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Hunter v. Council on Firefighter Training, ex rel. State

United States District Court, W.D. Oklahoma

June 20, 2017

RUTH HUNTER, Plaintiff,
v.
COUNCIL ON FIREFIGHTER TRAINING, ex rel. STATE OF OKLAHOMA, OK STATE FIRE MARSHALL, MIKE BOWER, and RICHARD KELLY, Defendants.

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE

         Defendants Council On Firefighter Training (“COFT” or “the Council”), Mike Bower, and Richard Kelly have filed a Motion to Dismiss Plaintiff's Second Amended Complaint, seeking dismissal of her claims pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 27). Plaintiff responded in opposition to the Motion and Defendants filed a Reply brief in support of their position. Accordingly, the Motion is ripe for consideration. Having considered Plaintiff's Second Amended Complaint and the Defendants' challenges thereto, the Court finds as follows.

         The standards governing a Rule 12(b)(6) motion are as follows. The Court accepts as true the factual allegations in the petition and draws reasonable inferences in favor of plaintiff. Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.2008). The court is not obliged to accept as true a legal conclusion couched as a factual allegation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The complaint must contain enough allegations of fact “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “Plausibility” refers to whether the facts alleged in the complaint are so general or so innocent that the plaintiffs “‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Twombly, 550 U.S. at 570). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). If, after drawing upon the Court's “judicial experience and common sense, ” it decides that “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, [then] 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)).

         The Second Amended Complaint alleges that Plaintiff was terminated from her employment at the Council on April 29, 2015, as a result of discrimination on the basis of her gender, race, age, and in retaliation for her complaints about discrimination and sexual harassment, as well as her allegations of financial malfeasance by then Director of the Council, Jon Hansen. She seeks to recover on claims arising under federal and state law. Defendants seek dismissal of each of her claims.[1]

         Included in the Second Amended Complaint are claims of race and gender discrimination and a claim of sexual harassment, all of which arise under Title VII of the Civil Rights Act of 1964. Plaintiff also alleges discrimination on the basis of her age in violation of the Age Discrimination in Employment Act (“ADEA”). Both Title VII and the ADEA apply only to “employers, ” defined, in part, by a threshold number of employees. Plaintiff concedes that the Council never had fifteen employees, as required for Title VII coverage, or the twenty-employee count required for ADEA coverage. She argues, however, that COFT can be considered part of the larger entity, the State of Oklahoma, or more specifically the Oklahoma State Fire Marshal's Office, which will increase the number of employees above the necessary threshold for either statute.

         In Owens v. Rush, 636 F.2d 283 (10th Cir. 1980), the Tenth Circuit considered whether the Sheriff was an agent of the County and thus an employer for Title VII purposes. (b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person. . . . 42 U.S.C . § 2000e(b).[2] The court concluded that the Sheriff was an agent of the county, elected to act on behalf of the County in enforcing the law. Id. at 286. The court concluded the Sheriff “is an agent of the County whether or not he would be considered an agent of the Board of County Commissioners under traditional agency principles.” Id. “Whatever the reason for excluding employers with fewer than fifteen employees from Title VII coverage, it should not be construed to exempt a political subdivision with many employees from Title VII proscription on the grounds that the immediate employing agent has fewer than fifteen employees.” Id. More recently, the Tenth Circuit noted in Cink v. Grant County, Oklahoma, 635 Fed.Appx. 470 (10th Cir. 2015), “'Congress has directed federal courts to interpret [these statutes] based on agency principles, ' and for that we must ‘rely on the general common law of agency, rather than on the law of any particular State.'” Id. at 475-76 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) 754-55, 118 S.Ct. 2257 (internal quotation marks omitted) (characterizing “[t]he resulting federal rule[s]” as “statutory interpretation pursuant to congressional direction”). See also Piper v. Junction City Housing Authority, 1995 WL 88232 (D.Kan. Feb. 1, 1995).

         Under a theory of common-law agency, the Court asks whether Plaintiff has alleged facts to support the conclusion that COFT had the actual or apparent authority to act on behalf of the State of Oklahoma and whether it was subject to the State's control. See PHL Variable Ins Co. v. Sheldon Hathaway Family Ins. Trust ex rel. Hathaway, 819 F.3d 1283, 1289 (10th Cir. 2016)(addressing common law agency). Plaintiff has sufficiently pled facts to support each of these elements. COFT was created by the Oklahoma legislature and according to an audit performed by the State the Council is primarily funded by monies allocated to the State Fire Marshal and passed to COFT. See Okla. Stat. tit. 74 § 325.1. The responsibilities of the Council are set by statute and the Council must provide an annual report or recommendation regarding fire and emergency training services to the Governor, Speaker of the House and President Pre Tempore of the Senate annually. Id. The Court finds these facts sufficient to plead an agency relationship between the Council and the State for purposes of the Council meeting the numerosity requirements of Title VII and the ADEA.

         Defendants further contend with regard to Plaintiff's age discrimination claim that she fails to sufficiently plead discrimination on the basis of age. The Court disagrees. Plaintiff alleges that she was 53 at the time of her termination, and thus a member of the protected class. She further alleges that despite performing her job well and receiving positive reviews, raises, and promotions, that she was terminated by Executive Director Hansen. She asserts that following her termination two younger women took over her job duties. Although the final element of an ADEA claim is often expressed as a younger person replacing the plaintiff, and plaintiff here does not allege that she was truly replaced but rather her job duties were transferred to younger employees, she alleges that at least one of these women had negative performance reviews.[3] The termination of a qualified employee in a protected class raises an inference of discrimination because it is illogical to fire otherwise qualified employees. Perry v. Woodward, 199 F.3d 1126, 1140 (10th Cir.1999). Accordingly, the Court finds Plaintiff has sufficiently pled a claim for discrimination under the ADEA.

         Defendants also seek dismissal of Plaintiff's Title VII gender and race discrimination claims. A prima facie case of gender discrimination in a Title VII case generally requires a plaintiff to show “that she is a member of a p r o tected class, sh e suffered an adverse employment action, and the challenged action occurred under circumstances giving rise to an inference of discrimination.” Bennett v. Windstream Commc'n, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015) (citing E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007)). “While the elements of a prima facie case ‘are neither rigid nor mechanistic, their purpose is the establishment of an initial inference of unlawful discrimination warranting a presumption of liability in plaintiff's favor.'” Bennett, 792 F.3d at 1266 (citing Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008)). Often this inference is the result of facts showing that the employer treated similarly situated persons differently, which is the path Plaintiff attempts to travel. Plaintiff alleges that Jon Hansen, Executive Director of COFT, was not terminated for having secondary employment and that he was not disciplined for sexually harassing behavior or alleged financial malfeasance. Tenth Circuit authority forecloses Plaintiff's reliance on her supervisor as a basis for finding that a similarly situated person was treated differently. See Didier v. Abbott Laboratories, 614 Fed.Appx. 366, 375 (10th Cir. 2015)(citing Jones v. Denver Post Corp, 203 F.3d 748, 752-53 (10th Cir. 2000)(“Canino was one of Jones's supervisors and therefore cannot be deemed similarly situated in a disciplinary matter. . . .”). As such, and because this is the only factual allegation from which gender discrimination can be gleaned, the Court finds that Defendant COFT is entitled to dismissal of Plaintiff's Title VII gender discrimination claim.

         Defendant also seeks dismissal of Plaintiff's claim for race discrimination in violation of Title VII. The Court finds Plaintiff sufficiently alleges a claim for racial discrimination, having set forth that she is Japanese American, was terminated, and that a Caucasian employee with inadequate job performance, Shanna Miller, was not terminated for personal use of COFT equipment. The Court finds Plaintiff's allegations sufficient at the pleading stage to state a claim for racial discrimination. As such, the Court denies Defendants' motion to dismiss with regard to Plaintiff's racial discrimination claim.[4]

         Defendant COFT contends Plaintiff has failed to state a claim for retaliation in violation of Title VII; the Court disagrees. ‘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, v. City and County of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008)(quoting Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1171 (10th Cir. 2006) (footnote omitted)). The first element of a retaliation claim 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 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). Plaintiff alleges she filed an EEOC charge in April 2015 and that she made complaints in a letter to the Council members regarding Jon Hansen's allegedly harassing behavior toward co-worker Alicia Hayward. To qualify as protected conduct, “the employee must convey to the employer his or her concern that the employer has engaged in a practice made unlawful by [Title VII or § 1981].” See Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008); see Peterson v. Utah Dep't of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002). Plaintiff alleges that she both complained about Executive Director Hansen's alleged sexual harassment and made Board members aware that she intended to file an EEOC charge. She alleges that Defendant Kelly offered that COFT would file a charge with the EEOC on her behalf even though it lacked the authority to do so.[5] Shortly thereafter, Plaintiff was terminated by Defendant Hansen. The Court finds these allegations sufficient to state a claim for retaliation in violation of Title VII for opposing sexual harassment.

         Defendant COFT seeks dismissal of Plaintiff's sexual harassment claim. The Court finds Plaintiff has sufficiently alleged a claim for hostile work environment harassment. Harassment that does not result in a tangible employment action may be actionable if it is so “severe or pervasive” that it creates an abusive working environment. See Morris v. City of Colo. Springs, 666 F.3d 654, 663 (10th Cir. 2012). Plaintiff's specific allegations of sexual harassment are that on February 14, 2015, Mr. Hansen purchased gift cards for the female employees of COFT, chastised her for not thanking him properly, and blocked her from exiting the elevator, requiring that she ride up to the sixth floor before returning to the her work space on the second floor. She alleges that on one occasion Mr. Hansen slapped her bottom when she walked into a building. She further complains she was propositioned by Director Hansen during her tenure at the Council and subjected to sexual remarks and innuendo. Although Plaintiff could have detailed her allegations more thoroughly, the Court finds that Plaintiff has sufficiently alleged that Hansen's conduct created a hostile work environment. This is true in part because the allegations are not limited to statements or actions toward Plaintiff. Rather she makes allegations that Alicia Hayward, a co-worker, was subjected to unwanted sexual advances from Hansen. “Evidence of a general work atmosphere therefore─ as well as evidence of specific hostility directed toward the plaintiff─ is an important factor in evaluating the claims.” Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987). Defendants' Motion to Dismiss is denied with regard to Plaintiff's sexual harassment claim.

         Defendant COFT seeks dismissal of Plaintiff's claim of “negligent hiring, training and supervision” as well as a separately pled claim of negligence. In addressing Plaintiff's initial attempt at pleading this case, the Court concluded Ms. Hunter had sufficiently stated a claim for Defendant's alleged negligence. The allegations in both claims are nearly identical and again relate to the alleged sexual harassment in the workplace. Plaintiff alleges she formally complained about the sexual harassment by Jon Hansen. She also alleges that Defendant Mike Bower, a member of the Council, told her “when a position for COFT came open, we thought John would be a good fit if he didn't chase skirt. Jon goes a lot of places and does a lot of things he should not be doing.” Second Amended Complaint ¶ 58. She further alleges Bower was aware of prior allegations of sexual harassment against Hansen but that he was hired by the Council nonetheless. Id.

         An employer may be held liable in Oklahoma for negligent hiring, supervision, or retention of an employee. See Excue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir.2006) (applying Oklahoma law); N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla.1999). Liability attaches, “if-at the critical time of the tortious incident-the employer had reason to believe that the person would create an undue risk of harm to others. Employers are held liable for their prior knowledge of the servant's propensity to commit the very harm for which damages are sought.” Presbyterian Church (U.S.A.), 998 P.2d at 600. The Court concludes that Plaintiff has sufficiently, albeit barely, alleged facts to state a plausible claim for negligent hiring and failure to supervise with regard to sexual harassment. Although Plaintiff presents details regarding only two incidents in which she was allegedly the direct recipient of harassment, she alleges that she observed Mr. Hansen's inappropriate sexual behavior toward Alicia Hayward and that Alicia Hayward complained to Plaintiff about the harassment. She alleges that the Council members were aware of Mr. Hansen's propensity for sexual harassment prior to his selection as Executive Director, and further that ...


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