United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
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. Having considered the parties'
submissions, the Court finds as follows.
removed this action from the District Court of Oklahoma
County. In assessing Plaintiff's First Amended Petition,
the Court utilizes the federal pleading
standard. 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.
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
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
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. 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.
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
seek dismissal of Plaintiff's 42 U.S.C. § 1983
claim, which is pled against Richard Kelly and Mike
Bower. 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.
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.
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.
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.
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