Richey v. ABM Education Services LLC et al

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JENNIFER RICHEY, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-189-G
)
ABM EDUCATION SERVICES, LLC, )
and SUPERINTENDENT MID-DEL )
PUBLIC SCHOOLS, )
)
Defendants. )
ORDER
Plaintiff Jennifer Richey, appearing pro se, initiated this civil action on February 12,
2025, raising claims against two defendants. See Compl. (Doc. No. 1); see also Order
(Doc. No. 35). Now before the Court is a Motion to Dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure (Doc. No. 19) filed by Defendant ABM Education
Services, LLC (“ABM”). Plaintiff has responded (Doc. No. 22) and Defendant has replied
(Doc. No. 24).
I. Relevant Standards
In analyzing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
the Court “accept[s] as true all well-pleaded factual allegations in the complaint and
view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec.
Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). “[T]o withstand a Rule
12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as
true, ‘to state a claim to relief that is plausible on its face.’” Khalik v. United Air Lines,
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671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
A complaint fails to state a claim on which relief may be granted when it lacks
factual allegations sufficient “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 (footnote and citation omitted). Bare legal conclusions in a
complaint are not entitled to the assumption of truth; “they must be supported by factual
allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
II. Defendant’s Motion to Dismiss
A. Plaintiff’s Failure to Exhaust GINA Claim
Plaintiff seeks relief under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act (“ADA”), id. §§ 12111 et
seq., and the Genetic Information Nondiscrimination Act (“GINA”), id. §§ 2000ff et seq.
See Compl. at 3. Plaintiff was required to administratively exhaust these employment-
discrimination claims with the EEOC or the equivalent state agency prior to bringing suit.
See 42 U.S.C. §§ 2000e-5, 12117(a), 2000ff-6(a); see also Croy v. Cobe Laboratories, Inc.,
345 F.3d 1199, 1202 (10th Cir. 2003).
Defendant ABM argues that Plaintiff’s GINA claim must be dismissed because
Plaintiff did not reference the GINA statute, or allege discrimination on the basis of genetic
material, when bringing her administrative charges. See Def.’s Mot. to Dismiss at 9.
Plaintiff does not dispute this contention, and the Court concurs that Plaintiff’s
administrative charges fail to put Defendant ABM on notice of any such allegation. See
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id. Ex. 3 (Doc. No. 19-3) at 3, 7, 11-12.1
Plaintiff’s claim under GINA therefore has not been administratively exhausted and
shall be dismissed. See 42 U.S.C. § 2000ff-6(a); Lincoln v. BNSF Ry. Co., 900 F.3d 1166,
1181 (10th Cir. 2018).
B. Plaintiff’s Failure to State a Claim upon Which Relief Can Be Granted
In the Complaint, Plaintiff alleges that she was subjected to unspecified
“employment discrimination” while employed with Defendant ABM. See Compl. at 1 (“I
was punished for obtaining employment.”); see also Pl.’s Mot. to File Amendment (Doc.
No. 12); Pl.’s Suppl. (Doc. No. 14).2 Liberally construed, Plaintiff’s other submissions
reflect that Plaintiff was employed by Defendant ABM as a custodian and was required to
work in a “b[]oiler room,” causing severe anxiety and emotional distress. Pl.’s Resp. at
2-4; see also Doc. Nos. 13, 14, 16.3 Plaintiff’s pre-suit administrative complaints asserted
that Plaintiff was wrongfully terminated from her employment with ABM on the basis of
race, color, and disability. See Def.’s Ex. 3, at 3, 7, 11-12.
1 The Court considers these administrative filings for the purpose of deciding Defendant
ABM’s Motion because they are referred to in the Complaint, central to Plaintiff’s claim,
and their authenticity is not disputed. See Compl. at 4; Def.’s Mot. to Dismiss at 5; GFF
Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
2 By separate order entered on today’s date, the Court found that Plaintiff’s Motion to File
Amendment (Doc. No. 12) and Plaintiff’s Supplement (Doc. No. 14) should be construed
collectively as a motion for leave to amend her Complaint and ordered that such motion be
granted to the extent that the Court will consider the allegations set forth in those filings as
part of Plaintiff’s pleading.
3 In light of Plaintiff’s pro se status, the Court also has considered Plaintiff’s numerous
other post-Complaint submissions. Even if properly before the Court on a motion to
dismiss, nothing in those submissions would affect the findings and conclusions herein.
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To prevail upon her Title VII and ADA discrimination claims, Plaintiff must
demonstrate, among other things, that Defendant ABM terminated her employment
“because of” her race/color or disability, respectively. See 42 U.S.C. § 2000e-2 (making
it unlawful “to discharge any individual . . . because of such individual’s race [or] color”);
id. § 12112(b) (prohibiting discrimination “because of the disability of . . . [an] employee”).
In her administrative proceedings, Plaintiff asserted that she is disabled and that she
informed her supervisors of her disability. See Def.’s Ex. 3, at 11. Plaintiff noted a “race-
related incident” with an ABM employee and also identified two instances where she
needed assistance lifting heavy boxes and another employee came to assist her; one of those
employees was “visibly angry” with Plaintiff. Id. at 11-12. Plaintiff submitted work
modification requests to her employer. Id. at 12. On February 14, 2023, Plaintiff had a
“heated discussion” with an ABM employee. Id. The following day, Plaintiff was
suspended from her employment. Id. In the weeks that followed, Plaintiff believed that
she had been terminated, although ABM denied terminating Plaintiff and paid Plaintiff for
the time she was suspended. See id.
These circumstances do not plausibly show that the termination of Plaintiff was
discriminatory and violative of Title VII or the ADA. That is, none of the facts presented
permit a reasonable inference that Plaintiff was terminated because of her disability, race,
or color. Plaintiff does not allege, for instance, that ABM “made any discriminatory
comments” about her or “engaged in any overt discriminatory conduct” toward her.
Avgerinos v. Palmyra-Macedon Cent. Sch. Dist., 690 F. Supp. 2d 115, 130-31 (W.D.N.Y.
2010) (dismissing ADA claim because “there [were] no circumstances alleged in [the
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plaintiff’s] Complaint that [could] fairly be characterized as giving rise to an inference of
. . . discrimination”). Nor does she allege that Defendant ABM gave preferential treatment
to any similarly situated custodian who was able-bodied and/or of a different race or color.
See Macon v. J.C. Penney Co., 17 F. Supp. 3d 695, 698 (N.D. Ohio 2014) (dismissing Title
VII claim because, “[w]hile [the plaintiff] allege[d] she was treated differently from other
terminated . . . employees, she offer[ed] no factual allegations to support the discriminatory
inference she dr[ew] from this different treatment”); see also English v. Colo. Dep’t of
Corr., 248 F.3d 1002, 1011 (10th Cir. 2001) (“[D]issimilar treatment between similarly
situated protected and non-protected employees may give rise to an inference of
discrimination.”).
The Complaint and accompanying allegations provide “nothing other than sheer
speculation to link the . . . termination to a discriminatory . . . motive.” Khalik, 671 F.3d
at 1194. Without more, Plaintiff’s suspicions regarding the motive for her termination
amount to a mere “gut feeling,” which “is not sufficient to create an inference of
discrimination.” Jackson v. City of New York, 29 F. Supp. 3d 161, 172 (E.D.N.Y. 2014).
Even liberally construing Plaintiff’s pleading and other submissions, the record does not
evince a Title VII or ADA claim upon which relief plausibly could be granted. See
Burnett, 706 F.3d at 1236 (“Pleadings that do not allow for at least a ‘reasonable inference’
of the legally relevant facts are insufficient.” (quoting Iqbal, 556 U.S. at 678)).4
4 The Court therefore does not reach Defendant’s alternative arguments for dismissal.
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CONCLUSION
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. No. 19)
is GRANTED.
Plaintiff’s claims against Defendant ABM Education Services, LLC are
DISMISSED without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff’s Motions (Doc. Nos. 27, 29, 30, 38, 40) are DENIED as moot.
Defendant’s Motion to Strike (Doc. No. 32) is DENIED.
A separate judgment shall be entered.
IT IS SO ORDERED this 3rd day of March, 2026.
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