United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
before the Court is defendant's motion to dismiss (Dkt. #
15). Defendant asks the Court to dismiss plaintiffs'
claims because they have failed to state a claim upon which
relief can be granted. Defendant also asserts that plaintiff
Nathaniel Monk's claim for hostile work environment and
plaintiff Davon Van Doren's failure to promote claim
should be dismissed for failure to exhaust administrative
remedies. Dkt. # 15, at 1. Plaintiffs assert that they have
sufficiently pled their claims, and, alternatively, ask the
Court for leave to amend their complaint. Dkt. # 23, at 2-3.
Plaintiffs also argue that Monk's claims have been
administratively exhausted. Id. at 8-9.
are two African-American men, who were employed by defendant
as quality inspectors. Dkt. # 13, at 2. Plaintiffs allege
that they were discriminated against and subjected to a
hostile work environment by their supervisors, co-workers,
and other management employees on the basis of their race.
Id. at 4. Plaintiffs filed this suit in the District
Court of Tulsa County, Oklahoma, alleging claims of racial
discrimination and hostile work environment in violation of
the Oklahoma Antidiscrimination Act, Okla. Stat. tit. 25,
§ 1101 et seq. (OADA). Defendant removed to this
Court and filed a motion to dismiss pursuant to Rule 12(b)(6)
for failure to state a claim. Dkt. ## 2, 9. Plaintiffs filed
an amended complaint alleging the same racial discrimination
and hostile work environment claims, but adding more details
about defendant's alleged failure to comply with safety
standards. Dkt. # 13, at 2-3. Defendant filed a motion to
dismiss the amended complaint for failure to state a claim
and failure to exhaust administrative remedies (Dkt. # 15),
which is now before the Court.
considering a motion to dismiss under Rule 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 Atl. 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).
OADA prohibits employers from discriminating against
individuals based on “race, color religion, sex,
national origin, age, genetic information or
disability.” Okla. Stat. tit. 25, § 1302. Claims
under the OADA are evaluated using the same standards as
claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (Title VII), and a claim
that fails under Title VII will also fail under the OADA.
Gibson v. Mabrey Bank, No. 14-CV-0770-CVE-FHM, 2015
WL 5098698, at *11 (N.D. Okla. Aug. 31, 2015). To state a
prima facie case of discrimination under Title VII, a
plaintiff must allege: (1) that the victim belongs to a
protected class; (2) that the victim suffered an adverse
employment action; and (3) the challenged action took place
under circumstances giving rise to an inference of
discrimination. EEOC v. PVNF, L.L.C., 487 F.3d 790,
800 (10th Cir. 2007). To state a prima facie case of hostile
work environment, a plaintiff must allege: (1) he is a member
of a protected group; (2) he was subject to unwelcome
harassment; (3) the harassment was based on his membership in
a protected group; and (4) due to the harassment's
severity or pervasiveness, the harassment altered a term,
condition, or privilege of plaintiff's employment and
created an abusive working environment. Harsco Corp. v.
Renner, 475 F.3d 1179, 1186 (10th Cir. 2007). Plaintiffs
do not need to establish prima facie cases of their claims at
this stage, but “the elements of each alleged cause of
action help to determine whether plaintiff has set for a
plausible claim.” Khalik v. United Air Lines,
671 F.3d 1188, 1192 (10th Cir. 2012).
argues that plaintiffs have failed to state a claim for
either discrimination or hostile work environment because
their amended complaint alleges only conclusory statements.
Dkt. # 15, at 8. Plaintiffs do not argue that their complaint
contains sufficient factual allegations to support their
claims. Instead, plaintiffs argue that the Court should
consider the factual allegations contained in the charges of
discrimination each plaintiff filed with the Oklahoma
Attorney General's Office of Civil Rights Enforcement
that defendant attached to its motion. Dkt. # 23, at 1-3.
Rule 10(c) states that “[a] copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.” Plaintiffs argue that under
Rule 10(c), the charges of discrimination attached to
defendant's motion have been incorporated into the
amended complaint. The Court finds plaintiffs' argument
unconvincing. Rule 10(c) allows parties to incorporate into
their pleadings documents that they have attached to those
pleadings. There is no support in Rule 10(c), or the cases
cited by plaintiffs, for the notion that factual allegations
contained in an exhibit to defendant's motion to dismiss
can be considered part of the amended complaint. Cf.
Peters v. Black Tie Value Parking Serv., Inc., No.
CIV-12-809-D, 2013 WL 149773, at *2 (W.D. Okla. Jan. 14,
2013) (rejecting plaintiff's argument that facts alleged
in a charge of discrimination that was attached to the
complaint could satisfy the pleading standards of
Twombly and Iqbal).
only the allegations contained in the amended complaint,
plaintiffs have failed to state a claim of either racial
discrimination or hostile work environment. The amended
complaint alleges that plaintiffs are African American, but
all other facts alleged to support their claims are
conclusory. Plaintiffs allege that they “were
discriminated against and subject to a hostile work
environment; that “[t]he amounts [they] were paid . . .
showed discrimination and hostility”; that they
“were . . . denied promotions based on their
race”; that they were retaliated against after
complaining about the discrimination; and that
defendant's conduct “was extreme and
outrageous.” Dkt. # 13, at 4. “[C]onclusory
allegations without supporting factual averments are
insufficient to state a claim upon which relief can be
based.” Hall, 935 F.2d at 1109-10. Thus,
plaintiffs have failed to state a claim upon which relief can
ask the Court for leave to file a second amended complaint.
Dkt. # 23, at 2-3. Under Rule 15(a), leave to amend should be
freely given absent a reason “such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of the amendment,
etc.” Foman v. Davis, 371 U.S. 178 (1962);
see also Minter v. Prime Equip. Co., 451 F.3d 1196,
1204 (10th Cir. 2006). Defendant argues that plaintiffs
should not be granted leave to amend because plaintiffs
already filed an amended complaint that did not cure the
deficiencies of their original petition. Defendant filed a
motion to dismiss for failure to state a claim when it
removed the case to this Court. Dkt. # 9. After
defendant's motion, plaintiffs filed an amended
complaint, and defendant argues that plaintiffs knew at that
point that they needed to allege additional facts to support
their claims. Defendant argues that plaintiffs have already
had an opportunity to cure their failure to sufficiently
state a claim and asks the Court to deny plaintiffs'
request to file a second amended complaint on the ground that
plaintiffs have been dilatory. Dkt. # 25, at 3.
have made obvious errors in their pleadings, but the Court
will grant plaintiffs one more opportunity to file a
complaint that includes sufficient factual allegations to
support their claims. The allegations must be contained in
numbered paragraphs in the complaint. Plaintiffs must file
their second amended complaint within fourteen days of ...