United States District Court, W.D. Kentucky, Paducah Division
B. Russell, Senior Judge United States District Court
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.
factual allegations as set out in the Complaint, [DN 1], and
taken as true are as follows.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].
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].
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.].
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.
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.
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” 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.].
months after his termination, Hamade filed a charge with the
Equal Employment Opportunity Commission
(“EEOC”). 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
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
Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e,
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 ...