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Franklin v. State ex rel. Oklahoma Department of Consumer Credit

United States District Court, W.D. Oklahoma

May 19, 2017




         Before the Court are Defendant State of Oklahoma's Motion to Dismiss [Doc. No. 7] and Defendants Lesher, S'Renco and Todd's Motion to Dismiss [Doc. No. 6], filed pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6).[1] The Motions primarily challenge the sufficiency of Plaintiff's pleading to state: race discrimination claims under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. (Count I) and 42 U.S.C. § 1981 (Count II); an age discrimination claim under Oklahoma's Anti-Discrimination Act (“OADA”), Okla. Stat. tit. 25, § 1301 et seq. (Count III);[2] and tort claims of interference with a contractual relationship and with prospective economic advantage (Counts IV and V). Defendants also raise issues regarding sovereign immunity from suit under Oklahoma's Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51, § 151 et seq.; and qualified immunity of individuals under federal law. Plaintiff has filed responses [Doc. Nos. 17 & 18] in opposition to the Motions, and Defendants have replied [Doc. Nos. 19 & 20]. The Motions are fully briefed and at issue.

         Factual and Procedural Background

         Plaintiff is a former employee of Defendant Oklahoma Department of Consumer Credit (the “Department”) who is Native American and over 40 years of age. She claims the Department terminated her employment on June 23, 2015, based on her race and age. Plaintiff alleges that the termination decision was made by Defendants Scott Lesher (executive director of the Department), Vanessa Todd (regional manager), and Drew S'Renco (chief examiner). As pertinent to the Motions, Plaintiff alleges that Mr. Lesher used racial slurs regarding Native American and Hispanic employees, made ageist remarks, and selected younger individuals to replace employees over 40 years of age. Plaintiff alleges that Ms. Todd treated older, Native American employees less favorably than younger, non-Native American ones and that Mr. S'Renco terminated Plaintiff without warning after assuring her that she was doing well and her performance was satisfactory. Plaintiff also provides facts to establish her exhaustion of administrative remedies with the EEOC, her compliance with the GTCA's notice requirements, and her timely suit following the receipt of an EEOC notice of a right to sue and the denial of her tort claim.

         Standard of Decision

         “Motions to dismiss for lack of subject matter jurisdiction ‘generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.'” City of Albuquerque v. United States Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (citing Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)). In this case, Defendants challenge only the sufficiency of Plaintiff's factual allegations to overcome sovereign immunity.

         “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In assessing plausibility, the Court first disregards conclusory allegations and “next consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.” Id. at 681.


         A. Sovereign Immunity

         Defendants contend Plaintiff can bring her state law claims against them only to the extent the GTCA waives the Department's sovereign immunity from suit and permits individual employees to be sued. The GTCA authorizes a suit against the State or its departments based on conduct of employees “acting within the scope of their employment, ” that is, “in good faith within the duties of the employee's office or employment.” Okla. Stat. tit. 51, §§ 152(12), 153(A). The Department contends Plaintiff's age discrimination claim requires a finding that the employees who terminated Plaintiff engaged in unlawful discrimination, and necessarily precludes a finding that they acted in good faith. The Department provides no legal authority for this novel argument but, instead, relies on case law concerning torts that require proof of an element that excludes good faith conduct, such as malicious prosecution, fraud, and intentional infliction of emotional distress. See Def. State's Mot. [Doc. No. 7] at 10-11. The Department does not identify any element of an age discrimination claim that necessarily is inconsistent with good faith conduct.[3]Therefore, the Court rejects this basis for dismissal of Plaintiff's age discrimination claim against the Department.

         Defendants Lesher, Todd and S'Renco (the “Individual Defendants”) assert the GTCA immunizes them from liability and suit for acts done within the scope of their employment. See Okla. Stat. tit. 51, § 153(B), (C). They contend Plaintiff's tort claims of interference with her employment relationship and a prospective economic advantage are based solely on their alleged role in terminating Plaintiff's employment with the Department and, thus, conduct that necessarily occurred within the scope of their job duties. As discussed infra, however, a tortious interference claim can only be brought against the Individual Defendants if they were not acting as agents of the Department. Thus, if Plaintiff's pleading sufficiently states the type of tort claim asserted, a suit against the Individual Defendants outside of the protection of the GTCA is available. See id. § 153(C) (employee “may be named as defendant under alternative allegations that such person did not act within the scope of employment”).

         B. Race Discrimination Claims

         Plaintiff asserts claims of race discrimination against the Department under Title VII and against the Individual Defendants under § 1981 based on the same factual allegations. Defendants contend Plaintiff's allegations are insufficient to state a claim on which relief can be granted under Title VII or § 1981.[4] Under the circumstances, the elements required to prove a claim under Title VII and § 1981 are the same. See Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011); Carey v. City of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008).

         The Tenth Circuit has stated regarding Title VII claims that “[w]hile the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). A plaintiff establishes a prima facie case of race discrimination in a termination of employment “by showing that: (1) she belongs to a protected class; (2) she was qualified for her job; (3) despite her qualifications, she was discharged; and (4) the job was not eliminated after her discharge.” Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999); see Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000). However, “the fourth element of a prima facie case is a flexible one that can be satisfied differently in varying scenarios.” Plotke v. White, 405 F.3d 1092, 1100 (10th Cir. 2005) “‘The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the ...

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