Sturchio v. Ridge

Full title: TRACY N. STURCHIO, f/k/a/ RONALD L. STURCHIO, Plaintiff, v. THOMAS J…

Court: United States District Court, E.D. Washington

Date published: Dec 20, 2004

No. CV-03-0025-RHW (E.D. Wash. Dec. 20, 2004)

Opinion

No. CV-03-0025-RHW.

December 20, 2004

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

ROBERT WHALEY, District Judge

Before the Court is Defendant's Motion to Dismiss (Ct. Rec. 34). A hearing was held on this matter on December 16, 2004. Plaintiff was represented by Larry Kuznetz; Defendant was represented by Assistant United States Attorney Frank Wilson. This order memorializes the Court's oral ruling.

BACKGROUND

Plaintiff is a transgender individual, who was born biologically male, but has been diagnosed with Gender Identity Disorder. Plaintiff has undergone sex reassignment. Plaintiff refers to herself as a female, and is attempting to participate in society as a female.

Plaintiff has been employed with the Border Patrol, or now, the United States Customs and Border Protection, since 1991. In 1998, she was transferred to the Spokane, Washington sector, and supervised a crew of four employees. Beginning in early 2000, Plaintiff became the object of harassment based on her appearance and life choice.

Plaintiff filed grievances with the EEOC. Over 180 days passed and no final agency decision was issued. The parties have stipulated that the Court may hear all the claims raised by Plaintiff before the EEOC. Plaintiff filed her initial complaint on January 30, 2003. She filed an amended complaint on May 27, 2004, to incorporate new EEOC complaints. The Government now moves the Court to dismiss Plaintiff's complaint, pursuant to Fed.R.Civ.P. 12(b)(1), lack of subject matter jurisdiction; and Fed.R.Civ.P. 12(b)(6), for failure to state a claim.

DISCUSSION

I. Standard of Review A. Fed.R.Civ.P. 12(b)(1)

In reviewing a motion to dismiss under Fed.R.Civ.P. 12(b)(1), the Court must accept as true the allegations of the complaint. Love v. United States, 915 F.2d 1242, 1245 (9^th Cir. 1989). Dismissal is proper if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him [or her] to relief." Id. A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9^th Cir. 2004). 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 subject matter jurisdiction, the district court may review evidence beyond the complaint. Id.

Here, Defendant is facially challenging the subject matter jurisdiction of this Court. As such, the Court will view all allegations in the complaint as true and construe them in the light most favorable to Plaintiffs.

B. Fed.R.Civ.P. 12(b)(6)

In reviewing a Fed.R.Civ.P. 12(b)(6) motion, the same standard applies as a facial challenge under Fed.R.Civ.P. 12(b)(1). The Court accepts all allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9^th Cir. 1999). A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Conclusory allegations of law, however, are insufficient to defeat a motion to dismiss. Id.

II. Title VII Claim

Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21(1993).

Defendant relies on the Ninth Circuit case of Holloway v. Arthur Andersen Co., 566 F.2d 659 (9^th Cir. 1977), in which the circuit concluded that transsexual persons are not members of a protected class under Title VII. At oral argument, it appears that Defendant takes issue with the fact that Plaintiff's sex was never identified in the complaint, except that she is a transgender person. While this may be true, it is clear from reading the complaint that Plaintiff is asserting that she is being harassed and discriminated against because her co-workers considered her as a biological male, and wanted her to act like one. Thus, Plaintiff is asserting a claim under Title VII, and the Court has subject matter jurisdiction to hear this case. See Schwenk v. James Hartford, 204 F.3d 1187 (9^th Cir. 2000) (holding that "the initial judicial approach taken in cases such as Holloway has been overruled by the logic and language of Price Waterhouse. . . . Discrimination because one fails to act in the way expected of a man or woman is forbidden under Title VII."); Smith v. City of Salem, Ohio, 378 F.3d 566 (6^th Cir. 2004) (recognizing that Title VII protections encompass gender discrimination that is based on an individual failing to conform to stereotypical gender norms).

Accordingly, IT IS HEREBY ORDERED:

1. Defendant's Motion to Dismiss (Ct. Rec. 43) is DENIED. IT IS SO ORDERED. The District Court Executive is hereby directed to enter this order and to furnish copies to counsel.