Mullahkhel v. State of Utah et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support

D. UtahDecember 23, 2016

JEFFREY ROBINSON (4129) 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: jeffreyrobinson@utah.gov IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION MUMTAZ ABDUL MULLAHKHEL, Plaintiff, vs. STATE OF UTAH, UTAH STATE DEPARTMENT OF TRANSPORTATION, Defendant. MOTION TO DISMISS AND SUPPORTING MEMORANDUM Civil No. 2:16-CV-00921 EJF Judge Evelyn J. Furse Defendant, State of Utah, Utah State Department of Transportation (“UDOT”), respectfully submits this Motion to Dismiss and Supporting Memorandum pursuant to Fed. R. Civ. P. 7 and 12(b)(6) and D.U.Civ.R. 7-1. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 1 of 28 ii TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii GROUNDS FOR MOTION AND RELIEF SOUGHT ................................................................. vi STANDARD OF REVIEW .......................................................................................................... vii FACTS .......................................................................................................................................... vii ARGUMENT .................................................................................................................................. 1 NATIONAL RAILROAD PASSENGER CORP. v. MORGAN DOES NOT APPLY ................. 1 1. The Continuing Violation Doctrine Does Not Apply to Discrimination and Retaliation Claims ....................................................................................................... 1 2. The Continuing Violation Doctrine is also Inapplicable to Plaintiff’s Hostile Work Environment Claim ..................................................................................................... 2 THE COMPLAINT FAILS TO ALLEGE A HOSTILE WORK ENVIRONMENT CLAIM ...... 6 THE COMPLAINT FAILS TO PLEAD AN ACTIONABLE ADVERSE ACTION ................. 11 1. A Voluntary Transfer is not an Adverse Employment Action.................................. 11 2. Snubbing is not an Adverse Employment Action ..................................................... 14 3. Excluding Plaintiff is not an Adverse Employment Action ...................................... 16 4. Other Alleged Adverse Actions are Too Late ........................................................... 17 CONCLUSION ............................................................................................................................. 18 Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 2 of 28 iii TABLE OF AUTHORITIES Federal Cases Ainsworth v. Independent School District No. 3 of Tulsa County, 232 Fed.Appx. 765 (10th Cir. 2007) ........................................................................................... 8 Al-Kazaz v Unitherm Food Systems, Inc., 594 Fed.Appx. 460 (10th Cir. 2014) ......................................................................................... 10 Aman v. Dillon Companies, Inc., 645 Fed.Appx. 719 (10th Cir. 2016) .................................................................................. vi, 2, 6 Angell v. Fairmont Fire Protection District, 907 F.Supp.2d 1242 (D. Colo. 2012) .......................................................................................... 8 Antonio v. Sygma Network, Inc., 458 F.3d 1177 (10th Cir. 2006) .................................................................................................. 8 Argo v. Blue Cross and Blue Shield of Kansas, Inc., 425 F.3d 1193 (10th Cir. 2006) ........................................................................................... vi, 11 Arthur v. Bloomfield School District, 157 F.Supp.3d 1055 (D.N.M. 2015) ......................................................................................... 16 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ........................................................... vii Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................. vii Bloomer v. United Parcel Service, Inc., 94 Fed.Appx. 820 (10th Cir. 2004) ................................................................................... vi, 2, 6, Bolden v. PRC INC., 43 F.3d 545 (10th Cir. 1995) .................................................................................................... 10 Burlington Northern and Santa Fe Railway, Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ............................................................. 16 Davidson v. America On-line, Inc., 337 F.3d 1179 (10th Cir. 2003) ............................................................................................. vi, 1 Duncan v. Manager, Dept. of Safety, City and County of Denver, 397 F.3d 1300 (10th Cir. 2005) ............................................................................................. vi, 2 Exum v. United States Olympic Committee, 389 F.3d 1130 (10th Cir. 2004) .......................................................................................... 12, 13 Fischer v. Forestwood Co., Inc., 525 F.3d 972 (10th Cir. 2008) .................................................................................................. 13 Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 3 of 28 iv Fullwiley v. Union Pacific Corp., No. 2:04-CV-671 TS, 2006 WL 266615 (D. Utah February 1, 2006) ...................................... 11 Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009) ................................................................................................ vii Garrett v. Hewlett-Packard Co., 305 F.3d 1210 (10th Cir. 2002) ................................................................................................ 13 Johnson v. United Auto Workers-Labor Employment and Training Corp., No. 1:15-cv-0099-BCW, 2016 WL 1092483 (D. Utah March 21, 2016) ..................... vii, 14, 15 Johnson v. Weld County, Colorado, 594 F.3d 1202 (10th Cir. 2010) ................................................................................................ 16 Johnson v. Weld County, Colorado, No. 06-cv-02362-JLK, 2008 WL 4402247 (D. Colo. September 24, 2008) ............................ 16 Kelly v. Wal-Mart Stores, Inc., No. 14-cv-01692-CMA-KMT, 2015 WL 4600732 (D. Colo. July 31, 2015) .......................... 12 MacKenzie v. City and County of Denver, 414 F.3d 1266, 1281 (10th Cir. 2005) ................................................................................ 13, 14 Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003) ............................................................................................. vi, 1 Meiners v. University of Kansas, 359 F.3d 1222 (10th Cir. 2004) .................................................................................................. 8 Morehead v. Deere & Company, No. 11-2269-SAC, 2012 WL 6554548 (D. Kan. December 14, 2012) .............................. 16, 17 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ........................................................ vi, 1 Nordike v. Verizon Business, Inc., No. 12-2686-JAR, 2014 WL 4749185 n. 84 (D. Kan. September 24, 2014) ..................... 16, 17 Ordonez v. Canyons School District, No. 2:13CV245DAK, 2014 WL 4092900 (D. Utah August 18, 2014) .............................. vii, 15 Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257 (10th Cir. 1998) ................................................................................................ 10 Schofield v. Maverik Country Store, 26 F.Supp.3d 1147 (D. Utah 2014) ........................................................................................... 11 Somoza v. University of Denver, 513 F.3d 1206 (10th Cir. 2008) ................................................................................................ 17 Steele v. Kroenke Sports Enterprises, L.L.C., 246 Fed.Appx. 735 (10th Cir. 2008) ......................................................................................... 16 Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 4 of 28 v Torres v. Bodycote International, No. 13-1245-EFM, 2014 WL 11878452 (D. Kan. May 23, 2014) ..................................... 12, 14 Villamar v. Lincare, Inc., 624 Fed.Appx. 658 (10th Cir. 2015) ......................................................................................... 10 State Cases Fed. R. Civ. P. 7 ............................................................................................................................... i Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 5 of 28 vi GROUNDS FOR MOTION AND RELIEF SOUGHT Plaintiff’s Complaint asserts three legal claims: (1) discrimination based on race, national origin, and religion; (2) hostile work environment based on race, national origin, and religion; and (3) retaliation. The Complaint attempts to describe a six-year period of discriminatory and retaliatory behavior. The Complaint is sparse on actual facts and replete with conclusory allegations. Disregarding the conclusory allegations, the facts show a six-year period peppered with isolated and only arguably derogatory acts perpetrated by different UDOT managers with substantial gaps of time between the events. UDOT seeks dismissal of all three claims, as follows: 1. The continuing violation doctrine articulated in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) does not apply because: a. The doctrine does not apply as a matter of law to discrimination and retaliation claims, Martinez v. Potter, 347 F.3d 1208 (10 th Cir. 2003); Davidson v. America On- line, Inc., 337 F.3d 1179 (10 th Cir. 2003). b. The doctrine does not apply to plaintiff’s hostile environment claim because the Complaint fails to articulate pre- and post-limitations acts that comprise the same actionable work environment practice, Aman v. Dillon Companies, Inc., 645 Fed.Appx. 719 (10 th Cir. 2016)(unpublished); Duncan v. Manager, Dept. of Safety, City and County of Denver, 397 F.3d 1300 (10 th Cir. 2005). 2. Plaintiff fails to state a plausible claim for hostile work environment because the Complaint fails to articulate severe and pervasive harassment stemming from discriminatory animus, Aman v. Dillon Companies, Inc., 645 Fed.Appx. 719 (10 th Cir. 2016)(unpublished); Bloomer v. United Parcel Service, Inc., 94 Fed.Appx. 820 (10 th Cir. 2004)(unpublished). 3. Plaintiff fails to state a plausible claim for discrimination and retaliation because the Complaint fails to allege an actionable adverse employment action, Argo v. Blue Cross and Blue Shield of Kansas, Inc., 425 F.3d 1193 (10 th Cir. 2006). Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 6 of 28 vii STANDARD OF REVIEW To survive a Rule 12(b)(6) motion to dismiss, “‘a complaint must have enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.’” Ordonez v. Canyons School District, No. 2:13CV245DAK, 2014 WL 4092900 *2 (D. Utah August 18, 2014)(unpublished)(citation omitted). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Gallagher v. Shelton, 587 F.3d 1063, 1068 (10 th Cir. 2009)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). “While ‘“a court must accept as true all of the allegations contained in a complaint,”’ this rule does not apply to legal conclusions.” Ordonez, 2014 WL 4092900 *2 (citation omitted). Hence, a complaint must contain “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, “‘a plaintiff must offer specific factual allegations to support each claim.’” Ordonez, 2014 WL 4092900 *2 (citation omitted). See also, Johnson v. United Auto Workers-Labor Employment and Training Corp., No. 1:15-cv-0099-BCW, 2016 WL 1092483 *3 (D. Utah March 21, 2016)(“a court should disregard conclusory statements of law, even if they are couched as facts”). FACTS Disregarding the Complaint’s conclusory allegations, the following facts remain: 1. UDOT employed plaintiff in 2007. Complaint ¶ 10. 2. Over a three-month period (Sept - Nov) in 2007, Gibson made three remarks: a. “Minorities are taking over America and they have more rights than the rest of us.” b. “You’re always fasting, 45 days or whatever.” Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 7 of 28 viii c. “I have a problem with that. Your work takes precedence over your religion. If you want [to keep] your job, you better be here.” Id. ¶¶ 12-14. 3. Gibson “snubbed” plaintiff. 1 Id. ¶ 12. 4. In January 2008, plaintiff complained about Gibson’s behavior to a Department of Human Resources (“HR”) representative. 2 Id. ¶ 15. 5. In winter 2011, plaintiff reported to HR “room temperature and odor”. Id. ¶ 57. 3 6. In August 2011, UDOT disciplined plaintiff. Id. ¶ 18. Although plaintiff disputes the accusation, the Complaint concedes the discipline was based on a Chris Haycock’s 4 accusation that plaintiff had falsified Haycock’s signature. Id. ¶¶ 18-19. 7. Subsequently, UDOT reassigned plaintiff from “Compliance Officer” to “Program Manager.” Id. ¶ 20. 8. As Program Manager, UDOT assigned plaintiff responsibilities different from other program managers and denied him the same compensation. Furthermore, Gibson forbade plaintiff from talking with his co-worker program managers. 5 Id. 9. In May 2012, plaintiff reported to HR “about being required to pay for a non-pork meal while at a work conference.” 6 Id. ¶ 57. 10. In August 2012, Gibson retired. Id. ¶ 21. 1 With no facts as to date, frequency or circumstance, the Complaint appears to describe the snubbing as excluding plaintiff from training, staff meetings, and other events. Complaint ¶ 12. 2 Without facts, the Complaint concludes UDOT did not act on plaintiff’s report to HR. Id. ¶ 16. 3 Without providing any facts, the Complaint characterizes this as “discriminatory.” Id. ¶ 57. 4 Plaintiff does not identify Chris Haycock or what his relationship to UDOT was, if any. 5 The Complaint does not allege facts explaining how plaintiff’s duties and compensation differed. Nor does it provide any context for Gibson’s alleged restriction. 6 Without providing any facts, the Complaint characterizes this as “discriminatory.” Id. ¶ 57. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 8 of 28 ix 11. UDOT replaced Gibson with Tim Boschert (“Boschert”) and Boschert became plaintiff’s supervisor. 7 Id. 12. In March 2013, UDOT hired Gibson as a “full-time consultant.” Id. ¶ 22. 13. In or after March 2013, Boschert made six remarks: 8 1. “I won’t go to Turkey, I don’t like those kind of people.” 2. “There’s the sandbox, go play in it.” 3. “Pork is so tasty. You don’t know what you’re missing.” 4. “We know where you stand on security.” 5. “Do you want a bacon sandwich?” 6. “Do you want to quit? It can be arranged in five minutes.” Id. 14. Boschert snubbed plaintiff. Id. ¶¶ 50, 62. 9 12. In a regularly scheduled performance review in June 2013, plaintiff and Boschert reached an agreement as to plans and goals. Shortly thereafter, Boschert accused plaintiff of changing information on the performance review. 10 Id. ¶¶ 23-24. 13. On June 14, 2013, plaintiff emailed Boschert and a HR representative, complaining “he was ‘tired’ of supervisors making negative comments about him and treating him adversely because of his race, national origin and religion.” 11 Id. ¶¶ 26, 57. 7 Without providing any facts, the Complaint concludes UDOT passed over plaintiff for the promotion to Gibson’s position and promoted Boschert, a less qualified individual. Id. ¶ 21. 8 Other than alleging Boschert made the statements after UDOT hired Gibson as a consultant, the Complaint does not articulate any facts as to date or context of the statements. Id. ¶ 22. 9 Without any facts as to date, frequency or circumstance, the Complaint appears to describe the snubbing as excluding plaintiff from training, staff meetings, and other events. Id. ¶¶ 50, 62. 10 With no facts, the Complaint characterizes Boshert’s accusations as false, discriminatory and retaliatory. Id. ¶¶ 24 and 25. 11 Without any facts, the Complaint concludes UDOT did not act on plaintiff’s report. Id. ¶ 28. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 9 of 28 x 14. Soon after sending the June 14, 2013 email, Boschert required plaintiff “to account for and/or report his status and location at all times during the work day.” Id. ¶ 27. 15. On July 18, 2013, plaintiff requested that HR transfer him to a different position. Id. ¶ 28. 16. HR assured plaintiff that “any transfer would be within the same building and would be to a similar type of work and to a similar work setting.” Id. ¶ 28. 17. HR facilitated plaintiff’s request to be transferred, moving plaintiff to a UDOT warehouse. 12 Id. ¶ 29. 18. Plaintiff accepted the transfer. 13 Id. ¶ 30. 12 The Complaint characterizes the transfer as one from a “white collar” position to a physically more strenuous “blue collar” position and as retaliatory. Id. ¶ 29. 13 The Complaint characterizes plaintiff’s acceptance as “reluctant.” Id. ¶ 30. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 10 of 28 1 ARGUMENT NATIONAL RAILROAD PASSENGER CORP. v. MORGAN DOES NOT APPLY Spanning a period of six years, the Complaint alleges discriminatory conduct outside and within the applicable limitations period. Id. ¶¶ 6, 41, 44, 50, 52, and 67. Relying on National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), plaintiff attempts to apply the continuing violation doctrine to all three of his claims. Id. ¶¶ 44, 52, 67. The continuing violation doctrine does not apply here. 1. The Continuing Violation Doctrine Does Not Apply to Discrimination and Retaliation Claims Applying Morgan, the Tenth Circuit has concluded that the continuing violation doctrine does not apply to discrete acts of discrimination and retaliation. Martinez v. Potter, 347 F.3d 1208, 1210-11 (10 th Cir. 2003); Davidson v. America On-line, Inc., 337 F.3d 1179, 1184-86 (10 th Cir. 2003). Each “discrete retaliatory or discriminatory act ‘occur[s]’ on the day that it ‘happen[s].’” Davidson, 337 F.3d at 1184. Each “‘starts a new clock for filing charges’”, requiring a “charge of discrimination within the appropriate limitations period.” Id. (citation omitted). If not filed timely, such discrete acts are time-barred and not actionable, “even when they are related to acts alleged in timely filed charges”, Id. (citation omitted), and “even if the discrete act was part of a company-wide or systemic policy.” Id. at 1185-86. Therefore, the continuing violation doctrine does not apply to plaintiff’s discrimination and retaliation claims, the first and third claims. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 11 of 28 2 2. The Continuing Violation Doctrine is also Inapplicable to Plaintiff’s Hostile Work Environment Claim Although the continuing violation doctrine can be applicable to hostile work environment claims, see Morgan, 536 U.S. at 115-20, it is not available here. “[T]o consider pre-limitations period conduct, those acts must comprise ‘part of the same actionable hostile work environment practice’ that continued into the limitations period.” Aman v. Dillon Companies, Inc., 645 Fed.Appx. 719, 724 (10 th Cir. 2016)(unpublished)(citation omitted). “[A] series of alleged events comprises the same hostile environment where ‘the pre- and post-limitations period incidents involve[d] the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.’” Duncan v. Manager, Dept. of Safety, City and County of Denver, 397 F.3d 1300, 1309 (10 th Cir. 2005)(citation omitted). “[T]here must be a relationship between the” pre- and post-limitations actions. Id. Absent such a relationship, the pre-limitations period conduct cannot be considered “part of the same hostile work environment practice”. To determine whether the pre- and post-limitations acts comprise the same hostile environment practice, courts look “at the type of [the] acts, the frequency of the acts, and the perpetrator of the acts.” Duncan, 397 F.3d at 1309. The Tenth Circuit has rejected the continuing violation doctrine where the allegedly discriminatory acts were committed by different people over several months and years. See Aman, 645 Fed.Appx. at 724-25 (the pre- and post-limitations acts were different and mostly involved different employees); Duncan, 397 F.3d at 1309 (twenty-year hostile environment claim rejected because the alleged acts were taken by “different individuals” under “different circumstances”); Bloomer v. United Parcel Service, Inc., 94 Fed.Appx. 820, 824-25 (10 th Cir. 2004)(unpublished)(hostile environment claim rejected Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 12 of 28 3 because it was “based on independent and isolated events, allegedly committed by multiple persons occurring months or even years apart”). Plaintiff’s Complaint describes only isolated acts committed by different managers over a six-year period with substantial gaps of time between events. Essentially, the Complaint describes four separate periods: (1) a three-month period, Sept. - Nov. 2007, Complaint ¶¶ 12-14 (the “First Period”); (2) a one-month period, August 2011, Id. ¶¶ 18-20 (the “Second Period”); (3) a second one-month period, August 2012, Id. ¶ 21 (the “Third Period”); and (4) a five-month period, March - July 2013, Id. ¶¶ 22-31 (the “Fourth Period”). The allegations do not demonstrate a pattern of the same hostile work environment. a. Different Actors At least four different actors and possibly more were involved over the six-year period. The Complaint attributes all acts in the First Period to Gibson alone. Id. ¶¶ 12-14. The Complaint does not specify who made the decision to discipline plaintiff in the Second Period. Id. ¶¶ 18-20. There are no facts from which the Court can determine if Gibson or another UDOT manager made the decision. Similarly, the Complaint does not specify who decided to promote Boschert over plaintiff in the Third Period. Id. ¶ 21. However, the Court must infer that someone other than Gibson or Boschert made the decision. Per the Complaint, Gibson had retired and Boschert was the person promoted over plaintiff. Id. The only logical conclusion is that someone other than Gibson or Boschert made the decision to promote Boschert. Finally, the Complaint attributes the acts during the Fourth Period primarily to Boschert, and secondarily to a HR representative, Carlos Rodriguez, and perhaps others. Id. ¶¶ 22-31. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 13 of 28 4 b. Gaps in Time The Complaint’s allegations demonstrate substantial gaps in time between the four periods during which no discriminatory acts are alleged to have occurred. There is a nearly four- year gap between the First and Second Periods, a one-year gap between the Second and Third Periods, and a six month gap between the Third and Fourth Periods. Id. ¶¶ 14, 18, 21-22. The Complaint does not explain the absence of discriminatory acts between the four periods. Furthermore, the Complaint fails to articulate any nexus connecting the four periods with the sole exception of an allegation that UDOT hired Gibson as a full-time consultant in March 2013 14 and that Boschert subsequently began making derogatory remarks. Id. ¶ 22. That single allegation is not enough to support an inference that Gibson influence Boschert and the Complaint is devoid of any other facts from which such an inference can be drawn. The Complaint tries to fill the four-year gap between the First and Second Periods and the one-year gap between the Second and Third periods with two vague allegations. Plaintiff alleges two reports to HR, one in winter 2011 and one in May 2012. The first report is about “room temperature and odor” and the second is about “being required to pay for a non-pork meal.” The Complaint only makes one reference to the allegations. Id. ¶ 57. The reports are not facially discriminatory. Other than the bare allegations, the Complaint alleges no facts identifying the actors involved or describing the circumstances underlying the events. Without more, those allegations cannot establish the requisite nexus between the four periods. 14 Five plus years after Gibson allegedly made derogatory remarks in the First Period. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 14 of 28 5 c. Different Acts The purported discriminatory acts during the four periods are different. The Complaint alleges derogatory remarks and snubbing 15 in the First Period. There is no further allegation of derogatory remarks until more than five years later. Id. ¶¶ 12-14, 22. The Complaint alleges a two-day disciplinary suspension in the Second Period. Id. ¶ 18. Although the Complaint concludes that the suspension was retaliatory for reporting Gibson’s behavior to HR in 2008, three and a half years earlier, the complaint articulates a legitimate non-discriminatory business reason for the discipline, i.e., falsification of a signature. Id. The Complaint also alleges UDOT reassigned plaintiff in the Second Period and passed over plaintiff for a promotion in the Third Period but provides no other context for those actions. Id. ¶¶ 20-21. Although the Complaint alleges Boschert made derogatory remarks and snubbed plaintiff in the Fourth Period, it provides no factual context from which it can be determined whether Boschert’s actions were similar to Gibson’s alleged actions five years earlier. Compare Id. ¶¶ 12-14 to ¶¶ 22, 50, 62. Finally, although the Complaint alleges plaintiff was reassigned in the Fourth Period, it describes a circumstance entirely different from the reassignment in the First Period, i.e., a transfer made only at plaintiff’s express request. Id. ¶¶ 28-30. Considering the different actors involved, the substantial gaps of time between the alleged acts, and the different types of alleged acts, the Complaint’s allegations do not demonstrate a series of pre- and post-limitations period incidents comprising the same hostile work environment. Therefore, the continuing violation doctrine does not apply and the Court should not consider the pre-limitations acts in evaluating plaintiff’s hostile environment claim. 15 Supra, n. 1. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 15 of 28 6 THE COMPLAINT FAILS TO ALLEGE A HOSTILE WORK ENVIRONMENT CLAIM Even if the Court considers all the alleged acts, the Complaint does not state a plausible hostile environment claim. To prevail on his hostile environment claim, plaintiff must show that the alleged harassment stemmed from discriminatory “animus.” Bloomer, 94 Fed.Appx. at 825. See also, Complaint ¶ 46 (“To establish a prima facie case . . . plaintiff must establish that the conduct complained of was based on his race, . . . national origin and religion”.). Plaintiff acknowledges the harassment must be “severe or pervasive”. Complaint ¶ 46. “A showing of pervasiveness requires ‘more than a few isolated incidents’” of racial or religious enmity. Bloomer, 94 Fed.Appx. at 825 (citation omitted). To demonstrate a hostile work environment, “there must be a steady barrage of opprobrious” discriminatory comments “[i]nstead of sporadic” discriminatory “slurs.” Aman, 645 Fed.Appx. at 725. The workplace must be “permeated with discriminatory intimidation, ridicule, and insult . . . .” Bloomer, 94 Fed.Appx. at 825. The Complaint’s articulated facts do not demonstrate anything close to a “steady barrage of opprobrious discriminatory remarks” or a workplace “permeated with discriminatory intimidation, ridicule, and insult.” The Complaint articulates a total of nine remarks over a six- year period, three in the First Period and six approximately 4½ years later in the Fourth Period. The term “steady” implies continuous activity or regular behavior. The American Heritage Dictionary, Second College Edition, 1192 (1982). The term “barrage” is defined as “[a]n overwhelming concentrated outpouring of words.” Id. at 159. The term “permeated” means “to pervade”, which means “to be present throughout.” Id. at 924, 927. Even assuming all nine remarks are “opprobrious”, nine such remarks over a six-year period with or without a 4½ year Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 16 of 28 7 gap do not constitute a “steady barrage” or a workplace “permeated with discriminatory intimidation, ridicule, and insults.” However, several of the nine remarks are not “opprobrious”. Nor do they show discriminatory enmity. The term “opprobrious” means to express “contemptuous scorn.” Id. at 872. The term “enmity” means “[d]eep seated mutual hatred.” Id. at 455. Gibson’s alleged remarks that “Minorities are taking over America and they have more rights than the rest of us” and “You’re always fasting, 45 days or whatever” and Boschert’s alleged remarks, “There’s the sandbox, go play in it”, “Pork is so tasty. You don’t know what you’re missing”, “We know where you stand on security”, and “Do you want to quit. It can be arranged in five minutes” are not facially opprobrious or show discriminatory enmity. The Complaint provides little or no factual context for the alleged remarks. Without additional fact context, those six remarks are not overtly racial or discriminatory. They can be equally characterized as inquisitive or, at their worst, neutral commentary. If excluded from the Court’s analysis and assuming the remainder are discriminatory, then plaintiff was exposed to three discriminatory remarks regarding his religion, race or national origin over the six-year period, one in the First Period and two 4½ years later in the Fourth Period by different managers. Even if all nine are characterized as opprobrious, nine remarks over a six-year period do not demonstrate a workplace “permeated with discriminatory intimidation, ridicule, and insult”. Hence, they do not establish a severe and pervasive hostile environment. In what appears to be an attempt to overcome the 4½ year gap, plaintiff asserts the Second Period discipline and reassignment and the Third Period failure to promote. Absent those events, there is nothing in the Complaint to connect the First Period to the Fourth Period. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 17 of 28 8 Neither of those events successfully creates a nexus between the periods to create a severe and pervasive hostile environment from 2007 to 2013. To tie the First Period events to the Second Period discipline and reassignment, the Complaint tries to juxtapose the discipline and reassignment with plaintiff’s alleged report to HR in 2008. Complaint ¶¶ 15-20. The Complaint alleges plaintiff reported Gibson’s behavior to HR in January 2008. Id. ¶ 15. Plaintiff then tries to create a temporal relationship between that report and his discipline. Although only in conclusory terms, the Complaint alleges UDOT took adverse action after plaintiff reported to HR. Id. ¶¶ 16-17. The adverse action alleged is the Second Period discipline and reassignment, approximately 3½ years after his report to HR. Id. ¶¶ 18-20. Other than the temporal relationship of those events, the Complaint does not allege any facts connecting the events. Although temporal proximity may be used to demonstrate a discriminatory motive, alone such an inference cannot be drawn. Ainsworth v. Independent School District No. 3 of Tulsa County, 232 Fed.Appx. 765, 772 n. 4 (10 th Cir. 2007)(Not Published). “‘[W]e have never allowed even very close proximity [taken alone] to operate as a proxy for [a plaintiff’s] evidentiary requirement’ but instead require ‘temporal proximity plus circumstantial evidence of [discriminatory] motive.’” Id. For example, in Meiners v. University of Kansas, 359 F.3d 1222, 1231 (10 th Cir. 2004), “a three-month period, standing alone, [was] insufficient.” See also, Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1180, 1184 (10 th Cir. 2006)(remark made approximately nine months before termination “was temporally remote”); Angell v. Fairmont Fire Protection District, 907 F.Supp.2d 1242, 1252 (D. Colo. 2012)(passage of five months was Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 18 of 28 9 too attenuated). Here, there is a 3½ year gap between plaintiff’s report to HR and the Second Period discipline and reassignment. Other than the temporal relationship, there is nothing to suggest any discriminatory motive for the discipline and reassignment. First, all discriminatory remarks in the First Period are attributed solely to Gibson, but there is no allegation that Gibson, alone or with someone, effected the discipline and reassignment. Second, notwithstanding the conclusory allegation that UDOT took no action on plaintiff’s 2008 report to HR, it must be inferred from the Complaint’s allegations that no discriminatory acts occurred during the 3½ years between the First Period and the discipline and reassignment in the Second Period. The Complaint asserts no facts to explain why the alleged discriminatory acts stopped for 3½ years and suddenly UDOT decided to retaliate for a report that occurred 3½ years earlier. Third, the Complaint expressly alleges a legitimate nondiscriminatory business reason for the discipline and reassignment, i.e., falsification of a signature. Any temporal relationship regarding the Third Period failure to promote is even more remote than the Second Period. There is an approximately 4½ year gap between the First and Third Periods, and a one-year gap between the Second and Third Periods, again with no facts to explain the gaps. Furthermore, Gibson’s retirement in the Third Period before the alleged failure to promote severs any connection with the First Period discriminatory remarks and the Second Period discipline and reassignment. As previously mentioned, the Complaint attributes all discriminatory remarks prior to the failure to promote to Gibson alone. Furthermore, the Complaint does not allege any facts showing a discriminatory animus by any other UDOT Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 19 of 28 10 manager prior to the failure to promote. With Gibson’s retirement, there is nothing to tie her to the failure to promote or to tie the failure to promote to her First Period discriminatory remarks. Finally, without the alleged discriminatory acts in the Second and Third Periods, there is nothing to tie the acts in the Fourth Period with the acts in the First Period. The alleged discriminatory acts are committed by entirely different managers. As previously mentioned, the only connection alleged is UDOT’s retention of Gibson as a full-time consultant. While plaintiff may want the court to infer that Gibson inspired Boschert’s alleged discriminatory actions, the Complaint does not allege any facts to support such an inference. With no nexus between events, the Court must evaluate each period separately to determine if there is a plausible hostile work environment claim. Even if one could be alleged for each, the First, Second and Third Periods are untimely and not actionable. The Fourth period alone does not state a plausible hostile work environment claim. Even if there were a connection between all four periods and the acts in all four periods were evaluated together, they do not state a plausible hostile environment claim. Courts in the Tenth Circuit have rejected hostile workplace claims in several cases with similar or worse facts than plaintiff alleges. See, Villamar v. Lincare, Inc., 624 Fed.Appx. 658 (10 th Cir. 2015)(unpublished)(three racially overt remarks and several other abusive actions and derogatory remarks); Al-Kazaz v Unitherm Food Systems, Inc., 594 Fed.Appx. 460 (10 th Cir. 2014)(unpublished)(three racially overt remarks by three coworkers over a two month period, one of which caused the plaintiff to feel physically threatened); Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257 (10 th Cir. 1998)(numerous remarks and incidents, including inappropriate touching over 3-4 years); Bolden v. PRC INC., 43 F.3d 545 (10 th Cir. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 20 of 28 11 1995)(frequent badgering by several coworkers, including 20 incidents by two coworkers over an 18 month period); Schofield v. Maverik Country Store, 26 F.Supp.3d 1147 (D. Utah 2014)(over 3-4 years numerous derogatory remarks, many gender based, several sexually harassing actions, and other derogatory actions, all more egregious and more frequently than alleged here); Fullwiley v. Union Pacific Corp., No. 2:04-CV-671 TS, 2006 WL 266615 (D. Utah February 1, 2006)(unpublished) aff’d 273 Fed.Appx. 710 (10 th Cir. 2008)(unpublished) (nine derogatory remarks or incidents over a four year period, some of which were not overtly racial). THE COMPLAINT FAILS TO PLEAD AN ACTIONABLE ADVERSE ACTION To prevail on his discrimination and retaliation claims, plaintiff must have suffered an adverse employment action. Argo v. Blue Cross and Blue Shield of Kansas, Inc., 425 F.3d 1193, 1201, 1202 (10 th Cir. 2006). See also, Complaint ¶¶ 36, 54 (must show an adverse employment action). Although the adverse action requirement differs slightly for discrimination and retaliation claims, they are similar and for purposes of this motion the difference is immaterial. The Complaint asserts three adverse actions common to both the discrimination and the retaliation claims: (1) a transfer; (2) snubbing; and (3) exclusion from certain activities. Id. ¶¶ 41-42, 62-63. None qualifies in this case as an actionable adverse employment action. 1. A Voluntary Transfer is not an Adverse Employment Action Although involuntary transfers can qualify as an adverse action under certain circumstances, plaintiff does not allege an involuntary transfer. The Complaint alleges: (1) plaintiff requested a transfer, Id. ¶ 28; (2) a conversation with HR, in which UDOT promised to “act on his request” and plaintiff expressed a preference for the new position, Id; (3) UDOT Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 21 of 28 12 “facilitated the request to be transferred”, but not to the position plaintiff preferred, Id. ¶ 29; (4) after learning that he did not get his preferred position, plaintiff still accepted the transfer, Id. ¶¶ 29-30; and (5) after accepting the transfer, plaintiff became unhappy with position, Id. UDOT has been unable to find a Tenth Circuit appellate decision addressing whether a voluntary transfer may qualify as an adverse action. However, Torres v. Bodycote International, No. 13-1245-EFM, 2014 WL 11878452 (D. Kan. May 23, 2014) is instructive. In Torres, the plaintiff asserted Title VII discrimination and retaliation claims. Torres, *1. Among other things, the plaintiff asserted a voluntary transfer as an adverse employment action. Id. *8, *12. To accommodate the plaintiff, his employer gave him four options one of which was a transfer. Plaintiff chose the transfer. Id. *8. Because “[p]laintiff chose to transfer . . . . [he] therefore fail[ed] to show that his transfer constituted a materially adverse action.” Id. *12. See also, Kelly v. Wal-Mart Stores, Inc., No. 14-cv-01692-CMA-KMT, 2015 WL 4600732, *4 (D. Colo. July 31, 2015)(the plaintiff voluntarily requested a transfer). Torres is consistent with the numerous cases holding that voluntary resignations, do not qualify as adverse employment actions. E.g., Exum v. United States Olympic Committee, 389 F.3d 1130, 1135 (10 th Cir. 2004). Based on other allegations in the Complaint, it appears plaintiff recognizes that a voluntary transfer cannot qualify as an adverse action. The Complaint characterizes plaintiff’s acceptance as “reluctant”. Complaint ¶ 30. It further alleges plaintiff requested the transfer “because management was not acting on his complaints”, 16 he was “forced . . . to request a transfer” and “but for . . . Defendant’s actions, he would not have needed to be transferred and 16 This is a bare conclusory allegation. See Supra, at n. 2, 11. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 22 of 28 13 would not have been transferred . . . .” Id. ¶¶ 28, 41, 65. Essentially, plaintiff attempts to create a “constructive” transfer, similar to constructive discharges. UDOT has been unable to find any case adopting a “constructive transfer” doctrine. Even if such a theory were available to plaintiff, the Complaint fails to allege facts to support such a theory. If the Court is inclined to adopt a constructive transfer theory, it should apply the criteria for demonstrating a constructive discharge. The Tenth Circuit has addressed constructive discharge in Fischer v. Forestwood Co., Inc., 525 F.3d 972 (10 th Cir. 2008); MacKenzie v. City and County of Denver, 414 F.3d 1266 (10 th Cir. 2005); Exum v. United States Olympic Committee, 389 F.3d 1130, 1135 (10 th Cir. 2004); and Garrett v. Hewlett-Packard Co., 305 F.3d 1210 (10 th Cir. 2002), among others. In those decisions, the Tenth Circuit described the plaintiff’s burden as “substantial”, Fischer, at 980, and “quite high.” Garrett, at 1221. It is not enough that the employee is unhappy or that the work conditions are difficult or unpleasant. MacKenzie, at 1282; Fischer, at 981. Evidence of discrimination alone does not establish constructive discharge; there must be “aggravating factors.” Fischer, at 981. Requiring an employee “to choose between resignation and termination is not necessarily a constructive discharge.” Exum, at 1135. A “[p]laintiff must show that, at the time of his resignation, his employer did not allow him the opportunity to make a free choice . . . .” Id. Instead, the plaintiff must show that the “employer deliberately ma[de] or allow[ed] the employee’s working conditions to become so intolerable that the employee ha[d] no choice but to quit.” MacKenzie, at 1281. Courts “evaluate the voluntariness of an employee’s resignation under an objective, totality of the circumstances standard.” Fischer, at 980. In other words, constructive discharge “depends on whether a reasonable person would Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 23 of 28 14 view the working conditions as intolerable.” MacKenzie, at 1281. Courts cannot rely on the “subjective view of the employee-claimant.” Id. Applying those principles to plaintiff’s unadopted constructive transfer theory, the Complaint’s allegations do not demonstrate working conditions so intolerable that plaintiff had no choice but to accept the transfer. The Complaint may describe unpleasant or difficult working conditions, but the allegations fail to show that UDOT did not afford plaintiff the opportunity to make a free choice; just the opposite. Per the Complaint’s allegations, UDOT had no intent to transfer plaintiff. UDOT engaged in looking for a place to transfer plaintiff only because he requested the transfer. Even after UDOT notified plaintiff of the new position, there is no allegation that UDOT required him to transfer. In fact, when plaintiff later requested a transfer out of the warehouse in 2014, UDOT readily accommodated the request. Id. ¶ 33. The only reasonable inference to be drawn from those facts is that UDOT would have accommodated plaintiff had he turned down the transfer to remain where he was. Like the plaintiff in Torres, plaintiff “asked for and was given a transfer.” Id. ¶ 62. The transfer does not become involuntary because plaintiff later felt buyer’s remorse. Because the transfer was voluntary, it cannot qualify as an adverse action. 2. Snubbing is not an Adverse Employment Action Plaintiff’s “snubbing” allegations also cannot qualify as an actionable adverse action. First, the Complaint fails to state any facts from which the Court can even evaluate such an argument. See Johnson, 2016 WL 1092483 *4 (Because the plaintiff failed to allege “actual facts as to exactly what ‘the adverse employment action’ was”, the court could not evaluate the Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 24 of 28 15 plaintiff’s argument.). The Complaint makes only four references to “snubbing”, all four essentially the same: Paragraph 12: “Gibson frequently snubbed” plaintiff; Paragraphs 41 and 50: “Gibson and Boschert frequently snubbed” plaintiff; and Paragraph 62: “Boschert ‘snubbed’” plaintiff. Without additional facts, those allegations are the type of conclusory allegations that must be ignored. Ordonez, 2014 WL 4092900 *4 (conclusory statements without facts do not state a plausible claim). Nowhere does plaintiff’s Complaint describe the snubbing 17 or provide any context for the snubbing. Other than using the conclusory term “frequently”, the Complaint fails to describe when, how many times plaintiff was snubbed, or how long the snubbing persisted. Nor does the Complaint articulate how the snubbing caused a significant change in plaintiff’s employment status or how it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Plaintiff’s conclusory allegations are insufficient to state a plausible claim. Johnson, 2016 WL 1092483 *4 (“Plaintiff only provides vague, labels and conclusions that do not pass muster under Rule 12(b)(6).”); Ordonez, 2014 WL 4092900 *4 (A plaintiff should allege facts describing the discriminatory treatment, the context thereof, when events occurred and how long discriminatory treatment persisted). Second, any alleged snubbing by Gibson is outside the limitations period. Even if the Court assumes without any factual support that Gibson’s snubbing persisted throughout her employment as plaintiff’s supervisor, it necessarily stopped when she retired in August 2012. Complaint ¶ 21. Plaintiff acknowledges that events prior to January 30, 2013 are outside the limitations period, time barred and not actionable. Id. at 6. 17 See Supra, n. 1, 9 and infra, at 16. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 25 of 28 16 Third, courts have concluded that snubbing does not qualify as adverse employment actions as a matter of law. Johnson v. Weld County, Colorado, 594 F.3d 1202, 1216 (10 th Cir. 2010) (although unpleasant and disturbing, snubbing is not actionable); Steele v. Kroenke Sports Enterprises, L.L.C., 246 Fed.Appx. 735, 746 (10 th Cir. 2008)(unpublished)(snubbing is the “sort of personality conflict [that does] not constitute a materially adverse action”); Nordike v. Verizon Business, Inc. No. 12-2686-JAR, 2014 WL 4749185 *18 n. 84 (D. Kan. September 24, 2014)(“‘[S]nubbing by supervisors and co-workers [is] not actionable.’”)(quoting Burlington Northern and Santa Fe Railway, Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)); Morehead v. Deere & Company, No. 11-2269-SAC, 2012 WL 6554548 *8 (D. Kan. December 14, 2012)(unpublished)(plaintiff’s list of mistreatment is nothing more than “snubs, petty slights, lack of good manners or minor annoyances that [are not] material adverse actions.”). Therefore, plaintiff cannot rely on the alleged “snubbing” as an adverse action. 3. Excluding Plaintiff is not an Adverse Employment Action The Complaint also seems to describe plaintiff’s exclusion from various activities as adverse actions. See Complaint ¶¶ 41, 62. It is not clear whether plaintiff equates exclusion from these activities with snubbing or intends them to be independent adverse acts. See Id. ¶¶ 12, 41, 62. Either way, such actions are not actionable adverse actions. Like plaintiff’s snubbing allegations, the Complaint fails to allege any facts providing a context for the actions. In addition, such actions are merely passive forms of mistreatment that are not materially adverse actions as a matter of law. Arthur v. Bloomfield School District, 157 F.Supp.3d 1055, 1063 (D.N.M. 2015)(exclusion from certain activities not materially adverse); Johnson v. Weld County, Colorado, No. 06-cv-02362-JLK, 2008 WL 4402247 *8 (D. Colo. September 24, Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 26 of 28 17 2008)(the “cold shoulder”, “silent treatment”, and “other forms of passive action [do] not, as a matter of law, constitute a materially adverse action.”). Whether plaintiff intends the allegations of being excluded from certain activities to define the snubbing or to stand on their own, they are not actionable adverse employment actions. Furthermore, the Complaint shows that neither the transfer, the snubbing, nor the exclusion from activities deterred plaintiff from making complaints to UDOT throughout his employment. Complaint ¶¶ 15, 26, 28, 32, 33, 57, 58. Such allegations demonstrate that those activities were not materially adverse. Somoza v. University of Denver, 513 F.3d 1206, 1214 (10 th Cir. 2008)(“that an employee continues to be undeterred in his or her pursuit of a remedy . . . may shed light as to whether the actions are sufficiently material and adverse”); Nordike, 2014 WL 4749185 *18 (“Plaintiff was not dissuaded from making additional complaints . . . [which] suggests the conduct of which Plaintiff complains did not rise to the level of material adverse action”); Morehead, 2012 WL 6554548 *8 (alleged adverse actions did not “dissuade plaintiff from amending her discrimination charges”). 4. Other Alleged Adverse Actions are Too Late The Complaint also identifies the discipline and reassignment in the Second Period and the failure to promote in the Third Period as adverse employment actions. However, the Complaint concedes that those alleged adverse actions are outside the limitations period. Compare Complaint ¶ 40 with ¶ 41. As such, they are time barred and not actionable. Supra, at 1. Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 27 of 28 18 Absent an actionable adverse employment action, plaintiff cannot prevail on his discrimination and retaliation claims. Having failed to articulate at least one actionable adverse employment action within the limitations period, plaintiff’s claims fail and must be dismissed. CONCLUSION As a matter of law, the continuing violation doctrine does not apply to plaintiff’s discrimination and retaliation claims. Based on the face of the Complaint, the continuing violation doctrine also cannot be applied to plaintiff’s hostile environment claim. With or without the continuing violation doctrine, plaintiff’s claims fail. The Complaint fails to state a plausible hostile environment claim because the factual allegations do not demonstrate a severe or pervasive environment stemming from discriminatory animus. The Complaint also fails to state plausible discrimination and retaliation claims because the factual allegations do not demonstrate timely actionable adverse actions. Therefore, plaintiff’s Complaint must be dismissed. SEAN D. REYES Utah Attorney General /s/ Jeffrey Robinson JEFFREY ROBINSON Assistant Utah Attorney General Attorneys for Respondent Case 2:16-cv-00921-EJF Document 5 Filed 12/23/16 Page 28 of 28