United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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
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.
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.
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).
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).
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. 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.
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 ...