United States District Court, W.D. Oklahoma
MARGARET M. ICE, Plaintiff,
STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF CONSUMER CREDIT, et al., Defendants.
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
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). 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
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 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].
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.
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.
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.
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)).
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”).
Racial Discrimination and Retaliation Claims
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.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).
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.
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).
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 ...