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 City of Konawa's Partial Motion
to Dismiss (“Defendant”) [Doc. No. 33],
Plaintiff's Response [Doc. No. 36], and Defendant's
Reply [Doc. No. 41]. After consideration of the briefs and
for the reasons set forth in this Opinion and Order,
Defendant's Partial Motion to Dismiss is
Janesa K. Miller (“Plaintiff”) brings this action
against Defendant pursuant to Title VII of the Civil Rights
Act of 1964, the Oklahoma Anti-Discrimination Act, 42 U.S.C.
§ 1983, and 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 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 partial dismissal of
Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6),
arguing that the complaint failed to state a claim under
Title VII, the Oklahoma Anti-Discrimination, 42 U.S.C. §
1983, and the Oklahoma State Constitution [Doc. 33].
Plaintiff submitted a Response on April 21, 2017 [Doc. 36],
and Defendant submitted a Reply on May 5, 2017 [Doc.41].
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). “[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, 518 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.
Constitutional Rights Under 42 U.S.C. § 1983
first contends Plaintiff's cause of action for violations
of her Equal Protection and Free Speech rights under 42
U.S.C. § 1983 is without merit because the Tenth Circuit
does not recognize a § 1983 claim based on a violation
of Title VII and because Plaintiff's speech was not a
matter of public concern.
Fourteenth Amendment Equal Protection Claim.
City of Konawa does not appear to claim that Plaintiff
Miller's pleadings for her cause of action of a
Fourteenth Amendment violation do not give Defendant City of
Konawa sufficient notice to give it fair notice of her claims
and the grounds upon which it rests, but that no such cause
of action exists in the Tenth Circuit and Plaintiff's
claim must be dismissed as a matter of law [Doc. 33 at
See Erickson v. Pardus, 551 U.S. 89, 93 (2007).
Defendant City claims, however, that no such cause of action
exists in the 10th Circuit and this claim must be dismissed
as a matter of law, citing to Long v. Laramie County
Community College District, 840 F.2d 743, 752 (10th Cir.
1988), McCue v. State of Kan., Dept. of Human
Resources, 938 F.Supp. 718, 726 (D. Kan. August 8,
1996); Houck v. City of Prairie Village, Kan., 912
F.Supp. 1438, 1443 (D. Kan. 1996). Plaintiff claims a cause
of action exists under § 1983 based independently of her
Title VII claim, based on the deprivation of Plaintiff's
right to Equal Protection under the laws.
have misconstrued the holding in Long, as Plaintiff
correctly points out. The court in Long had before
it a question as to whether § 1985 supports a viable
claim for retaliatory conduct. Here, Plaintiff has brought
her claim under § 1983, not § 1985. While, the
court in Long, also said that "theory of
liability for retaliatory conduct" does not come within
§ 1983, Plaintiff is not alleging a theory of liability
under § 1983, but a violation of her rights secured by
federal statutory and constitutional law. Long, 840
F.2d at 752. The Tenth Circuit has also held, in a case cited
in Long, that "Section 1983 does not create any
substantive rights; rather, it creates only a remedy for
violations of rights secured by federal statutory and
constitutional law. Tafoya v. Adams, 816 F.2d 555,
557-58 (10th Cir. 1987). 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.” Starret v. Wadley, 876 F.2d 808,
814 (10th Cir. 1989). The Starrett court
specifically held "that sexual harassment of the sort
alleged by plaintiff can violate the Fourteenth Amendment
right to equal protection of the laws." Starrett v.
Wadley, 878 F.2d 808, 814 (10th Cir. 1989).
has pled that the City Manager discharged her stating that it
was because of her complaint of sexual harassment. [Doc. 26,
¶ 22]. As the court in Starrett said, "we
conclude that Wadley's act of firing plaintiff was an act
of the County because Wadley had final authority to set
employment policy as to the hiring and firing of his
staff." Plaintiff has alleged that the City Manager
fired her because she had brought a claim of sexual
harassment. Id. Accordingly, Plaintiff has
sufficiently alleged violation of her Equal Protection rights
under 42 U.S.C. § 1983 against the City separate from
Plaintiff's claims of violations of Title VII, and
accordingly Plaintiff's claims under § 1983 for a
Fourteenth Amendment violation should be allowed to proceed.
First Amendment ...