United States District Court, N.D. Oklahoma
DEBRA M. COOPER, Plaintiff,
NORTHWEST ROGERS COUNTY FIRE PROTECTION DISTRICT, JAMES MATHEW SHOCKLEY, in his individual capacity, MEL W. DAINTY, in his individual capacity, and NORTHWEST PROFESSIONAL FIREFIGHTERS LOCAL NO. 4057, Defendants.
OPINION AND ORDER
V. EAGAN UNITED STATUS DISTRICT JUDGE.
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,
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
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.
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.
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
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
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.
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.
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.
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).
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.
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.
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.
District's policy manual contains a clear disclaimer of
intent to create a contract. The disclaimer is the first