Smith v. McDonough

1

ERIC SMITH, Plaintiff-Appellant, v. DENIS MCDONOUGH, Secretary of Veterans Affairs; THE DEPARTMENT OF VETERANS AFFAIRS, Defendants-Appellees.

No. 22-6131

United States Court of Appeals, Tenth Circuit

April 4, 2023

D.C. No. 5:21-CV-00737-F (W.D. Okla.)

Before MATHESON, BRISCOE, and MORITZ, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Mary Beck Briscoe Circuit Judge.

Plaintiff Eric Smith appeals the dismissal of his employment discrimination suit against Defendants, the United States Department of Veterans Affairs (the VA) and its Secretary Denis McDonough, for failure to state a claim. Smith, a longtime employee of the VA, filed this action under Title VII and the Rehabilitation Act to challenge alleged discriminatory conduct by the VA based on Smith's color (Black), national origin (African American), sex/gender (male), and disability (post-traumatic stress disorder or PTSD). Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

The United States District Court for the Western District of Oklahoma granted the motion and dismissed Smith's amended complaint with prejudice. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's dismissal of Smith's claims.

I. Background

A. Factual Background

Smith is a longtime employee of the Oklahoma City VA, where he works as a Laundry Foreman. According to Smith, he was diagnosed in 2007 with PTSD. He identifies as Black, African-American, and male.

On or about August 31, 2017, Smith was granted permission to work a "detail" in California. Aplt. App., Vol. I at 25. Smith traveled to California on September 6, 2017. Although the detail was slated to last 120 days, the VA terminated it early on September 30, 2017, for "performance reasons," namely that "[Smith] failed to complete important job duties before he left [for California]." Id. at 27; see Aplt. Br. at 4. These performance issues included Smith's failure to complete a "COOW Report" on laundry operations, an "Inventory Report," a "Textile Report" on the income earned on the laundry's contracts, and certain annual performance reviews for employees Smith supervised. Aplt. App., Vol. I at 25. According to Smith, however, these reports "were not able to be completed by anyone in the required time because they covered a future time period." Id. For example, COOW Reports, Textile Reports, and employee reviews are not due until the end of the VA's fiscal year (i.e., October 31), and the VA terminated Smith's California detail on September 30, 2017-leaving a month of data yet to be collected for the reports.

Similarly, Inventory Reports "[are] performed each year in the week before Thanksgiving in November." Id. Smith states that it would have been impossible for him to have completed these reports prior to the termination of his detail on September 30, 2017, but that he "did complete all tasks possible within the time parameters of his detail." Id.

According to Smith, he needed the California detail in order to become eligible for a permanent promotion to the California VA. He alleges that he experienced "open workplace threats" to his transfer to California by his first-level supervisor, Darryl Lynch, who is also a Black male. Id. at 27. Specifically, Smith states that Lynch told another employee that he "would put a stop to [Smith's] transferring to California." Id. Smith believes that Lynch "was displeased [Smith] was in California with Mr. Lynch's exgirlfriend." Id. In addition, Smith alleges that he either experienced or learned about the following comments and actions by Lynch:

• Smith was told by another employee that Lynch stated that he "was going to pull the rug out from under Mr. Smith, he was treading water as far as his job was concerned";

• Lynch gave Smith the "silent treatment" and would communicate with Smith only through email;

• In an unfriendly tone, Lynch told Smith that "the work environment was a dictatorship, not a democracy";

• Lynch told another employee that he "was going to ask management to fire [Smith]";

• Lynch yelled at Smith and other supervisors at a meeting about job performance; and

• Lynch "physically assaulted and battered" Smith while handing him disciplinary reports by "plac[ing] his hand heavily on [Smith's] right shoulder and squeez[ing] his shoulder"; Smith states that he required medical attention and medication for pain and swelling caused by this physical contact.

Id. at 27-29 (internal quotation marks omitted).

Smith alleges that he complained about Lynch's behavior on several occasions to Oklahoma City VA Medical Center Director Wade Vlosich, EEO Secretary Sharon Shaffer, Chief of Environmental Management Services Claude Rivers, and Josh Brown. As a result of these incidents, Smith alleges that he was punished-not Lynch-in the form of a three-day suspension, reassignment to different job duties, the issuance of disciplinary reports, and, as discussed, early termination of his California detail.

Finally, in his complaint, Smith compares his workplace treatment to that of his colleagues to contend that he was treated less favorably. For example, Smith states that Lynch often granted leave to Kim Brewer (a female employee), which resulted in three-day weekends for Brewer. Brewer could also request annual leave "not from [Smith, her supervisor,] but from Mr. Lynch directly," which caused Smith to be unaware that Brewer was on leave until she did not show up for her shift. Id. at 30. Additionally, Smith states that Lynch gave Brewer favorable assignments by not requiring her to perform certain laundry tasks because "she is a woman." Id. Smith alleges that although Brewer posted threatening comments toward him on her public blog (e.g., that she would "get her goons to f-up Eric Smith"), she was never suspended or discharged but was only told by Lynch to remove the posts. Id. Smith states that other male employees, both Black and white, were granted their leave requests months in advance and that one employee in particular, Mark Smith^[1] (a white male), was allowed to take any time off that he wanted because his spouse was sick. Smith notes, however, that he was able to "stagger[] time off on those employees so the laundry facility was never short staffed." Id. at 26.

B. Procedural History

After the United States Equal Employment Opportunity Commission entered judgment in favor of the VA, Smith filed suit in the United States District Court for the Western District of Oklahoma against the VA and Secretary McDonough. Therein, he asserted the following causes of action against Defendants: (1) "discrimination based on sex or gender," in violation of 42 U.S.C. § 2000(e)-2(a) (Title VII); (2) "hostile work environment," in violation of Title VII; (3) "discrimination based on handicap[p]ing conditions," in violation of 29 U.S.C. § 791, et. seq. (the Rehabilitation Act); and (4) "discrimination based on national origin and color," in violation of Title VII. Id. at 620 (capitalization omitted). Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), which the district court granted while also granting Smith leave to amend.^[2] In his amended complaint, Smith reasserts the same four claims. Defendants again moved to dismiss under Rule 12(b)(6). The district court granted the motion for failure to state a claim and entered an order dismissing Smith's complaint with prejudice. Smith timely appealed.

II. Standard of Review

"We review de novo a district court's grant of a motion to dismiss for failure to state a claim." Est. of Burgaz v. Bd. of Cnty. Comm'rs for Jefferson Cnty., Colo., 30 F.4th 1181, 1185 (10th Cir. 2022). Under Federal Rule of Civil Procedure 8, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "To survive a 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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).^[3] In conducting our review, we accept all well pleaded facts as true, view them in the light most favorable to the non-moving party, and draw all reasonable inferences in their favor. Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021). Importantly, "[w]hile the 12(b)(6) standard does not require that [a plaintiff] establish a prima facie case in [his or her] complaint, the elements of each alleged cause of action help to determine whether [the plaintiff] has set forth a plausible claim." Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).

III. Discussion

On appeal, Smith argues that the district court erred in dismissing his claims at the pleadings stage. However, we affirm the district court's dismissal because Smith's complaint does not plausibly allege that the conduct or actions complained of were discriminatory in violation of Title VII and the Rehabilitation Act, nor has his briefing on appeal bridged that gap.

A. Title VII

Title VII allows a plaintiff "[to] prove discrimination in several different ways, including proof of a hostile work environment or disparate treatment." Throupe v Univ. of Denver, 988 F.3d 1243, 1251 (10th Cir. 2021). Smith attempts to plead claims under both alternatives. To establish a prima facie disparate-treatment claim under Title VII, a plaintiff must demonstrate that "(1) [he or she] belongs to a class protected by Title VII, (2) [he or she] suffered an adverse employment action, and (3) the challenged action took place under circumstances giving rise to an inference of discrimination." Id. at 1252. To establish a prima facie hostile-work-environment claim under Title...