Sablan v. Antonio B. Won Pat International Airport Authority, Guam

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT DISTRICT OF GUAM 7

8 CITADEL T. SABLAN, Civil Case No. 10-00013 9 Plaintiff, 10 vs. OPINION AND ORDER RE: MOTION TO DISMISS 11 A.B. WON PAT INTERNATIONAL FIRST AMENDED COMPLAINT AIRPORT AUTHORITY, GUAM, 12 Defendant. 13 14

15 Before the court is the “Motion to Dismiss Plaintiff’s First Amended Complaint” filed by 16 Defendant A.B WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM. See Docket No. 17 22. For the reasons given below, the court hereby GRANTS that motion in its entirety. 18 I. BACKGROUND 19 The facts in this case are as follows.1 Plaintiff CITADEL T. SABLAN is an employee of 20 Defendant A.B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM (“the 21 Defendant”). See Docket No. 21 (“the First Amended Complaint”) at ¶4. The first amended 22 complaint indicates that Plaintiff is employed in the capacity as Police Officer I. Id., at ¶ 11. She 23 has held that position since 2002. Id. 24 On December 13, 2008, someone asked Plaintiff to help an Airport police officer transport 25 a male arrestee. See Docket No. 21 at ¶15. Some time later, a supervisor in the Airport police, 26 27 1 This statement of facts is based on the first amended complaint. See Docket No. 21. On a motion to dismiss, the court must take as true all factual allegations underlying or contained in the claims under attack. See Ashcroft v. 28 Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009). To the extent practicable, the facts set forth herein are adopted from 1 Airport Police Officer II Manual Tiong (“Officer Tiong”) told Plaintiff that she could not carry out 2 this duty because she is female. See id. at ¶16. 3 Plaintiff complained of this action to the Equal Employment Opportunity Commission 4 (“EEOC”). See Docket No. 21 at ¶¶6-8; see also Docket No. 1, Exh. 1. The EEOC “determined that 5 there is reasonable cause to believe that [Plaintiff] was denied terms & [sic] conditions of 6 employment because she is female.” See id., Exh. 1. The EEOC also invited the parties to engage 7 in “conciliation discussions.” See id. However, these discussions either did not take place or bore 8 no fruit, because the Department of Justice later authorized Plaintiff to file a lawsuit to vindicate her 9 claims. See id., Exh. 2. Plaintiff did so on June 7, 2010. See generally Docket No. 1. 10 On July 6, 2010, Defendant moved to dismiss the Complaint. See Docket No. 3 (“the 11 Motion”); see also Docket Nos. 4, 5 (related materials). On August 2, 2010, Plaintiff opposed the 12 Motion. See Docket No. 9. Defendant replied in support of its Motion on August 16, 2010. See 13 Docket No. 10. On December 9, 2010, the court granted the motion in its entirety but granted leave 14 to amend. See Docket No. 15. 15 On February 14, 2011, Plaintiff filed her first amended complaint. See Docket No. 21. On 16 February 28, 2011, the Defendant moved to dismiss the first amended complaint. See Docket No. 17 22. On March 22, 2011, Plaintiff opposed the Motion. See Docket No. 29. On March 29, 2011, the 18 Defendant filed its Reply. See Docket No. 30. The motion is now before the court. 19 II. JURISDICTION AND VENUE 20 The claims are within the court’s federal question jurisdiction. See 28 U.S.C. § 1331; cf. 42 21 U.S.C. § 2000e-5(f)(3). Venue is proper in this judicial district, the District of Guam, because 22 Defendant resides here and because a substantial part of the events or omissions giving rise to the 23 claim occurred here. See 28 U.S.C. § 1391(b)(1), -(2); cf. 42 U.S.C. § 2000e-5(f)(3). 24 III. APPLICABLE STANDARDS 25 A pleading that states a claim for relief must contain, among other things, “a short and plain 26 statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Rule 27 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to raise by motion the defense 28 that the complaint “fail[s] to state a claim upon which relief can be granted.” FED. R. CIV. P. 1 12(b)(6). 2 Although a complaint does not need “detailed factual allegations, . . . a plaintiff’s obligation 3 to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, 4 and a formulaic recitation of the elements of a cause of action will not do . . . .” Bell Atlantic Corp. 5 v. Twombly, 550 U.S. 544, 555 (2007). And although the court “must take all of the factual 6 allegations in the complaint as true, [the court is] not bound to accept as true a legal conclusion 7 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949-50 (2009) 8 (quoting Twombly, 550 U.S. at 555). So, “to survive a 12(b)(6) motion to dismiss, a complaint must 9 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 10 face.’” Id. (quoting Twombly, 550 U.S. at 570)). 11 Iqbal suggests a two-step process for determining whether a motion to dismiss should be 12 granted. The first step is to “identif[y] pleadings that, because they are no more than conclusions, 13 are not entitled to the assumption of truth.” Iqbal, 129 S. Ct. at 1950. These are to be discarded. 14 See id. After discarding those unsupported legal conclusions, the second step is to take any 15 remaining well-pleaded factual allegations, “assume their veracity and then determine whether they 16 plausibly give rise to an entitlement to relief.” Id. 17 As for the meaning of the term “plausibly,” “[a] claim has facial plausibility when the 18 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 19 defendant is liable for the misconduct alleged.” Id. at 1949. This standard 20 is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a 21 complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility 22 of “entitlement to relief.” 23 Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Application of this standard is “a 24 context-specific task that requires the reviewing court to draw on its judicial experience and 25 common sense.” Id. at 1950. And this standard applies to “all civil actions”—“antitrust and 26 discrimination suits alike.” Id. at 1953. 27 In short, “a complaint may survive a motion to dismiss only if, taking all well-pleaded factual 28 allegations as true, it contains enough facts to ‘state a claim to relief that is plausible on its face.’” 1 Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). 2 IV. DISCUSSION 3 This is an action arising under Title VII of the Civil Rights Act of 1964 (“Title VII”). Title 4 VII prohibits discrimination based on race, color, religion, sex, or national origin by an “employer.” 5 42 U.S.C. § 2000e-2. See Docket No. 21 at ¶1. 6 Title VII makes it illegal for an employer: 7 (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his 8 compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national 9 origin; or 10 (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any 11 individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, 12 religion, sex, or national origin. 13 42 U.S.C. § 2000e-2(a)(1), -(2). 14 “A plaintiff may show violations of Title VII by proving disparate treatment or disparate 15 impact, or by proving the existence of a hostile work environment.” Sischo-Nownejad v. Merced 16 Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991), superseded by statute on other 17 grounds as recognized in Dominguez-Curry v. Nevada Transp. Dep’t., 424 F.3d 1027, 1041 (9th Cir. 18 2005). Disparate treatment claims focus on intent while disparate impact claims concentrate on 19 effect. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 1002 (1988). 20 Thus, under the statutory scheme, there are three sub-theories on which Plaintiff could 21 proceed: (1) disparate treatment; (2) disparate impact; and (3) hostile work environment. Each of 22 the three sub-theories has a set of elements that establish a prima facie case which are discussed 23 more fully below. In 2002, the Supreme Court held that an employment discrimination 24 plaintiff—proceeding under Title VII—need not plead a prima facie case in order to survive a Rule 25 12(b)(6) motion to dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-512 (2002). 26 A. Disparate Treatment Theory 27 A plaintiff alleging employment discrimination may prove intentional discrimination directly 28 or indirectly. For those instances, where a case is brought under an indirect analysis, the Supreme 1 Court has set forth a burden-shifting scheme. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 2 (1973). Under the McDonnell Douglas framework, the plaintiff bears the initial burden of 3 presenting a prima facie case of discrimination. A plaintiff needs to show that 1) she belongs to a 4 protected class; 2) that she was qualified for the position; 3) that she was subject to an adverse 5 action; and 4) that other similarly situated individuals outside the protected class were treated more 6 favorably. Id. at 802; Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th Cir. 7 2000). If plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate 8 a legitimate, nondiscriminatory reason for its employment action. Id. 9 As this court noted previously, a plaintiff need not satisfy all elements of a prima facie case 10 to survive a motion to dismiss. See Swierkiewicz, 534 U.S. at 510-11. However, courts do consider 11 the prima facie framework to determine whether plaintiffs have made allegations sufficient to satisfy 12 the plausibility standard as set forth in Twombly and Iqbal. 13 1. Protected Class 14 Plaintiff alleges facts showing that she is a member of a protected class. See Docket No. 21 15 at ¶11. This element is adequately alleged. 16 2. Qualification for position 17 Plaintiff alleges facts suggesting that she is qualified for her position. Plaintiff alleges she 18 began her employment as an Armed Security Guard in 2001 and was promoted a year later to the 19 position she currently holds as a Police Officer I. Docket No. 21 at ¶11. This element is adequately 20 alleged. 21 3. Adverse employment action 22 In a discrimination case, the Supreme Court has defined an adverse employment action as 23 “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a 24 decision causing a significant change in benefits . . . A tangible employment action [that] inflicts 25 direct economic harm.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998) (citations 26 omitted); see also Kortan v. California Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000) (no adverse 27 employment action where the plaintiff “was not demoted, was not stripped of work responsibilities, 28 was not handed different or more burdensome work responsibilities, was not fired or suspended, was 1 not denied any raises, and was not reduced in salary or in any other benefit.”). 2 Here, Plaintiff does not allege facts showing she suffered an adverse employment action. 3 The only action Plaintiff complains of is a single incident in which she was told she could not help 4 transport a male arrestee because she is female. See Docket No. 21 at ¶¶s 15-17. While Plaintiff 5 alleges that the transport of arrestees is performed as part of her usual duties, she does not allege that 6 there has been a material change in terms and conditions of her employment because she is no longer 7 allowed to perform that task. Id., at ¶ 13. 8 In her opposition, Plaintiff asks this court to infer from the facts stated that she has been 9 denied this task since December 13, 2008. However, the court is bound to the allegations in the 10 complaint rather than to matters outside the scope of the pleadings. Cooper v. Pickett, 137 F.3d 616, 11 622-23 (9th Cir. 1998). As with her original complaint, Plaintiff’s first amended complaint fails 12 to address the duration of the change, if in fact, there was any change (i.e., whether her duties and 13 responsibilities were permanently altered, or whether this was a one-time event that changed her 14 employment status). Simply put, no tangible adverse effect on the terms, conditions or privileges of 15 her employment have been alleged. Therefore, this element is not adequately alleged. 16 4. Favorable treatment to comparable employees outside of protected class 17 With regard to Plaintiff’s claim that she was denied transport duties of male arrestees, 18 Plaintiff has arguably satisfied the fourth prong of a prima facie claim by alleging that male officers 19 participated in transport duties for which she was denied. In her first amended complaint she alleges 20 that the work assignment was given to her male counterparts. See Docket No. 21, at ¶ 17. 21 Nevertheless, this claim fails to support the Plaintiff’s cause of action. There is no allegation that 22 being denied transport duties had any tangible impact on her employment or impact on her male 23 counterparts. 24 In sum, as to her Title VII disparate treatment claim, the only elements Plaintiff adequately 25 alleges is her membership in a protected class and that she was qualified in her job. Although a 26 plaintiff need not allege facts constituting all elements of a prima facie disparate treatment case in 27 order to survive a motion to dismiss, the challenged complaint must still "contain sufficient factual 28 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1 1949-50 (quoting Twombly, 550 U.S. at 570). The first amended complaint fails to state a claim for 2 relief that is plausible on its face. Accordingly, the first amended complaint is dismissed, so far as 3 it purports to articulate a disparate treatment theory under Title VII. 4 B. Disparate Impact Theory 5 Claims of disparate impact “involve employment practices that are facially neutral in their 6 treatment of different groups but that in fact fall more harshly on one group than another.” Raytheon 7 Co. v. Hernandez, 540 U.S. 44, 52 (2003) (quoting Int’l Brotherhood of Teamsters v. United States, 8 431 v. 324, 335-36 n.15 (1977). To make out a prima facie case of disparate impact, the plaintiff 9 must identify a neutral practice or policy that has a significantly adverse impact on persons of a 10 protected class. Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530 (1981). “A plaintiff 11 establishes a prima facie case of disparate impact by showing a significant disparate impact on a 12 protected class caused by a specific, identified, employment practice or selection criterion.” Stout 13 v. Potter, 276 F.3d 1118, 1121 (9th Cir.2002). In a disparate impact case, “[t]he plaintiff must 14 actually prove the discriminatory impact at issue.” Stout, 276 F.3d at 1122 (quoting Rose v. Wells 15 Fargo and Co., 902 F2d 1417, 1421 (9th Cir. 1990). 16 As with her original complaint, Plaintiff makes no allegations about any facially neutral 17 practice. Instead, her allegations concern the single incident which occurred on December 13, 2008. 18 A single incident, however, cannot be relied upon to support a claim of disparate impact. Plaintiff 19 has not identified one other woman, who, allegedly, has not been permitted to assist in the transport 20 of male arrestees. She has not demonstrated (or even attempted to demonstrate) what comprises the 21 discriminatory promotion process nor does she describe any alleged practice to permit an evaluation 22 of its impact. The focus in a disparate impact case is usually “on statistical disparities, rather than 23 specific incidents, and on competing explanations for those disparities.” Watson, 487 U.S. at 987. 24 Plaintiff has failed to demonstrate that the reassignment of her duties on December 13, 2008 25 or any other employment practice, had a disparate impact on a protected group. Accordingly, the 26 first amended complaint is hereby dismissed, so far as it purports to articulate a disparate impact 27 theory under Title VII. 28 1 C. Hostile Work Environment 2 Title VII also prohibits an employer from “requiring people to work in a discriminatorily 3 hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In order to 4 recover under a hostile work environment claim, a plaintiff must show that: (1) she was subjected 5 to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct 6 was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive 7 work environment. Kortan, 217 F.3d at 1110. 8 To state a viable hostile work environment claim under Title VII, Plaintiff must allege facts 9 showing that her work environment was “permeated with ‘discriminatory intimidation, ridicule, and 10 insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and 11 create an abusive working environment.” Harris 510 at 21; (quotations and citation omitted) see also 12 Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986). The working environment must be perceived 13 both subjectively and objectively as abusive. Manatt v. Bank of Am., NA, 339 F.3d 792, 799 n.6 (9th 14 Cir. 2003). 15 Here, the most arguably pertinent facts Plaintiff has alleged with respect to a hostile work 16 environment claim concern the events of December 13, 2008, when she was allegedly prevented 17 from assisting another officer with the transport of a male arrestee because she was female. 18 Assuming, arguendo, that this incident occurred exactly as alleged by Plaintiff in her first 19 amended complaint, the allegations would not suffice to state a cognizable hostile work environment 20 claim. This is because occasional or isolated incidents, unless especially severe, are insufficient to 21 support such a claim. Rather, a plaintiff must allege facts showing a concerted and continuous 22 pattern of harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 (1998). 23 The alleged reassignment of duties on December 13, 2008, was merely a single isolated 24 incident that cannot be characterized as particularly severe nor as a concerted or continuous pattern 25 of harassment. See Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000) (rejecting a 26 hostile work environment claim where plaintiff alleged that she was harassed on a single occasion 27 for a matter of minutes in a way that did not impair her ability to perform her job in the long-term). 28 “Conduct that is not severe or pervasive enough to create an objectively hostile or 1 abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview.” Oncale v. Sundowner Offshore 2 Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris, 510 U.S. at 21). “[C]onduct must be extreme to amount to a change in the 3 terms and conditions of employment,” lest Title VII become nothing more than “a ‘general civility code.’ ” Faragher, 524 U.S. at 788 (quoting Oncale, 523 U.S. at 80.) 4 See also Porter v. California Dept. of Corrections, 419 F.3d 885, 893 (9th Cir.2005) (angry remarks and insults directed by co-workers at plaintiff, standing by 5 themselves were not sufficiently severe or pervasive to support a hostile-environment claim). 6 Jackson v. Bd. of Equalization, No. Civ S 09-1387 2010 WL 3733983, *10 (E.D.Cal.,Sept. 20, 2010) 7 (unpublished order). 8 Accordingly, the first amended complaint is hereby dismissed, so far as it purports to 9 articulate a hostile work environment theory under Title VII. 10 V. LEAVE TO AMEND 11 The court has carefully considered whether Plaintiff may be able to cure the defects noted 12 above in a second amended complaint. In making this assessment, Plaintiff's pleadings and all 13 briefing filed in connection with the pending motion was considered. “Valid reasons for denying 14 leave to amend include undue delay, bad faith, prejudice, and futility.” California Architectural 15 Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir.1988); see also Klamath-Lake 16 Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir.1983) (holding that, 17 while leave to amend shall be freely given, the court does not have to allow futile amendments). 18 Here, it appears for the reasons discussed above, that leave to amend may be futile with 19 respect to claims of hostile work environment or disparate impact. However, Plaintiff may be able 20 to save her disparate treatment claim with additional facts pled. 21 Plaintiff’s first amended complaint will therefore be dismissed, and she will be granted leave 22 to file a second amended complaint. Plaintiff is cautioned that any amended complaint she may elect 23 to file should only allege claims that are cognizable. Should Plaintiff raise additional unsupported 24 claims, Defendant will likely file another meritorious motion to dismiss and further leave to amend 25 may not be granted. 26 /// 27 /// 28 1] VI. CONCLUSION 2 Based on the foregoing, the court GRANTS Defendant’s motion to dismiss. Plaintiff may 3 |] file a second amended complaint within 21 days of this Order. 4 IT IS SO ORDERED. 5 — 6 Sa /s/ Frances M. Tydingco-Gatewood 7 we, Dated: Apr Ls 2011 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dage IN nf 10