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Hibben v. State ex rel. Department of Veterans Affairs

United States District Court, N.D. Oklahoma

March 31, 2017



          T. Lane Wilson United States Magistrate Judge.

         Before the Court is the Motion to Dismiss (dkt. 13) filed by defendants State of Oklahoma ex rel. Department of Veterans Affairs (“ODVA”) a/k/a Claremore Veterans Center (“Center”), and Tim Potteiger (“Potteiger”). Plaintiff Darlene Hibben (“Hibben”) brought this action on January 26, 2016, alleging that (1) Potteiger violated the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654 (“FMLA”); (2) Potteiger violated her rights under 42 U.S.C. §1983 by retaliating against her for exercising her rights under the First Amendment of the United States Constitution; (3) ODVA violated Article 2, § 22 of the Oklahoma Constitution by terminating her for exercising her right to free speech under the Oklahoma Constitution; (4) Potteiger is liable for intentional infliction of emotional distress; and (5) Potteiger maliciously interfered with her contractual relationship with ODVA.[1] See (Petition, Dkt. 2). Defendants argue that plaintiff has failed to state a claim with respect to each of these causes of action and that the Court lacks subject matter jurisdiction due to sovereign and qualified immunity. (Dkt. 13). Plaintiff counters that her petition alleges claims in sufficient detail, that sovereign immunity does not extend to constitutional violations, and that Potteiger does not possess qualified immunity because his conduct violated clearly established law. (Dkt. 15).


         Plaintiff is a former employee of the ODVA. (Petition, Dkt. 2 at 4).[2] Defendant Tim Potteiger was her supervisor. Id. at 5. Plaintiff alleges that in December, 2012, she attended a town hall meeting hosted by a state senator who was investigating “allegations of neglect and abuse against the [] Center.” Id. at 6. At the meeting, plaintiff was “vocal and spoke out” about the “deplorable conditions” at the Center. Id. at 6, 8. On January 8, 2013, plaintiff applied for and was given intermittent leave due to medical and mental health issues. Id. at 5. After she returned to work six days later, she alleges the following occurred:

1. She was called to “the Administrator's office for an alleged meeting” and was not allowed to have a witness, despite her request for one;
2. At the meeting, Potteiger yelled at her, threatened her with her job, accused her of having a “bad attitude” and of not being a “team player, ” and questioned her about whether she knew who her supervisor was (according to plaintiff, a reference to the state senator who hosted the town hall meeting);
3. As a result of the meeting, plaintiff “had to go home that day, ” required medical and mental health treatment, and was not allowed (on her health provider's orders) to return to her position due to the emotional distress caused by the meeting;
4. Approximately six months later, on July 3, 2013, she was told by ODVA that she would no longer receive “donated time” and that Potteiger had directed that she would not be allowed to “return to work with any light duty or restrictions”;
5. At an undisclosed time, plaintiff was “admonished for and restricted from visiting a dear friend of hers who resided at the Claremore Veterans Center” because of policy, but plaintiff alleges that “numerous other workers were allowed to visit residents”;
6. At an undisclosed time, plaintiff's husband, who was employed by the Center and who has hearing loss, “was admonished for talking too loud”;
7. “Plaintiff's office was cleaned out while she was still medically off work and not yet terminated”; and
8. At an undisclosed time, Potteiger undercounted plaintiff's time in service to prevent plaintiff from receiving early retirement benefits, although she was ultimately awarded the benefits;
9. Also on an unspecified date, Potteiger constructively discharged or terminated plaintiff while she remained under medical care.

Id. at 4-10.

         II. ANALYSIS

         Defendants initially argue that the claims against Potteiger should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction based on sovereign and qualified immunity. (Dkt. 13 at 11, 13-14). Although defendants' motion does not make it clear which claims should be deemed covered by sovereign or qualified immunity, it appears from defendants' reply brief that Potteiger claims qualified immunity from plaintiff's FMLA and §1983 claims, and that both Potteiger and ODVA claim sovereign immunity from the claims for violation of the Oklahoma Constitution, intentional infliction of emotional distress, and malicious interference with contract. See (Reply Br., dkt. 16 at 2-3). Plaintiff does not acknowledge that defendants have moved to dismiss under Rule 12(b)(1), but proceeds, instead, under the assumption that defendants have moved only under Rule 12(b)(6) for failure to state a claim. Further, plaintiff addresses defendants' sovereign immunity argument only indirectly as part of her argument that ODVA violated Article 2, § 22 of the Oklahoma Constitution. See (Resp. Br., dkt. 15 at 2, 7-11). Despite the parties' sparse reference to Rule 12(b)(1) and heavy emphasis on the Rule 12(b)(6), the Court will address the Rule 12(b)(1) jurisdictional issues first, as they may dictate whether a subsequent Rule 12(b)(6) analysis is necessary.[3]

         A. Standard of Review - Fed.R.Civ.P. 12(b)(1 and 12(b)(6)

         Generally, a Rule 12(b)(1) motion to dismiss takes one of two forms: a facial attack or a factual attack. E.g., Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995); see Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). A facial attack depends on the allegations in the complaint as to subject matter jurisdiction and thus, implicates the sufficiency of the complaint. Holt, 46 F.3d at 1002. In addressing a facial attack the district court must accept the allegations in the complaint as true. “Second a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Id. at 1003. In addressing a factual attack, the court does not “presume the truthfulness of the complaint's factual allegations, ” but “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. In this matter, defendants appear to be asserting a facial attack on plaintiff's claims as to subject matter jurisdiction.

         Federal Rule of Civil Procedure 8(a)(2) requires a complaint to set forth only “a short and plain statement of the claim showing that the pleader is entitled to relief.” However, this statement must include “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, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). In considering a Rule 12(b)(6) motion, the Court must “identify[] the allegations in the complaint that are not entitled to the assumption of truth, ” then “consider the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009).

         When reviewing a motion to dismiss, a court must accept plaintiff's factual allegations as true, even if “doubtful in fact.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965. However, courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Neither may courts assume the truth of any legal conclusion asserted. Iqbal, 556 U.S. at 680, 129 S.Ct. at 1950. “[I]f [plaintiff's factual allegations] are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma ex rel. Okla. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). In short, “the pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citations omitted).

         B. Sovereign Immunity and Plaintiff's Claim against ODVA

         Oklahoma has adopted the doctrine of sovereign immunity in the Oklahoma Governmental Tort Claims Act (OGTCA), Okla. Stat. tit. 51, §152.1(A), stating, “[t]he state, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts. Id. The State may waive that immunity only to the extent and in the manner provided for in the OGTCA 51 O.S. 2001 § 152.1(B). The OGTCA is the exclusive remedy by which an injured plaintiff may recover in tort against a governmental entity in this state. Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, ¶7, 212 P.3d at 1163; see, e.g., Watkins v. Central State Griffin Memorial Hospital, 2016 OK 71, ¶21, 377 P.3d 124, 130.

         The one claim to which sovereign immunity may apply in this case is the third claim: whether ODVA violated Article 2, §22 of the Oklahoma Constitution by terminating plaintiff for exercising her right to free speech under the Oklahoma Constitution. Defendants argue that Potteiger is entitled to the sovereign immunity against this claim as well, but plaintiff did not sue Potteiger for violating the Oklahoma Constitution or otherwise name him in his official capacity as to this claim or as to plaintiff's claims for intentional infliction of emotional distress and malicious interference with contract. He was named in his individual capacity as to the latter two claims. Further, as explained by the Oklahoma Supreme Court:

The OGTCA defines a “tort” as a legal wrong involving a violation of a duty imposed by general law or otherwise resulting in a loss as the proximate result of an act or omission of a political subdivision or employee acting within the scope of employment. “Scope of employment” is defined as performance by an employee acting in good faith within the duties of his office or employment or of tasks lawfully assigned by a competent authority. Except in cases where only one reasonable conclusion can be drawn, the question of whether an employee has acted within the scope of employment at any given time is a question for the trier of fact. An employee of a political subdivision is relieved from private liability for tortious conduct committed within the scope of employment. A political subdivision is relieved from liability for tortious conduct committed by employees outside the scope of employment.

Tuffy's, Inc., 2009 OK at ¶ 8, 212 P.3d at 1163-64 (internal citations omitted). Here, defendants have not argued that Potteiger was acting within the scope of his employment when he committed the acts alleged by plaintiff. Defendants have argued that Potteiger was acting within the scope of his employment when he committed the acts alleged by plaintiff, but this issue is one that is reserved for the finder of fact. Defendants may assert it in a motion for summary judgment or later in the litigation.

         As a general matter, sovereign immunity is deemed a jurisdictional bar, see Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), and may be challenged by a motion to dismiss under Rule 12(b)(1), see Holt v. United States, 46 F.3d 1000, 1002-1003 (10th Cir. 1995). Nonetheless, defendants frame the argument as a Rule 12(b)(6) motion to dismiss for failure to state a claim and specifically assert that plaintiff did not allege compliance with the OGTCA. See (Motion to Dismiss, dkt. 13 at 18-22). The confusion is understandable, however, in that the cases they rely upon do not indicate whether dismissal was based on subject matter jurisdiction or failure to state a claim. The Court finds that plaintiff's constitutional tort claim against the ODVA should be dismissed regardless of whether it is based on Rule 12(b)(1) or Rule 12(b)(6) because plaintiff failed to comply with the OGTCA or show that she was not required to comply with it.

         Both parties discuss the case of Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994, where the Oklahoma Supreme Court held that the State Constitution provided a private cause of action for excessive force notwithstanding the requirements and limitations of the OGTCA. Id.2013 OK 9 at ¶ 23, 305 P.3d at 1001. Plaintiff argues that Bosh applies to other State constitutional provisions, and that she has a private right of action for ODVA's violation of her exercise of free speech under the Oklahoma Constitution. This argument is foreclosed, however, by Perry v. City of Norman, 2014 OK 119, 341 P.3d 689, where the court held that the Bosh case was limited to its facts, an express exemption in the OGTCA applied in that case, and the plaintiff would have been left without a remedy otherwise. 2014 OK 119, ¶19, 341 P.3d at 693. No such exemption applied in Perry. Both of these cases dealt with excessive force claims. Defendants point out that at least one other federal court has held that Bosh was limited to its facts and its rationale did not extend to other claims against the State or its political subdivisions. See ...

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