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Langkamp v. Mayes Emergency Services Trust Authority

United States District Court, N.D. Oklahoma

March 3, 2017

RICK LANGKAMP and DARLA LANGKAMP, Plaintiffs,
v.
MAYES EMERGENCY SERVICES TRUST AUTHORITY and JOHN DOES 1-15, Board Members and Employees, Agents and Representatives of the Mayes Emergency Services Trust Authority, Defendants.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE

         Now before the Court are defendant Mayes Emergency Services Trust Authority's (MESTA) motion to dismiss (Dkt. # 13), plaintiffs' motion to amend (Dkt. # 25), and plaintiffs' motion to stay (Dkt. # 26). MESTA asks the Court to dismiss plaintiffs' claims, pursuant to Federal Rule of Civil Procedure 12(b), for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. Dkt. # 13, at 7. Plaintiffs respond that the Court has subject matter jurisdiction and that the complaint satisfies federal pleading requirements. Dkt. # 18, at 15.[1] Plaintiffs ask the Court for leave to amend their complaint to assert a discrimination claim against non-party Mayes County Board of County Commissioners (MCBCC). Dkt. # 25, at 1. Plaintiffs also ask the Court to stay this suit until their proceedings before the Equal Employment Opportunity Commission (EEOC) have concluded. Dkt. # 26, at 1.

         I.

         Plaintiffs Rick Langkamp and Darla Langkamp, a married couple, filed this action in the Northern District of Oklahoma against MESTA and John Does 1-15, alleged board members and employees, agents, and representatives of MESTA. Dkt. # 2. MESTA is a public trust, organized under Oklahoma law, that provides ambulance service for Mayes County, Oklahoma. Id. at 1, 3. Ms. Langkamp has worked for MESTA as a secretary since 2005. Id. at 3. From 2003 until June 14, 2016, Mr. Langkamp was the executive director of MESTA. Id.

         In 2014, Mr. Langkamp sued MESTA and several members of MESTA's board of trustees in the District Court of Mayes County, State of Oklahoma for defamation, false light, intentional infliction of emotional distress, civil conspiracy, and negligence (Langkamp I). Dkt. # 13-1. On February 18, 2016, Mr. Langkamp dismissed with prejudice his claims against MESTA in Langkamp I. Dkt. # 13-3, at 1.

         On March 8, 2016, MESTA held a public board meeting, during which the board elected Trent Peper as chairman of the board. Dkt. # 2, at 3. Plaintiffs allege that when Mr. Peper was previously chairman he frequently called Ms. Langkamp and other female MESTA employees “demeaning” names such as “sweetie” and “honey.” Id. at 3-4. Plaintiffs also assert that Mr. Peper “inappropriately touched Ms. Langkamp's shoulders.” Id. at 4. Ms. Langkamp spoke during the public comment portion of the board meeting in which Mr. Peper was elected chairman. Id. Plaintiffs allege that Ms. Langkamp said, “I will not be putting up with that type of pet name calling that went on the last time this person was in this position.” Id. Plaintiffs assert that Ms. Langkamp told the board she had previously informed two MESTA attorneys about Mr. Peper's conduct and that nothing had changed. Id. at 4-5. Plaintiffs also assert that Ms. Langkamp concluded her comments by telling everyone at the meeting, “You are my witnesses and I will not be putting up with it again.” Id.

         Plaintiffs allege that after the board meeting, several board members, including Mr. Peper, and MESTA's in-house counsel met in a hallway and had a “very loud conversation” that was overheard by another MESTA employee. Id. at 5. Plaintiffs assert that one of the board members said, “If [Ms. Langkamp] thinks I'm mean now, wait until I get on the other side of the board.” Id. On June 14, 2016, MESTA fired Mr. Langkamp. Id. at 7. Plaintiffs allege that as a result of Ms. Langkamp's speech at the board meeting, MESTA retaliated against her by limiting the duties of her position and refusing to provide pay raises as they came due. Id. at 11. Plaintiffs also allege that MESTA retaliated against Mr. Langkamp for “witnessing, investigating, and otherwise participating in Ms. Langkamp's charge of discrimination” by, inter alia, firing Mr. Langkamp. Id. at 6.

         On June 14, 2016, Mr. Langkamp brought a second suit against MESTA and several board members in the District Court of Mayes County, State of Oklahoma for claims arising out of MESTA's firing of Mr. Langkamp and the events leading up to his dismissal (Langkamp II). Dkt. # 13-4. On July 22, 2016, MESTA filed a motion to dismiss the claims against it for failure to state a claim. Dkt. # 24-1. On August 15, 2016, Mr. Langkamp filed an amended petition, alleging claims against MESTA for violation of Mr. Langkamp's rights under the Oklahoma Constitution, breach of contract, and negligence. Dkt. # 13-5. On August 26, 2016, MESTA renewed its motion to dismiss (Dkt. # 24-3), which the state court granted on October 24, 2016. Dkt. # 13-6. On November 3, 2016, Mr. Langkamp moved for clarification, or alternatively for a new trial or rehearing, regarding the court's order. Dkt. # 18-4. The state court denied Mr. Langkamp's motion on November 22, 2016. Plaintiffs filed suit in this Court on November 7, 2016. Dkt. # 2. Ms. Langkamp alleges free speech retaliation in violation of 42 U.S.C. § 1983, retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and common law negligence. Id. at 9-12, 14. Mr. Langkamp alleges retaliation in violation of Title VII. Id. at 12-13.

         II.

         In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 562. Although decided within an antitrust context, Twombly “expounded the pleading standard for all civil actions.” Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991). Finally, “the 12(b)(6) standard does not require that [p]laintiff establish a prima facie case in her complaint, [but] the elements of each alleged cause of action help to determine whether [p]laintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (citations omitted).

         The parties ask the Court to take judicial notice of several pleadings filed in Langkamp I and Langkamp II. Dkt. # 13, at 12-13; Dkt. # 18, at 16-17. “[F]acts subject to judicial notice may be considered in a [Rule 12] motion without converting the motion to dismiss into a motion for summary judgment.” Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). A court may take judicial notice of “matters that are verifiable with certainty.” St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979). Such matters include public records. Id.; see also Tal, 453 F.3d at 1264. The state court pleadings offered by each party are a matter of public record, and the court can thus take judicial notice of the pleadings. See St. Louis Baptist Temple, Inc., 605 F.2d at 1172 (“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”). Therefore, the Court will take judicial notice of docket numbers 13-1 to 13-9, 18-3 to 18-7, and 24-1 to 24-5, and doing so does not require the Court to convert plaintiff's motion pursuant to Rule 12(d). However, the Court can find no basis for taking judicial notice of a “transcript” of an overheard conversation, emails between plaintiffs' lawyer and defense counsel, or a document given to Ms. Langkamp by MESTA. Thus, the Court refuses to take judicial notice of docket numbers 18-1, 18-2, and 18-8, and will exclude those documents from consideration under Rule 12(d).

         III.

         MESTA argues that Ms. Langkamp's retaliation claims under 42 U.S.C. § 1983 and Title VII both fail because Ms. Langkamp has not alleged that she suffered an adverse employment action.[2] Dkt. # 13, at 14-22. A plaintiff must establish that she suffered an adverse employment action to sustain either a First Amendment retaliation claim or a Title VII retaliation claim. See Couch v. Bd. of Trs. of Mem's Hosp. of Carbon Cnty., 587 F.3d 1223, 1236 (10th Cir. 2009) (First Amendment); Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004) (Title VII). There has been some confusion in the Tenth Circuit as to what qualifies as an adverse employment action in the context of First Amendment retaliation. See Hook v. Regents of Univ. of Cal., 394 F. App'x 522, 534-35 (10th Cir. 2010).[3]

In [Couch v. Board of Trustees of Memorial Hospital of Carbon County, 587 F.3d 1223, 1236 (10th Cir. 2009)], [the Tenth Circuit] clarified the parameters of First Amendment retaliation protection, explaining that [it] consider[s] an employment action to be adverse in the First Amendment retaliation setting if it ‘would deter a reasonable person from exercising his First Amendment rights.' 587 F.3d at 1238 (quotation, citation, and alteration omitted). This test is identical to the test ...

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