Moore v. McAleenan

          ORDER

          H. Russel Holland United States District Judge

         Motion to Dismiss ^[1]

         Defendant Kevin McAleenan moves to dismiss plaintiff's amended complaint. The motion is unopposed by plaintiff. Because defendant's motion is potentially case dispositive, the court has examined the merits of defendant's motion to dismiss.

         Background

         Plaintiff Rana Moore alleges that she is “of Arabian Race” and that her husband is “of African-American race.”^[2] Plaintiff alleges that she was hired as a Transportation Security Officer (TSO) on May 3, 2015.^[3] She alleges that after her husband brought her lunch on November 14, 2015, Sylvia Rehon, Acting Lead TSO, began making comments about interracial relationships and “showed an overt harshness toward” her.^[4] Plaintiff also alleges that “Rehon and her supervisor Linda Gangstad” begin asking her “if she would agree to transfer back to a Checkpoint position.”^[5]

         Plaintiff alleges that on December 15, 2015, Rehon “again tried to pressure” her into transferring back to a checkpoint position and that when she refused, “Rehon said she did not want to supervise [plaintiff] anymore.”^[6] Plaintiff alleges that she then complained to Gangstad about Rehon and that in response, “Gangstad demoted [her] back to the Checkpoint[.]”^[7] Plaintiff alleges that her new supervisor told her that “Rehon had wrote very critically about [plaintiff's] performance” but that “her new supervisor thought [plaintiff] was doing a great job.”^[8]

         Plaintiff alleges that on September 27, 2016, she “received a review stating that she ‘Achieved Expectations, '” but that “she should have received a higher score on her evaluation because of” an award she had received in March 2016.^[9]

         Plaintiff alleges that she became ill during a morning meeting on November 2, 2016 because the meeting was being held “in an area where jet fuel fumes are excessive. . . .”^[10] Plaintiff alleges that “[s]everal TSA managers” failed to “proactively respond” to her distress during the morning meeting on November 2.^[11] Plaintiff alleges that she complained to TSM Spindler, who started a “semi-investigation” into her complaint.^[12] Plaintiff alleges that she also filed a complaint with OSHA.^[13]

         Plaintiff alleges that on December 20, 2016, “TSA management demanded that [she] quit her job or she would be fired.”^[14] She alleges that “[w]hen [she] refused to quit her job, TSA management proceeded to look for reasons to fire her.”^[15] Plaintiff alleges that on January 12, 2017, she was terminated based “on incidents that happened after December 20, 2016. . . .”^[16] Plaintiff alleges that Spindler was the one who asked her to resign at the December 20, 2016 meeting^[17] and that he was present at the meeting on January 12, 2017 when she was terminated.^[18] Plaintiff alleges that Rehon influenced Spindler to treat her differently because Rehon and Spindler were friends.^[19]

         Based on these allegations, plaintiff asserts a Title VII racial discrimination claim pursuant to 42 U.S.C. § 2000e-2(A)(1).

         Pursuant to Rules 12(b)(1) and (6), Federal Rules of Civil Procedure, defendant now moves to dismiss plaintiff's amended complaint.

         Discussion

         Although defendant relies on Rule 12(b)(1) as well as Rule 12(b)(6), the court has treated the instant motion as a Rule 12(b)(6) motion only because it does not involve any jurisdictional issues. “‘To survive a [Rule 12(b)(6)] 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.'” Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim is facially plausible ‘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. (quoting Iqbal, 556 U.S. at 678). “The plausibility standard requires more than the sheer possibility or conceivability that a defendant has acted unlawfully.” Id. “‘Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 678). “[T]he complaint must provide ‘more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'” In re Rigel Pharmaceuticals, Inc. Securities Litig., 697 F.3d 869, 875 (9th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “In evaluating a Rule 12(b)(6) motion, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the light most favorable to the plaintiff.” Adams v. U.S. Forest Srvc., 671 F.3d 1138, 1142-43 (9th Cir. 2012). “However, the trial court does not have to accept as true conclusory allegations in a complaint or legal claims asserted in the form of factual allegations.” In re Tracht Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016).

         As an initial matter, plaintiff's amended complaint must be dismissed because plaintiff has not stated a plausible Section 2000e-2 claim. Section 2000e-2 precludes an “employer” from discriminating against employees on the basis of race. 42 U.S.C. § 2000e-2. However, the United States is excluded from the definition of “employer” for purposes of Section 2000e-2. 42 U.S.C. § 2000e(b). Former federal employees such as plaintiff must bring Title VII claims pursuant to 42 U.S.C. § 2000e-16, not 42 U.S.C. § 2000e-2.

         But even if the court were to construe plaintiff's Title VII claim as a claim brought pursuant to Section 2000e-16, this claim would still have to be dismissed because it is not clear that plaintiff has exhausted her administrative remedies. Although “administrative exhaustion under Title VII” is not “a jurisdictional requirement per se[, ]” a federal employee must “exhaust h[er] administrative remedies as a precondition to ...