United States District Court, D. Alaska
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 ...