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Hunter v. Council On Firefighter Training ex rel. State

United States District Court, W.D. Oklahoma

February 8, 2017

RUTH HUNTER, Plaintiff,
v.
COUNCIL ON FIREFIGHTER TRAINING, ex rel. STATE OF OKLAHOMA, OK STATE FIRE MARSHALL, MIKE BOWER, and RICHARD KELLY, Defendants.

          ORDER

          DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Motion to Dismiss filed by Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 6) Plaintiff responded in opposition to the motion and Defendants filed a Reply in support thereof.[1] Having considered the parties' submissions, the Court finds as follows.

         Defendants removed this action from the District Court of Oklahoma County. In assessing Plaintiff's First Amended Petition, the Court utilizes the federal pleading standard.[2] The standards governing a Rule 12(b)(6) motion are as follows. The Court accepts as true the factual allegations in the petition and draws reasonable inferences in favor of plaintiff. Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.2008). The court is not obliged to accept as true a legal conclusion couched as a factual allegation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The petition must contain enough allegations of fact “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “Plausibility” refers to whether the facts alleged in the complaint are so general or so innocent that the plaintiffs “‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). If, after drawing upon the court's “judicial experience and common sense, ” the court decides that “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, [then] the complaint has alleged-but it has not ‘show [n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         The Petition presents a multitude of claims regarding Plaintiff's employment and termination from the Council on Firefighter Training. Plaintiff alleges she was employed by the Council from August 15, 2011 until April 29, 2015, when Defendant terminated her employment. She contends her termination was in retaliation for complaints she levied against the then-executive director of the Council, Jon Hansen. She seeks to recover on claims arising under federal and state law with theories of age, sex, and racial discrimination, sexual harassment, and retaliation. She also seeks relief under 42 U.S.C. § 1983 against Defendants Kelly and Bower for alleged violation of her First Amendment and due process rights and asserts a claim under 42 U.S.C. § 1981, based on her status as an Asian American. Plaintiff also pleads state law claims of negligent hiring, training, and supervision, as well as whistleblower and public policy claims. Defendants seek dismissal of each of her claims.

         Both Title VII, which governs Plaintiff's federal gender and race discrimination claims, and her claim under the Age Discrimination in Employment Act (“ADEA”) apply only to “employers” as the term is defined by statute. The definition of “employer” under Title VII requires fifteen or more employees, 42 U.S.C. § 2000e(b), and the ADEA requires twenty or more. 29 U.S.C. § 630(b). Plaintiff did not plead that the Council has the required number of employees for either Title VII or the ADEA, and concedes in response to the Motion to Dismiss that standing alone the Council lacks the requisite number under either definition. She asserts, however, that the Council should be considered a State agency and/or part of the State Fire Marshal's office, and that when aggregated with the employees of either of those entities, the Council will meet the numerosity requirement for both Title VII and the ADEA. The Court finds the allegations in the Petition insufficient to state a claim under Title VII or the ADEA, because Plaintiff fails to allege that the Council is an “employer” for either statute. Furthermore, the Petition lacks any factual allegations from which the Court can infer that the Council is an agent of the State or State Fire Marshal or that either of those entities could be considered an integrated enterprise with the Council. See Avington v. Metro. Tulsa Urban League, 603 Fed.Appx. 662, 663 (10th Cir. 2015)(“In some circumstances, courts may treat separate entities as a joint or single employer for purposes of determining the threshold number of employees required for an employer to be subject to suit under Title VII or the ADEA”)(citations omitted); Owens v. Rush, 636 F.2d 283 (10th Cir. 1980)(sheriff should be considered an agent of the county and therefore an employer under Title VII despite the fact that the sheriff's office had fewer than fifteen employees). As such, the Court finds that Defendant is entitled to dismissal of each of Plaintiff's claims under Title VII and the ADEA, to include her claims of gender discrimination, race discrimination, retaliation, sexual harassment, and age discrimination.

         Plaintiff did not file a formal motion to amend, but rather requested leave as part of her response to Defendant's motion. The Court hereby grants Plaintiff leave to amend with regard to her Title VII claims of race and gender discrimination, to include her claims of sexual harassment and retaliation.[3] The Court notes there are additional deficiencies in Plaintiff's pleading of both her race, gender and age discrimination claims, which apply both to her federal and her state claims.

         Defendant seeks dismissal of Plaintiff's claims of “negligent hiring, training and supervision” as well as her claim of negligence. The allegations in both claims are nearly identical and relate to the alleged sexual harassment in the workplace. Plaintiff alleges that she formally complained about the sexual harassment by Jon Hansen. She also alleges that Defendant Mike Bower, a member of the Council, told her “when a position for COFT came open, we thought John would be a good fit if he didn't chase skirt. Jon goes a lot of places and does a lot of things he should not be doing.” Complaint ¶ 81. An employer may be held liable in Oklahoma for negligent hiring, supervision, or retention of an employee. See Excue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir.2006) (applying Oklahoma law); N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla.1999). Liability attaches, “if-at the critical time of the tortious incident-the employer had reason to believe that the person would create an undue risk of harm to others. Employers are held liable for their prior knowledge of the servant's propensity to commit the very harm for which damages are sought.” Presbyterian Church (U.S.A.), 998 P.2d at 600. The Court concludes that Plaintiff has sufficiently, albeit barely, alleged facts to state a plausible claim for failure to supervise with regard to sexual harassment. Although Plaintiff presents only two incidents in which she was allegedly the direct recipient of harassment, she alleges that she observed Mr. Hansen's inappropriate sexual behavior toward Alicia Hayward and that Alicia Hayward complained to Plaintiff about the harassment. Defendants' motion is denied with regard to Plaintiff's negligence claim.[4]

         Defendants seek dismissal of Plaintiff's 42 U.S.C. § 1983 claim, which is pled against Richard Kelly and Mike Bower.[5] She alleges the Defendants were “acting under color and authority of state law with the authority endowed upon them as members of the Board of Directors for the Council on Firefighter Training.” Petition, ¶ 92. She alleges the individual Defendants violated her First Amendment rights and her rights under the due process clause. 42 U.S.C. § 1983 applies only to state actors. See McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 20011) (“Section 1983 provides a federal civil remedy for the deprivation of any rights, privileges, or immunities secured by the Constitution by any person acting under color of state law.”) (internal quotation marks omitted). The Court notes that in paragraph 120 of the Petition, Plaintiff admits that the Oklahoma Merit Protection Commission concluded COFT is not a state agency and therefore she was not a state employee. Despite this finding, Plaintiff makes only conclusory allegations regarding Defendants Bower and Kelly and their status as state actors for purposes of § 1983 liability. She makes no attempt to plead facts to support her contention that either of the individual Defendants could be held liable under one of the tests enunciated by the Supreme Court for use in determining whether an otherwise private party is a state actor. See Johnson v. Rodrigues (Orozco), 293 F.3d 1196, 1202-03 (10th Cir. 2002). Because Plaintiff has failed to sufficiently allege that either individual Defendant was a state actor, they are entitled to dismissal of Plaintiff's § 1983 claim.

         Furthermore, to the extent Plaintiff argues the individual Defendants deprived her of due process with regard to her termination she has failed to allege facts to support the existence of a property interest in continued employment. The only pleading with regard to Plaintiff's employment status is her allegation that she was an at-will employee. Although she immediately thereafter alleges she had a property interest in her job as a governmental employee, she makes no specific factual allegations in support of this contention. The Supreme Court defines a property interest in the employment context as “a legitimate expectation in continued employment.” Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). “The existence of a property interest is ‘defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.' ” Id. (quoting Roth, 408 U.S. at 577). Under Oklahoma law, “public employees are employed at will unless they have specific contractual arrangements entitling them to continued employment.” Bunger v. Univ. of Oklahoma Bd. of Regents, 95 F.3d 987, 990 (10th Cir. 1996). Plaintiff does not allege any facts from which the Court can infer that she had a contractual arrangement entitling her to continued employment. Accordingly, even if Plaintiff sufficiently alleged that Bower or Kelly acted under color of state law, she nevertheless fails to allege a due process claim. Accordingly, the Court hereby grants the motion to dismiss with regard to Plaintiff's 42 U.S.C. § 1983 claims. Plaintiff, however, is granted leave to amend her petition in an effort to properly plead her claims.

         Defendants seek dismissal of Plaintiff's 42 U.S.C. § 1981 claims. Plaintiff contends she was “in a contractual relationship with defendants within the meaning of 42 U.S.C. § 1981, as amended” Petition, ¶ 107. She contends that Defendants violated her rights because of her race, and that she did not enjoy the same benefits, privileges, and terms and conditions of employment as white employees. Plaintiff, however, fails to offer any non-conclusory allegations to support her claim. Even construing the entirety of the petition, the allegations related to Plaintiff's race are that “Executive Director Jon Hansen did not subject all races to harassment or sexual harassment.” and conclusory allegations that she did not enjoy the same benefits, privileges, terms and conditions of employment as have white employees. Petition, ¶ 5, ¶ 109-111. As such, Plaintiff's 42 U.S.C. § 1981 claim is hereby dismissed; Plaintiff is granted leave to amend.

         Finally, Plaintiff alleges a variety of state law claims under two headings entitled “Whistleblower's Claim” and “Violation of Oklahoma Public Policy.” Petition, pp. 16, 17. Plaintiff asserts in her whistleblower claim that because the Oklahoma Merit Protection Commission concluded COFT was not a state agency, her whistleblower claim is not under the Oklahoma Whistleblower Protection Act. Because Plaintiff does not rely on the Oklahoma Whistleblower Protect Act as a basis for her claim, the Court interprets that claim as one for violation of public policy under Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989).

“Oklahoma law recognizes a public policy exception to the otherwise virtually unfettered ability of an employer to terminate an at-will employee.” Bastible v. Weyerhaeuser Co., 437 F.3d 999, 1007 (10th Cir. 2006). A tort remedy is available “where an employee is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy.” Burk, 770 P.2d at 29. But this “unique tort” applies “to only a narrow class of cases and must be tightly circumscribed.” Clinton v. State ex rel. Logan Cty. Election Bd., 29 P.3d 543, 545 (Okla. 2001), overruling on other grounds recognized by Shirazi v. Childtime Learning Ctr., Inc., 204 P.3d 75, 78 n.13 (Okla. 2009); see also Burk, 770 P.2d at 28-29.

Walker v. Balco, Inc., 660 F.App'x 681, 684 (10th Cir. 2016). Plaintiff contends that her termination was in part the result of her reporting of fiscal mismanagement of Council money by the former Executive Director of COFT. Such allegations would be sufficient to allege a public policy discharge claim. Plaintiff, does not, however, in her whistleblower claim plead a public policy to support her claim. The public policy required to support a Burk tort must be articulated in “a specific Oklahoma court decision, state legislative or constitutional provision, or a provision in the federal constitution that prescribe a norm of conduct for the state.” Darrow v. Integris Health, Inc., 176 P.2d 1204, 1212 (Okla. 2008). Accordingly, Plaintiff's whistleblower claim is hereby dismissed. As with her other claims, Plaintiff is hereby granted leave to amend.

         Finally, in her claim for Violation of Oklahoma public policy, Plaintiff pleads that she was an at-will governmental employee and that COFT was her public employer. She alleges “[t]he actions of Defendants violate Oklahoma Public Policy and Oklahoma Statutory Law.” Petition, ¶ 131. Thereafter she appears to attempt to plead a claim under the Oklahoma Anti-discrimination Act as well as public policy ...


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