Thomas v. McAleenan

Background

Kiesha Renee Thomas sued Kevin K. McAleenan. In the latest version of her complaint, she pursued claims involving race discrimination, age discrimination, sexual harassment, and retaliation. Thomas was representing herself. The government moved to dismiss the complaint. The court also granted the government’s request for judicial notice.

Race- and Age-Discrimination Claims

The court held that Thomas still had not alleged facts supporting a plausible claim that her firing was based on race or age. Her allegations appeared to rely primarily on a comparison with a younger, white coworker. But, according to the complaint, Thomas and that coworker were not similarly situated: only Thomas was accused of making a mistake with the X-ray machine. The complaint also did not allege statements or conduct by Thomas’s supervisors that would allow a jury to infer that the decision to require retraining, followed by firing, was based on racial bias. The court stated that simply asserting discrimination is not enough.

Sexual-Harassment Claim

The court dismissed Thomas’s sexual-harassment claim because she did not contact the Equal Employment Opportunity office within the 45-day period required by statute. The court rejected her argument for extending that deadline because, even if the two weeks she spent in the hospital were excluded, her first contact with the office was still late. The court also noted that Thomas had previously filed an Equal Employment Opportunity complaint, which weakened her claim that she did not know about the contact requirement. Contacting a supervisor or human-resources personnel did not satisfy the required Equal Employment Opportunity counseling process under the authorities discussed by the court.

Retaliation and Disposition

The government did not seek dismissal of Thomas’s retaliation claim, and Thomas stated that she still wished to pursue it. Because Thomas was representing herself and because the case was being handled during the pandemic, Judge Vince Chhabria gave her one more chance to amend. The court granted the government’s motion to dismiss. Thomas had to file a second amended complaint within 21 days. The court advised that she did not have to replead the race-discrimination, age-discrimination, or sexual-harassment claims and could pursue the retaliation claim alone. The order to show cause was lifted.