Troise v. USAO UT Dist et al

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

D. UtahSeptember 12, 2016

LORETTA E. LYNCH UNITED STATES ATTORNEY GENERAL CHRISTOPHER A. CROFTS, United States Attorney MARK A. KLAASSEN, Assistant United States Attorney P.O. Box 668 Cheyenne, WY 82003-0668 Telephone: (307) 772-2124 mark.klaassen@usdoj.gov ──────────────────────────────────────────────────────────────── IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION ──────────────────────────────────────────────────────────────── ROBERT J. TROISE, Plaintiff, vs. USAO UT DIST., et al., Defendants. ) ) ) ) ) ) ) ) ) Case No. 2:15-CV-190 MOTION TO DISMISS Honorable Clark Waddoups Chief Magistrate Judge Brooke C. Wells The United States, on behalf of named Defendants, by and through the United States Attorney General, United States Attorney for the District of Wyoming and Assistant United States Attorney, Mark A. Klaassen,1 hereby moves to dismiss Plaintiff’s complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and states as follows. SPECIFIC RELIEF REQUESTED Plaintiff Robert J. Troise filed this action pro se against the United States Attorney’s Office for the District of Utah alleging unlawful employment discrimination (non-selection) on 1 Undersigned counsel has been granted special provisional admission to the bar of the United States District Court for the District of Utah for the purpose of appearing for the United States in a matter for which the United States Attorney’s Office for the District of Utah cannot be counsel of record. Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 1 of 11 2 the basis of his age and sex, presumably under Title VII of the Civil Rights Act of 1964 (“Title VII”) as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a.2 For the reasons set forth below, this action should be dismissed for failure to state a claim. BACKGROUND Plaintiff complains that he applied for an unspecified position with the United States Attorney’s Office for the District of Utah and was not hired because of his status as “an older male.” (Dkt. 1 at 2.) He alleges the job was offered to a “younger female with only [three years] experience” and the interviewing officials “made up information” in response to an Equal Employment Opportunity (“EEO”) investigation, claiming Plaintiff did not have the necessary experience or his experience was “outdated.” (Id.) Plaintiff asserts as supporting evidence of discrimination that one of the interviewers did not take any notes and did not look at him during the interview, other than for a few seconds, and that the hiring decision was made the day after his interview rather than the end of the week as he had been told. (Id.) These allegations fail to state a claim for several reasons. First, neither the United States Attorney’s Office for the District of Utah or the “USAO Washington, D.C.” are proper parties to a lawsuit under Title VII or the ADEA. Only the head of the agency may be named as a defendant. Second, even if Plaintiff had named the proper defendant, his allegations do not satisfy the refined pleading standard necessary to show the claims are plausible and therefore fails to state a claim on which relief can be granted. 2 Title VII prohibits discrimination in the federal sector on the basis of race, color, religion, sex and national origin. 42 U.S.C. § 2000e-16. The ADEA prohibits discrimination on the basis of age in federal employment practices unless based on a bona fide occupational qualification. 29 U.S.C. § 633a. The statute only applies to persons who are at least 40 years of age. Id. Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 2 of 11 3 STANDARD OF REVIEW Because Plaintiff appears pro se, the Court is to review his “pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). “However, such liberal construction is intended merely to overlook technical formatting errors and other defects in [Plaintiff’s] use of legal terminology and proper English.” Felix v. City & Cty. of Denver, 729 F. Supp. 2d 1243, 1246 n.1 (D. Colo. 2010) (citation omitted). Plaintiff is not relieved of “the obligation to comply with procedural rules.” Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); United States v. Fraughton, No. 2:14cv213, 2015 U.S. Dist. LEXIS 27148, at *2 (D. Utah Feb. 6, 2015). The “rule of liberal construction stops . . . at the point at which [the Court] begin[s] to serve as his advocate.” United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).3 In reviewing a motion to dismiss for failure to state a claim, the Court must “accept[] all well-[pleaded] facts as true and view[] them in the light most favorable to the plaintiff.” Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015). However, in doing so the Court may distinguish well-pleaded facts from mere legal conclusions that are not entitled to a presumption of truth. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (disregarding conclusory statements and looking “only to whether the remaining, factual allegations plausibly suggest the defendant is liable.”). 3 The Court may not assume that a pro se plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a pro se plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (court’s role is not to act as pro se litigant’s advocate). Nor may the Court “supply additional factual allegations to round out a plaintiff's complaint,” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997), or “construct arguments or theories for the plaintiff in the absence of any discussion of those issues” Drake v. City of Ft. Collins, 927 F.2d 1156, 1159 (10th Cir. 1991). Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 3 of 11 4 ARGUMENT 1. Plaintiff Fails to State a Claim Against the Named Defendants To the extent Plaintiff proceeds under Title VII and the ADEA, his pleading is defective in naming the United States Attorney’s Office for the District of Utah and the “USAO Washington, D.C.” as defendants. The applicable statutes, and case law interpreting them, make clear that only the head of the relevant agency may be sued. 42 U.S.C. § 2000e-16(c); see also Trentman v. Salazar, No. 2:08-CV-864 TC, 2010 U.S. Dist. LEXIS 23971, at *2 (D. Utah Feb. 6, 2010) (dismissing individual defendants because the only proper defendant in a federal discrimination claim under Title VII and the ADEA is the head of the agency or department). Plaintiff’s complaint is therefore deficient on its face and should be summarily dismissed for failing to state a claim against the named Defendants. 2. Plaintiff’s Complaint Fails to Meet the Refined Pleading Standard Necessary to State a Claim Even if Plaintiff had named the proper defendant, his complaint should nevertheless be dismissed for failure to state a claim under Fed. R. Civ. P. 8(a) and 12(b)(6). Under Fed. R. Civ. P. 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Supreme Court significantly clarified this notice pleading standard in the landmark cases of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). In Twombly, the Supreme Court discussed the relationship between Rules 8(a) and 12(b)(6), explaining that to survive a motion to dismiss a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A plaintiff must “nudge[] their claims across Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 4 of 11 5 the line from conceivable to plausible.” Id. Mere “labels and conclusions” and “formulaic recitation of the elements of a cause of action” are insufficient. Id. at 555. In Iqbal, the Court took the pleading scrutiny even further, explaining that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable.” Iqbal, 556 U.S. at 678. The Court may assume the veracity of well-pleaded facts, but must “then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id.4 In attempting to define “plausibility” the Tenth Circuit has warned that where a complaint contains allegations that 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.’” Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Kan. Penn Gaming, 656 F.3d at 1214-15; Morman v. Campbell Cnty. Mem. Hosp., 632 F. App’x 927, 932 (10th Cir. 2015) (discussing the “refined standard” considered in evaluating dismissals). In Khalik v. United Air Lines, the Tenth Circuit applied the “refined” Twombly/Iqbal pleading standard in the context of an employment discrimination case, stating that “[w]hile the 12(b)(6) standard does not require that [a plaintiff] establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether [she] has set forth a plausible claim.” 671 F.3d at 1192; Morman, 632 F. App’x at 931, 932; Norman v. Syracuse High Sch., No. 1:12-cv-00021-EJF, 2013 U.S. Dist. LEXIS 47089, at *13 (D. Utah Mar. 28, 4 Prior to Twombly and Iqbal, courts followed the rule that dismissal was only appropriate where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). This is no longer the rule. See Kan. Penn Gaming, L.L.C. v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 5 of 11 6 2013). Accordingly, to assess whether Plaintiff’s complaint is plausible, the Court should examine the elements a plaintiff must prove to establish a prima facie case. The elements of prima facie case of sex discrimination under Title VII varies depending on the type of adverse action the employee alleges. See Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (“[T]he articulation of a plaintiff's prima facie case may well vary, depending on the context of the claim and the nature of the adverse employment action alleged.”). In cases of non-selection, the plaintiff must plead facts demonstrating: (1) that he applied for an available position for which he was qualified, but (2) was rejected under circumstances which give rise to an inference of unlawful discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Bird v. Regents of N.M. State Univ., 619 F. App'x 733, 741 (10th Cir. 2015) (“The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination.”) (internal quotations omitted). The complaint in this case allows the Court to conclude Plaintiff is a male who applied for a position that was ultimately given to a younger female, thereby satisfying some elements of the prima facie case. However, Plaintiff fails to specify his qualifications for the position or articulate circumstances or factors that would give rise to an inference that his non-selection in favor of the female candidate was motivated by unlawful discrimination. See Norman v. Syracuse High Sch., No. 1:12-cv-00021-EJF, 2013 U.S. Dist. LEXIS 47089, at *13 (suggesting that cases of sex discrimination generally require the plaintiff to show that “circumstances support an inference of discrimination” and “reveal on its face” a “nexus between … gender and the [alleged mistreatment]”). Absent more clarifying factual details, Plaintiff’s claims rest on Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 6 of 11 7 little more than his own conjecture. Such pleading is insufficient to meet the refined standard of plausibility necessary to survive a motion to dismiss. See Khalik, 671 F.3d at 1194 (finding dismissal appropriate where “there is nothing other than sheer speculation to link the [alleged mistreatment] to a discriminatory or retaliatory motive.”); Valdez v. Tyco Integrated Sec. LLC, No. 2:16-cv-00016-DN, 2016 U.S. Dist. LEXIS 53020, at *4 (D. Utah Apr. 20, 2016) (“The burden is on the plaintiff ‘to frame a complaint with enough factual matter (taken as true) to suggest that he or she is entitled to relief.’ ‘Factual allegations must be enough to raise a right to relief above the speculative level.’”) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (internal quotation marks omitted)). Analysis of Plaintiff’s ADEA claim reaches a similar result. Under the ADEA, to establish a prima facie case of age discrimination for a non-selection claim Plaintiff must demonstrate: (1) he was within the protected age group at the time of his non-selection; (2) he met the qualifications for the position; (3) the hiring agency did not select him despite his qualifications; and (4) the agency filled the position with a younger individual. Furr v. AT & T Techs., Inc., 824 F.2d 1537, 1542 (10th Cir. 1987) (failure to promote case). Here, Plaintiff alleges only that the position was filled by a younger person. He fails to allege he was within the protected age group at the time of non-selection (stating only that he was “older”), the specific facts showing what position he applied for and his pertinent qualifications for that position, or that he was not selected despite these qualifications. Most critically, as with his gender claim, he fails to allege any facts that would allow the Court to connect his non-selection to discriminatory animus based on his age. See Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th Cir. 2010) (age must be “the factor that made a difference”); Backus v. Univ. of Colo., Civil Action No. 15-cv- Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 7 of 11 8 01340-REB-NYW, 2015 U.S. Dist. LEXIS 176995, at *16 (D. Colo. Dec. 14, 2015) (dismissing complaint and stating that “[a]n employer may not be held liable under the ADEA unless [plaintiff] establishes that age is the factor that made the difference in the employer’s action.”). With respect to both Title VII and the ADEA allegations, Plaintiff’s complaint is speculative, conclusory, and largely devoid of the supporting factual detail necessary for the Court to determine the claims are plausible. The acts he alleges as evidence of discrimination are facially benign and lack any further description or context that would allow the Court to understand how they might plausibly suggest discriminatory animus based specifically on his age or sex. See Hare v. Donahoe, 608 F. App’x 627, 630 (10th Cir. 2015) (dismissing complaint that failed to “raise an inference of retaliation”). Catchai v. JBS Swift Greeley & Co., Civil Action No. 15-cv-01606-MJW, 2016 U.S. Dist. LEXIS 30849, at *18 (D. Colo. Mar. 10, 2016) (finding no “circumstances giving rise to an inference of discrimination” and dismissing claims where plaintiff fails to provide “detailed allegations” or tie the alleged adverse action to “issues relating to his [protected class]”) Backus, 2015 U.S. Dist. LEXIS 176995, at *10 (requiring plaintiff to allege facts “that permit the factfinder to draw a causal connection between any protected status and the adverse action …”). While there is no requirement that Plaintiff plead “any specific facts in particular, there are certain details the Plaintiff should know and could properly plead to satisfy the plausibility requirement.” Khalik, 671 F.3d at 1194. Plaintiff initiated and participated in an Equal Employment Office (“EEO”) investigation that provided him with access to the statements of interviewing and deciding officials, answers to questionnaires, and access to information related to applicants for the position. As such, he “should know details about how Defendant treated Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 8 of 11 9 [him] compared to other [applicants],” and “why in [his] belief those reasons [for non-selection] were pretextual.” Id. He should also know and be able to explain why he believed the alleged actions were “connected with discriminatory animus” based on his age and gender. Id. In an attempt to bolster his claim, Plaintiff asserts one of the interviewers did not look at him and did not take notes during the interview. (Dkt. 1 at 2.) He also claims that he was informed of the hiring decision sooner than what he had been told at the interview. (Id.) These attempts at providing supporting detail fall well short of what is necessary to meet the refined pleading standard. There is nothing inherent in the allegation that an interviewer may have made little eye contact or taken no notes during the interview to suggest discriminatory animus based on any protected status. Likewise, the allegation that the timing of the hiring decision, which was made and communicated more quickly than Plaintiff claims he had been told, is not a factor that demonstrates any possible discriminatory animus based on Plaintiff’s sex or age, particularly since the timing of the decision would affect all applicants equally regardless of status. As in Khalik, Plaintiff offers none of the supporting detail necessary for the Court to understand how his alleged facts connect the hiring decision to unlawful discriminatory animus or that would suggest the hiring decision had been motivated by improper consideration of his age and sex. His claims are based solely on the fact that he is an “older male” and he was not selected for the position at issue in favor of a younger female applicant. The mere fact that a younger candidate of the opposite sex was hired instead of Plaintiff, without more supporting details, is insufficient to nudge the claim from conceivable to plausible. Khalik, 671 F.3d at 1193 (“[w]hile [s]pecific facts are not necessary … some facts are.”; “general assertions of discrimination … without any details whatsoever . . . .” are insufficient) (quoting Erickson v. Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 9 of 11 10 Pardus, 551 U.S. 89, 93 (2007)); Hare, 608 F. App’x at 630 (“bare allegations and conclusory statements in [a complaint] … do not raise any inference of … discrimination”). CONCLUSION Even construing Plaintiff’s complaint liberally, it is apparent he has not named the proper defendant or stated any plausible claims for relief under the refined pleading standard set forth under Twombly and Iqbal. For the foregoing reasons, the United States respectfully requests that the Court enter an order dismissing all claims. Dated this 12th day of September, 2016. LORETTA E. LYNCH United States Attorney General CHRISTOPHER A. CROFTS United States Attorney District of Wyoming By: /s/ Mark Klaassen MARK A. KLAASSEN Assistant United States Attorney Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 10 of 11 11 CERTIFICATE OF SERVICE I hereby certify a true and correct copy of the foregoing MOTION TO DISMISS was served upon the following by the method indicated below on the 12th day of September, 2016: /s/ Breanne Ramirez United States Attorney’s Office Robert J. Troise 1111 S. Red River Exp, Apt. 716 Burkburnett, TX 76354 [ ] By Facsimile [X ] By U.S. Mail - postage prepaid [ ] By Hand Delivery [ ] By Electronic Filing Case 2:15-cv-00190-CW-BCW Document 20 Filed 09/12/16 Page 11 of 11 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION ROBERT J. TROISE, Plaintiff, vs. USAO UT DIST., et al., Defendants. ) ) ) ) ) ) ) ) ) ORDER GRANTING UNITED STATES’ MOTION TO DISMISS Civil No. 2:15-CV-00190 Honorable Clark Waddoups Chief Magistrate Judge Brooke C. Wells This matter comes before the Court upon the United States’ Motion to Dismiss Plaintiff’s complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The Court having reviewed the pleadings and being fully informed in the premises finds Plaintiff has failed to meet the refined pleading standard under Fed. R. Civ. P. 8(a), which requires that he allege facts sufficient to present a plausible claim for relief. Plaintiff therefore fails to state claim on which relief can be granted. Defendants’ Motion to Dismiss is GRANTED. Plaintiff’s Complaint is DISMISSED. Signed this ____ day of ______________, 2016. BY THE COURT: ____________________________________ Brooke C. Wells Magistrate Judge Case 2:15-cv-00190-CW-BCW Document 20-1 Filed 09/12/16 Page 1 of 1