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Cooper v. Northwest Rogers County Fire Protection District

United States District Court, N.D. Oklahoma

August 28, 2017

DEBRA M. COOPER, Plaintiff,



         Now before the Court are defendant Northwest Rogers County Fire Protection District's (District) motion to dismiss (Dkt. # 9), defendant Northwest Professional Firefighters Local No. 4057's (Union) motion to dismiss (Dkt. # 15), and defendants James Mathew Shockley and Mel W. Dainty's joint motion to dismiss (Dkt. # 29). Each defendant argues that plaintiff has failed to state a claim upon which relief may be granted. Plaintiff responds that she has sufficiently pled each claim that she asserts in her petition. Dkt. ## 16, 17, 33.


         Plaintiff was hired as a probationary administrative assistant by the District in January 2012, and she became a full-time administrative assistant six months later. Dkt. # 3-1, at 8. During plaintiff's employment, the District had an employee policy manual that begins with following disclaimer:

Employees of Northwest Rogers County Fire Protection District that are not members of the bargaining unit are employees “at will, ” which means that the Employee may resign at any time and the employer may discharge an Employee at any time with or without cause. The benefits outlined in this manual are subject to change including elimination, if the Board so determines. These are not conditions of employment and this manual is not a contract of employment. This manual is merely a policy and procedure guide.

Id. at 20. The policy manual also contains a section titled “Steps in Corrective Action.” This section identifies four general penalties-oral reprimand, written reprimand, suspension, and dismissal-and states that those penalties “may be assessed against any full-time or part-time employee of the Fire District as disciplinary action although not necessarily in the sequence noted.” Id. at 59. The section goes on to state that “[a]ny employee being considered for suspension or dismissal will participate in [a series of hearings].” Id. at 60. The policy manual states that the employee will also have the right to appeal at a meeting of the District's Board of Directors (Board). Id. at 62. Additionally, the policy manual states that the District “will also make contributions to a retirement plan of the Administrative Assistant's choice.” Id. at 70.

         Plaintiff alleges that in October 2016, she discovered that the District had not been providing her retirement benefits as set out in the policy manual. Id. at 9. Plaintiff asserts that she asked Shockley, the District's Fire Chief, about her benefits and that he told her the issue would have to be placed on the agenda for the next meeting of the Board. Id. Plaintiff's retirement benefits were discussed at the Board's regular meeting in December 2016. Id. Plaintiff alleges that Dainty, Chairman of the Board, was hostile toward plaintiff during the meeting and stated that the policy manual needed to be rewritten. Id. The issue was tabled until the January 2017 meeting, and plaintiff alleges that her retirement benefits were discussed at that meeting in executive session. Id. Plaintiff asserts that she asked for the issue to be tabled for another month so that she could seek legal counsel. Id. Plaintiff alleges that Dainty and Shockley were hostile, and that the Board refused her request and asked her to leave the room. Id. Plaintiff asserts that after the Board returned to open session, Dainty made a motion to pay plaintiff her retirement benefits effective October 12, 2016, which the Board approved. Id.

         On February 7, 2017, the Union submitted a written grievance to Shockley regarding plaintiff's retirement plan. Id. at 71. The Union asserted that by granting plaintiff's request for retirement benefits, the Board had given plaintiff an 8.35% increase in wages. Id. The Union stated the following regarding plaintiff's retirement benefits:

We feel this is grossly unfair. [The Union] has been told since 2014 there [are] no available funds in the M & O budget that can be committed to recurring wages. Yet since that time, the administrative assistant has received a $.50 per hour raise, been allowed to participate in the [supplemental retirement plan for which the Union negotiated], received the same bonus as firefighters, and now has an 8.35% increase in wages. It is now the highest paying position in the department other than the Chief, and enjoys all the perks of being a firefighter and union member while being neither.

Id. To resolve its grievance, the Union asked for the Board to rescind plaintiff's 8.35% increase or increase the firefighters' pay by 8.35%. Id.

         On February 13, 2017, the Board held a special meeting at which plaintiff was fired in executive session. Id. at 10. Plaintiff asserts that the reason given by the Board at the time for her termination was “audit results.” Id. Plaintiff also asserts that prior to February 2017, she had been exposed to mold at the District's building and suffered from medical problems such as bronchitis, headaches, and difficulty breathing due to mold exposure. Id. Plaintiff alleges that Shockley and Dainty knew of plaintiff's mold exposure and resulting health problems. Id. Plaintiff asserts that at the meeting where she was terminated, she was asked to leave before the mold issue was discussed. Id.

         Plaintiff filed this suit in Rogers County District Court, asserting federal claims under 42 U.S.C. § 1983, as well as claims under Oklahoma law for breach of contract, malicious interference with a contractual relationship, intentional infliction of emotional distress, and declaratory relief and a permanent injunction pursuant to the Oklahoma Open Meeting Act, Okla. Stat. tit. 25, § 301 et seq. (OOMA). Dkt. # 3-1, at 11-19. Plaintiff attached excerpts from the policy manual and a copy of the Union's written grievance to her petition. See id. at 20-72. The District removed the case to this Court, see Dkt. # 3, and now defendants argue that all of plaintiff's claims should be dismissed for failure to state a claim. See Dkt. ## 9, 15, 29.


         In 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).


         Plaintiff asserts the following claims: (1) breach of contract against the District; (2) malicious interference with a contractual relationship against the Union; (3) a procedural due process claim under § 1983 against the District, Dainty, and Shockley; (4) a gender discrimination claim under § 1983 against the District, Dainty, and Shockley; (5) a due process liberty interest claim under § 1983 against Dainty and Shockley; (6) malicious interference with a contractual relationship against Dainty and Shockley; (7) intentional infliction of emotional distress against Dainty and Shockley; and (8) a request for declaratory relief and permanent injunction against the District pursuant to OOMA. Dkt. # 3-1, at 11-19. Defendants argue that plaintiff has failed to state any claim against them. See Dkt. ## 9, 15, 29.


         Plaintiff alleges that she and the District had an implied contract based on the employee policy manual and that the District breached the implied contract by failing to provide her retirement benefits and follow certain procedures prior to terminating her employment. Dkt. # 16, at 3-4. The District argues that plaintiff was an at-will employee and that the policy manual did not create an implied contract because it contained a clear disclaimer stating that it did not create an employment contract. Dkt. # 9, at 8.

         To prevail on a breach of contract claim under Oklahoma law, a plaintiff must prove: “(1) formation of a contract; (2) breach of the contract; and (3) damages as a direct result of the breach.” Digital Design Grp., Inc. v. Info. Builders, Inc., 24 P.3d 834, 844 (Okla. 2001). A contract may be express or implied. See Jones v. Univ. of Cent. Okla., 910 P.2d 987, 989 (Okla. 1995). “[A]n employee handbook may form the basis of an implied contract between an employer and its employees if four traditional contract requirements exist: (1) competent parties, (2) consent, (3) a legal object and (4) consideration.” Russell v. Bd. of Cnty. Comm'rs, Carter Cnty., 952 P.2d 492, 501-02 (Okla. 1997) (footnote omitted). An employer may disclaim any intent to create an employment contract, but the disclaimer must be clear. Id. at 502. An employer's conduct that is inconsistent with the disclaimer may negate the disclaimer's effect, and “[t]he efficacy of a disclaimer is generally a mixed question of law and of fact.” Id.

         The District's policy manual contains a clear disclaimer of intent to create a contract. The disclaimer is the first ...

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