United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
matter is before the Court on Defendants' Motion to
Dismiss (DN 9). The motion is ripe for adjudication. For the
reasons outlined below, the motion is GRANTED IN
PART and DENIED IN PART.
STATEMENT OF FACTS AND CLAIMS
Gail Marie Phoenix (“Phoenix”) was employed by
the Department of the Army during the time period relevant to
this lawsuit. On August 2, 2016, she contacted an Equal
Employment Opportunity counselor (“EEO
counselor”) regarding alleged discriminatory actions by
her employer, and on or about August 31, 2016, she filed the
Formal Complaint of Discrimination (DA Form 2590)
(“Formal Complaint”). (Compl. Ex. 2, at 2, DN
1-2). On July 7, 2017, the Equal Employment Opportunity
Commission (“EEOC”) issued a right-to-sue letter
to Phoenix. (Compl. Ex. 1, DN 1-1).
filed this action pro se and alleges that Defendants
failed to promote her and retaliated against her in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17, and 42 U.S.C. § 1983.
(Compl. 4, 5, 12). Defendants move to dismiss the Complaint
pursuant to Fed.R.Civ.P. 12(b)(6).
STANDARD OF REVIEW
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,
” and is subject to dismissal if it “fail[s] to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 8(a)(2); Fed. R. Civ. P 12(b)(6). When
considering a motion to dismiss, courts must presume all
factual allegations in the complaint to be true and make all
reasonable inferences in favor of the non-moving party.
See Total Benefits Planning Agency, Inc. v. Anthem Blue
Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008) (citation omitted). “But the district court need
not accept a bare assertion of legal conclusions.”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d
478, 488 (6th Cir. 2009) (citation omitted). “A
pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertion[s]
devoid of further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted) (citation omitted).
survive a motion to dismiss under Rule 12(b)(6), the
plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Traverse Bay
Area Intermediate Sch. Dist. v. Mich. Dep't of
Educ., 615 F.3d 622, 627 (6th Cir. 2010) (internal
quotation marks omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim becomes
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). “A complaint will be dismissed pursuant
to Rule 12(b)(6) if no law supports the claims made, if the
facts alleged are insufficient to state a claim, or if the
face of the complaint presents an insurmountable bar to
relief.” Southfield Educ. Ass'n v.
Southfield Bd. of Educ., 570 Fed.Appx. 485, 487 (6th
Cir. 2014) (citing Twombly, 550 U.S. at 561-64).
42 U.S.C. § 1983
Complaint, Phoenix asserts claims under both 42 U.S.C. §
1983 and Title VII relating to her employment. Defendant
contends, however, that Phoenix cannot assert both claims and
the Title VII preempts her 42 U.S.C. § 1983 claim.
(Def.'s Mem. Supp. Mot. Dismiss 5).
Sixth Circuit has explained,
Title VII of the Civil Rights Act of 1964 . . . provides the
exclusive judicial remedy for claims of discrimination in
federal employment. “In permitting federal employees to
sue under Title VII, Congress conditioned the
government's waiver of sovereign immunity upon a
plaintiff's satisfaction of ‘rigorous
administrative exhaustion requirements and time
Steiner v. Henderson, 354 F.3d 432, 434-35 (6th Cir.
2003) (internal citation omitted) (citation omitted). Because
Title VII provides the sole remedy for Phoenix's claims
in this action, the Court will dismiss her Section 1983
their motion, Defendants also challenge Phoenix's Title
VII claim on various grounds. They assert that Phoenix cannot
assert claims against all of the named Defendants and that
she has failed to state a ...