United States District Court, Northern District of Indiana, South Bend Division
OPINION AND ORDER
RUDY LOZANO, United States District Court Judge.
This matter is before the Court on the Motion to Dismiss, filed by Defendant, Ivy Tech Community College ("Ivy Tech"), on September 29, 2014 (DE #8). For the reasons set forth below, the motion (DE #8) is GRANTED. The Clerk is ORDERED to DISMISS Plaintiff's complaint WITH PREJUDICE in its entirety, and to CLOSE this case.
Pro se Plaintiff, Kimberly Hively, filed her two-count complaint against Ivy Tech on August 15, 2014. (DE #1.) She alleges she was "[d]enied fulltime employment and promotions based on sexual orientation" in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. (DE #1, p. 2.) She attached her administrative charge of discrimination which stated as follows:
I have applied for several positions at IVY TECH, fulltime, in the last 5 years. I believe I am being blocked from fulltime employment without just cause. I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under the Title VII of the Civil Rights Act of 1964 were violated.
(DE #1-1, p. 2.)
Ivy Tech filed the instant motion to dismiss on September 29, 2014 (DE #8), arguing Plaintiff failed to set forth a claim upon which relief may be granted, and the complaint should be dismissed under Federal Rule of Civil Procedure Rule 12(b)(6). Specifically, Ivy Tech contends that sexual orientation is not a protected class under Title VII or Section 1981. (DE #9.)
Hively filed a response in opposition on November 12, 2014 (DE #12). In it, she sets forth facts about the percentage of states recognizing same sex marriages/civil unions, and argues that sexual orientation should be protected. Additionally, she quotes Ivy Tech's employee handbook, which states that the College "will not discriminate against any person because of . . . sexual orientation. . . ." (DE #12, p. 2.) Finally, in the last sentence of her response, Hively requests permission "to amend the initial complaint to include the state and local rules and Ivy Tech Community College's employment policy." (Id., p. 3.)
Ivy Tech filed a reply in support of its motion to dismiss on November 21, 2014 (DE #13). As such, this motion is fully briefed and ripe for adjudication.
Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, or any portion of a complaint, for failure to state a claim upon which relief can be granted. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted); see also Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011) (citation omitted) ("While the federal pleading standard is quite forgiving . . . the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.").
A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Plus, Iqbal requires that a plaintiff plead content which allows this Court to draw a reasonable inference that the defendant is liable for the alleged misconduct. 556 U.S. at 678.
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v.Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a ‘speculative level' " and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting in part Twombly, 550 U.S. at 569 n. 14 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (quotation ...