Giang v. DeJoy

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ROSALINN M. GIANG, )

)

Plaintiff, )

)

v. ) Case No. CIV-22-112-D

)

LOUIS DeJOY, )

)

Defendant. )

ORDER

Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint

and Brief in Support [Doc. No. 29]. Plaintiff, appearing pro se, filed a 145-page response1

[Doc. No. 32], which was stricken for failure to comply with the Court’s Local Civil Rules

[Doc. No. 34]. In that Order, the Court directed Plaintiff to file a revised response that

complied with the Court’s local rules. Thereafter, Plaintiff moved for leave to file an

oversized response [Doc. No. 35], and the Court permitted Plaintiff to file a response not

to exceed thirty pages [Doc. No. 37]. Plaintiff then filed a revised response [Doc. No. 39],

which was single-spaced, typed in 10.5-11-point font, and had margins less than one inch,

all in violation of LCvR5.2 and 7.1(d). The Court struck the revised response [Doc. No.

41], noting that had Plaintiff complied with the Court’s local rules, Plaintiff’s revised

response would exceed the page limitation by several pages. Plaintiff then moved for leave

to file a second revised response [Doc. No. 42], which the Court granted [Doc. No. 45].

1 Plaintiff also filed a one-page “Notice of Plaintiff’s Opposition to Motion to Dismiss”

[Doc. No. 31], which provided that Plaintiff’s response was forthcoming. Although not

stricken, the Court will not consider the notice for purposes of this Order.

Plaintiff’s deadline to file a second revised response was August 9, 2023. Plaintiff

has not filed a response, nor has Plaintiff shown good cause for her failure to do so.

Accordingly, the Court will consider only Defendant’s Motion to Dismiss [Doc. No. 29]

and Plaintiff’s Amended Complaint [Doc. No. 22] for purposes of this Order. See Issa v.

Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003) (“[E]ven if a plaintiff does not file a

response to a motion to dismiss for failure to state a claim, the district court must still

examine the allegations in the plaintiff’s complaint and determine whether the plaintiff has

stated a claim upon which relief can be granted.”).

BACKGROUND

Plaintiff alleges a variety of employment discrimination claims against her former

employer, the United States Postal Service (USPS).2 The crux of Plaintiff’s allegations

appears to be that, during her employment as a mail processing clerk, she was discriminated

against because of her race (Asian), gender (female), national origin (Vietnamese and

Chinese), age (62), and disability (unspecified workplace injury). Plaintiff further alleges

that she was subjected to a hostile work environment; retaliated against for engaging in

EEO activities; and constructively discharged.

To summarize, the Amended Complaint [Doc. No. 22] alleges:

 Plaintiff engaged in numerous EEO activities, to include: filing various EEO

complaints, assisting co-workers with filing EEO complaints, acting as a witness

for co-worker’s EEO complaints, and attending EEO redress mediations;

2 Throughout her amended complaint, Plaintiff also refers to claims brought by her

husband, Quang Nguyen, which claims are the subject of Case No. CIV-22-1102-D. For

purposes of this Order, the Court ignores all allegations related to Quang Nguyen’s

litigation.

 After filing an EEO complaint in July of 2016, and attending two EEO mediations

on August 2 and August 9, 2016, Plaintiff was physically assaulted (roughly bumped

into) on August 11, 2016 by Tameeka Jones, the supervisor against whom the EEO

complaints were made;

 On August 14, 2016, Plaintiff was assaulted by another supervisor, Blair Cole, “in a

loud, demeaning, threatening manner, pointing fingers and waving hands at her

face”;

 Plaintiff reported the August 11 and August 14 incidents to her Plant Manager and

District Manager, both of whom failed to address the incidents;

 Plaintiff filed additional EEO complaints in September, October, November, and

December of 2016, and January of 2017;

 During this time, Plaintiff’s work environment worsened and she was constantly

being yelled and cursed at by her supervisors;

 Plaintiff was “not permitted to walk across the workroom floor and was escorted

out of the plant building”;

 Plaintiff was accused of filing “too many EEO complaints” by Senior Manager

Louis Sumpter;

 On October 27, 2016, Plaintiff’s supervisor3 told a co-worker that Plaintiff “filed

too many EEO complaints”;

 On December 11, 2016, Plaintiff’s manager, Cheryl Mitchell, condoned Charles

Leak, Jr. screaming and cursing at Plaintiff while working on her mail processing

machine;

 After Plaintiff complained of the incident, Plaintiff was forced to work on the same

machine with Mr. Leak, Jr., which forced Plaintiff to leave work in distress;

 On December 24, 2016, Ms. Mitchell yelled at Plaintiff and again condoned Mr.

Leak Jr.’s conduct;

 On January 9, 2017, management intentionally failed to submit Plaintiff’s injury

claim to the OWCP Labor Department in order to delay the approval of Plaintiff’s

injury claim;

3 It is unclear from Plaintiff’s amended complaint whether this allegation refers to the same

comment by Mr. Sumpter, above.

 In January of 2017, Plaintiff was yelled at four different times by management;

 Supervisor Tameeka Jones spread a rumor around the workplace that Plaintiff was

trying to get a co-worker fired, circulating a statement made by Plaintiff during her

EEO redress mediation with Ms. Jones;

 From January of 2017, to April of 2018, Plaintiff was sent home after working four

hours a day, even after her doctor authorized her to perform eight hours of work per

day;

 Because Plaintiff was sent home for half of the work day, her pay was drastically

reduced, leading Plaintiff to incur debt and take out loans to cover the loss;

 Plaintiff was treated differently than individuals that had not made EEO complaints,

and Defendant found modified light manual duties for those individuals who had

not engaged in EEO activity;

 Plaintiff was not permitted to perform any light manual duties even though there

were plenty of light duties available;

 Plaintiff’s supervisor requested other employees to work overtime on the available

manual labor duties while telling Plaintiff there were no light duties available;

 Management repeatedly changed Plaintiff’s Duty Status Report (CA-17), revising

Plaintiff’s work requirements for the same mail processing job, in order to keep

Plaintiff restricted to four hours of work per day;

 Plaintiff suffered from anxiety, depression, and post-traumatic stress disorder

resulting from her work environment;

 On March 22, 2018, Plant Manager Sean Walton declared that Plaintiff’s “request

to work 8 hours a day [was] denied,” and that Plaintiff would be allowed to work

only 4 hours a day “as long as [she] still worked for [USPS]”;

 On April 12, 2018, Mr. Sumpter cursed at Plaintiff and threatened to kick Plaintiff

out of the building, which caused Plaintiff emotional distress; and

 Plaintiff was forced into early retirement as a result of her work environment and

continued reduced working hours.

Liberally construed, Plaintiff’s amended complaint asserts the following claims

against Defendant: deprivation of civil rights in violation of 42 U.S.C. § 1983; employment

discrimination, retaliation, and hostile work environment pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Title VII); employment discrimination in

violation of The Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq.

(ADEA); constructive discharge; and disability discrimination in violation of The

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

In his Motion to Dismiss [Doc. No. 29], Defendant contends that Plaintiff has failed

to state claims upon which relief can be granted, pursuant to FED. R. CIV. P. 12(b)(6).

Specifically, Defendant argues that Plaintiff has failed to link any of her allegations

regarding workplace conduct to retaliatory or discriminatory animus, and that Plaintiff’s

allegations constitute ordinary tribulations of a workplace as opposed to actionable

harassment.

STANDARD OF DECISION

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The statement must be sufficient to

“give the defendant fair notice of what the claim is and the grounds upon which it rests.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations and citation omitted).

Under this standard, a complaint needs “more than labels and conclusions,” but it “does

not need detailed factual allegations.” Id. Rather, “[t]o survive a motion to dismiss, 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 Twombly,

550 U.S. at 570). “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.

At the pleading stage, the Court must “accept as true all well-pleaded factual

allegations in a complaint and view these allegations in the light most favorable to the

plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). However, “if

[allegations] are so general that they encompass a wide swath of conduct, much of it

innocent, then the plaintiff[] [has] not nudged [her] claims across the line from conceivable

to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (internal

quotations omitted). Although pro se pleadings are to be liberally construed, district courts

should not “assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991).

DISCUSSION

I. 42 U.S.C. § 1983

Plaintiff attempts to state a claim of deprivation of civil rights under Section 1983.

Plaintiff bases her Section 1983 claim on the same allegations underlying her Title VII

claims. However, “Title VII provides the exclusive judicial remedy for discrimination

claims in federal employment.” Ford v. West, 222 F.3d 767, 773 (10th Cir. 2000); see also

Mobley v. Donahoe, 498 F. App’x 793, 796 (10th Cir. 2012) (unpublished) (“Title VII is

the exclusive remedy for [the plaintiff’s] claims of discrimination and associated retaliatory

conduct… This precludes his claims asserted under the civil-rights statutes….”).

Accordingly, Plaintiff’s Section 1983 claim will be dismissed.

II. Discrimination Based on Race, Gender, National Origin, or Age

Plaintiff asserts that she was discriminated against based on her race, national origin,

gender, and age, all in violation of Title VII and the ADEA. Title VII makes it unlawful “to

discharge any individual, or otherwise to discriminate against any individual with respect

to [her] compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Under

the ADEA, “[i]t shall be unlawful for an employer … to discharge any individual or

otherwise discriminate against any individual with respect to [her] compensation, terms,

conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §

623(a)(1).

For Title VII claims, “[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); see also Frappied v. Affinity Gaming Black

Hawk, LLC, 966 F.3d 1038, 1054 (10th Cir. 2020) (same in ADEA context). Because

Plaintiff’s amended complaint contains no evidence of direct discrimination, the Court

evaluates the plausibility of Plaintiff’s claims by “examin[ing] the first step of the

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

prima facie cases for her discrimination claims based on race, gender, national origin, and

age. See Morman v. Campbell County Memorial Hosp., 632 F. App’x 927, 933 (10th Cir.

2015) (unpublished). 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)).

Plaintiff alleges that her managers “tried to terminate” her by limiting her to four

hours of work per day after Plaintiff reported a job-related injury and filed a worker’s

compensation claim [Doc. No. 22, Amended Complaint, at p. 2]. On January 1, 2017, she

reported a job-related injury and applied for light duty. Id. at p. 20. Plaintiff was limited to

four hours of working the mail sorting machine and requested that Defendant assign to her

four hours of light duties for the remaining hours of the workday. Id.

Plaintiff’s worker’s compensation claim was approved on March 6, 2017. Id. at p.

20. On March 25, 2017, Plaintiff alleges her injury had “significantly improved” and her

doctor had released her to work up to five hours per day on the mail sorting machine and

up to three hours of light duty manual work. Id. at p. 21. However, Plaintiff alleges she was

discriminated against because she was not given light duties and was instead sent home for

the last four hours of each workday from January 2017 to April 2018. Id. Plaintiff further

alleges that other employees with workplace injuries were given light duties even though

Plaintiff’s supervisors told her there were no light duties available or that the light duties

needed to be saved for other employees. Id. at pp. 12, 20.

Plaintiff’s allegations may suggest she was treated differently than other employees.

But the Court agrees with Defendant that Plaintiff’s allegations do not give the Court any

basis to infer that Plaintiff was treated differently because of her race, national origin,

gender, or age. Although Plaintiff’s amended complaint includes repeated assertions of

discrimination based on her protected characteristics, the Court disregards legal

conclusions designed to recite the elements of a discrimination claim. “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., Inc., 986 F.2d

1312, 1319 (10th Cir. 1992) (emphasis in original). Therefore, Plaintiff’s Title VII and

ADEA discrimination claims must be dismissed.

Defendant further contends that Plaintiff’s hostile work environment claim based

on Title VII or ADEA discrimination must be dismissed because Plaintiff has failed to link

the alleged workplace conduct to discriminatory animus. The Court agrees. Because the

amended complaint contains no allegation giving rise to a reasonable inference that

Plaintiff was discriminated against because of her national origin, race, gender, or age, any

hostile work environment claim based on those protected classes must also fail. See Brown

v. LaFerry’s LP Gas Co., Inc., 708 F. App’x 518, 522 (10th Cir. 2017) (unpublished) (“In

order to establish a race-based hostile work environment, however, the conduct that

allegedly created that environment must be racial or motivated by racial animus… If

retaliation was [a co-worker’s] sole motivation for this conduct, then this retaliatory

conduct does not support [the plaintiff’s] claim of racially motivated harassment.”); see

also Burkhart v. Am. Railcar Industries, Inc., 603 F.3d 472, 476 (8th Cir. 2010) (“All of the

actions about which [the plaintiff] complains… are alleged to have been retaliation for

complaining to the human resources manager, not harassment based on sex.”); see also

Berry v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001) (“While [the plaintiff] can

likely show that the post-complaint harassment would not have occurred but for her

complaining of sexual harassment, this is ‘too remote a connection’ to gender to convert

the retaliatory harassment into gender-based harassment.”). Accordingly, Plaintiff’s hostile

work environment claim based on discriminatory animus will be dismissed.

III. EEO Retaliation/Hostile Work Environment

Plaintiff also alleges she was retaliated against and exposed to a hostile work

environment in retaliation for engaging in EEO activities. Under Tenth Circuit law, a prima

facie case for retaliation requires Plaintiff to show: (1) she engaged in protected opposition

to Title VII discrimination; (2) she suffered an adverse employment action; and (3) there is

a causal connection between the protected activity and the adverse employment action. See

Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir. 2004). “The adverse action must

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

reassignment with significantly different responsibilities, or a decision causing a significant

change in benefits.” Id. (internal quotations omitted). “For a retaliation claim under Title

VII, an adverse employment action is something that would have ‘dissuaded a reasonable

worker from making or supporting a charge of discrimination.’” Lincoln v. Maketa, 880

F.3d 533, 540 (10th Cir. 2018) (citation omitted).

For her hostile work environment claim, Plaintiff “must demonstrate that the alleged

harassment stemmed from retaliatory animus” and that the retaliatory conduct was

“sufficiently severe or pervasive to alter the conditions of [her] employment and create an

abusive working environment.” See Gorny v. Salazar, 413 F. App’x 103, 112 (10th Cir.

2011) (unpublished); see also Nettle v. Cent. Okla. Am. Indian Health Council, Inc., 334 F.

App’x 914, 920 (10th Cir. 2009) (unpublished) (quotations and citation omitted).

Upon careful consideration of the factual allegations of the amended complaint, the

Court finds them to be minimally sufficient to state a plausible claim that Plaintiff was

retaliated against, and subjected to a hostile work environment, for engaging in protected

activity under Title VII. Throughout her amended complaint, Plaintiff alleges that she filed

various EEO complaints on behalf of herself and co-workers and attended EEO redress

meetings for those complaints. Two days after Plaintiff attended an EEO redress meeting

for a complaint she made against Tameeka Jones, Plaintiff alleges that Ms. Jones roughly

bumped into her while she was at her mail processing machine [Doc. No. 22, Amended

Complaint, at p. 10]. Plaintiff further alleges that she was constantly subjected to threats,

screaming, and cursing from supervisors against whom she made complaints. Id. at pp. 10-

11, 28. According to Plaintiff, Ms. Jones started rumors (based on statements made by

Plaintiff at an EEO redress meeting) that Plaintiff was trying to get a co-worker terminated.

Id. at p. 15. Plaintiff further alleges that these rumors caused the hostile environment to

worsen. Plaintiff’s manager, Louis Sumpter, allegedly accused Plaintiff of “filing too many

EEO complaints.” Id. at p. 11. Finally, Plaintiff alleges that her supervisors intentionally

delayed submitting her worker’s compensation claim to interfere with processing and

approval, and that co-workers who did not engage in EEO activities were given light duties

for their workplace injuries while Plaintiff was continuously sent home mid-day.4 Id. at pp.

14, 19.

4 Defendant argues a non-invidiuos reason for keeping Plaintiff at reduced hours was that

all light duties were already assigned to other injured employees. However, Plaintiff alleges

that 1) other employees were asked to work overtime to perform the light duty work; and

2) that Plaintiff was told by management that light duties needed to be “saved” for other

Viewing all reasonable inferences in Plaintiff’s favor at this early stage of litigation,

Plaintiff’s allegations are sufficient to nudge the accusations of retaliation and hostile work

environment across the line from conceivable to plausible. Accordingly, Defendant’s

motion to dismiss is denied as to these claims. Further, Plaintiff alleges that the retaliation

and hostile work environment led to her constructive discharge. Such a claim requires a

plaintiff to show “[she] was discriminated against by [her] employer to the point where a

reasonable person in [her] position would have felt compelled to resign.” Green v. Brennan,

578 U.S. 547, 555 (2016). At this stage, the Court finds that Plaintiff has stated a plausible

claim for constructive discharge.

IV. Rehabilitation Act – Disability Discrimination

Plaintiff also asserts a claim for disability discrimination in violation of the

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

Rehabilitation Act, Plaintiff must allege facts showing 1) she is disabled within the

meaning of the Act; 2) she is otherwise qualified for the job; and 3) she was discriminated

against because of her disability. See Woodman v. Runyon, 132 F.3d 1330, 1338 (10th Cir.

1997); see also Vidacak v. Potter, 81 F. App’x 721, 723 (10th Cir. 2003) (unpublished).

Even viewing all reasonable inferences in favor of Plaintiff, Plaintiff has failed to

allege that she was discriminated against because of her alleged disability. For this reason,

the Court does not need to determine whether Plaintiff has sufficiently alleged that her

unspecified workplace injury, which was “substantially improved” by March of 2017,

injured employees. These allegations conflict with Defendant’s reasoning that there were

no light duties available to assign to Plaintiff.

constitutes a disability within the meaning of the Rehabilitation Act. Although Plaintiff

attempts to claim that she was treated differently than co-workers given light duty

assignments, Defendant correctly notes that the employees given light duty assignments

also had workplace injuries, if not disabilities, which required modified assignments. Thus,

even if Plaintiff could establish that she was “disabled” within the meaning of the Act,

Plaintiff has failed to allege facts that would allow a reasonable inference that Plaintiff was

discriminated against because of such disability. Plaintiff’s discrimination claim under the

Rehabilitation Act should be dismissed.

V. Leave to Amend

The Court finds that the following claims should be dismissed: Plaintiff’s civil rights

claim under Section 1983; Plaintiff’s claims for discrimination under the ADEA and Title

VII, to include Plaintiff’s hostile work environment claim based on discriminatory animus;

and Plaintiff’s discrimination claim under the Rehabilitation Act. The Court further finds

that Plaintiff need not be granted leave to file a second amended complaint at this time.5

5 “Where a plaintiff does not move for permission to amend the complaint, the district court

commits no error by not granting such leave.” Burnett v. Mortgage Electronic Registration

Sys., Inc., 706 F.3d 1231, 1238 n.4 (10th Cir. 2013). A district court may properly require

a plaintiff to file a motion that complies with FED. R. CIV. P. 15(a) and LCvR15.1 before

considering whether to allow an amendment. See Brooks v. Mentor Worldwide LLC, 985

F.3d 1272, 1283 (10th Cir. 2021); see also Hall v. Witteman, 584 F.3d 859, 868 (10th Cir.

2009) (finding that plaintiff “must give adequate notice to the district court and to the

opposing party of the basis of the proposed amendment”). In this case, the scheduling order

to be entered pursuant to FED. R. CIV. P. 16(b)(1) will establish a deadline for motions to

amend pleadings.

CONCLUSION

For these reasons, Defendant’s Motion to Dismiss [Doc. No. 29] is GRANTED in

part and DENIED in part as set forth herein. Plaintiff’s civil rights claim under 42 U.S.C.

§ 1983 is DISMISSED with prejudice.° Plaintiff’s discrimination claims under Title VII,

the ADEA, and the Rehabilitation Act are DISMISSED without prejudice. Plaintiff’s

claims of Title VII retaliation, hostile work environment based on retaliatory animus, and

constructive discharge survive dismissal at this stage of proceedings.

IT IS SO ORDERED this 1* day of February, 2024.

\ : m~

□□ Q: uae

TIMOTHY D. DeGIUSTI

Chief United States District Judge

6 “A dismissal with prejudice is appropriate where a complaint fails to state a claim under

Rule 12(b)(6) and granting leave to amend would be futile.” Brereton v. Bountiful City

Corp., 434 F.3d 1213, 1219 (10th Cir. 2006); accord Full Life Hospice, LLC v. Sebelius,

709 F.3d 1012, 1018 (10th Cir. 2013) (leave to amend should be freely granted, but

amendment may be denied when it would be futile). It is apparent from Plaintiff’s amended

complaint that Plaintiff could not effectively amend her Section 1983 claim to cure the

deficiency cited herein. Therefore, amendment is futile and dismissal with prejudice is

appropriate.

14