Russell v. Wormuth

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Paul D. Russell, Plaintiff, v. Christine E. Wormuth, Secretary of the Army, Defendant.

No. 22-4035-DDC

United States District Court, D. Kansas

June 30, 2023

MEMORANDUM & ORDER

DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE

Plaintiff Paul D. Russell filed suit against Christine E. Wormuth Secretary of the United States Army, alleging claims of gender-based disparate treatment, gender-based hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This matter is presently before the court on defendant's motion to dismiss for failure to exhaust administrative remedies and failure state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). As explained below, the motion is granted in part and denied in part.

Standard

The court will grant a motion to dismiss for failure to state a claim when a plaintiff's factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain detailed factual allegations, but a plaintiff's obligation to provide the grounds of entitlement to relief requires more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do. See id at 555.

The court must accept the facts alleged in the complaint as true, even if doubtful in fact, see id., and view all reasonable inferences from those facts in favor of the plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Viewed as such, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

Background

Consistent with the governing standard, the court accepts as true the following well-pleaded facts alleged in plaintiff's complaint. Plaintiff was employed by the United States Army and worked at the Irwin Army Community Hospital (“IACH”) at Fort Riley, Kansas. During the pertinent time period, plaintiff's position at IACH was Chief of Readiness. Plaintiff also served as the Acting Chief of IACH's Logistics Division until November 10, 2018. On November 11, 2018, Major Tamara Tran (hereinafter “MAJ Tran”) became the Chief of IACH's Logistics Division and plaintiff's first-level supervisor. Plaintiff asserts that MAJ Tran failed to communicate with him during MAJ Tran's transition to Chief of the Logistics Division. Despite the fact that plaintiff was the Chief of Readiness and the only other “Chief” in the Logistics Division, MAJ Tran disregarded and ignored plaintiff while treating non-supervisory female employees more favorably.

In early November 2018, MAJ Tran held a meeting with all IACH Logistics supervisors. MAJ Tran advised those supervisors during the meeting that she was “shocked” that all of the supervisors were male. Plaintiff alleges that MAJ Tran implied that the lack of women in supervisory Logistics positions resulted from discrimination. Later that day, MAJ Tran held another leadership meeting, but invited two non-supervisory female employees to attend. MAJ Tran announced at that meeting that her direct reports were required to complete a professional reading requirement. She distributed one book title to the male employees, but distributed a different book title to the female employees.

According to plaintiff, MAJ Tran consistently treated female employees in the Logistics Division more favorably than plaintiff and other male employees. MAJ Tran required male employees to schedule an appointment with her if they desired to meet. Female employees, however, could meet with MAJ Tran on an open-door basis without scheduling an appointment. MAJ Tran suggested that male employees who asked work-related questions were incompetent, but provided support and answers to female employees who asked such questions. She belittled male employees whom she supervised.

At the end of November 2018, MAJ Tran directed plaintiff to stop using the word “Chief' when referring to his position and to use the title “Readiness Manager” instead of “Chief of Readiness.” Plaintiff asserts that this was done to undermine plaintiff's position and his stature within the Logistics Division. In all work-related matters, MAJ Tran refused to treat plaintiff as a Chief in the Logistics Division and denied plaintiff authority and support commensurate with his position and responsibilities. In December 2018, MAJ Tran sent an email to plaintiff in which she suggested that plaintiff had failed or refused to pay an invoice and directed him to resolve the issue immediately. MAJ Tran copied other IACH employees on the email in an effort to embarrass and undermine plaintiff.

In early 2019, IACH management conducted an EEO “sensing study” in the Logistics Division. Plaintiff believes that this study confirmed that MAJ Tran discriminated against male employees and favored female employees. Despite the study's conclusions, MAJ Tran's conduct continued, and she regularly stated at staff meetings that plaintiff was incompetent and claimed that plaintiff was no longer serving as a Chief in the division. MAJ Tran further stated that plaintiff made poor decisions when he served as the Acting Chief.

In early February 2019, MAJ Tran was preparing to take maternity leave and proposed to her next-level supervisor that a female, non-supervisory IACH employee serve as Acting Chief of the Logistics Division in her absence. MAJ Tran made this recommendation despite knowing that plaintiff's written job description expressly provided that he was required to serve as Acting Chief in the absence or disability of the Chief. Moreover, there were at least four other IACH staff members who were more qualified to serve as Acting Chief than the female employee proposed by MAJ Tran. MAJ Tran, however, did not recommend any of these employees based on the gender of those employees. On March 18, 2019, MAJ Tran sent an email to several IACH Logistics management employees asking them to remove plaintiff from all leadership emails.

In late March 2019, MAJ Tran requested an investigation of plaintiff under the provisions of Army Regulation (AR) 15-6. Defendant removed plaintiff from his position during the pendency of that investigation and placed him in a non-logistics position. On April 11, 2019, plaintiff made contact with an EEO counselor and he filed an administrative complaint of discrimination on May 13, 2019. Despite the fact that the AR 15-6 investigation did not substantiate or otherwise corroborate MAJ Tran's allegations of misconduct by plaintiff, defendant did not return plaintiff to his position after the investigation was completed. Plaintiff asserts that defendant's refusal to return him to that position was in retaliation for plaintiff's filing of the discrimination complaint and that defendant's refusal to return him to his position and continuing his detail to a non-logistics position has materially interfered with plaintiff's career in logistics.

In March 2022, defendant issued a final decision denying plaintiff's complaint of discrimination. Thereafter, plaintiff timely filed this lawsuit.

Discussion

In his complaint, plaintiff explicitly asserts a claim for gender-based hostile work environment and retaliation. In contrast, it's unclear whether plaintiff also intends to assert discrete gender-based disparate claims based on the separate events set forth in his complaint, such as: (1) MAJ Tran's recommendation that a non-supervisory female employee should serve as Acting Chief in MAJ Tran's absence; and (2) MAJ Tran's decision to assign different professional books to male and female employees. It is similarly unclear whether plaintiff intends to assert a claim for constructive discharge.^[1] In its motion to dismiss, defendant asserts that the court must dismiss plaintiff's retaliation claim and any claim for constructive discharge for failure to exhaust administrative remedies because plaintiff did not include those claims in his administrative complaint. Defendant further asserts that, to the extent plaintiff intends to set forth discrete disparate treatment claims, the court must dismiss all but one of those claims for failure to timely exhaust administrative remedies because the claims are based on events that occurred more than 45 days prior to plaintiff's initial contact with an EEO counselor. Finally, defendant argues that the court must dismiss the remaining discrete disparate treatment claim and plaintiff's hostile work environment claim for failure to state a plausible claim for relief.

Failure to Exhaust Administrative Remedies

“Federal employees alleging discrimination or retaliation prohibited by Title VII or the Rehabilitation Act must comply with specific administrative complaint procedures in order to exhaust their administrative remedies.” Hickey v Brennan, 969 F.3d 1113, 1118 (10th Cir. 2020) (citation omitted). Among other requirements, before a federal employee can sue his or her employer for discrimination or retaliation, the employee must “initiate contact” with an Equal Employment Opportunity counselor at his or her agency “within 45 days of the date of the matter alleged to be discriminatory.” Id. (citing Green v. Brennan,578 U.S. 547, 553 (2016) (quoting 29 C.F.R. § 1614.105(a)(1))). If the matter is not resolved informally, the counselor provides a written notice to the federal employee of the right to file a formal EEO complaint for a decision by an ALJ. 29 C.F.R. § 1614.105(d). Thereafter, the federal employee may file a lawsuit in federal court within 90 days of receiving notice of final agency action on the formal complaint by the ALJ, or 180 days from the filing of the complaint if no final action was taken by that time. 29 C.F.R. § 1614.407(a)...