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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 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 DENIED.

         BACKGROUND

         Plaintiff 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].

         On 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].

         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). “[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.

         I. Constitutional Rights Under 42 U.S.C. § 1983

         Defendant 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.

         A. Fourteenth Amendment Equal Protection Claim.

         Defendant 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 3][1]. 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.

         Defendants 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).

         Plaintiff 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.

         B. First Amendment ...


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