United States District Court, D. Hawaii
JAMEELAH T. SHAREEF, Plaintiff,
JOHN McHUGH, Secretary, Department of the Army, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO
C. Kay Sr. United States District Judge.
reasons set forth below, the Court GRANTS Defendant's
Motion to Dismiss, ECF No. 13, WITH PREJUDICE.
Jameelah T. Shareef (“Plaintiff”) is an African
American female who has worked as a federal employee in the
field of safety and safety planning for over 25 years.
Compl., ECF No. 1, ¶ 5 (“Compl.”).
around January 2008, Plaintiff accepted a post as the Safety
Analyst, 8th Theater Sustainment Command (“TSC”),
Fort Shafter Hawaii. Id. ¶ 8. Plaintiff started
this job around March 2008 and at this time was discriminated
against based on her race and sex by her supervisor.
Id. ¶ 9. Plaintiff filed an EEO complaint,
which was handled satisfactorily, and she considered the
matter closed. Id. ¶ 10.
was allowed to search for another position and was hired by
94th Army Air and Missile Defense Command
(“AAMDC”) in May 2008. Id. ¶ 11.
From May 2008 to June 2013, Plaintiff served as the Safety
and Occupational Health Manager for the AAMDC. Id.
¶ 12. In this role, Plaintiff was the principal advisor
to the Commanding General, General's Staff and four
subordinate units located in Korea, Japan, and Hawaii on all
matters related to safety and occupational health.
2013, Plaintiff became the Safety Manager for the U.S. Army
Pacific, and Tommy Penrose became her first-line supervisor.
Id. ¶ 14. In or after August 2013, Mr. Penrose
was contacted via email by the 8th TSC and was informed about
Plaintiff's 2008 EEO complaint. Id. ¶ 16.
Mr. Penrose stopped supporting Plaintiff “and spoke to
her in an abrupt, demeaning and bullying manner.”
Id. ¶ 17. Mr. Penrose removed Plaintiff from
serving as inspector of the 8th TSC on November 3, 2013.
December 2013, Plaintiff filed an EEO complaint alleging
“retaliation based on prior activity based on the
foregoing conduct.” Id. ¶ 18. Mr. Penrose
continued to engage in retaliatory behavior, for example, by
detailing Plaintiff to Mission Support Element
(“MSE”) in March 2014, which is the lowest level
of safety program responsibility. Id. ¶ 19. Mr.
Penrose then used the MSE detail to “justify a less
than ‘Excellence' rating on Plaintiff's 9
September 2014 performance appraisal, claiming Plaintiff
failed to do GS-13 level work.” Id. ¶ 21.
Plaintiff informed Mr. George Chun on August 14, 2014 that
she wanted to file a formal complaint and was informed that
there was no intake specialist available and that she
“should call later.” Id. ¶ 23.
filed her Complaint on September 15, 2016. The Complaint
raises three counts against John McHugh, Secretary,
Department of the Army (“Defendant”), each under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq: Count I-Retaliation;
Count II-Sexual Harassment; and Count III-Race
Discrimination. Compl. ¶¶ 24-41. With respect to
Count II Plaintiff alleges that she was “subjected to
hostility and criticism by Mr. Penrose when she requested
permission to attend a sanctioned event for women in
leadership entitled ‘Sisters in Arms.'”
Id. ¶ 34. With respect to Count III, Plaintiff
alleges the hostile and intimidating statements that related
to her race included “criticisms of pictures of an
African American Officer located in her work area.”
Id. ¶ 40. The Complaint also requests punitive
damages. Id. ¶¶ 42-45.
December 22, 2016, Defendant filed the instant Motion to
Dismiss. ECF No. 10 (“Motion”). On January 27,
2017, Plaintiff filed her Opposition. ECF No. 13
(“Opp.”). On February 7, 2017, Defendant filed
its Reply. ECF No. 14 (“Reply”). The Court held a
hearing on Defendant's Motion on February 23, 2017.
Motion to Dismiss for Lack of Subject Matter
to Federal Rule of Civil Procedure (“Rule”)
12(b)(1), a party may move to dismiss based on a lack of
subject matter jurisdiction. “[T]he party asserting
subject matter jurisdiction has the burden of proving its
existence.” Robinson v. United States, 586
F.3d 683, 685 (9th Cir. 2009) (citation omitted).
“Failure to exhaust administrative remedies is properly
considered under a 12(b)(1) motion to dismiss where
exhaustion is required by statute.” Dettling v.
United States, 948 F.Supp.2d 1116, 1128 (D. Haw. 2013).
jurisdictional attack may be either facial or factual.
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004). “In a facial attack, the challenger
asserts that the allegations contained in a complaint are
insufficient on their face to invoke federal jurisdiction. By
contrast, in a factual attack, the challenger disputes the
truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction.” Id. “In
resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint without
converting the motion to dismiss into a motion for summary
Motion to Dismiss for Failure to State a Claim
12(b)(6) authorizes the Court to dismiss a complaint that
fails “to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is read
in conjunction with Rule 8(a), which requires only “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
The Court may dismiss a complaint either because it lacks a
cognizable legal theory or because it lacks sufficient
factual allegations to support a cognizable legal theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988).
resolving a Rule 12(b)(6) motion, the Court must construe the
complaint in the light most favorable to the plaintiff and
accept all well-pleaded factual allegations as true.
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d
777, 783 (9th Cir. 2012). The 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)). “The plausibility standard . . . asks for more
than a sheer possibility 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 Twombly,
550 U.S. at 557). “In considering a motion to dismiss,
the court is not deciding whether a claimant will ultimately
prevail but rather whether the claimant is entitled to offer
evidence to support the claims asserted.” Tedder v.
Deutsche Bank Nat. Trust Co., 863 F.Supp.2d 1020, 1030
(D. Haw. 2012) (citing Twombly, 550 U.S. at 563
Rule 12(b)(6), review is generally limited to the contents of
the complaint. Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). However,
courts may “consider certain materials - documents
attached to the complaint, documents incorporated by
reference in the complaint, or matters of judicial notice -
without converting the motion to dismiss into a motion for
summary judgment.” United States v. Ritchie,
342 F.3d 903, 908 (9th Cir. 2003).
Court dismisses the complaint, it should grant leave to amend
regardless of whether a request has been made, unless it
determines that the pleading cannot be cured by new factual
allegations. O ...