction “that the
pleading standard Rule 8 announces does not require detailed factual allegations,” although
“it demands more than an unadorned, the-defendant-unlawfully-harmed me accusation.”
Iqbal, 556 U.S. at 678 (internal quotation marks omitted) (citing Fed. R. Civ. P. 8(a)(2)).
(alterations and internal quotation marks omitted). Rather, “an employer may be held liable
under the ADEA if other factors contributed to its taking an adverse action, as long as age
was the factor that made a difference.” Id. (internal quotation marks omitted). At the
motion-to-dismiss stage, this means that Plaintiff must allege facts that support plausible
“but-for” causation, connecting the alleged discriminatory action to an adverse
employment action. See Branum v. Orscheln Farm & Home, LLC, No. CV-18-281, 2020
WL 1917334, at *3 (E.D. Okla. Apr. 20, 2020).
Plaintiff’s sole age-related allegation is the fact that he was born in 1968. See
Compl. ¶ 10. The Complaint thus provides “nothing other than sheer speculation to link”
any adverse employment action “to a discriminatory . . . motive.” Khalik, 671 F.3d at 1194.
There are no allegations of age-related discriminatory comments, overt discriminatory
conduct, or preferential treatment toward any younger similarly situated employee.
Therefore, even assuming the claim is otherwise adequately pleaded, Plaintiff cannot
plausibly establish that he “was treated less favorably” “because of” his age or that “age
was the factor that made a difference” in the treatment of Plaintiff. Jones, 617 F.3d at
1277-79 (internal quotation marks omitted); see Gupta v. Okla. City Pub. Schs., No. CIV-
18-317-G, 2019 WL 896295, at *3-4 (W.D. Okla. Feb. 22, 2019). Plaintiff’s age
discrimination claim must be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6).
B. Plaintiff’s Race and Color Discrimination Claim
Plaintiff next asserts that the actions alleged “constitute unlawful discrimination
against [him] based on race (black) and color (black).” Compl. ¶¶ 31-32. Although
Plaintiff does not cite a relevant statute, the parties characterize this claim as one of
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et
seq., and so the Court follows suit. See Def.’s Mot. at 18-21; Pl.’s Resp. at 7-9.
“Title VII makes it unlawful ‘to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race’” or “‘color.’’” Khalik, 671
F.3d at 1192 (quoting 42 U.S.C. § 2000e-2(a)(1)). To ultimately prove a claim of race or
color discrimination, Plaintiff must show: (1) he belongs to a protected class; (2) he
suffered an adverse employment action; and (3) the challenged action took place under
circumstances giving rise to an inference of discrimination. See EEOC v. PVNF, L.L.C.,
487 F.3d 790, 800 (10th Cir. 2007).
A complaint alleging employment-based discrimination, retaliation or
harassment under Title VII must “make at least minimal factual allegations
on every element” of the claim. Sims v. Wyandotte Co./Kansas City, Kan.,
120 F. Supp. 2d 938, 967 (D. Kan. 2000). Vague references to
discrimination, retaliation or harassment without any indication that the
alleged misconduct was motivated by gender or another category protected
by Title VII will be insufficient to support an employment-based claim.
Rivera v. Sw. Bell Tel. Co., No. 13-1039, 2013 WL 2319395, at *2 (D. Kan. May 28, 2013);
accord ElHelbawy v. Pritzker, No. 14-CV-01707, 2015 WL 5535246, at *5-6 (D. Colo.
Sept. 21, 2015).
Plaintiff alleges that he belongs to protected classes and that he suffered at least one
adverse employment action—i.e., not being promoted to one of the unannounced
Lieutenant/Police Officer positions, which went to white officers. See Compl. ¶¶ 10, 16.
Plaintiff’s mere mention of the white officers’ promotion, however, “fails to allege facts
sufficient to plausibly support an inference that” any adverse action “took place under
circumstances giving rise to an inference of” race or color discrimination. Smith v.
McDonough, No. CIV-21-737-F, 2021 WL 5999601, at *2 (W.D. Okla. Dec. 20, 2021);
see EEOC v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir. 1992) (“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.”).
Plaintiff argues that he has plausibly established this element by alleging that the
discriminatory acts “did not affect similarly situated employees.” Pl.’s Resp. at 8. Plaintiff
is correct that one method by which a plaintiff can satisfy the “inference of discrimination”
requirement is by “show[ing] that the employer treated similarly situated employees more
favorably.” PVNF, 487 F.3d at 800-01; see also Khalik, 671 F.3d at 1192 (articulating this
element as a showing that the plaintiff “was treated less favorably than others not in the
protected class”). “Individuals are considered ‘similarly-situated’ when they deal with the
same supervisor, are subjected to the same standards governing performance evaluation
and discipline, and have engaged in conduct of ‘comparable seriousness.’” PVNF, 487
F.3d at 801 (quoting McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006)).
While Plaintiff does allege that two white officers were promoted to the open job positions,
and that certain disciplinary actions were meted out against Plaintiff and no one else,
Plaintiff fails to present even minimal factual allegations “to reasonably support an
inference that” the other employees were similarly situated in any material way. Smith,
2021 WL 5999601, at *2.
Plaintiff therefore has failed to allege a Title VII discrimination claim based upon
race or color upon which relief can be granted. See id.; Khalik, 671 F.3d at 1194 (affirming
dismissal pursuant to Rule 12(b)(6) when the complaint included “no allegations of
similarly situated employees who were treated differently”); cf. Bekkem v. Wilkie, 915 F.3d
1258, 1274-75 (10th Cir. 2019) (upholding Rule 12(b)(6) dismissal of discrimination
claims and noting that “lacking any facts, we cannot assume that these physicians were
similarly situated simply because Plaintiff has asserted that they were so”).
C. Plaintiff’s Hostile Work Environment Claim
In addition to the disparate-treatment claims addressed above, Plaintiff alleges that
he was subjected to a hostile work environment. See Compl. ¶ 29 (alleging that “workplace
discrimination and harassment because of age, sex (male), race (black), color (black) and
reprisal subjected Plaintiff to a hostile work environment”).
Considering this claim under Title VII, the applicable elements are: “(1) the plaintiff
is a member of a protected group; (2) the plaintiff was subjected to unwelcome harassment;
(3) the harassment was based on [race, color, religion, sex, national origin, age, or
disability]; 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.’” Smith, 2021 WL 5999601, at *1 (quoting Lounds v. Lincare, Inc., 812 F.3d
1208, 1222 (10th Cir. 2015)); see 42 U.S.C. § 2000e-16b(a).4 Hostile work environment
4 The applicable test for a hostile work environment has both an objective and a subjective
component. See Fox v. Pittsburg State Univ., 257 F. Supp. 3d 1112, 1123, 1130 (D. Kan.
2017). “In determining whether an objectively ‘severe or pervasive’ hostile environment
exists,” “it is necessary to look at all the circumstances involved, including the frequency
claims are based upon “the cumulative effect of individual acts”; they involve “repeated
conduct” that can “occur[] over a series of days or perhaps years.” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115 (2002).
Plaintiff’s factual allegations fall considerably short of meeting the pleading
requirements for a hostile work environment claim. With respect to a “hostile or abusive”
environment, the few specific facts presented in Plaintiff’s Complaint show, at most,
workplace conduct that is the “run-of-the-mill boorish, juvenile, or annoying behavior that
is not uncommon in American workplaces” and “is not the stuff of a Title VII hostile work
environment claim.” Throupe v Univ. of Denver, 988 F.3d 1243, 1252 (10th Cir. 2021)
(internal quotation marks omitted) (noting that “a few isolated incidents of discriminatory
conduct do[] not make the harassment pervasive” (internal quotation marks omitted)).
Nor has Plaintiff alleged facts “supporting a reasonable inference that” any
“unwelcome harassment” was based upon Plaintiff’s age, race, color, or sex or “stemmed
from discriminatory animus.” Smith, 2021 WL 5999601, at *2.5 Plaintiff, for example,
alleges that he was made to report to junior officers, that such junior officers were allowed
to counsel him, that he was not selected for two promotions, that his work assignment was
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. at 1130 (internal quotation marks omitted). While the
offending conduct is not required to have “seriously affected the plaintiff’s psychological
well-being,” the “conduct must be extreme”; “simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment.” Id.; Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (citation and internal quotation marks omitted).
5 Notably, every individual identified in the Complaint appears to be male.
changed to the night shift, that he was required to have a union representative present at a
meeting, that he was required to take leave, and that he was suspended. See Compl. ¶¶ 15-
22. But the Complaint is devoid of facts linking any of these action with any comments
regarding Plaintiff’s age, race, color, or sex or indicating any discriminatory motivation on
the part of Defendant or relevant individuals. “Without more, [Plaintiff’s] suspicions
regarding the motive for” the workplace conduct “amount to a mere ‘gut feeling,’ which
‘is not sufficient to create an inference of discrimination.’” Gupta, 2019 WL 896295, at
*4 (quoting Jackson v. City of N.Y., 29 F. Supp. 3d 161, 172 (E.D.N.Y. 2014)).
Accordingly, this claim must be dismissed pursuant to Rule 12(b)(6).
D. Plaintiff’s Retaliation Claim
“As a precondition to the commencement of a Title VII action in court, a
complainant must file a charge with the [EEOC] or an appropriate state or local agency.
42 U.S.C. § 2000e-5(c), (e)(1), (f)(1).” Childers v. Bd. of Comm’rs of Okla. Cnty., No.
CIV-19-460-F, 2019 WL 3069446, at *2 (W.D. Okla. July 12, 2019). Title VII “prohibits
retaliation against a person who asserts rights under the statute.” Id. (citing 42 U.S.C. §
2000e-3(a)). To establish a prima facie case of retaliation, a plaintiff must show “(1) that
she engaged in protected opposition to discrimination, (2) that a reasonable employee
would have found the challenged action materially adverse, and (3) that a causal connection
existed between the protected activity and the materially adverse action.” Khalik, 671 F.3d
at 1193 (alteration and internal quotation marks omitted). Again, while Plaintiff has no
burden to produce evidence at this stage, the Court finds that these elements “provide a
reasonable framework for evaluating whether [Plaintiff] has sufficiently alleged a claim of
retaliation.” New v. Bd. of Cnty. Comm’rs for Tulsa Cnty., 434 F. Supp. 3d 1219, 1225
(N.D. Okla. 2020).
Plaintiff alleges that he was subjected to unlawful retaliation or reprisal due to his
July 5, 2019 filing of a “formal EEO Complaint” against Deputy Chief Castoe. Compl. ¶¶
18, 34-35. Plaintiff further argues that the events alleged to have followed—the December
3, 2019 meeting where union representation was obtained, suspensions in January 2020
and May 2020, requiring Plaintiff to take annual leave and proposing Plaintiff’s termination
in May 2020, and Plaintiff’s removal in March 2021—were acts of retaliation for this
filing. See id. ¶¶ 19-24, 35; see also Pl.’s Resp. at 11-12.
For purposes of Defendant’s Motion, the Court assumes without deciding that
Plaintiff’s filing of an EEO complaint was protected activity and that one or more of the
cited events constitute adverse employment actions. See Schnelle v. Veneman, 129 F.
App’x 403, 404 (10th Cir. 2005). The facts as pleaded by Plaintiff fail to plausibly show,
however, the requisite “causal connection” between the filing of that complaint and the
employment actions. Id. Beyond Plaintiff’s conclusory labeling of Deputy Chief Castoe’s
conduct as “retaliation,” there is no allegation linking the EEO filing to any of the cited
employment actions. Indeed, the Complaint alleges that Plaintiff’s removal followed from
Deputy Chief Castoe’s contention that Plaintiff had failed to follow policy; there is no
allegation that the contention was false. See Compl. ¶ 23. Further, the January 2020
suspension is alleged to have been issued by Assistant Director Bennett, with no apparent
link to Deputy Chief Castoe. See Compl. ¶ 20.
Plaintiff argues that the connection between the EEO complaint and the adverse
actions “can be traced on a calendar.” Pl.’s Resp. at 11. The Tenth Circuit has held that
causation can be shown by “very close temporal proximity between the protected activity
and the retaliatory conduct.” O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th
Cir. 2001). For example, “a one and one-half month period” between the events may be
sufficient to establish causation, but “a three-month period, standing alone,” is not. Id.;
accord Conroy v. Vilsack, 707 F.3d 1163, 1181-82 (10th Cir. 2013). Plaintiff offers no
authority for his proposition that a seven-month period, standing alone, is sufficient to
support an inference of retaliatory intent, and the Court’s review finds that the relevant
decisions are not in accord. See, e.g., Heiman v. United Parcel Serv., Inc., 12 F. App’x
656, 665 (10th Cir. 2001) (“[A]n intervening period of nearly six months is not sufficiently
‘close temporal proximity’ such that an inference of causation is warranted based on timing
alone.”); Childers, 2019 WL 3069446, at *3 (“Under Tenth Circuit law, four and one-half
months is too long to establish causal connection.”).
In summary, Plaintiff’s allegation that he filed an EEO complaint and seven months
later began to suffer adverse employment actions does not allow, by itself, a plausible
inference of retaliatory motive to be drawn. This claim must be dismissed under Rule
12(b)(6). See Khalik, 671 F.3d at 1193 (“[G]eneral assertions of discrimination and
retaliation, without any details of the events leading up to her termination, are insufficient
to survive a motion to dismiss. While specific facts are not necessary, some facts are.”
(alteration, citation, and internal quotation marks omitted)).°
CONCLUSION
For the reasons outlined above, Defendant’s Motion to Dismiss (Doc. No. 4) is
GRANTED. Plaintiff's claims are dismissed without prejudice pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. A separate judgment shall be entered.
IT IS SO ORDERED this 30th day of September, 2022.
CHARLES B. GOODWIN
United States District Judge
° The Court need not reach Defendant’s alternative arguments for dismissal of Plaintiff's
claims. See Def.’s Mot. at 11-18.
14