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Kil v. Wilkie

United States District Court, W.D. Oklahoma

August 23, 2019

WHOON JONG KIL, Plaintiff,
v.
SECRETARY ROBERT WILKIE, U.S. DEPT. VETERANS AFFAIRS, Defendant.

          ORDER

          STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE

         Defendant Robert Wilkie, Secretary of U.S. Department of Veterans Affairs, moves to dismiss this action under Rule 12(b)(6), Fed.R.Civ.P. Doc. no. 11. Plaintiff Whoon Jong Kil responded, objecting to dismissal. Doc. no. 17. Defendant filed a reply brief. Doc. no. 22.

         Plaintiff brings claims under Title VII, 42 U.S.C. § 2000e et seq., arising out of plaintiff's employment as a doctor for the Department of Veterans Affairs (the “VA” or “the agency”) in Oklahoma City. The complaint alleges a variety of employment-related claims, specifically, race discrimination (count one), national origin discrimination (count two), sex discrimination (count three), retaliation for protected activity (count four), and hostile work environment (count five). Defendant seeks dismissal of all of these claims and also asks the court to dismiss the request for injunctive relief.

         For the reasons stated in this order, the motion will be granted with respect to the discrimination and hostile work environment claims and denied with respect to the retaliation claim and the request for injunctive relief.

         I. Standards

         The inquiry under Rule 12(b)(6) is whether the complaint contains enough facts to state a claim for relief that is plausible on its face. Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir., 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). To survive a motion to dismiss, a plaintiff must nudge his claims across the line from conceivable to plausible. Id. The mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims. Ridge at Red Hawk, 493 F.3d at 1177. In conducting its review, the court assumes the truth of the plaintiff's well-pleaded factual allegations and views them in the light most favorable to the plaintiff. Id. Pleadings that are no more than legal conclusions are not entitled to the assumption of truth; while legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S.662, 664 (2009).

         When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. The court will disregard mere “labels and conclusions” and “[t]hreadbare recitals of the elements of a cause of action” to determine if what remains meets the standard of plausibility. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. Ultimately, “determining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         II. Summary of the Factual Allegations

         The alleged facts are as follows.

         According to the complaint, plaintiff is an “Asian male originally from South Korea, ” and an “oncologist and physician licensed in both the United States and South Korea.” Doc. no. 1, ¶ 8. He worked at the VA in Oklahoma City as a radiation oncology doctor from March 5, 2017 (id. at ¶ 9) until his termination on December 20, 2017. Id. at ¶ 37.

         A number of allegations deal with interactions between plaintiff and agency staff (often radiation therapists, who are also described in the complaint as technicians). The radiation therapists in question are female, Caucasian and originally from the United States. Id. at ¶ 11.

         One of the radiation therapists told plaintiff, “Dr. Kil, I am very sarcastic. So you will have to listen, accept my sarcasm, and get used to it. Otherwise, you will have a hard time working in this clinic.” Id. at ¶ 13. Radiation therapists refused to say “good morning” to plaintiff, excluded plaintiff from staff birthday celebrations, and failed to invite plaintiff to share food brought in by patients or staff. Id. at ¶ 14. Radiation therapists did not follow plaintiff's instructions for patient care (for example, regarding positioning of patients), failed to communicate plaintiff's instructions to other radiation therapists, and gave false accounts of these incidents. Id. at ¶¶ 15-16.

         On one occasion in May of 2017, a radiation therapist did not provide plaintiff with a computer mouse when plaintiff asked for it (although the therapist eventually gave plaintiff the mouse). Radiation therapists then overrode plaintiff's instructions about how to adjust the radiation machine console to best treat the patient. One of the therapists falsely complained to management that plaintiff had forcefully taken the mouse and had interrupted the radiation therapists' work. Id. at ¶18.

         On June 28, 2017, plaintiff met with a group consisting of George Kurdgelashvili, Chief of Medicine; Darrell Raley, Administrative Officer; and Elizabeth Syzek, a white female from the United States, Director of Radiation Oncology, plaintiff's direct supervisor, and the supervisor of one of the radiation therapists (Ashley Arres, the radiation therapists' supervisor). Id. at ¶¶ 10, 11. At that meeting Kurdgelashvili told plaintiff there were multiple complaints about him and warned that if he heard any more complaints, he would fire plaintiff. Kurdgelashvili further stated, “I can fire you at any time without reason because you are not a U.S. citizen.” Doc. no. 1, ¶ 19. One day later, when plaintiff asked Syzek what the complaints were about and asked for an opportunity to respond, Syzek told plaintiff that he was disrupting the radiation therapists' jobs and that plaintiff's explanation did not matter because there were already complaints. When plaintiff stated that the radiation therapists were not following his instructions and were making false accusations against him, Syzek told plaintiff that plaintiff was “paranoid” and should “visit a clinic for disrupted physicians.” Id. at ¶ 20.

         On August 3, 2017, Syzek yelled at plaintiff and pounded her hands on plaintiff's desk, claiming plaintiff had failed to support a receptionist who, the day before, had been in an argument with a family about scheduling. Id. at ¶ 20.

         In August of 2017, Syzek accused plaintiff of requesting, for his own convenience, a procedure referred to as “block check time.” Id. at ¶ 23.

         Also in August of 2017, a radiation therapist complained to Syzek that plaintiff was not putting the proper codes in all of his patients' charts, although it was Syzek's residents who were not putting in the codes. Id. at ¶ 24.

         In September of 2017, plaintiff asked Syzek about discussing an agency vacancy with qualified oncologists who would be attending a national oncologist conference. Syzek instructed plaintiff not to meet with or contact any physicians to discuss the vacancy. One day later, plaintiff found out by email that the agency had offered a job to a physician (a Caucasian male from the United States) who was not well qualified but who Syzek had known for years. Plaintiff had not been previously informed about that hiring. Id. at ¶ 25.

         In September and October of 2017, radiation therapists were not following plaintiff's instructions regarding certain patient treatment matters. They ...


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