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Hamade v. Valiant Government Services, LLC

United States District Court, W.D. Kentucky, Paducah Division

March 28, 2019

ZOUHEIR HAMADE PLAINTIFF
v.
VALIANT GOVERNMENT SERVICES, LLC DEFENDANTS

          MEMORANDUM OPINION

          Thomas B. Russell, Senior Judge United States District Court

         This matter is before the Court upon a motion by Defendant, Valiant Government Services, LLC (“Valiant”), to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure as to all claims of Plaintiff Zouheir Hamade (“Hamade”). [DN 6; DN 7]. Plaintiff has responded, [DN 9], and Defendant has filed a reply. [DN 11]. Fully briefed, Defendant's motion is ripe for review, and for the following reasons, it is GRANTED.

         BACKGROUND

         The factual allegations as set out in the Complaint, [DN 1], and taken as true are as follows.[1]In July 2017 Hamade was hired by Valiant as a full-time Arabic-Iraqi linguist in Iraq. [DN 1 at 2-3]. While working in Iraq, Hamade was approached by a female linguist who worked for another government contractor. [DN 1 at 3]. The female linguist informed Hamade that she had been sexually assaulted and asked Hamade to help her find the proper authority. [Id.]. Hamade agreed to accompany the female linguist to the “Mayor Cell” to locate the offices of the Army Sexual Harassment/Assault Response and Prevention (“SHARP”). [Id.]. While traveling to the Mayor Cell, Hamade and the female linguist were confronted by Sergeant Major Goodman (“Goodman”). [Id.]. Goodman questioned Hamade and the female linguist regarding the purpose of their visit to the Mayor Cell. [Id.]. During the confrontation, Hamade learned that Goodman was the officer who allegedly assaulted the female linguist. [Id. at 4]. The female linguist informed Goodman that she was traveling to the Mayor Cell to report harassment, bullying, and retaliation against her. [Id. at 4].

         The female linguist's answer angered Goodman, who then demanded to see Hamade's identification. [Id.]. Hamade refused to give his identification to Goodman, instead stating that he would only give his identification to a higher authority than Goodman. [Id.]. Goodman “continued to bully and pressure” Hamade and the female linguist, raising his voice and drawing a crowd. [Id.]. Hamade reached out to a First Lieutenant in the crowd and presented the Lieutenant with his identification. [Id.]. The Lieutenant, with the help of Major Dam, deescalated the situation and listened to the female linguist explain what had occurred. [Id.]. Major Dam then accompanied Hamade and the Female Linguist to the office of Colonel Thomas Shuler, where Hamade and the female linguist were advised to make an appointment for the next day. [Id.]. The next day, Hamade and the female linguist met with Colonel Shuler to discuss the alleged sexual assault and the identification withholding situation that had occurred the night before, and Hamade's concerns of retaliation from Goodman. [Id. at 5].

         The next day, Hamade learned that Sergeant Goodman complained to Valiant and made a recommendation for Valiant to terminate Hamade for withholding his identification. [Id.]. Hamade met with Colonel Shuler two days later to notify Shuler of Goodman's complaint and recommendation for termination. [Id. at 6]. Colonel Shuler assured Hamade that no adverse action would be taken against him and promised to provide Hamade with a “closure statement” within the next two days which would assure him in writing that no retaliation would occur. [Id.]. Hamade waited for the closure statement for two weeks before sending Shuler an email reminding the Colonel of his promise. [Id.].

         The day after he emailed Colonel Shuler, Hamade received a letter of reprimand from Valiant stating that the U.S. Army had filed a “complaint” against him because Hamade had requested a written statement from Colonel Shuler. [Id.]. Lawrence Butala, Valiant's site lead, told Hamade that it was not a good time for Valiant employees to raise issues with the U.S. Army since the company's contract was under rebidding and an issue like Hamade's could cause Valiant to lose its contract. [Id. at 7]. Following the complaint, Hamade's unit was given orders to watch Hamade's performance. [Id.]. Thereafter formal statements appeared in Hamade's file relating to living conditions and other petty and non-performance concerns. [Id.]. During the days following his reprimand, Hamade was repeatedly approached by a soldier, Hamza Waheed, who said he heard Hamade was “leaving” each time he spoke with Hamade. [Id.].

         Hamade was first informed that he was being terminated on January 7, 2018. [Id.]. Hamade was informed that he was being terminated for upsetting an Iraqi General Officer by asking the Iraqi General to “switch seating” with another officer. [Id.]. When Hamade confronted the General about his termination, the General was “astonished by the news of the alleged complaint and vehemently denied having complained to anyone at any time about Plaintiff Hamade” and that someone must have misinterpreted their jokes regarding the seating arrangement. [Id.]. The Iraqi General and his NOC Commander, General Khalaf, submitted written statements that no such incident happened and no complaint was ever made. [Id.].

         Some time later, the site manager of Valiant told Hamade that he had not been terminated because of the chair incident but instead for “re-opening the case” regarding the sexual assault allegations against Sergeant Major Goodman. [Id.]. On January 11, 2018, Valiant's deputy program manager informed Hamade that the main reason for his termination was because he “refused to provide his identification” to Sergeant Goodman and because he assisted the female linguist in reporting the sexual harassment by Goodman. [Id. at 9]. On January 15, 208, Hamade filed a complaint with “IG”[2] in Iraq. [Id. at 10]. Captain Sommer, the Brigade Attorney, notified Valiant of the IG complaint. Two days after Hamade filed the IG complaint, Valiant's program director in Iraq informed Hamade that he was being terminated “at will” and would be redeploying soon and the site manager handed Hamade a written reprimand that said Hamade was being disciplined because he had been too friendly to the Iraqi officers he worked with on a daily basis. [Id.].

         Several months after his termination, Hamade filed a charge with the Equal Employment Opportunity Commission (“EEOC”).[3] On August 3, 2018, the EEOC dismissed the charged and issued a “Notice of Suit Rights.” [DN 1-1]. Hamade filed his complaint that is now before this Court on November 11, 2018. Valiant argues that Hamade's complaint must be dismissed because he has failed to plead facts showing that he engaged in a protected activity under Title VII of the Civil Rights Act of 1964 (“Title VII”) or the Kentucky Civil Rights Act (“KCRA”) and that the KCRA does not apply in this case because it is not extraterritorial in scope. For the following reasons, Valiant's motion to dismiss is GRANTED.

         LEGAL STANDARD

         In a motion to dismiss pursuant to Rule 12(b)(6), “[t]he defendant has the burden of showing that the plaintiff has failed to state a claim for relief.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991)). 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). In order to survive a motion to dismiss under Civil Rule 12(b)(6), a party must "plead enough factual matter to raise a 'plausible' inference of wrongdoing." 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Should the well-pleaded facts support no "more than the mere possibility of misconduct," then dismissal is warranted. Id. at 679. The Court may grant a motion to dismiss "only if, after drawing all reasonable inferences from the allegations in the complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief." Garceau v. City of Flint, 572 Fed.Appx. 369, 371 (6th Cir. 2014) (citing Iqbal, 556 U.S. at 677-79).

         DISCUSSION

         I. Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e, et seq).

         Title VII prohibits discriminating against an employee because that employee engaged in conduct protected by Title VII. To establish a prima facie case of retaliation, the plaintiff must show: “(1) [he] engaged in a ‘protected activity' within the meaning of Title VII; (2) the employer knew of such activity; (3) the employer thereafter took an adverse employment action against the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment.” Davis v. Rich Prods. Corp., 11 Fed.Appx. 441, 444 (6th ...


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