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Graham v. Zoellner

United States District Court, N.D. Oklahoma

May 22, 2019

DR. ROBERT ZOELLNER, an individual; PHILIP ZOELLNER, an individual; ROBERT BOATRIGHT, O.D., an individual; Y SWIFT, O.D., an individual; LIPHARD D'SOUZA, M.D., an individual ZOELLNER MEDICAL GROUP; ZOELLNER GROUP, L.L.C.; A to Z MADISON MEDICAL; and DR. Zzzz's SLEEP CENTER, Defendants.


          TERENCE C. KERN United States District Judge

         Before the Court is a Motion to Dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) filed by (1) A to Z Madison Medical; (2) Ronald Boatright; (3) Liphard D'Souza; (4) Dr. Zzzz's Sleep Center; (5) Casey Swift; (6) Zoellner Group; L.L.C.; (7) Zoellner Medical Group; (8) Philip Zoellner; and (9) Robert Zoellner. (Doc. 8.) For the reasons discussed below, Defendants' Motion to Dismiss is GRANTED.

         I. Factual Background

         Plaintiff Audrey Graham (“Plaintiff”) began working for “Defendants” in February 2008. (Doc. 2-1, ¶ 14, 15.) Throughout her employment, Phillip Zoellner (“Zoellner”), an owner of “Defendants, ” made sexual comments about Plaintiff's body. For example, in their first meeting, Zoellner commented “damn it, shit, you are a hot, thin, big-boobed blonde.” (Doc. 2-1, ¶ 15.) He also told Plaintiff that he “understood” why her husband might not be attracted to her because of her weight, and repeatedly questioned her regarding her daughter's weight. (Doc. 2-1, ¶ 25, 27.)

         Zoellner also repeatedly commented about other women's appearances. For example, on or about 2011, Zoellner hired a female employee to assist Plaintiff in performing her job duties. However, he told Plaintiff that he only hired the new employee because she was “cute” and she “asked him about his band.” (Doc. 2-1, ¶ 18.) Later, in 2013, while Plaintiff and another employee worked with a client, Zoellner saw the other employee's lower back butterfly tattoo and told her to “shake your ass to make the wings move.” (Doc. 2-1, ¶ 32.) In 2015, Zoellner hung up an erotic picture of a woman bending over in his office. He refused to remove the picture, despite several requests from employees, though his wife eventually intervened to remove it. (Doc. 2-1, ¶ 34.) In 2016, Zoellner told Plaintiff that another female employee was dumb, and that the only reason he employed her was because of her looks. (Doc. 2-1, ¶ 35.) Finally, somewhere between 2016-2017, Zoellner instructed female employees to wear short, tight skirts and push up bras “to make their boobs stand out for the other physicians.” (Doc. 2-1, ¶ 37.)

         In addition to these comments, Zoellner also made sexual comments about his own body and required physical affection from his female employees. For example, Zoellner bragged to female employees about the size of his penis. (Doc. 2-1, ¶ 45.) He also showed the entire office a picture of a sausage placed over his groin. (Doc. 2-1, ¶ 23.) Zoellner also joked that the staff kept the office warm so that he, Zoellner, could strip for them. He required Plaintiff and other employees to give him “front hugs, ” which he called “boobie hugs, ” and repeatedly required female employees to say that they loved him. (Doc. 2-1, ¶ 16, 21, and 28.) Finally, on July 11, 2014, Zoellner attended one of his employee's bachelorette party, despite not being invited. The following day, in the early hours of the morning, Zoellner groped Plaintiff's breast without permission or consent. (Doc. 2-1, ¶ 29, 30.)

         On July 24, 2017, Zoellner told Plaintiff that if she didn't “start showing him more affection, ” then she would be terminated. (Doc. 2-1, ¶ 39.) On August 2, 2017, Zoellner told Plaintiff and other employees that they looked “like shit” in front of other employees. (Doc. 2-1, ¶ 20.) Finally, on September 11, 2017, Zoellner required Plaintiff to start working nights or be fired. (Doc. 2-1, ¶ 40.) Six days later, on September 17, 2017, Plaintiff reported these threats to Ronald Boatright. (Doc. 2-1, ¶ 41.) The next day, Plaintiff and Ronald Boatright met with Zoellner to discuss Zoellner's behavior throughout Plaintiff's employment with her employer. Zoellner, however, told Plaintiff to begin working from home until he could replace and fire her. (Doc. 2-1, ¶ 42.) Four days later, on September 22, 2017, an employee called Plaintiff to inform her that she was terminated. (Doc. 2-1, ¶ 43.)

         Plaintiff filed an EEOC charge on March 15, 2018. (Doc. 8-1.) In it, Plaintiff listed her employer as Dr. Zzz's (sic) Sleep Center. She also listed the dates of discrimination as September 22, 2016 to September 22, 2017, but noted in the text of her EEOC Charge that she began her work at Dr. Zzz's (sic) Sleep Center in 2008 and that “[d]uring [her] employment, [she] was subjected to unwelcome verbal and physical sexual harassment from Mr. Phillip Zoellner.” (Doc. 8-1, pg. 1.) She also describes the comments that Zoellner made “on a daily basis, ” including detailed commentary on his employees' appearances. (Doc. 8-1.)

         Plaintiff filed her Petition (“Complaint”) in the District Court of Tulsa County on September 10, 2018 (Doc. 2-1), and Defendants removed it to this Court on October 11, 2018 (Doc. 2). In her Complaint, Plaintiff brings claims for (1) Fourteenth Amendment violations against all Defendants, (2) sexual harassment, sexual discrimination, and retaliation under Title VII and OADA, against all Defendants, (3) Interference with Economic Relationships, against all Defendants, (4) Battery, against Phillip Zoellner, (5) Negligent Infliction of Emotional Distress, against all Defendants, and (6) Intentional Infliction of Emotional Distress, against all Defendants.

         II. Rule 12(b)(6) standard

         All Defendants have filed a Motion to Dismiss under Rule 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6) “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).[1] “[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).

         The Tenth Circuit has interpreted “plausibility” to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be true.” Robbins v. Okla. ex rel. Okla. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Id. at 1248. In considering a motion to dismiss under Rule 12(b)(6), the Court generally may not consider facts outside of those alleged in the complaint.

         III. Fourteenth Amendment

         “A violation of the Fourteenth Amendment requires action by the state.” Hall v. Witterman, 584 F.3d 859, 864 (10th Cir. 2009). Plaintiff has not alleged any state action. Accordingly, ...

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