Calkins v. Davis School District et alMOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in SupportD. UtahJuly 18, 20161 ALAIN C. BALMANNO (3985) Assistant Utah Attorney General SEAN D. REYES (7969) Utah Attorney General 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 Facsimile: (801) 366-0101 E-mail: abalmanno@utah.gov IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, NORTHERN DIVISION ANDREW CALKINS, Plaintiff, vs. DAVIS SCHOOL DISTRICT, BECKY WILLIAMS, BRAD VALLACE, LAURA BOND, BOUNTIFUL CITY, MATTHEW COMBS, J.S. YUCHAUSTI, U.S. EQUAL OPPORTUNITY COMMISSION, and MELINDA CARABALLO, Defendants. MOTION TO DISMISS Case No. 1:15cv00060 Magistrate Judge Evelyn J. Furse Judge David Nuffer Defendants Davis School District, Becky Williams, and Laura Bond (the School District Defendants), through Counsel, Alain C. Balmanno, Assistant Utah Attorney General, submit this Motion to Dismiss pursuant to FRCP 7, 12(b), and DUCivR7-1. 1 1 Brad Vallace is also a school district Defendant; but Mr. Vallace has retired from his employment with the School District, has (on information and belief) moved out of state, and has not been served, so is not properly before the Court. Case 1:15-cv-00060-DN-EJF Document 15 Filed 07/18/16 Page 1 of 9 2 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................ 2 TABLE OF AUTHORITIES .......................................................................................................... 3 RELIEF SOUGHT AND GROUNDS FOR THE MOTION ......................................................... 4 FACTS ............................................................................................................................................ 4 ARGUMENT .................................................................................................................................. 5 CONCLUSION ............................................................................................................................... 8 CERTIFICATE OF SERVICE ....................................................................................................... 9 Case 1:15-cv-00060-DN-EJF Document 15 Filed 07/18/16 Page 2 of 9 3 TABLE OF AUTHORITIES Cases Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193 (10th Cir. 2006) .......................... 2 Ashcroft v. Iqbal, 556 U.S. 662, (2009) ...................................................................................... 1, 2 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, (2007) .............................................................. iv, 1 Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300 (10th Cir.2005) .... 3 Faragalla v. Douglas County School Dist. RE 1, 411 Fed.Appx. 140 (10th Cir. 2011) ................ 2 Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir. 2012) ...................................................... 1, 2 Morris v. City of Colorado Springs, 666 F.3d 654 (10th Cir. 2012) .............................................. 1 Petersen v. Utah Dep't of Corr., 301 F.3d 1182 (10th Cir. 2002) .................................................. 3 Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008) ............................................................. iv, 1 University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013) ................... 3 Rules FRCP 7, 12(b) .................................................................................................................................. i Rule 12(b)(6) ................................................................................................................................... 1 Case 1:15-cv-00060-DN-EJF Document 15 Filed 07/18/16 Page 3 of 9 4 RELIEF SOUGHT AND GROUNDS FOR THE MOTION The School District Defendants asks the Court to dismiss the Complaint against these Defendants in its entirety. The Complaint fails to provide the ‘who, what, where, when, and how’ necessary to meet the requirement that “a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, (2007). As explained by the Tenth Circuit, “factual allegations must be enough to raise a right to relief above the speculative level.” Id. In addition, the allegations the Complaint does contain fall far short of Title VII claims. FACTS Plaintiff filed a Complaint on April 16, 2015. The Court ordered service by the United States Marshall Service on June 29, 2016. These responding Defendants were served on or about July 8, 2016. Plaintiff was previously employed by the School District as a general custodian at Bolton Elementary School. He alleges violations of Title VII, as best as can be determined, for hostile work environment, harassment, and retaliation based on religion and, perhaps, some other unidentified reason. Plaintiff attaches to his Complaint an EEOC Right to Sue letter dated January 8, 2015. It is not clear what charges are addressed by the Right to Sue letter. In his Complaint, Plaintiff alleges that on November 4th, 2013, he complained to Defendant Laura Bond that staff was treating him “differently.” Plaintiff nowhere in the Complaint sets forth what religious harassment or discrimination he allegedly suffered. He does not state who did it, what they did, when they did it, or where they did it. Plaintiff alleges he was Case 1:15-cv-00060-DN-EJF Document 15 Filed 07/18/16 Page 4 of 9 5 placed on administrative leave after May 8, 2015, and labels that harassment and retaliation. Again, Plaintiff does not state who placed him on administrative leave, why they did so, or what happened before and after he was placed on administrative leave. ARGUMENT Hostile Work Environment: To bring a hostile work environment claim, Plaintiff must, at this stage of the proceedings, assert details supporting an allegation that the workplace was permeated with discriminatory intimidation, ridicule, and insult, sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. Morris v. City of Colorado Springs, 666 F.3d 654, 664 (10th Cir. 2012). Plaintiff has not pled facts that make out a plausible claim based on religion. Specifically, Plaintiff must plead facts that, if proven, give plausible support to an inference of discriminatory motivation, hostile work environment, and actual harassment. Plausibility in this context refers to the scope of the allegations in a complaint. “If they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible. The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). Only a complaint that states a plausible claim for relief survives a motion to dismiss. Thus, mere “labels and conclusions” and “a formulaic recitation of the elements of a cause of action” will not suffice. Khalik v. United Air Lines, 671 F.3d 1188, 1190- 91 (10th Cir. 2012), relying on Bell Atlantic Corp. v. Twombly, 550 U.S. 544, (2007) and Ashcroft v. Iqbal, 556 U.S. 662, (2009). Accordingly, in examining a complaint under Rule 12(b)(6), Courts disregard Case 1:15-cv-00060-DN-EJF Document 15 Filed 07/18/16 Page 5 of 9 6 conclusory statements and look only to whether the remaining, factual allegations plausibly suggest a defendant is liable. Id. The Tenth Circuit has explained that “while Plaintiff is not required to set forth a prima facie case for each element, she is required to set forth plausible claims.” Khalik, 671 F.3d at 1193. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “While specific facts are not necessary, some facts are.” Khalik, 671 F.3d at 1193, (internal citations omitted). In his Complaint, Plaintiff has provided no facts, no specific allegation even hinting at religious discrimination or harassment. Retaliation: Plaintiff also fails to allege sufficient facts to support his retaliation claim. To support his complaint of retaliation, Plaintiff must allege facts sufficient to establish that he was engaged in protected opposition to discrimination, that a reasonable employee would have found the challenged action materially adverse, and that a causal connection existed between the protected activity and the materially adverse action.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006) (footnote omitted). To meet the first element, an employee must oppose an employment practice made unlawful by Title VII. Thus, an employee’s complaints regarding unfair treatment, no matter how unconscionable, cannot be “protected opposition to discrimination” unless the basis for the alleged unfair treatment is some form of unlawful discrimination in violation of Title VII. Faragalla v. Douglas County School Dist. RE 1, 411 Fed.Appx. 140, 148 (10th Cir. 2011). Plaintiff has not alleged facts sufficient to make a claim for a violation of Title VII against the Case 1:15-cv-00060-DN-EJF Document 15 Filed 07/18/16 Page 6 of 9 7 School District Defendants. The grievance he alleges making did not describe religious harassment under Title VII. To meet the third element, Plaintiff must allege causal evidence sufficient to establish that the Title VII motive was the but-for causation for the adverse action. University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2533 (2013). Plaintiff must allege that the motive for the adverse action was his opposition to unlawful conduct. Petersen v. Utah Dep't of Corr., 301 F.3d 1182, 1189 (10th Cir. 2002). Plaintiff has alleged no fact to support that claim, and has not even identified the adverse employment action. The only possible adverse action pled is the administrative leave, but that is insufficient because being placed on administrative leave is not considered an adverse action, if the employee is kept on paid status during the leave. Plaintiff has not alleged that he was placed on unpaid administrative leave. Jurisdiction: To establish subject matter jurisdiction, Plaintiff must provide dates on which specific acts were perpetrated against him so that the Court may properly determine if the event occurred within the 300 day limitation period established by Title VII. Courts have no subject matter jurisdiction over acts which occurred more than 300 days before Plaintiff filed his EEOC complaint. Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1308 (10th Cir. 2005). Leaving aside that Plaintiff has alleged no specific act; Plaintiff has alleged that he complained to Defendant Bond on November 4, 2013. Presumably the acts he was complaining about occurred before that date. To meet the 300 days limitation period for the November 4, 2013 meeting, Plaintiff would have to have filed his EEOC complaint by August 31, 2014. Any act occurring prior to November 4, 2013 would make the required date Case 1:15-cv-00060-DN-EJF Document 15 Filed 07/18/16 Page 7 of 9 8 even earlier. At this time the Court cannot determine if it has subject matter jurisdiction over the Title VII claim, but it does not appear likely. The unidentified basis. It should go without saying that the Court cannot give ear to a Title VII basis to be named later. Plaintiff has alleged his Title VII bases as “religion, retaliation, the third basis I omitted until I can explain.” The School District Defendants submit that now would be a good time to explain, and argue that, absent such an explanation, the case against these Defendants should be dismissed. CONCLUSION For the foregoing reasons, the Court should grant the Motion to Dismiss as to the School District Defendants. Dated this 18th of July, 2016. SEAN D. REYES Utah Attorney General /s/Alain C. Balmanno ALAIN C. BALMANNO Assistant Utah Attorney General Attorney for Defendants Case 1:15-cv-00060-DN-EJF Document 15 Filed 07/18/16 Page 8 of 9 9 CERTIFICATE OF SERVICE I certify that on the 18th day of July, 2016, a true, correct and complete copy of the foregoing MOTION TO DISMISS was delivered to the following via U.S. mail, first class, postage prepaid: Andrew Calkins 1062 West 550 South Layton, UT 84041 Plaintiff Pro Se /s/Marie B. Lujan Case 1:15-cv-00060-DN-EJF Document 15 Filed 07/18/16 Page 9 of 9