United States District Court, W.D. Oklahoma
LA DONNA J. SALINAS, Plaintiff,
TRIPLE F. TRUCKING, Defendant.
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion to Dismiss Amended
Complaint [Doc. No. 12], filed pursuant to Fed.R.Civ.P.
first asserts that Plaintiff's amended pleading does not
conform to the Order of March 10, 2017, which dismissed as
untimely the gender discrimination claims asserted in the
Complaint under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et
seq., and Oklahoma's Anti-Discrimination Act
(“OADA”), Okla. Stat. tit. 25, § 1101 et
seq., that were based on an EEOC charge administratively
exhausted in December 2015. The Court authorized Plaintiff to
amend her pleading to assert Title VII and OADA claims of
sexual harassment and retaliation that were administratively
exhausted by a second EEOC charge in August 2016, as to which
this suit was timely filed. See Order 3/10/17 [Doc.
No. 10] at 10-11, 13-14.
Amended Complaint is not a model of clarity. Defendant is
understandably concerned that Plaintiff's pleading seems
to retain the previously dismissed claims alleging that
Defendant terminated her employment based on gender. However,
in light of the allegation of the Amended Complaint that
Plaintiff is asserting claims administratively exhausted by
her second EEOC charge (Am. Compl. [Doc. No. 11], ¶ 2),
and Plaintiff's arguments in response to the Motion
(Pl.'s Resp. Br. [Doc. No. 13] at 5-6), the Court
understands that Plaintiff intends to assert the sexual
harassment and retaliation claims asserted in the second EEOC
charge and authorized by the Court's Order.
also contends the Amended Complaint contains insufficient
factual allegations to state a plausible claim of sexual
harassment. See Def.'s Mot. Dismiss [Doc. No.
12] at 5-6 (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). Although this presents a close
question, the Court disagrees.
claims she was subjected to a hostile work environment. A
hostile work environment that violates Title VII is one
involving harassment based on a prohibited factor, such as
gender, that is “sufficiently severe or pervasive to
alter the conditions of [the victim's] employment and
create an abusive working environment.” Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
“Severity and pervasiveness are evaluated according to
the totality of circumstances, Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295
(1993), considering such factors as the frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.” Chavez v. New
Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (internal
quotation omitted). “[T]he critical issue in
determining harassment is because of sex is whether members
of one sex are subjected to a disadvantage to which the other
sex is not.” Harsco Corp. v. Renner, 475 F.3d
1179, 1186 (10th Cir. 2007); see Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
alleges that she was the only female truck driver employed by
Defendant, she “was constantly subjected to offensive
sexual comments, and a work environment tainted with sexual
innuendoes, ” and she informed her supervisor
“that she was offended by the sexual comments and the
unabated humiliation that she was being put under at the
workplace.” See Am. Compl. [Doc. No. 11],
¶ 12. Plaintiff also alleges that she was treated less
favorably than male truck drivers with respect to terms and
conditions of employment, including wages, benefits,
discipline, and leave time, and these differences were
motivated by sex and gender. Id. ¶¶ 12-13,
15. The Court finds the Amended Complaint contains minimally
sufficient factual allegations to “‘give the
defendant fair notice of what the [sexual harassment] claim
is and the grounds upon which it rests'” as
required by Rule 8(a) and Rule 12(b)(6). See Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting
Twombly, 550 U.S. at 555); see also Smith v.
United States, 561 F.3d 1090, 1104 (10th Cir. 2009).
THEREFORE ORDERED that Defendant's Motion to Dismiss
Amended Complaint [Doc. No. 12] is DENIED. Plaintiff may
proceed on her Amended Complaint limited to the claims
authorized by the Order of March 10, 2017 [Doc. No. 10].
 Defendant also cites Rule 12(b)(1) but
raises no jurisdictional issue.
 The Court also dismissed state law
claims of breach of an employment contract and intentional
infliction of emotional distress. Plaintiff has abandoned