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Childers v. Board of Commissioners of Oklahoma County

United States District Court, W.D. Oklahoma

July 12, 2019




         Before the court is the Motion to Dismiss by Defendant Board of County Commissioners of Oklahoma County, filed May 30, 2019. Doc. no. 5. Plaintiff has responded to the motion and defendant has replied. Upon due consideration of the parties' submissions, the court makes its determination.


         Plaintiff, Austin D. Childers, is a former employee of defendant, Board of County Commissioners of Oklahoma County. He filed an action against defendant in the District Court of Oklahoma County, State of Oklahoma, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Oklahoma Anti-Discrimination Act (“OADA”), 25 O.S. 2011 § 1101, et seq. Defendant timely removed the action to this court based upon the existence of federal question jurisdiction, 28 U.S.C. § 1331. It now seeks to dismiss plaintiff's petition against it pursuant to Rule 12(b)(6), Fed. R. Civ. P., and Rule 12(b)(1), Fed.R.Civ.P. Specifically, defendant argues that the petition fails to state Title VII claims for sexually hostile work environment and retaliation under the pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2008) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). In addition, it argues that the court lacks jurisdiction to adjudicate the Title VII retaliation claim because plaintiff failed to exhaust his administrative remedies with respect to the claim. Defendant further argues that the court lacks jurisdiction over the OADA claims because plaintiff failed to file a pre-suit notice as required by the Oklahoma Governmental Tort Claims Act, 51 O.S. 2011 § 151, et seq. Lastly, defendant argues that the OADA claims fail as a matter of law for the same reasons as with the Title VII claims.


         In adjudicating defendant's Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pleaded factual allegations and view them in a light most favorable to plaintiff. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). A pleading is required to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2), Fed.R.Civ.P. The Rule 8 pleading standard does not require “detailed factual allegations, ” but it demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). To survive defendant's Rule 12(b)(6) motion, plaintiff's complaint must contain “sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when [] plaintiff pleads factual content that allows the court to draw the reasonable inference that [] defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         “[T]he nature and specificity of the allegations required to state a plausible claim will vary based on context.” Shields, 744 F.3d at 641 (quotation omitted). Making that determination requires the court to draw on “its judicial experience and common sense.” Id. (quotation omitted).

         Although generally the sufficiency of a complaint under Rule 12(b)(6) must rest on its contents alone, the court may consider documents “referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (quotations omitted).

         Rule 12(b)(1) motions generally take one of two forms. First, a moving party may make a facial attack on the complaint's allegations as to the existence of subject matter jurisdiction. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). In reviewing the facial attack, the district court must accept the allegations in the complaint as true. Id. Second, a party may go beyond the allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. Id. at 1003. The court has wide discretion to allow evidence outside the pleadings and the court's reference to such evidence does not convert the motion into a Rule 56 motion. Id.[1]


         Title VII Retaliation Claim - Failure to Exhaust Administrative Remedies

         Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). The Act also prohibits retaliation against a person who asserts rights under the statute. 42 U.S.C. § 2000e-3(a). As a precondition to the commencement of a Title VII action in court, a complainant must file a charge with the Equal Employment Opportunity Commission (“EEOC”) or an appropriate state or local agency. 42 U.S.C. § 2000e-5(c), (e)(1), (f)(1). The Supreme Court recently held that Title VII's charge-filing precondition to suit is not jurisdictional, but is, instead, a claims-processing rule, which is mandatory if properly raised. Fort Bend County v. Davis, 139 S.Ct. 1843, 1846, 1849-1851 (2019). In the case at bar, defendant has timely raised plaintiff's failure to exhaust administrative remedies by filing its dismissal motion. Upon review, the court concludes that the retaliation claim is not subject to dismissal under Rule 12(b)(6).[2]

         At the outset, it should be noted that defendant is correct on one point. The charge of discrimination filed by plaintiff does not check the box for a retaliation claim. See, doc. no. 5-1; doc. no. 6-2. “The failure to mark a particular box creates a presumption that the charging party is not asserting claims represented by that box.” Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007). However, “[t]he presumption may be rebutted, [] if the text of the charge clearly sets forth the basis of the claim.” Id. Here, the text of the charge, liberally construed, can be read as providing the basis of a retaliation claim. It states that plaintiff had been subjected to sexual harassment by his supervisor since June 13, 2018, he reported the sexual harassment to the human resources department (“HR”) the first of August, 2018, HR investigated the conduct and the supervisor was discharged in September 2018, the sexual harassment stopped, he was discharged on December 27, 2018 and the County Commissioner gave “abuse of leave” as the reason for the discharge. In the court's view, the EEOC “charge [contains] facts concerning the . . . retaliatory actions underlying [plaintiff's] claim[.]” Id.

         The “plaintiff's claim in court ‘is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.'” Smith v. Cheyenne Retirement Investors L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (quoting MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)). And “[t]he ultimate question is whether ‘the conduct alleged [in the lawsuit] would fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made [in the EEOC charge].'” Smith, 904 F.3d at 1164 (quoting Martin v. Nannie & Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir. 1993), overruled on other grounds as recognized by Davidson v. America Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003)). The court finds that the conduct alleged by plaintiff in his petition for relief on his retaliation claim would fall within the scope of the administrative investigation which would reasonably be expected to follow or grow out of the discriminatory acts alleged by plaintiff in the EEOC charge. The factual basis for the retaliation claim is discernable from the text of the charge. ...

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