United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE
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.
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
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.
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).
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.
Summary of the Factual Allegations
alleged facts are as follows.
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.
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.
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
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.
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.
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
August of 2017, Syzek accused plaintiff of requesting, for
his own convenience, a procedure referred to as “block
check time.” Id. at ¶ 23.
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.
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.
September and October of 2017, radiation therapists were not
following plaintiff's instructions regarding certain
patient treatment matters. They ...