Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bragorgos v. Chao

United States District Court, D. Nevada

October 10, 2017

STEVEN BRAGORGOS, Plaintiff,
v.
ELAINE CHAO, in her capacity as SECRETARY OF TRANSPORTATION, Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         Before the court is defendant Elaine Chao's (“Chao”), in her capacity as Secretary of the United States Department of Transportation (“DOT”), motion to dismiss. ECF No. 11. Plaintiff Steven Bragorgos (“Bragorgos”) filed an opposition (ECF No. 14) to which Chao replied (ECF No. 18).

         I. Facts and Procedural Background

         On or about November 30, 2014, Bragorgos was hired by the DOT to work in the Federal Highway Administration as a Finance Manager in Carson City, Nevada. Prior to working with the DOT, Bragorgos served active duty in the United States Army Reserve for over twenty years. During that time, Bragorgos suffered several physical and mental injuries which left him partially disabled. DOT allegedly knew of Bragorgos's disability at the time he was hired.

         For the next several years, Bragorgos allegedly performed his job satisfactorily and received three satisfactory job performance evaluations. Beginning in early 2016, Bragorgos's disabilities intensified culminating in a request for accommodation from the DOT in July 2016. However, Bragorgos alleges that DOT did not provide any accommodation for his disabilities. Instead, on August 8, 2016, Bragorgos was relieved of his supervisory position as a Finance Manager and given duties that he could not easily perform due to his disability. In October 2016, Bragorgos filed an EEOC complaint alleging discrimination based on his age and disability. Then, on or about December 7, 2016, Bragorgos was denied a step increase and given a notice that his performance was no longer satisfactory. He was subsequently placed on a Performance Improvement Plan in January 2017. At the time he was removed as Finance Manager, given new duties that he allegedly could not perform, denied a step increase, and placed on the performance plan, Bragorgos was 53 years old.

         On June 8, 2017, Bragorgos filed a complaint against Chao in her official capacity alleging four causes of action: (1) age discrimination in violation of the Age Discrimination Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; (2) violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.; (3) violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.; and (4) a hostile and abusive work environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000(e), et seq. ECF No. 1. Thereafter, Chao filed the present motion to dismiss. ECF No. 11.

         II. Legal Standard

         Defendant Chao seeks dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a legally cognizable cause of action. See Fed. R. Civ. P. 12(b)(6) (stating that a party may file a motion to dismiss for “failure to state a claim upon which relief can be granted[.]”). To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the notice pleading standard of Rule 8(a)(2) of the Federal Rules of Civil Procedure. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). Under Rule 8(a)(2), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) does not require detailed factual allegations; however, a pleading that offers only “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” is insufficient and fails to meet this broad pleading standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         To sufficiently allege a claim under Rule 8(a)(2), viewed within the context of a Rule 12(b)(6) motion to dismiss, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the alleged misconduct. See Id. at 678-679 (stating that “[t]he plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. 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.”) (internal quotation marks and citations omitted). Further, in reviewing a motion to dismiss, the court accepts the factual allegations in the complaint as true. Id. However, bare assertions in a complaint amounting “to nothing more than a formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 698) (internal quotation marks omitted). The court discounts these allegations because “they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation.” Id. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

         III. Discussion

         In her motion to dismiss, Chao contends that all four causes of action fail to state a claim upon which relief can be granted. See ECF No. 11. Bragorgos concedes in his opposition that his first cause of action for a violation of the ADEA and third cause of action for a violation of the ADA should be dismissed for failure to state a claim. See ECF No. 14, p. 12. Therefore, the court shall only address Bragorgos's claims for a violation of the Rehabilitation Act and for a Title VII hostile working environment claim.

         A. Rehabilitation Act

         In her motion to dismiss, Chao contends that Bragorgos has failed to exhaust his administrative remedies related to his Rehabilitation Act claim and therefore, the court is without jurisdiction over this claim. See ECF No. 11. As addressed below, the court disagrees and finds that Bragorgos has sufficiently exhausted his administrative remedies as to this claim.

         The Rehabilitation Act, codified at 29 U.S.C. § 701 et seq., prohibits discrimination in employment on the basis of an employee's disability. In order for a district court to have subject matter jurisdiction over a claim under the Rehabilitation Act, a plaintiff must have exhausted all available administrative remedies. See B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002); see also, Bullock v. Berrien, 688 F.3d 613, 616 (9th Cir. 2012). To exhaust all administrative remedies, a plaintiff must timely file a charge with the EEOC identifying the alleged discrimination. Id.; see also, Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2004). Generally, allegations of discrimination not included in the administrative charge “may not be considered by a federal court.” Id. at 1100. (quoting Green v. Los Angeles County Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989). However, a federal court's subject matter jurisdiction extends over all allegations of discrimination that fall within the scope of the EEOC charge and are thus “like or reasonably related to the allegations ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.