United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITHD STATES DISTRICT JUDGE.
before the Court are defendant Board of County Commissioners
of Mayes County's (Mayes BCC) motion to dismiss (Dkt. #
46) and defendant Mayes Emergency Services Trust
Authority's (MESTA) motion to dismiss certain claims
(Dkt. # 49).
Rick Langkamp and Darla Langkamp, a married couple, filed
this action in the Northern District of Oklahoma against
MESTA and John Does 1-15, alleged board members and
employees, agents, and representatives of MESTA. Dkt. # 2.
MESTA is a public trust, organized under Oklahoma law, that
provides ambulance service for Mayes County, Oklahoma. Dkt. #
43 at 1, 4. Ms. Langkamp has worked for MESTA as a secretary
since 2005. Id. at 4. From 2003 until June 14, 2016,
Mr. Langkamp was the executive director of MESTA.
2014, Mr. Langkamp sued MESTA and several members of
MESTA's board of trustees (MESTA Board) in the District
Court of Mayes County, State of Oklahoma for defamation,
false light, intentional infliction of emotional distress,
civil conspiracy, and negligence (Langkamp I). Dkt.
# 13-1. On February 18, 2016, Mr. Langkamp dismissed with
prejudice his claims against MESTA in Langkamp I.
Dkt. # 13-3, at 1.
March 8, 2016, MESTA held a public board meeting, during
which the board elected Trent Peper as chairman of the board.
Dkt. # 43, at 4. Plaintiffs allege that when Mr. Peper was
previously chairman he frequently called Ms. Langkamp and
other female MESTA employees “demeaning” names
such as “sweetie” and “honey.”
Id. Plaintiffs also assert that Mr. Peper
“inappropriately touched Ms. Langkamp's
shoulders.” Id. Ms. Langkamp spoke during the
public comment portion of the board meeting in which Mr.
Peper was elected chairman. Id. at 5. Plaintiffs
allege that Ms. Langkamp said, “I will not be putting
up with that type of pet name calling that went on the last
time this person was in this position.” Id.
Plaintiffs assert that Ms. Langkamp told the board she had
previously informed two MESTA attorneys about Mr. Peper's
conduct and that nothing had changed. Id. at 5-6.
Plaintiffs also assert that Ms. Langkamp concluded her
comments by telling everyone at the meeting, “You are
my witnesses and I will not be putting up with it
again.” Id. at 6. Plaintiffs allege that at
least one Mayes BCC commissioner was present at the meeting.
Id. Plaintiffs allege that after the board meeting,
several board members, including Mr. Peper, and MESTA's
in-house counsel met in a hallway and had a “very loud
conversation” that was overheard by another MESTA
employee. Id. Plaintiffs assert that one of the
board members said, “If [Ms. Langkamp] thinks I'm
mean now, wait until I get on the other side of the
2, 2016, Mr. Langkamp submitted an intake questionnaire to
the Equal Employment Opportunity Commission
(EEOC). Id. at 9. On June 14, 2016, MESTA
fired Mr. Langkamp. Id. at 10. On July 7, 2016, Mr.
Langkamp signed his EEOC charge of discrimination, which
asserted claims against MESTA for retaliation and
discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. (Title VII), and the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq. (ADA).
Dkt. # 54-12. Mr. Langkamp asserts that, around July 9, 2016,
he informed the EEOC that the had been terminated and wished
to add that information to his charge of discrimination. Dkt.
# 43, at 11. After the EEOC allegedly told him he must file a
subsequent charge of discrimination, Mr. Langkamp filed a
second intake questionnaire on July 26, 2016. Id.
14, 2016, Mr. Langkamp brought a second suit against MESTA
and several board members in the District Court of Mayes
County, State of Oklahoma for claims arising out of
MESTA's firing of Mr. Langkamp and the events leading up
to his dismissal (Langkamp II). Dkt. # 13-4. On July
22, 2016, MESTA filed a motion to dismiss the claims against
it for failure to state a claim. Dkt. # 24-1. On August 15,
2016, Mr. Langkamp filed an amended petition, alleging claims
against MESTA for violation of his rights under the Oklahoma
Constitution, breach of contract, and negligence. Dkt. #
13-5. On August 26, 2016, MESTA renewed its motion to dismiss
(Dkt. # 24-3), which the state court granted on October 24,
2016. Dkt. # 13-6. On November 3, 2016, Mr. Langkamp moved
for clarification, or alternatively for a new trial or
rehearing, regarding the court's order. Dkt. # 18-4. The
state court denied Mr. Langkamp's motion on November 22,
2016. Dkt. # 13-7. Mr. Langkamp received his right to sue
letter from his July 7, 2016 charge of discrimination on
September 19, 2016. Dkt. # 43, at 11. On October 30, 2016, he
signed his second charge, which asserted claims against MESTA
for retaliation in violation of Title VII and the ADA. Dkt. #
filed suit in this Court on November 7, 2016. Dkt. # 2. In
the original complaint, Ms. Langkamp alleged free speech
retaliation in violation of 42 U.S.C. § 1983,
retaliation in violation of Title VII, and common law
negligence; Mr. Langkamp alleged retaliation in violation of
Title VII. Id. at 9-14. On December 28, 2016, MESTA
filed a motion to dismiss (Dkt. # 13), arguing that
plaintiffs' claims against it should be dismissed for
lack of subject matter jurisdiction and failure to state a
claim upon which relief may be granted. On February 28, 2017,
plaintiffs filed a motion to amend (Dkt. # 25), asking the
Court for leave to amend their complaint so that Ms. Langkamp
could assert Title VII retaliation and discrimination claims
against Mayes BCC. Plaintiffs asserted that Ms. Langkamp had
received her right to sue letter from the EEOC on February
15, 2017. See Dkt. # 25-1. On March 1, 2017,
plaintiffs filed a motion to stay (Dkt. # 26), asking the
Court to stay the case until resolution of Mr. Langkamp's
then-pending charge of discrimination against Mayes BCC.
March 3, 2017, the Court entered an opinion and order (Dkt. #
31) ruling on MESTA's motion to dismiss, plaintiffs'
motion to amend, and plaintiffs' motion to stay. The
Court granted MESTA's motion to dismiss as to Ms.
Langkamp's negligence claim because she failed to state a
claim under Oklahoma law, and as to Mr. Langkamp's Title
VII retaliation claim because it was barred by res judicata.
Id. at 8-17. The Court denied MESTA's motion to
dismiss as to Ms. Langkamp's retaliation claims under
Title VII and § 1983. Id. at 6-8. The Court
granted plaintiffs' motion to amend, finding that Ms.
Langkamp could “amend her complaint to assert
discrimination and retaliation claims against [Mayes
BCC].” Id. at 17-18. The Court denied
plaintiffs' motion to stay because it would cause undue
delay of the litigation. Id. at 18.
Langkamp filed an amended complaint (Dkt. # 32) asserting the
same three claims as the original complaint and adding two
claims: a Title VII retaliation claim against Mayes BCC and a
claim under the Oklahoma Constitution against MESTA and Mayes
BCC. Soon after the amended complaint was filed, plaintiffs
filed a motion (Dkt. # 36) asking the Court to alter its
opinion and order (Dkt. # 31). Plaintiffs asserted that Mr.
Langkamp received a new right to sue letter from the EEOC on
March 16, 2017 and asked the Court to amend its opinion
and order so that Mr. Langkamp could assert Title VII and ADA
claims covered by the new right to sue letter. Dkt. # 36, at
2. The Court granted the motion, but cautioned plaintiffs
that they “may not alter or amend their amended
complaint apart from adding claims covered by the new right
to sue letter. Dkt. # 40, at 5.
filed a second amended complaint (Dkt. # 43), in which Ms.
Langkamp alleges claims against MESTA under § 1983,
Title VII, and the Oklahoma Constitution and against Mayes
BCC under Title VII and the Oklahoma Constitution. Mr.
Langkamp alleges claims against Mayes BCC under the Oklahoma
Constitution and against MESTA under Title VII, the ADA,
§ 1983, the Oklahoma Constitution, and common law
negligence. Mayes BCC now moves to dismiss all claims against
it, and MESTA moves to dismiss plaintiffs' claims under
the Oklahoma Constitution and all Mr. Langkamp's claims
against it. Dkt. ## 46, 49.
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6),  a court must determine whether the
claimant has stated a claim upon which relief may be granted.
A motion to dismiss is properly granted when a complaint
provides no “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). A complaint must contain enough
“facts to state a claim to relief that is plausible on
its face” and the factual allegations “must be
enough to raise a right to relief above the speculative
level.” Id. (citations omitted). “Once a
claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in
the complaint.” Id. at 562. Although decided
within an antitrust context, Twombly
“expounded the pleading standard for all civil
actions.” Ashcroft v. Iqbal, 556 U.S. 662, 683
(2009). For the purpose of making the dismissal
determination, a court must accept all the well-pleaded
allegations of the complaint as true, even if doubtful in
fact, and must construe the allegations in the light most
favorable to a claimant. Twombly, 550 U.S. at 555;
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215
(10th Cir. 2007); Moffett v. Halliburton Energy Servs.,
Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a
court need not accept as true those allegations that are
conclusory in nature. Erikson v. Pawnee Cnty. Bd. of
Cnty. Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir.
2001). “[C]onclusory allegations without supporting
factual averments are insufficient to state a claim upon
which relief can be based.” Hall v. Bellmon,
935 F.2d 1106, 1109-10 (10th Cir. 1991). Finally, “the
12(b)(6) standard does not require that [p]laintiff establish
a prima facie case in her complaint, [but] the elements of
each alleged cause of action help to determine whether
[p]laintiff has set forth a plausible claim.”
Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012) (citations omitted).
second amended complaint asserts eight claims: (1) plaintiffs
allege that MESTA violated their First Amendment rights in
violation of 42 U.S.C. § 1983; (2) Ms. Lankgamp alleges
that MESTA retaliated against her in violation of Title VII;
(3) Ms. Langkamp alleges that Mayes BCC retaliated against
her in violation of Title VII; (4) plaintiffs allege that
Mayes BCC and MESTA violated their due process and free
speech rights under the Oklahoma Constitution; (5) Mr.
Langkamp alleges MESTA retaliated against him in violation of
Title VII; (6) Mr. Langkamp alleges that MESTA discriminated
against him in violation of the ADA; (7) Mr. Langkamp alleges
that MESTA retaliated against him in violation of the ADA;
and (8) Mr. Langkamp alleges that MESTA negligently failed to
provide him a safe workplace. Dkt. # 43. Defendants argue
that all of plaintiffs' claims, except Ms. Langkamp's
§ 1983 and Title VII claims against MESTA, should be
dismissed. Mr. Langkamp has withdrawn his claims against
MESTA under § 1983 and the Oklahoma
Constitution. Dkt. # 54, at 18-19. The Court will
address each remaining challenged claim in turn.
Langkamp alleges a retaliation claim against Mayes BCC under
Title VII. Dkt. # 43, at 18-19. Title VII prohibits an
employer from retaliating against an employee for opposing
any employment practice made unlawful under Title VII. 42
U.S.C. § 2000e-3; Stover v. Martinez, 382 F.3d
1064, 1070 (10th Cir. 2004). The statute defines
“employer” as “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. The
parties do not dispute that MESTA is Ms. Langkamp's
employer under Title VII and that MESTA and Mayes BCC are
distinct legal entities, but Mayes BCC argues that Ms.
Langkamp has failed to allege facts sufficient to show that
it is also her employer under Title VII. See Dkt. #
46, at 3-5; Dkt. # 50, at 11.
Langkamp argues that she has alleged sufficient facts to show
that Mayes BCC is her employer under Title VII through the
principals of agency and the theory of joint employers. The
Tenth Circuit has explained that there are numerous tests for
determining whether an entity is an employer under Title VII,
and which test is most appropriate depends on the
circumstances of the case. See Cink v. Grant Cnty.,
Okla., 635 F. App'x 470, 472-74 (10th Cir.
2015); Knitter v. Corvais Military Living,
LLC, 758 F.3d 1214, 1226 (10th Cir. 2014); Bristol
v. Bd. of Cnty. Com'rs of Cnty. of Clear Creek, 312
F.3d 1213, 1218 n.5 (10th Cir. 2002) (en banc).
agency test is used when “dealing with a subsidiary and
its parent corporation, when the plaintiff seeks to pierce
the corporate veil and hold the parent liable under a federal
statute.” Bristol, 312 F.3d at 1218 n.5. For a
parent to be liable under the agency theory, the plaintiff
must establish that it “exercised a significant degree
of control over the subsidiary's decision-making.”
Frank v. United States, 3 F.3d 1357, 1362 n.2 (10th
Cir. 1993). As an initial matter, it is unclear whether the
agency test is even applicable to this case because Mayes BCC
and MESTA are not a parent and subsidiary. MESTA was created
as a public trust under Okla. Stat. tit. 60, § 176, with
members of the MESTA Board as trustees, and Mayes County,
acting by and through Mayes BCC, as beneficiary. Dkt. # 50-2.
Members of the MESTA Board are appointed by individual
commissioners of Mayes BCC and must be approved by a majority
of the commissioners. Id. at 5. Apart from
appointing the MESTA Board, the trust indenture does not
grant Mayes BCC any other control over MESTA. Ms. Langkamp
has provided no argument for why the agency test is
appropriate to determine who is an employer in a
trustee/beneficiary relationship, and instead cites a string
of cases holding that an employer is generally liable for the
actions of its employees under agency theory. These cases do
nothing to support her argument that Mayes BCC, specifically,
is her employer.
Court need not determine whether the agency test is
applicable here because, even if it were, Ms. Langkamp has
failed to allege facts showing that Mayes BCC exercised a
significant amount of control over MESTA's
decisionmaking. The second amended complaint is remarkably
light on factual allegations regarding Mayes BCC. It alleges
that at least one Mayes BCC commissioner was present at the
March 8, 2016 MESTA board meeting where Ms. Langkamp spoke
against Mr. Peper's alleged harassment and that Mayes BCC
“ratified the acts of MESTA . . . by failing to take
remedial action . . . [and/or] allowing such acts to
occur.” Id. at 6, 19. The agency test is about
control, and neither the fact that a Mayes BCC commissioner
was present at the MESTA board meeting or that Mayes BCC
failed to intervene show that Mayes BCC was
controlling MESTA's decisionmaking. The second
amended complaint also alleges that Mayes BCC
“intentionally underpopulated” the MESTA Board
“in order to abuse, discriminate, and retaliate against
Ms. Langkamp and Mr. Langkamp.” Dkt. # 43, at 4. It is
unclear how failing to appoint board members could harass
plaintiffs, and neither the second amended complaint nor
plaintiffs' response brief have provided any plausible
explanation. Thus, Ms. Langkamp has failed to allege facts
establishing Mayes BCC as her employer under the agency test.
Langkamp's second argument is based on the joint employer
test, which the Tenth Circuit has stated “is the
appropriate test to use when an employee of one entity seeks
to hold another entity liable as an employer.”
Knitter, 758 F.3d at 1226 (citing Bristol,
312 F.3d at 1218). Because Ms. Langkamp is an employee of
MESTA, but is seeking to hold Mayes BCC liable as an employer
as well, the joint employer test is appropriate. Under the
joint employer test, independent entities are treated as
joint employers if they “share or co-determine those
matters governing the essential terms and conditions of
employment.” Bristol, 312 F.3d at 1218
(quoting Virgo v. Riviera Beach Assoc., Ltd., 30
F.3d 1350, 1360 (11th Cir. 1994)). “In other words,
courts look to whether both entities ‘exercise
significant cont rol over the same employees.'”
Id. (quoting Graves v. Lowery, 117 F.3d
723, 727 (3d. Cir. 1997)). While the agency test concerns
Mayes BCC's control over MESTA, the joint employer test
concerns Mayes BCC and MESTA's joint control over Ms.
Langkamp. Plaintiffs make a conclusory allegation in their
brief that Mayes BCC and MESTA “co-determined the
essential terms and conditions of employment.” But even
if that allegation were sufficient to establish Mayes BCC as
a joint employer, plaintiffs must support their claims by
sufficient factual allegations in their complaint. The second