United States District Court, W.D. Oklahoma
FRANKLIN A. CALVIN, Plaintiff,
SEQUEL OF OKLAHOMA, LLC d/b/a SEQUEL YOUTH AND FAMILY SERVICES Defendant.
MEMORANDUM OPINION AND ORDER
J. CUTHRON UNITED STATES DISTRICT JUDGE.
filed this case alleging that Defendant violated the
Americans with Disabilities Act of 1990, as amended, 42
U.S.C. §§ 12101 et seq., the Family and Medical
Leave Act, 29 U.S.C. §§ 2615 et seq., and asserting
a state law workers' compensation retaliation claim, 85A
Okla. Stat. § 7, and a Burk tort claim. Defendant
filed a Partial Motion to Dismiss (Dkt. No. 12) and Plaintiff
has responded. The Motion is now at issue.
argues the workers' compensation claim, or Count III,
must be dismissed because this Court lacks subject matter
jurisdiction. Motions to dismiss made pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction
may take two forms: facial or factual attacks. Holt v.
United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995)
(citation omitted). A facial attack questions subject matter
jurisdiction based solely on the complaint's allegations
and the court accepts all well-pleaded facts as true.
Id. at 1003 (citation omitted). A factual attack is
permitted to go “beyond the factual allegations of the
complaint and present evidence in the form of affidavits or
otherwise to challenge the court's jurisdiction.”
Muscogee (Creek) Nation v. Oklahoma Tax Comm'n,
611 F.3d 1222, 1227 n.1 (10th Cir. 2010) (citation omitted).
A factual challenge will cause the court to resolve the
motion under the Rule 12(b)(6) standard “[i]f the
jurisdictional question is intertwined with the merits of the
case.” Wheeler v. Hurdman, 825 F.2d 257, 259
(10th Cir. 1987) (citation omitted). Because federal courts
have limited jurisdiction, “the party invoking federal
jurisdiction bears the burden of proof” to overcome the
presumption against jurisdiction. Merida Delgado v.
Gonzales, 428 F.3d 916, 919 (10th Cir. 2005) (citation
and internal quotation marks omitted).
neither party has challenged Plaintiff's facts. Thus, the
facial attack form of the Rule 12(b)(1) standard applies and
the Court will examine whether it has subject matter
jurisdiction over the claim.
argues the Administrative Workers' Compensation Act
(“AWCA”) grants exclusive jurisdiction to the
Workers' Compensation Commission
(“Commission”) for all retaliation claims arising
after February 1, 2014. See 85A Okla. Stat. §
7(B). The Court agrees. Plaintiff's Complaint states his
injuries occurred “in or around early 2015, ”
“in or around Summer 2015, ” and “[i]n or
around November 2015.” (Comp., Dkt. No. 1, p. 4.)
Plaintiff further alleges that Defendant took retaliatory
action on February 3, 2016. (Comp., Dkt. No. 1, p. 6-7.)
Because all of the events transpired after the AWCA granted
exclusive jurisdiction to the Commission, the Court finds it
does not have jurisdiction over this claim. See Debose v.
Wal-Mart Assocs., Inc., No. CIV-16-254-M, 2016 WL
2939539, at *2 (W.D. Okla. May 19, 2016) (finding the
Commission has exclusive jurisdiction over retaliation claims
arising under the AWCA).
argues the Court should hold the case in abeyance until the
Oklahoma Supreme Court issues its ruling on two pending
cases,  reasoning that judicial economy would best
be served through an abeyance. Defendant states that a delay
would cause prejudice and financial harm. Plaintiff has
failed to bear his jurisdictional burden of proof and the
Court will not hold the case in abeyance while Plaintiff
waits in hope of another court's favorable
decision. See Commodity Futures Trading
Comm'n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d
1477, 1483-85 (10th Cir. 1983) (discussing the court's
inherent power to control its docket and balance the
interests inherent in such matters, stating “[t]he
underlying principle clearly is that the right to proceed in
court should not be denied except under the most extreme
circumstances”) (citation and internal quotation marks
omitted). Although this claim is dismissed, Plaintiff's
retaliation claims asserted under other bodies of law remain
to be adjudicated on the merits.
For the reasons set forth herein, Defendant's Motion for
Partial Dismissal (Dkt. No. 12) is GRANTED. Count III is
 Defendant states it was improperly
named. The proper name for Defendant/employer is Sequel of
Oklahoma, LLC d/b/a Rose Rock Academy.
 Burk v. K-Mart Corp., 1989 OK
22, 770 P.2d 24 (adopting an exception to the general at-will
termination rule and allowing tort recovery for cases when
the termination of an employee is a clear violation of public
policy as stated by constitutional, statutory, or decisional
 The referenced Oklahoma Supreme Court
Cases currently pending are Hopson v. Exterran Energy
Solutions, LP, Case No. 113563 (whether the Commission
has exclusive jurisdiction over retaliation claims pursuant
to 85A Okla. Stat. § 7(B)) and Young v. Station 27,
Inc., et al., Case No. 113334 (arguing 85A Okla. Stat.
§ 7(B) is an unconstitutional restraint on the right to
jury trial and the statute is a special law that sanctions
those who complain of workplace discrimination).
 Given the lack of subject matter
jurisdiction, the Court will not address the right to jury
trial or Bur ...