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Palzer v. Cox Oklahoma Telcom, LLC

United States District Court, N.D. Oklahoma

July 3, 2018

MARK ANTHONY PALZER, Plaintiff,
v.
COX OKLAHOMA TELCOM, LLC and COXCOM, LLC d/b/a COX COMMUNICATIONS TULSA, Defendants.

          OPINION AND ORDER

          GREGORY K. FRIZZELL CHIEF JUDGE

         This 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.

         I. Factual Allegations

         The Petition for Wrongful Termination and Discrimination in Employment alleges the following facts.[1] 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].

         Prior 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. ¶ 6].

         Based 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.

         II. Motion for Judgment on the Pleadings Standard

         Pursuant 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).

         In 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. 2007)).

         III. Analysis

         Cox 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.

         A. Partial Judgment on the Pleadings

         Palzer 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.”)].

         Federal 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).

         In 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 ...


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