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 .

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,

(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,

7 8 , 579 (D.N.H. 1983), aff’d

without opinion,

(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.,

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

2 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.

3 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

4 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

5 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.”

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

6 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,

(1989). See also

Higgins v . New Balance Athletic Shoe, Inc.,

, 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

7 out for unique treatment based upon his gender plus some other

quality). See generally Phillips v . Martin Marietta Corp.,

(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

8 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.

9