United States District Court, E.D. Oklahoma
(1) JANESA K. MILLER, Plaintiff,
(1) CITY OF KONAWA, a municipality, and (2) JAMES BLACKWOOD, an individual, Defendants.
OPINION AND ORDER
H. Payne United States District Judge.
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.
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].
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.
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.
Statute of Limitations
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
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].
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.
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.
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).
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 ...