United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE KERN, United States District Judge
the Court is Defendant's Motion to Dismiss
Plaintiff's Second Claim for Relief (Doc. 12) pursuant to
Federal Rule of Civil Procedure 12(b)(6) (“Rule
March 2015, Plaintiff Larry Davis, who is African-American,
was hired by Defendant Conley Corporation as a supervisor of
quality control in the piping department. Plaintiff was hired
as a supervisor despite lacking experience in the industry or
as a manager. Defendant told Plaintiff that he would be
trained to be a “great supervisor.” (Compl.
¶ 11, Doc. 2-2.) Shortly after being hired, Plaintiff
was instructed to “discipline and ultimately
fire” another African-American employee. (Id.
¶ 12.) Plaintiff alleges that he was hired into the
supervisor position “in order for the Defendant to have
an African American supervisor to terminate their African
American employee.” (Id.) Approximately two
months after being hired, Plaintiff was instructed to work on
the plant floor to help perform the task of winding pipe,
despite having no experience performing that task. Plaintiff
alleges he was given no further training or support as a
being assigned to work on the plant floor, Plaintiff suffered
a “severe chemical rash, ” allegedly due to resin
chemicals he was exposed to while winding pipe. (Id.
¶ 14.) When Plaintiff reported his injury, he was given
Benadryl but was not sent for medical treatment. A month
later, Plaintiff's injury had worsened. Plaintiff asked
to go to the doctor and was sent to an urgent care facility.
The physician who treated him “could not believe that
Defendant had waited so long to allow him to go to the
doctor.” (Id. ¶ 15.) Plaintiff was put on
restrictions not to work with resin until his injury healed.
Defendant allegedly “refused to accommodate the
restriction and terminated the Plaintiff's employment on
June 15, 2015.” (Id. ¶ 16.)
alleges that during the course of his employment with
Defendant, he was subjected to disparate treatment and a
racially hostile work environment and that he was terminated
on the basis of race. Plaintiff alleges that he heard the
word “n*gger” used on several occasions; he heard
employees telling racist jokes; and other supervisors
harassed him on the basis of his race and made other racially
offensive comments. One supervisor “joked with
[Plaintiff] by stating he could not go into a certain break
room or was not given certain supplies because he was black,
” and the same supervisor also called Plaintiff a
“do gooder [sic] negro.” (Id. ¶
filed suit in Tulsa County District Court alleging (1)
deprivation of rights protected by 42 U.S.C. § 1981 and
(2) intentional infliction of emotional distress
(“IIED”). Defendant removed the case to this
Court and now moves for dismissal of Plaintiff's claim
Motion to Dismiss
Rule 12(b)(6) Standard
considering a motion to dismiss under Rule 12(b)(6), a court
must determine whether the plaintiff has stated a claim upon
which relief may be granted. “To survive a motion to
dismiss, 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 Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[T]he mere metaphysical possibility that some
plaintiff could prove some set of facts in support
of the pleaded claims is insufficient; the complaint must
give the court reason to believe that this plaintiff
has a reasonable likelihood of mustering factual support for
these claims.” Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(emphasis in original).
Tenth Circuit has interpreted “plausibility” to
“refer to the scope of the allegations in a
complaint” rather than to mean “likely to be
true.” Robbins v. Okla. ex rel. Okla. Dep't of
Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).
Thus, “if [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.” Id. (internal
quotations omitted). “The allegations must be enough
that, if assumed to be true, the plaintiff plausibly (not
just speculatively) has a claim for relief.”
Id. “This requirement of plausibility serves
not only to weed out claims that do not (in the absence of
additional allegations) have a reasonable prospect of
success, but also to inform the defendants of the actual
grounds of the claim against them.” Id. at
recognizes IIED as an independent tort. Eddy v.
Brown, 715 P.2d 74, 76 (Okla. 1986). “An action
for intentional infliction of emotional distress will lie
only where there is extreme and outrageous conduct coupled
with severe emotional distress.” Miller v.
Miller, 956 P.2d 887, 900 (Okla. 1998). In order to
state a claim for IIED, a plaintiff must allege facts
showing: (1) the defendant's conduct was intentional or
reckless; (2) the defendant's conduct was extreme and
outrageous; (3) the defendant's conduct caused the
plaintiff to suffer emotional distress; and (4) the
plaintiff's emotional distress was severe. Daemi v.
Church's Fried Chicken, Inc., 931 F.2d 1379, 1387
(10th Cir. 1991) (applying Oklahoma law).
challenges Plaintiff's IIED claim based on the second and
fourth elements. Oklahoma law directs the district court to
act as a “gatekeeper” and make an initial
determination about the outrageousness of the defendant's
conduct, as well as whether severe emotional distress can be
found, before sending the claim to a jury. Trentadue v.
United States, 397 F.3d 840, 856 n.7 (10th Cir. 2005).
To satisfy the “extreme and outrageous” element,
a plaintiff must prove the defendant's conduct was so
extreme and outrageous as to be beyond all possible bounds of
decency. Eddy, 715 P.2d at 77 (“Conduct which,
though unreasonable, is neither beyond all possible bounds of
decency in the setting in which it occurred, nor is one that
can be regarded as utterly intolerable in a ...