Bad Wound v. Honorable Ryan Zinke, The

Background

Everett Bad Wound alleged that the Bureau of Indian Education, a division of the United States Department of the Interior, discriminated and retaliated against him during his employment. He asserted three claims: sex and sexual-orientation discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964; retaliation under Title VII and the Age Discrimination in Employment Act; and age discrimination under the Age Discrimination in Employment Act.

Bad Wound alleged that a supervisor described his appearance as “all dolled up” and that a supervisor’s assistant called him a “girl scout.” He also alleged that he reported discrimination and retaliation in April 2016, contacted an Equal Employment Opportunity investigator in June 2016, and was terminated on November 9, 2016. The agency stated that the reason for termination was his failure to report a 2013 car accident that resulted in the revocation of his driver’s license. Bad Wound alleged that this reason was a pretext for discrimination and retaliation.

Analysis

The defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction or Rule 12(b)(6) for failure to state a claim. The court rejected the argument that administrative exhaustion and timely filing were jurisdictional requirements under Title VII and the Age Discrimination in Employment Act. The court therefore analyzed the motion under Rule 12(b)(6).

For Count I, the court held that the two alleged comments were isolated, offhand remarks that were not objectively severe enough to constitute actionable harassment. The court also held that Bad Wound’s general allegations of discrimination, retaliation, bullying, intimidation, and harassment were too vague and conclusory to make a hostile-work-environment claim plausible. The motion to dismiss Count I was granted.

For Count II, the court held that Bad Wound’s reports in April and June 2016, followed by his termination in November 2016, were insufficient by themselves to plausibly show a causal connection between protected activity and termination. The remaining allegations were conclusory. The motion to dismiss Count II was granted.

For Count III, the court held that Bad Wound’s allegations that he was 62, that the employer knew his age, and that younger employees received better treatment did not plausibly show that he met the employer’s legitimate expectations or support a reasonable inference of age discrimination. The motion to dismiss Count III was granted.

Disposition

The court granted the defendant’s motion to dismiss and dismissed Bad Wound’s amended complaint without prejudice. The opinion states that judgment was to be entered accordingly.