# Nguyen v. DeJoy

> District Court, W.D. Oklahoma · March 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10390738

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** March 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10390738

## How later opinions describe it (automated extraction)

- finding that plaintiff “must give adequate notice to the district court and to the opposing party of the basis of the proposed amendment”
- explaining that Rehabilitation Act claims are analyzed using the definition of “disability” found in the Americans with Disabilities Act

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

QUANG D. NGUYEN, )
)
Plaintiff, )
)
v. ) Case No. CIV-22-1102-D
)
LOUIS DeJOY, )
)
Defendant. )

ORDER

Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint
[Doc. No. 21]. Plaintiff, appearing pro se, filed a Response [Doc. No. 26], and Defendant
filed a Reply in Support [Doc. No. 31]. The matter is fully briefed and at issue.
BACKGROUND
Plaintiff alleges a variety of employment discrimination claims against his former
employer, the United States Postal Service (USPS). Plaintiff alleges that he was
discriminated against based on his race (Asian), national origin (Vietnamese), age (58),
gender (male), and disability (“on-the-job injury”). Plaintiff further alleges that he was
subjected to a hostile work environment; retaliated against for engaging in EEO activities;
and constructively discharged.
To summarize the Amended Complaint [Doc. No. 12], Plaintiff alleges1:

1 Throughout his amended complaint, Plaintiff refers to claims brought by his wife,
Rosalinn Giang. Ms. Giang has a separate lawsuit pending against Defendant in the United
States District Court for the Western District of Oklahoma, Case No. CIV-22-112-D.
Several sections of Plaintiff’s amended complaint appear to be copied from Ms. Giang’s
complaint, in her point of view. [Doc. No. 12, at 6] (“My husband and I are losing 12 hours
 Plaintiff filed, or assisted other employees in filing, fifteen EEO complaints between
June 2016 and November 2016;
 Plaintiff represented his wife at her EEO redress mediation on November 1, 2016,
which addressed complaints against Tameeka Jones and Plaintiff’s manager, Cheryl
Mitchell;
 After Plaintiff filed a worker’s compensation injury claim, Defendant sent him home
from November 13, 2016, to April 9, 2017, even though he was authorized to
perform eight hours of work per day with certain restrictions;
 Although Plaintiff’s worker’s compensation injury claim was approved in February
of 2017, he was not permitted to return to work until April 9, 2017;
 During this time, Plaintiff was mistakenly placed on the schedule to work December
25 and January 1, but Defendant sent him home both days;
 Upon returning to work on April 9, 2017, Plaintiff was only permitted to work four
hours per day;
 Plaintiff was told that there were no duties available within Plaintiff’s injury
restrictions;
 Plaintiff was forced to use four hours of Leave Without Pay (LWOP) each day from
April of 2017 to March of 2018;
 Plaintiff did not attend work from March 18-31, 2018, and was threatened to be
disciplined for attendance;
 For his period of absence in March of 2018, Plaintiff was charged 76 hours of
LWOP, and Plaintiff’s supervisor declined to change the coded LWOP to sick leave;
 Being limited to four hours of work per day forced Plaintiff into financial crisis;
 Plaintiff was notified by a manager that he would be limited to four hours of work
per day as long as he worked for Defendant;
 After sixteen months of working reduced hours, Plaintiff could no longer stand
Defendant’s decision to limit his work hours and was forced to retire early; and
 After retirement, the USPS payroll department in Eagan, Michigan failed to correct
an issue with his TSP account and hung up on Plaintiff.

of leave every month...”). For purposes of Plaintiff’s claims, the Court ignores references
to allegations of discrimination or retaliation against Ms. Giang.
Apart from the foregoing allegations, Plaintiff’s amended complaint is replete with
conclusory statements that “Plaintiff was subjected to an ongoing pattern of discrimination,

retaliation, harassment, [and] hostile pervasive work environment,” and buzz words
designed to state the elements of various employment claims. For example, Plaintiff
repeatedly alleges:
The Defendant’s management officials aggressively subjected
us to be victims of reprisal actions directed against us; and
aggressively, constantly created a more severe pattern of
ongoing, hostile, violent, pervasive work environment
including: threatening, stalking, screaming, yelling, cursing
with profanity, unlawful employment discrimination,
retaliation toward the Plaintiff and his wife.
[Doc. No. 12, at 3].
Plaintiff’s amended complaint is not a model of clarity. Liberally construed, Plaintiff
asserts the following claims against Defendant: 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. §§ 791, et seq. (Rehabilitation Act). Plaintiff also alleges deprivation of
civil rights in violation of 42 U.S.C. § 1983 and a violation of The Notification and Federal
Employee Antidiscrimination and Retaliation Act (No FEAR Act), Pub. L. No. 107-174,
116 Stat. 566 (2002).
In his Motion to Dismiss [Doc. No. 21], Defendant asserts that Plaintiff has failed
to state claims upon which relief can be granted, pursuant to FED. R. CIV. P. 12(b)(6).
Defendant contends that Plaintiff has failed to connect any of Defendant’s actions to
discriminatory or retaliatory animus; and that Plaintiff’s amended complaint evinces

obvious alternative reasons for Defendant’s conduct, rendering inferences to invidious
discrimination implausible.
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 [the
allegations] are so general that they encompass a wide swath of conduct, much of it
innocent, then the plaintiff[] [has] not nudged [his] claims across the line from conceivable
to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quotations and
citation 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.
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) (“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….”). Here, because Plaintiff
bases his Section 1983 claim on the same allegations underlying his Title VII claims,
Plaintiff’s Section 1983 claim will be dismissed with prejudice.

II. No FEAR Act
Plaintiff also attempts to bring a claim under the No FEAR Act, which holds federal
agencies accountable for violations of antidiscrimination laws by requiring the agencies to:
report statistical data related to EEO complaints; and pay discrimination damage awards
out of agency funds rather than the General Fund of the Treasury. No FEAR Act of 2002,

Pub. L. No. 107-174, 116 Stat. 566; see also 29 C.F.R. §§ 1614.701-707. Fatal to Plaintiff’s
claim, the No FEAR Act does not create a private right of action to pursue damages against
the federal government, its officers, or employees. See, e.g., Glaude v. United States, 248
F. App’x 175, 177 (Fed. Cir. 2007) (“[The] Act does not create a substantive right for which
the government must pay damages….”). Accordingly, Plaintiff’s No FEAR Act claim will
be dismissed with prejudice.

III. Discrimination Based on Race, Gender, National Origin, or Age
Plaintiff alleges that his employer discriminated against him based on his 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 his 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 his
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 [his] 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). Here,
Plaintiff’s amended complaint contains no evidence of direct discrimination. Accordingly,

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 his 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). 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)).
The crux of Plaintiff’s discrimination allegations stem from Defendant’s response
to Plaintiff’s workplace injury claim and resulting restrictions. Plaintiff alleges that, “as
soon as Plaintiff reported a job injury and filed an injury claim,” he was sent home from

November of 2016 to April of 2017 [Doc. No. 12, at 4]. Plaintiff filed his injury claim
under the Federal Employees’ Compensation Program, which is administered by the Office
of Workers’ Compensation Programs.
Upon returning to work on April 9, 2017, Plaintiff alleges that Defendant limited
him to four-hour workdays; cut his compensation in half by limiting his work hours; and

forced Plaintiff to code the remaining four hours of each day as Leave Without Pay
(LWOP). According to Plaintiff, other employees who were injured on the job were
assigned modified duties and permitted to work eight hours per day within their restrictions
[Doc. No. 12, at 31]. As reflected in Plaintiff’s amended complaint, Plaintiff could apply
to be reimbursed by the Department of Labor for the four hours of LWOP each day, but

Plaintiff takes issue with the reimbursement rate and how long it took to be reimbursed.
[Doc. No. 12, at 6].2

2 “[W]hen application is made for FECA benefits, the determination of coverage is made
by the Secretary of Labor or his designee and his finding is final and not subject to judicial
Plaintiff further alleges that he was disciplined for attendance when he did not go to
work from March 18 – 31, 2018; his period of absence was coded as LWOP instead of sick

leave; the USPS payroll office in Eagan, Michigan failed to correct an issue with his TSP
account after retirement; and he was threatened to be charged as “absent without official
leave” after he had already retired. Based on these allegations, Plaintiff contends that he
was discriminated against based on his race, national origin, gender, and age.
Ignoring the conclusory allegations of Plaintiff’s amended complaint, Plaintiff does
not provide the Court with any basis to infer that Plaintiff was treated differently because

of his race, national origin, gender, or age. “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).

Plaintiff’s references to other injured employees’ genders, races, national origins,
and ages are insufficient to allege discrimination, especially considering Plaintiff’s failure
to allege that the employees permitted eight-hour workdays were under the same injury
restrictions as Plaintiff. As Defendant notes, Plaintiff’s references to other injured
employees’ modified duty assignments reflect that those employees had fewer restrictions

review…. Acceptance of benefits under the FECA is an injured employee’s exclusive
remedy.” Swafford v. United States, 998 F.2d 837, 839 (10th Cir. 1993) (quoting Cobia v.
United States, 384 F.2d 711, 712 (10th Cir. 1967)). Accordingly, to the extent Plaintiff
disputes how his FECA claim was processed by the Office of Workers’ Compensation
Programs, or the rate of reimbursement for his four hours of LWOP each day, this Court
does not have jurisdiction over such claims.
than Plaintiff. Per Plaintiff’s restrictions, he was not permitted to perform “simple
grasping” or “fine manipulation” for more than four hours per day. [Doc. No. 12-25, at 1].

As reflected in the modified assignments attached to Plaintiff’s amended complaint, other
injured employees’ restrictions permitted “manipulation of hands for working mail” for up
to eight hours; “simple grasping” for up to eight hours; or a combination of different
activities that, together, met eight hours.3 [Doc. No. 12-24]. Although Plaintiff alleges that
his employer should have interpreted his restrictions as allowing four hours of simple
grasping followed by four hours of fine manipulation, it is clear from Plaintiff’s amended

complaint that his employer did not believe Plaintiff could perform “fine manipulation”
without “simple grasping.” [Doc. No. 12, at 53] (referencing an e-mail from Plaintiff’s
Plant Manager, Sean Walton, who allegedly asked “How can you perform fine
manipulation without simple grasping? Everything you do involves simple grasping.”).
Critically, Plaintiff has failed to connect Defendant’s interpretation of Plaintiff’s injury

restrictions to discriminatory animus based on his race, national origin, gender, or age.
Accordingly, Plaintiff’s Title VII and ADEA claims will be dismissed.
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) he is disabled within the meaning

3 [Doc. No. 12-24, at 4] (modified assignment of injured employee permitted up to six
hours of casing letters, up to one hour of trashing waste letters, and up to one hour of
straightening mail trays).
of the Act; 2) he is otherwise qualified for the job; and 3) he was discriminated against
because of his disability. See Woodman v. Runyon, 132 F.3d 1330, 1338 (10th Cir. 1997).

First, the Court finds that Plaintiff has not alleged he is disabled within the meaning
of the Rehabilitation Act. Disability is defined as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a record of such
an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. §
12102(1)(A)-(C); see also McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004)
(explaining that Rehabilitation Act claims are analyzed using the definition of “disability”

found in the Americans with Disabilities Act). In analyzing whether a plaintiff is disabled
as defined by the Act, courts: 1) decide whether the plaintiff has a mental or physical
impairment; 2) identify the life activity and determine whether it constitutes a major life
activity under the Act; and 3) decide whether the impairment substantially limits the life
activity. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).

Here, Plaintiff mentions his disability only when stating his various protected
classes, and with little to no specificity. For instance, Plaintiff repeatedly describes his
alleged disability as: “disability (injury on duty)”; “disability (physical, job-related
injury)”; and “disability (disability as related to his spine and left shoulder due to job related
injury).” Most often, Plaintiff merely refers to himself as an “on-the-job-injury employee”

and alleges that his injury had gradually improved after filing his injury claim. These
allegations are not sufficient for the Court to determine whether Plaintiff is disabled within
the meaning of the Rehabilitation Act. See Davenport v. Sugar Mountain Retreat, Inc., 2009
WL 3415240, at *2 (N.D. Okla. Oct. 16, 2009) (dismissing a disability discrimination claim
where the plaintiff’s general allegations of having a disability did not provide the court
with sufficient allegations to determine whether the plaintiff was disabled within the

meaning of the ADA); Simmons v. Kendall, 2022 WL 4775953, at *1 (W.D. Okla. Sept. 30,
2022) (dismissing failure-to-accommodate claim, finding the plaintiff’s allegation that she
“suffer[ed] from various mental health disabilities, some of which affect her test taking
abilities” insufficient to identify her impairment). For this reason, Plaintiff’s disability
discrimination claim will be dismissed.4
Further, Plaintiff has failed to allege that he was discriminated against because of

any alleged disability. Even viewing all reasonable inferences in Plaintiff’s favor,
Plaintiff’s conclusory allegations of disability discrimination are undercut by the fact that
the individuals who were allegedly given eight-hour workdays also suffered from
workplace injuries, if not disabilities, which required modified assignments. This renders
it implausible that Defendant discriminated against Plaintiff because of a disability.

Ignoring the conclusory statements of Plaintiff’s amended complaint, Plaintiff’s remaining
allegations do not state a plausible claim of disability discrimination.
V. EEO Retaliation
Under Tenth Circuit law, a prima facie case for retaliation requires Plaintiff to show:
(1) he engaged in protected opposition to Title VII discrimination; (2) he suffered an

4 Plaintiff does not couch his Rehabilitation Act claim as one for failure to accommodate,
but rather alleges that Defendant’s refusal to provide him with an eight-hour workday was
discrimination and/or retaliation. However, even if the Court were to construe Plaintiff’s
amended complaint as alleging a failure-to-accommodate claim under the Rehabilitation
Act, such a claim would similarly fail for Plaintiff’s failure to allege a disability as defined
by the Act.
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).
Upon careful consideration of Plaintiff’s amended complaint, the Court finds
Plaintiff’s allegations to be minimally sufficient to state a plausible claim that Plaintiff was
retaliated against for engaging in EEO activities. Plaintiff alleges that he represented
himself and others in filing fifteen EEO complaints between June of 2016 and November

of 2016, to include representing his wife at an EEO redress mediation opposite Tameeka
Jones and Plaintiff’s supervisor, Cheryl Mitchell, in early November of 2016. On
November 13, 2016, after Plaintiff filed an injury claim, Defendant sent Plaintiff home
pending approval of his injury claim. Plaintiff alleges that Defendant did not send other
employees home while their injury claims were pending. Further, Plaintiff alleges that he

was not permitted to return to work until April of 2017, even though his injury claim had
been approved in February. When he was allowed to work, he alleges that Defendant
refused to find duties within his restrictions and limited his work hours to four hours per
day.
Viewing all reasonable inferences in Plaintiff’s favor, Plaintiff’s allegations are
sufficient to nudge the retaliation claim across the line from conceivable to plausible.

Accordingly, Defendant’s motion to dismiss is denied as to EEO retaliation.
VI. Hostile Work Environment
Plaintiff also alleges a hostile work environment claim. First, as Plaintiff has failed
to link Defendant’s alleged conduct to discriminatory animus, any hostile work
environment claim based on Title VII or ADEA discrimination fails. See Brown v.
LaFerry’s LP Gas Co., Inc., 708 F. App’x 518, 522 (10th Cir. 2017) (“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…”).
For his hostile work environment claim based on EEO retaliation, 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 his

employment and create an abusive working environment.” See Gorny v. Salazar, 413 F.
App’x 103, 112 (10th Cir. 2011); see also Morris v. City of Colo. Springs, 666 F.3d 654,
664 (10th Cir. 2012) (quotations and citation omitted) (“An employer creates a hostile work
environment when the workplace is 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.”). Further, a plaintiff “must show
that the environment was both objectively and subjectively hostile or abusive,” and the
objective severity of the harassment is assessed “from the perspective of a reasonable
person in the plaintiff’s position, considering all the circumstances.” Morris, 666 F.3d at
664 (quotations and citation omitted).

For most of Plaintiff’s amended complaint, he merely concludes that Defendant
“constantly created a more severe pattern of ongoing, hostile, violent, [and] pervasive work
environment.” [Doc. No. 12, at 3]. Plaintiff’s vague references to “an ongoing series of
related incidents” are insufficient. In the few instances where Plaintiff alleges specific
instances of harassment, his allegations do not support a plausible hostile work
environment claim. Plaintiff alleges: he was limited to four-hour workdays after reporting

a workplace injury; he was threatened by management to be disciplined for absences when
he missed work [Doc. No. 12, at 63]; after he retired, he was sent an AWOL inquiry and
asked to come in for an investigative interview related to his potential AWOL status [Doc.
No. 12, at 71]; his management pretended not to know that Plaintiff had already retired
[Doc. No. 12, at 77]; and after his retirement, Plaintiff’s co-worker drove a golf cart through

the workplace announcing that Plaintiff had retired [Doc. No. 12, at 78].
Even viewing all reasonable inferences in Plaintiff’s favor, Plaintiff has not pled
facts to show that the alleged harassment was severe or pervasive from the perspective of
a reasonable person. “[C]omplaints premised on nothing more than rude treatment by
coworkers, callous behavior by one’s superiors, or a routine difference of opinion and

personality conflict with one’s supervisor are not actionable under Title VII.” E.E.O.C. v.
Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (quotations and citation
omitted). Plaintiff’s allegations underlying his hostile work environment claim, most of
which occurred after he retired, do not show severe or pervasive retaliatory harassment
from the perspective of a reasonable person. Accordingly, Plaintiff’s hostile work
environment claim will be dismissed.

VII. Constructive Discharge
“Constructive discharge occurs when an employer unlawfully creates working
conditions so intolerable that a reasonable person in the employee’s position would feel
forced to resign.” Strickland v. United Parcel Service, Inc., 555 F.3d 1224, 1228 (10th Cir.
2009) (quotations and citation omitted). “[N]ot every unhappy employee has an actionable
claim of constructive discharge pursuant to Title VII.” Bolden v. PRC Inc., 43 F.3d 545,

552 (10th Cir. 1994). “An employee who voluntarily resigns cannot prevail on a theory of
constructive discharge.” Dulany v. Brennan, 736 F. App’x 199, 204 (10th Cir. 2018)
(citation omitted). “The question is not whether the employee’s resignation resulted from
the employer’s actions, but whether the employee had any other reasonable choice but to
resign in light of those actions.” Tran v. Trustees of State Colleges in Colo., 355 F.3d 1263,

1270 (10th Cir. 2004).
Plaintiff’s constructive discharge claim is based on Defendant’s decision to limit
Plaintiff to four-hour workdays and Defendant’s refusal to reconsider that decision.
Although Plaintiff acknowledges that he could be reimbursed by the Department of Labor
for the remaining four hours of each workday, he was dissatisfied with the lengthy

reimbursement process and reimbursement rate. Plaintiff’s amended complaint reflects that
he accepted the four-hour modified duty from Defendant on May 10, 2017 [Doc. No. 12-
75]. For his constructive discharge claim, Plaintiff alleges that, after working the modified
duty for approximately one year, he was constructively discharged when he retired in April
of 2018. Plaintiff connects his decision to retire to needing to withdraw money from his
retirement account to pay back loans he borrowed from relatives and credit companies

[Doc. No. 12, at 63].
Plaintiff has failed to allege that Defendant retaliated against him to the point where
a reasonable person would have felt compelled to resign. Plaintiff had accepted the
modified duty from Defendant and had worked the modified schedule for almost one full
year before he alleges he could no longer tolerate Defendant’s decision. These allegations
are insufficient to plead a plausible constructive discharge claim. Accordingly, Plaintiff’s

constructive discharge claim will be dismissed.
CONCLUSION
For these reasons, Defendant’s Motion to Dismiss [Doc. No. 21] is GRANTED in
part and DENIED in part. Plaintiff’s claims brought pursuant to 42 U.S.C. § 1983 and
the No FEAR Act are DISMISSED with prejudice.5 Plaintiff’s claims of hostile work

environment, constructive discharge, and discrimination under Title VII, the ADEA, and
the Rehabilitation Act are DISMISSED without prejudice. Plaintiff’s retaliation claim

5 “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 he could not effectively amend his Section 1983 or No FEAR Act claims to
cure the deficiencies cited herein. Therefore, amendment is futile and dismissal with
prejudice is appropriate.
survives dismissal at this stage of proceedings. Plaintiffis not granted leave to file a second
amended complaint at this time.°®
IT IS SO ORDERED this 8" day of March, 2024.

Aly 0.O,Pit
TIMOTHY D. DeGIUSTI
Chief United States District Judge

6 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.
17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390738. Public record. Not legal advice.