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

United States District Court, W.D. Oklahoma

May 30, 2017

MARGARET M. ICE, Plaintiff,



         Before the Court are Defendant State of Oklahoma's Motion to Dismiss [Doc. No. 6] and Defendant Scott Lesher's Motion to Dismiss [Doc. No. 5], 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 and retaliation 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); a religious discrimination claim under Title VII (Count III); an age discrimination claim under Oklahoma's Anti-Discrimination Act (“OADA”), Okla. Stat. tit. 25, § 1301 et seq. (Count IV);[2] a First Amendment retaliation claim under 42 U.S.C. § 1983 (Count V); and tort claims of interference with a contractual relationship and with prospective economic advantage (Counts VI and VII). The State also challenges Plaintiff's ability to pursue a “Burk tort” claim[3] of wrongful discharge in violation of public policy (Count VIII), in light of remedies provided by the Whistleblower Act, Okla. Stat. tit. 74, § 840-2.5. Defendant Lesher also raises issues regarding sovereign immunity from suit under the Governmental Tort Claims Act (“GTCA”), Okla. Stat. tit. 51, § 151 et seq.; and qualified immunity under federal law. Plaintiff has filed responses [Doc. Nos. 14 & 15] to the Motions, and Defendants have replied [Doc. Nos. 16 & 17].

         Factual Background

         Plaintiff is a former employee of Defendant Oklahoma Department of Consumer Credit (the “Department”), who is Hispanic, Catholic, and over 40 years of age. She claims she was terminated as chief examiner of the Department on March 30, 2015, based on her race or national origin, age, and opposition to unlawful employment practices. Plaintiff alleges the termination decision was made by the Department's executive director, Defendant Scott Lesher, who had made derogatory remarks about Native American and Hispanic employees and said he preferred younger workers in management positions. Plaintiff alleges Mr. Lesher terminated her within weeks after she complained to him about his use of racial slurs and after she questioned him about a young female employee who appeared to be receiving preferential treatment and full-time pay for part-time work. Plaintiff was replaced by a white male employee who was younger than 40 years of age.

         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, Defendant Lesher challenges 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. “[W]here the well-pleaded facts do not permit the court to infer more than the possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).


         A. Sovereign Immunity

         The GTCA authorizes 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 GTCA immunizes an individual state employee from liability and suit for conduct within the scope of his employment. See Okla. Stat. tit. 51, § 153(B), (C). Defendant Lesher asserts his immunity from suit under the GTCA regarding Plaintiff's state-law tort claims of interference with her employment relationship and a prospective economic advantage of continued employment by the Department. Because the alleged torts are based solely on Defendant Lesher's termination of Plaintiff's employment with the Department, he contends the allegedly tortious conduct necessarily occurred within the scope of his job duties. As discussed infra, however, these tort claims can be brought against Defendant Lesher only if he was not acting as an agent of the Department. Thus, if Plaintiff's pleading sufficiently states the type of tort claim asserted, a suit against Defendant Lesher 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. Racial Discrimination and Retaliation Claims

         Plaintiff asserts claims of racial discrimination and retaliation against the Department under Title VII and against Defendant Lesher under 42 U.S.C. § 1981 based on factual allegations common to both claims. 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); Carney 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). Accordingly, the Court will look at the elements of each of Plaintiff's claims in determining whether she has pled a plausible claim for relief.

         A plaintiff establishes a prima facie case of racial 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 adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination.'” Id. (quoting Kendrick, 220 F.3d at 1227) (internal quotation omitted); see Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1166 & n.8 (10th Cir. 2007).

         Regarding race-based retaliation, the court of appeals has held: “‘To state a prima facie case of retaliation, [a plaintiff] must show that: (1) she engaged in a protected activity; (2) [the employer] took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action.'” Carney, 534 F.3d at 1276 (quoting Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1171 (10th Cir. 2006) (footnote omitted)). The first element is satisfied by showing the plaintiff “engaged in protected opposition to discrimination.” Kendrick, 220 F.3d at 1234; Roberts v. Roadway Exp., Inc., 149 F.3d 1098, 1103 (10th Cir. 1998). Protected conduct encompasses opposition based on a reasonable, good faith belief that the underlying conduct constituted racial discrimination. See Crumpacker v. Kansas Dep't of Human Serv., 338 F.3d 1163, 1171 (10th Cir. 2003); see also Love v. RE/MAX of America, Inc., 738 F.2d 383, 385 (10th Cir. 1984). To qualify as protected conduct, “the employee must convey ...

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