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Miller v. City of Konawa

United States District Court, E.D. Oklahoma

December 11, 2017

(1) JANESA K. MILLER, Plaintiff,
v.
(1) CITY OF KONAWA, a municipality, and (2) JAMES BLACKWOOD, an individual, Defendants.

          OPINION AND ORDER

          James H. Payne United States District Judge.

         Before the Court are Defendant Blackwood's Motion to Dismiss (“Defendant”) [Doc. No. 35], Plaintiff's Response [Doc. No. 37], and Defendant's Reply [Doc. No. 40]. After consideration of the briefs and for the reasons set forth in this Opinion and Order, Defendant's Motion to Dismiss is DENIED.

         BACKGROUND

         Plaintiff Janesa K. Miller (“Plaintiff”) brings this action against Defendant pursuant to alleged violations of Plaintiff Constitutional rights under 42 U.S.C. § 1983, and violations of Plaintiff's rights under the Constitution of the State of Oklahoma. Plaintiff's administrative remedies were fully exhausted on August 10, 2016, when she received her “Notice of Rights” letter from the Equal Employment Opportunity Commission. [Doc. No. 2-2]. Plaintiff timely filed her action in the District Court of Seminole County, State of Oklahoma, which was removed by Defendant City of Konawa pursuant to 28 U.S.C. § 1441 et seq. Defendant Blackwood provided consent to removal pursuant to 28 U.S.C. § 1446(b)(2)(A) [Doc. No. 7].

         On April 7, 2017, Defendant moved for dismissal of Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing that 1) Plaintiff's Equal Protection claim for sexual harassment brought under 42 U.S.C. § 1983 was barred by the statute of limitations; 2) the Plaintiff's Equal Protection claim for violation of Title VII is not recognized by the Tenth Circuit 3) Defendant is entitled to qualified immunity against Plaintiff's First Amendment claim; 4) Plaintiff has failed state a cause of action under the Oklahoma Constitution because alternative relief is available; and 5) Plaintiff cannot establish a Bosh claim against Defendant.

         DISCUSSION

         Pursuant to Fed.R.Civ.P. 12(b)(6), a Motion to Dismiss can be granted on the basis that Plaintiff fails to state claims upon which relief may be granted. In a Rule 12(b)(6) analysis, courts “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk v. Schneider, 493 F.3d 1174 (10th Cir. 2007) (citing Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005); see also Miles v. Washington, 2009 WL 259722, *2 (E.D. Okla. 2009) (Exhibit “A”). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). The allegations themselves need not be plausible, “rather it means that relief must follow from the facts alleged.” Miles, 2009 WL 259722 at *2 (citing Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). Under Twombly, the factual allegations need only to “be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. For purposes of reviewing a complaint for failure to state a claim, all allegations in the complaint must be presumed true and construed in a light most favorable to plaintiff. Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991); Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir. 1988). Each disputed claim will be address in turn.

         I. Statute of Limitations

         Defendant first alleges that Plaintiff's claim made under 42 U.S.C. § 1983 for claimed violations of Plaintiff's Equal Protection rights based on purported sexual-harassment by Defendant is barred by the applicable statute of limitations. There is no applicable federal statute of limitation for claims brought under 42 U.S.C. § 1983. Crosswrite v. Brown, 424 F.2d 495, 496 (10th Cir. 1970). “The time within which such action must be brought is to be determined by the law of the state where the cause of action arose.” Id. (citing Wilson v. Hinman, 172 F.2d 914, 915 (10th Cir. 1949). Civil right claims under Oklahoma law are subject to a two-year statute of limitations for “injury to the rights of another . . . .” Okla. Stat. tit. 12, § 95 (2009). However, the date at which the “claim accrues and the limitations period states to run” is an issue of Federal law. Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). Under Federal law, claims accrue “when facts that would support a cause of action are or should be apparent.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). Plaintiff claims that the statute of limitations does not restrict her claim because the injury occurred when Plaintiff was terminated for complaining of sexual harassment on May 2, 2015. [Doc. 37 at 3].[1] Defendant argues that the sexual harassment complaint filed on or about October 22, 2014, puts Plaintiff's Petition filed November 10, 2016, outside the applicable statute of limitations. [Doc. 35 at 3]. Defendant alleges that Plaintiff's claim that the harassment continued by Defendant Blackwood after he parked his car near her was "innocent conduct" as "[i]t is just common sense; Blackwood must necessarily park his car in a parking lot next to someone else almost every single time he parks." [Doc. 35 at 4]; [Doc. 40 at 5].

         The Plaintiff argues that Defendant Blackwood did not normally park in this area and seemed to have no reason to be there and that she felt intimidated by this. [Doc. 26 ¶ 20]. As noted previously, at the Motion to Dismiss stage, the Court must take all allegations in the as true and construe them in a light most favorable to plaintiff. Hall, 935 F.2d at 1109; Meade, 841 F.2d at 1526. Thus, taking Plaintiff's allegations as true, it is plausible that the alleged sexual harassment was ongoing and included the discharge from her employment, within the statute of limitations, dismissal would be improper based on Defendant Blackwood's statute of limitations argument.

         II. Retaliatory Discharge

         Defendant Blackwood also alleges that a claim for retaliation cannot be brought under § 1983 because the Tenth Circuit does not recognize a § 1983 claim based on a violation of Title VII for retaliatory discharge. [Doc. 40 at 2, 3]. Plaintiff contends that her § 1983 claim is based upon Defendant Blackwood's utilizing his power to fire the City Manager to order him to fire the Plaintiff. [Doc. 37 at 6]. Further, she contends that, because she has no cause of action under Title VII against Defendant Blackwood, she is not precluded under Tenth Circuit precedent from pursuing a claim against the Defendant under § 1983.

         Defendant cites to Long v. Laramie County Community College Dist., 840 F.2d 743 (10th Cir. 1988), and the cases cited in Long, for the proposition that § 1983 cannot be used to bring a cause of action for retaliation. However, the Court does not need to reach this argument, because, at this stage, Plaintiff has adequately pled a violation of her rights under the Equal Protection Clause as noted above. As the Tenth Circuit held in Starret v. Wadley, “[i]f a plaintiff can show a constitutional violation by someone acting under color of state law, then the plaintiff has a cause of action under Section 1983, regardless of Title VII's concurrent application.” 876 F.2d 808, 814 (10th Cir. 1989).

         Accordingly, Plaintiff has alleged violation of her Equal Protection rights under 42 U.S.C. § 1983, separate from Plaintiff's claims of violations of Title VII, and accordingly Plaintiff's claims ...


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