United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL CHIEF JUDGE
matter comes before the court on the Motion for Partial
Judgment on the Pleadings [Doc. No. 60] of defendant CoxCom,
LLC d/b/a Cox Communications Tulsa (“Cox”). For
the reasons set forth below, the motion is granted in part
and denied in part.
Petition for Wrongful Termination and Discrimination in
Employment alleges the following facts. Plaintiff Mark
Anthony Palzer is a Caucasian male and over the age of forty
(40). [Doc. No. 2-1, ¶ 7]. Palzer began employment with
Cox as a customer service representative in 2005.
[Id. ¶ 10]. Cox subsequently promoted Palzer to
a sales representative in the small/medium sales group.
[Id. ¶¶ 9-10].
to his termination, Cox reassigned Palzer to a different
manager. [Id. ¶ 11]. Palzer's manager made
comments that “[Cox] had too many older white men in
the department, ” and that “she wanted to hire a
black man.” [Id.]. Additionally, the manager
changed the manner of assignment of sales territories and
assigned territories that would generate new sales to young
black males, rather than Palzer. [Id.]. The manager
also insisted on knowing, and became aware of, Palzer's
age. [Id. ¶¶ 12-13]. Palzer complained to
Cox's human resources department regarding the
manager's actions, but his complaints were ignored.
[Id. ¶ 15]. On June 10, 2013, Cox terminated
Palzer's employment. [Id. ¶ 10]. Palzer
timely filed a Charge of Discrimination with the Equal
Employment Opportunity Commission, and received a Notice of
Right to Sue letter issued by the EEOC. [Id. ¶
on these factual allegations, the Petition asserts four
separate causes of action: (1) discrimination based on age in
violation of the Oklahoma Anti-Discrimination Act
(“OADA”), 25 Okla. Stat. §§ 1101 et
seq., and the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. § 621 et
seq.; (2) discrimination based on race in violation of
the OADA and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.; (3) retaliatory
discharge in violation of the OADA, ADEA, and Title VII; and
(4) breach of contract.
Motion for Judgment on the Pleadings Standard
to Fed.R.Civ.p. 12(c), “[a]fter the pleadings are
closed-but early enough not to delay trial-a party may move
for judgment on the pleadings.” “A motion for
judgment on the pleadings ‘should not be granted unless
the moving party has clearly established that no material
issue of fact remains to be resolved and the party is
entitled to judgment as a matter of law.'”
Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th
Cir. 2012) (quoting Park Univ. Enters. v. Am. Cas.
Co., 442 F.3d 1239, 1244 (10th Cir. 2006)). The Tenth
Circuit treats a motion for judgment on the pleadings under
Fed.R.Civ.p. 12(c) as a motion to dismiss pursuant to
Fed.R.Civ.p. 12(b)(6). Atl. Richfield Co. v. Farm Credit
Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000).
considering a motion to dismiss under Fed.R.Civ.p. 12(b)(6),
a court must determine whether the plaintiff has stated a
claim upon which relief can be granted. A complaint must
contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The plausibility
requirement “does not impose a probability requirement
at the pleading stage; it simply calls for enough fact to
raise a reasonable expectation that discovery will reveal
evidence” of the conduct necessary to make out the
claim. Id. at 556. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
court “must determine whether the complaint
sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the
legal theory proposed.” Lane v. Simon, 495
F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir.
seeks judgment as a matter of law as to the entirety of
Palzer's OADA claims, and Palzer's ADEA and Title VII
claims based on any discrete act of alleged discrimination or
retaliation that occurred on or before May 18, 2013. The
court will separately consider each claim.
Partial Judgment on the Pleadings
first offers a procedural objection to Cox's motion for
judgment on the pleadings, arguing that partial judgment on
the pleadings is inappropriate because any judgment granted
would not entirely dispose of one or more counts in the
Petition. See [Doc. No. 61, pp. 4-6 (citing In
re Amica, Inc., 130 B.R. 792, 796 (Bankr. N.D.Ill. 1991)
(“Partial judgment on the pleadings is not possible in
federal pleading unless it disposes entirely of one or more
counts of the complaint.”)].
Rule of Civil Procedure 12(c) neither provides for nor
prohibits motions for partial judgment on the pleadings.
Fed.R.Civ.p. 12(c). However, Federal Rule of Civil Procedure
56- applicable to motions for summary judgment-permits
partial summary judgments. Fed.R.Civ.P. 56. By analogy to the
provisions of Rule 56, at least one court in this Circuit
expressly concluded that “a motion for partial judgment
on the pleadings is appropriate.” VNA Plus, Inc. v.
Apria Healthcare Grp., Inc., 29 F.Supp.2d 1253, 1258 (D.
Kan. 1998). Additionally, courts in this district routinely
consider motions for partial judgment on the pleadings
seeking judgment on some, but not all, of plaintiff's
claims. See, e.g., Stuart C. Irby Co. v. Brown, No.
13-CV-0520-CVE-FHM, 2014 WL 585099 (N.D. Okla. Feb. 14,
2014); Williams Field Servs. Grp. LLC v. Gen. Elec.
Int'l, Inc., No. 06-CV-0530-CVE-FHM, 2009 WL 151723
(N.D. Okla. Jan. 22, 2009) (granting in part and denying in
part motion for partial judgment on the pleadings);
Horton v. Bank of Am., N.A., 189 F.Supp.3d 1286
(N.D. Okla. 2016) (granting in part and denying in part
motion for partial judgment on the pleadings).
light of this persuasive authority, the court is persuaded by
the reasoning of the United States District Court for the
Northern District of California in Holloway v. Best Buy
Co., Inc., No. C-05-5056-PJH, 2009 WL 1533668 (N.D. Cal.
May 28, 2009). There, the court first noted that “[a]s
to whether a Rule 12(c) motion can be used as a means to
parse claims for relief or strike less than an entire count,
the case law is not extensive.” Id. at *4.
However, the court noted district judges in its district
granting in part and denying in part motions for judgment on
the pleadings. Id. The court concluded: “In
light of the purpose of 12(c) motions . . . and given that
each cause of action in the [Complaint] alleges what ...