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Shareef v. McHugh

United States District Court, D. Hawaii

February 27, 2017

JOHN McHUGH, Secretary, Department of the Army, Defendant.


          Alan C. Kay Sr. United States District Judge.

         For the reasons set forth below, the Court GRANTS Defendant's Motion to Dismiss, ECF No. 13, WITH PREJUDICE.


         Plaintiff 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.”).

         In or 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.

         Plaintiff 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. Id.

         In July 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. Id.

         In 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.


         Plaintiff 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.

         On 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.


         I. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         Pursuant 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).

         A 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 judgment.” Id.

         II. Motion to Dismiss for Failure to State a Claim

         Rule 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).

         In 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 n.8).

         Under 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).

         If the 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 ...

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