Yelder v. Burch et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PATRICIA YELDER,
Plaintiff,
vs.
DEB HAALAND, Secretary of the
United States Department of Interior,
Defendant.
Case No. 3:21-cv-00153-JMK
ORDER GRANTING PARTIAL
MOTION TO DISMISS
At Docket 30, Defendant Deb Haaland, Secretary of the United States
Department of Interior, moves to dismiss Plaintiff Patricia Yelder’s claims of sex
discrimination under Title VII and age discrimination under the Age Discrimination in
Employment Act (“ADEA”). Plaintiff responded in opposition at Docket 31. As explained
below, Secretary Haaland’s motion is GRANTED and Ms. Yelder’s Title VII sex
discrimination and ADEA age discrimination claims are DISMISSED.
I. 	BACKGROUND
The factual background of this case is fully summarized in the Court’s Order
at Docket 13. The Court recounts the allegations in the First Amended Complaint only as
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they relate to the claims at issue in the motion presented: Ms. Yelder’s sex discrimination
and age discrimination claims.
Ms. Yelder alleges that her employer, the National Park Service (“NPS”),
discriminated against her on the basis of her race, sex, disability, and age, and that NPS
retaliated against her protected activity.1 	As relevant here, Ms. Yelder alleges that she
suffered sex discrimination when her supervisor grabbed her by the arm, hugged her, and
rubbed her in the middle of her back.2 She also alleges that the same individual “stalked
her,” appearing behind her in the hallway, following her to her office, and watching her.3
II. 	LEGAL STANDARD
A party may move for dismissal when a plaintiff’s complaint “fails to state a
claim upon which relief can be granted.”4 	To survive a motion to dismiss under
Rule 12(b)(6), a complaint must contain enough facts that, if taken as true, would state a
legal claim to relief that is “plausible on its face.”5 	Conclusory statements, unwarranted
inferences, and “[t]hreadbare recitals of the elements of a cause of action” will not defeat
dismissal; a plaintiff must “plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”6 In reviewing
a motion to dismiss, the court construes all facts alleged in the complaint in the light most
1 Docket 27 at 5.
2 Id. at 8.
3 Id.
4 Fed. R. Civ. P. 12(b)(6).
5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation marks omitted);
accord Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
6 Iqbal, 556 U.S. at 678.
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Yelder v. Haaland 	Case No. 3:21-cv-00153-JMK
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favorable to the plaintiff.7 Ultimately, dismissal for failure to state a claim is proper “if it
appears beyond doubt that the plaintiff can prove no set of facts in support of [their] claim
which would entitle [them] to relief.”8
The court liberally construes the pleadings of pro se or self-represented
litigants.9 Nonetheless, a self-represented litigant’s complaint must comply with Federal
Rule of Civil Procedure 8(a).10 	Rule 8 of the Federal Rules of Civil Procedure instructs
that a complaint must contain a “short and plain statement of the claim showing that the
[complainant] is entitled to relief[.]” 	A complaint should set out each claim for relief
separately. 	Each claim should identify (1) the specific harm that plaintiff is alleging has
occurred to her, (2) when that harm occurred, (3) where that harm was caused, and (4) who
she is alleging caused that specific harm to her.
III. 	DISCUSSION
Secretary 	Haaland 	moves 	for 	partial 	dismissal 	of 	Ms. 	Yelder’s 	First
Amended Complaint. 	She asserts that the complaint fails to 	state claims of sex
discrimination under Title VII and age discrimination under the ADEA. Secretary Haaland
notes her intent to answer Ms. Yelder’s other claims following this Court’s order.11
7 Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (quoting Skilstaf, Inc. v.
CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012)).
8 Laborers’ Int’l Union of N. Am., Loc. 341 v. Main Bldg. Maint., Inc., 435 F. Supp. 3d
995, 1000 (D. Alaska 2020) (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,
923 (9th Cir. 2001)).
9 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
10 See Carter v. Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986)
(noting that pro se litigants are “expected to abide by the rules of the court in which [they]
litigate[]”).
11 Docket 30 at 2.
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Ms. Yelder responds in opposition and insists that she suffered age and sex
discrimination.12 She notes that she was ejected from a training class in which she was the
oldest employee.13
A. 	The First Amended Complaint Fails to State a Claim for Sex Discrimination
under Title VII
Secretary Haaland argues that Ms. Yelder’s fails to state a claim of sex
discrimination because she does not allege any facts that connect an adverse action and the
alleged incident of sexual harassment.14 Furthermore, she does not allege further incidents
or further details that heighten the severity of the alleged incident of sexual harassment.15
Ms. Yelder does not directly address these arguments in her opposition.16
As the Court explained in its prior order, a plaintiff may assert a claim of sex
discrimination under Title VII by alleging facts to support “disparate treatment” or a
“hostile work environment.”17 Examining her initial complaint and supporting documents,
the Court interpreted Ms. Yelder’s claim as a hostile work environment claim and
concluded that the single incident of harassment she described was not sufficiently severe
to constitute a hostile work environment in itself.18 	Accordingly, the Court dismissed
Ms. Yelder’s sex discrimination claim but allowed her leave to amend to provide “specific
factual allegations that support her claim that her employer’s actions were motivated by
12 Docket 31 at 1.
13 Id.
14 Docket 30 at 5.
15 Id.
16 Docket 31.
17 Docket 21 at 7–10.
18 Id. at 14.
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discriminatory intent because of her sex and/or that she was subjected to a hostile work
environment.”19
In her First Amended Complaint, Ms. Yelder reiterates the allegation “[her]
new boss grabbed [her] by the arm, hugged & rubbed [her] in the middle of the back.”20
Additionally, her First Amended Complaint alleges that she “was stalked by the same
person, where he would ease up behind [her] in the hallway and trail [her] to [her] office,
or standing outside the double doors and watch [her] as [she] remove[d] items from the
printer.”21
“For sexual harassment to be actionable, it must be sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.”22 	In evaluating whether a work environment is sufficiently hostile to be
illegal discrimination, courts look at the totality of the circumstances, “including the
frequency of the discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with
an employee’s work performance.”23
Despite Ms. Yelder’s additional allegation that her supervisor “stalked her”
in the office, Ms. Yelder’s First Amended Complaint does not sufficiently show a single
incident severe enough to constitute a hostile work environment or pervasive hostile
19 Id.
20 Docket 27 at 8.
21 Id.
22 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal quotation marks and
citation omitted).
23 Id. (quotation and citation omitted).
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conduct. 	As the Court has discussed, “[w]hile unwanted hugging may certainly create a
hostile work environment, the Complaint does not include facts to suggest the conduct was
pervasive or, if a single event, severe enough to constitute a hostile work environment.”24
Ms. Yelder has not made any additional allegations regarding unwanted touching. Rather,
she alleges different conduct that, depending on the circumstances, may create a hostile
work environment.25 	However, her new allegation is too vague to allow the Court to
determine whether she alleges an isolated event or repeat harassment. 	Without further
detail regarding the severity, frequency, or nature of the alleged conduct, the Court lacks
sufficient information to infer that the alleged conduct was sufficiently pervasive and
severe to affect the conditions of her employment.
As such, Ms. Yelder’s Title VII claim of sex discrimination is DISMISSED.
The Court will allow Ms. Yelder an opportunity to amend her complaint with respect to
her sex discrimination claim. Ms. Yelder should include detailed allegations regarding the
frequency and severity of the alleged harassment as well as any other circumstances that
may be relevant.
B. 	The First Amended Complaint Fails to State a Claim for Age Discrimination
under the ADEA
Secretary Haaland argues that Ms. Yelder’s First Amended Complaint lacks
any fact assertions related to age-based discrimination.26 	Ms. Yelder does not directly
24 Docket 21 at 14 (first citing Zetwick v. Cnty of Yolo, 850 F.3d 436, 443 (9th Cir. 2017),
then citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
25 See Pardo-Pena v. Spector, No. 2:20-CV-03562-MAA, 2023 WL 2202515, at *8 (C.D.
Cal. Jan. 26, 2023) (noting that a hostile work environment could be shown by incidents including
leering, staring, and tailgating the plaintiff on foot).
26 Docket 30 at 6.
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respond, but notes in her opposition that she was the oldest attendee at a training class from
which she was ejected.27
The ADEA prohibits discrimination based on age in federal employment.28
As the Court previously has explained, Ninth Circuit analyzes ADEA discrimination cases
under the same framework as Title VII discrimination cases.29 	Ultimately, to survive a
motion to dismiss, Ms. Yelder’s Complaint must include facts that lead to a reasonable
inference that she suffered an adverse employment action on the basis of age.30
Ms. Yelder’s First Amended Complaint does not include any allegations that
allow an inference that she suffered an adverse employment action due to her age. Rather,
it contains only the conclusory assertion that she was subject to age discrimination because
she is over 40 years old.31 Furthermore, the Court may not consider new allegations offered
in a party’s motion.32 However, even if the Court were to consider Ms. Yelder’s allegation
that she suffered discrimination on the basis of age because she was ejected from a training
in which she was the oldest attendee, Ms. Yelder still would not state an ADEA claim, as
she offers no factual allegations that suggest her ejection from training was in any way
related to the fact that she is older than 40 years of age. Accordingly, Ms. Yelder’s ADEA
27 Docket 31 at 1.
28 29 U.S.C. § 633a.
29 See Docket 17 at 19–20 (citing Ritter v. Hughes Aircraft Co., 58 F.3d 454, 456–57 (9th
Cir. 1995)).
30 See Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1049 n.2 (9th Cir. 2012).
31 Docket 27 at 8.
32 See Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998)
(emphasis in original) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may not
look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to
a defendant’s motion to dismiss.”).
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claim is DISMISSED. 	Given the lack of any factual allegations supporting an age
discrimination claim in both Ms. Yelder’s original and First Amended Complaints, the
Court will not allow leave to amend with respect to this claim.
IV. 	CONCLUSION
For the reasons stated above, the Motion to Dismiss at Docket 30 is
GRANTED. The Court also grants leave for Ms. Yelder to file an amended complaint that
supplies further, specific allegations as to her sex discrimination claim only. If Ms. Yelder
wishes to file an amended complaint, she must do so within 60 days of this order.
IT IS SO ORDERED this 24th day of January, 2024, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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