Bilunas v . Henderson CV-99-270-M 04/21/00
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John P. Bilunas,
Plaintiff
v. Civil N o . 99-270-M
Opinion N o . 2000 DNH 096
William J. Henderson,
Postmaster General,
Defendant
O R D E R
Plaintiff, John Bilunas, is an employee at the United States
Post Office in Lebanon, New Hampshire. He brings this Title VII
action seeking damages for alleged gender discrimination.
Defendant moves to dismiss, saying that Bilunas has failed to
state a viable claim upon which relief might be granted. See
Fed. R. Civ. P. 12(b)(6).
Standard of Review
A motion to dismiss under Rule 12(b)(6) is one of limited
inquiry, focusing not on “whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims.” Scheuer v . Rhodes, 416 U.S. 232, 236
(1974). In considering a motion to dismiss, “the material facts
alleged in the complaint are to be construed in the light most
favorable to the plaintiff and taken as admitted, with dismissal
to be ordered only if the plaintiff is not entitled to relief
under any set of facts he could prove.” Chasan v . Village
District of Eastman,
572 F.Supp. 5 7 8 , 579 (D.N.H. 1983), aff’d
without opinion,
745 F.2d 43 (1st Cir. 1984) (citations omitted).
Notwithstanding the liberal allowances of notice pleading
and the deferential reading mandated by Rule 12(b)(6), a district
court must ensure that “each general allegation be supported by a
specific factual basis.” Fleming v . Lind-Waldock & Co., 922 F.2d
2 0 , 23 (1st Cir. 1990). As this court (Barbadoro, J.) has
observed:
[A] district court need not accept subjective
characterizations, bald assertions, or unsubstantiated
conclusions. Moreover, while “the line between ‘facts’
and ‘conclusions’ is often blurred,” the line must be
drawn. For it is only when such conclusions are
logically compelled, or at least supported, by the
stated facts, that i s , when the suggested inference
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rises to what experience indicates is an acceptable
level of probability, that “conclusions” become “facts”
for pleading purposes.
Care is required in determining the sufficiency of a
complaint to insure that “heightened pleading”
requirements are invoked only if such requirements are
specifically authorized by the Federal Rules of Civil
Procedure. However, even under the general pleading
requirements of Fed. R. Civ. P. 8 ( a ) , a complaint will
not withstand a motion to dismiss if the plaintiff has
merely recited the elements of the complaint’s causes
of action in conclusory terms. Notice pleading
requires factual allegations which, if true, establish
all of the required elements of plaintiff’s causes of
action.
Millard v . Wolfeboro, N o . 94-38-B, slip op. (D.N.H. August 1 8 ,
1994) (citations omitted).
While, as explained below, plaintiff’s complaint is plainly
deficient and could properly be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6), considerations of equity and fairness counsel
in favor of allowing him an opportunity to amend his complaint.
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Facts
Bilunas’s complaint provides very little factual background
to his Title VII claim. It merely alleges that he was informed
by his superior, Harvey Tabasky, that he could no longer wear
earrings or his hair in a pony tail while at work. He also
claims that Tabasky said, “You were hired as a man and we expect
you to come to work as a man.” Complaint, para. 6. Bilunas
points out, however, that other male employees were permitted to
wear earrings and/or their hair in a pony tail. He then simply
concludes that:
The Defendant’s insistence that the Plaintiff remove
his jewelry and that he not wear his hair in a pony
tail when other similarly situated employees are not
subjected to the same restrictions violates the
Plaintiff’s rights under Title VII of the Civil Rights
Act of 1964 which specifically prohibits discrimination
on the basis of sex.
Complaint at para. 1 5 . See also Complaint at para. 25 (“The
Plaintiff’s [federally protected] rights were violated when
Defendant’s conduct in requiring Plaintiff to remove his jewelry
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and to take out his pony tail, created a workplace permeated with
discriminatory intimidation, ridicule and insult . . . . ” ) .
Discussion
Defendant asserts that Bilunas’s allegations fail to state a
viable cause of action under Title VII. The court is inclined to
agree.
As described in the complaint, the “discrimination” against
Bilunas appears to be based on something other than his gender
(unless, of course, one subscribes to the notion that there are
more than two genders and Bilunas falls into a category that is
neither the traditional “male” nor “female” category). As
Bilunas himself concedes, other men in the workplace were
permitted to wear pony tails and earrings. Thus, defendant’s
decision to single-out Bilunas and prohibit him from doing so
would, based upon the allegations set forth in the complaint,
appear to have been based upon something other than the fact that
he is a man who wished to wear a pony tail and earrings. The
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precise basis for that decision i s , however, a mystery. More
importantly, how or why it might have violated Title VII is left
unsaid by plaintiff.
Only in his responsive papers does Bilunas begin to hint at
perhaps pertinent facts underlying defendant’s alleged
discrimination and possible legal theories under which he might
seek damages for that discrimination. There, Bilunas reveals
that he views himself as being both male and female. See
Plaintiff’s Statement of Material Facts in Dispute (attached to
document n o . 4 ) at 5 and attached affidavit. He also points out
that he has, throughout his working life, “worn what has
traditionally been viewed as female cosmetics, has worn his hair
long (occasionally, in a pony tail) and has worn jewelry.” Id.
The factual scenario painted by Bilunas suggests that defendant
might well have refused to permit him to wear a pony tail and
earrings not because of his male gender, but perhaps because he
was a male employee bent on adopting a feminine appearance and
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persona (presumably unlike the other male employees who wore
earrings and/or pony tails).
In light of the more detailed factual background provided in
Bilunas’s legal memoranda, the legal theories under which he
might be attempting to proceed are marginally more clear. First,
he might be claiming that defendant violated Title VII by having
engaged in unlawful “sexual stereotyping” (e.g., discriminating
against him because he did not project, or dress in a manner
consistent with, the stereotypical male image). See generally
Price Waterhouse v . Hopkins, 490 U.S. 228 (1989). See also
Higgins v . New Balance Athletic Shoe, Inc.,
194 F.3d 252, 261 n.4
(1st Cir. 1999) (“[J]ust as a woman can ground an action on a
claim that men discriminated against her because she did not meet
stereotyped expectations of femininity, a man can ground a claim
on evidence that other men discriminated against him because he
did not meet stereotyped expectations of masculinity.”) (citation
omitted). Alternatively, Bilunas might be proceeding on a so-
called “sex plus” theory of discrimination (e.g., he was singled
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out for unique treatment based upon his gender plus some other
quality). See generally Phillips v . Martin Marietta Corp., 400
U.S. 542 (1971). O r , it is possible that he is asserting that
defendant discriminated against him because of his status, that
is one who views himself as being “intersexed,” or having
qualities or characteristics of both genders.
Based upon Bilunas’s complaint, however, the factual and
legal bases for his Title VII claim are entirely unclear. That
there is substantial confusion concerning the legal theory (or
theories) plaintiff is advancing, as well as the relevant factual
foundation for his claim, is evidenced by the substantial volume
of filings submitted to date by him and the defendant focused on
that very issue: what does Bilunas claim defendant did and, if
credited as true, does such conduct violate Title VII?
While the court probably could dismiss plaintiff’s complaint
for failure to state a claim, it will, in the interest of justice
and fairness, afford him an opportunity to amend. If he elects
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to file an amended complaint, Bilunas shall describe the precise
legal theory under which he is proceeding and shall plead
adequate facts to support that theory. Should plaintiff fail to
file an amended complaint within thirty (30) days of the date of
this order, the court will dismiss his complaint, without
prejudice, for failure to state a viable claim.
Conclusion
Defendant’s motion to dismiss (document no. 3 ) is denied
without prejudice. Plaintiff shall file an amended complaint
within thirty (30) days, failing which this action will be
dismissed without prejudice for failure to state a cognizable
claim under Title VII.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
April 2 1 , 2000
cc: Karen J. Borgstrom, Esq.
Gretchen L. Witt, Esq.
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