United States District Court, W.D. Oklahoma
MARK A. PENDERGRAFT, Plaintiff,
BOARD OF REGENTS OF OKLAHOMA COLLEGES, DAVID MISAK, in his individual capacity; and TODD THURMAN, in his individual capacity. Defendants.
TIMOTHY D. DeGIUSTI, CHIEF UNITED STATES DISTRICT JUDGE
the Court is Defendants' Partial Motion to Dismiss [Doc.
No. 22]. Plaintiff, appearing pro se, has responded
[Doc. No. 31] and Defendants have replied [Doc. No. 32]. The
matter is fully briefed and at issue.
applied for a position as an assistant softball coach at
Southwestern Oklahoma State University (“SWOSU”).
On August 8, 2016, Plaintiff was informed by SWOSU Head
Softball Coach, Kim Maher, that Todd Thurman, Athletic
Director, had approved hiring him for the position. During
that conversation Plaintiff was formally offered an
employment contract and Plaintiff accepted.
SWOSU Human Resource Department contacted Plaintiff to
schedule an appointment for him to sign his employment
contract. On August 9, 2016, Plaintiff signed the employment
contract but was not provided a copy.
employment contract provided that Plaintiff would be paid an
annual salary of $5600.00 to be paid in two payments of $2,
800.00 and that as a Graduate Assistant Plaintiff would be
eligible for a tuition waiver each semester. August 15, 2016,
was Plaintiff's first day on the job.
August 19, 2016, Plaintiff was informed by Mr. Thurman that
SWOSU donors wanted to hire a female assistant softball
coach. Plaintiff was asked to sign a new employment contract
to allow SWOSU to hire the female assistant coach and was
informed that his compensation package would be transferred
to her. Plaintiff was told he should work for SWOSU for free
and when a position in the baseball program became available
he would be informed first. Plaintiff refused and was
informed that if he did not agree to the new employment
contract, he would be fired.
immediately went to discuss the matter with David Misak,
Director of the SWOSU Human Resource Department. Mr. Misak
informed Plaintiff that the university would be more
comfortable with a female assistant softball coach and that
unless a future position opened up in the baseball program,
Plaintiff's employment was terminated. Plaintiff informed
Mr. Misak that the staff handbook stated that he was entitled
to a hearing, requested to speak with the EEOC Director, and
requested documentation of his termination.
did not receive a hearing and was not provided with EEOC
compliance information or documentation related to his
termination. Subsequent to his termination, SWOSU employed
the female assistant coach at a salary twice the amount
Plaintiff was to be paid.
October 26, 2018, Plaintiff filed his Amended Complaint
against the Board of Regents of Oklahoma Colleges
(“BROC”), David Misak, in his individual and
official capacity, and Todd Thurman, in his individual and
official capacity. The Amended Complaint asserts the
following claims against all Defendants in their individual
and official capacities: (Count I) violation of the Equal Pay
Act of 1963; (Count II) discrimination based on sex in
violation of Title VII; (Count III) tortious interference
with business relations; (Count IV) breach of contract;
(Count V) tortious interference with prospective economic
advantage; and, (Count VI) conspiracy to wrongfully and
unlawfully terminate Plaintiff.
move to dismiss Count I (against the individual Defendants),
and Counts II, III, V, and VI of the Amended
12(b)(1) motion to dismiss for lack of subject matter
jurisdiction takes one of two forms: a facial attack or a
factual attack. Pueblo of Jemez v. United States,
790 F.3d 1143, 1148 n.4 (10th Cir. 2015). A facial attack
questions the sufficiency of the complaint's allegations.
Id. In reviewing a facial attack, a district court
must accept the allegations in the complaint as true.
Id. In a factual attack, the moving party may go
beyond allegations contained in the complaint and challenge
the facts upon which subject matter jurisdiction depends.
Id. When reviewing a factual attack on subject
matter jurisdiction, a district court may not presume the
truthfulness of the complaint's factual allegations.
Id. Instead, the court has wide discretion to allow
affidavits, other documents, and a limited evidentiary
hearing to resolve disputed jurisdictional facts.
Rule of Civil Procedure 8(a)(2) provides that a pleading
stating a claim for relief must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” To survive a Rule 12(b) motion to
dismiss, “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, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555. “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.” Iqbal, 556 U.S.
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679; see
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir.
2008) (Stating that “the degree of specificity
necessary to establish plausibility and fair notice, and
therefore the need to include sufficient factual allegations,
depends on context.”) (internal quotation omitted).
Therefore, Iqbal and Twombly provide
“no indication the Supreme Court intended a return to
the more stringent pre-Rule 8 pleading requirements.”
also Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (citing Iqbal, 556 U.S. at 678).
Tenth Circuit has held that the
Iqbal/Twombly pleading standard is “a
middle ground between heightened fact pleading, which is
expressly rejected, and allowing complaints that are no more
than labels and conclusions or a formulaic recitation of the
elements of a cause of action, which the Court stated will
not do.” Khalik, 671 F.3d at 1191 (quoting
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008)). “Specific facts are not necessary, ” the
pleader's allegations need only provide the
“defendant fair notice of that the … claim is
and the grounds upon which it rests.” Id. at
1192 (quoting Erickson v. Pardus, 551 U.S. 89, 127
S.Ct. 2197, 167 L.Ed.2d 1081 (2007)) (internal quotations
omitted). “Twombly and Iqbal do not
require that the complaint include all facts necessary to
carry the plaintiff's burden.” Khalik, 671
F.3d at 1192. Further, “the 12 (b)(6) standard does not
require that [a p]laintiff establish a prima facie
case.” Id. at 1191. However, “the
elements of each alleged cause of action help to determine
whether [the p]laintiff has set forth a plausible
claim.” Id. In ruling on a motion to dismiss a
judge must accept all well pled allegations as true, and
“may not dismiss on the ground that it appears unlikely
the allegations can be proven.” Robbins, 519
F.3d at 1247.
case, Defendants make a factual challenge under Rule 12(b)(1)
because they attack the facts upon which Plaintiff asserts
subject matter jurisdiction, and in support thereof submit
evidence outside the pleadings. Defendants also move for
dismissal under Rule 12(b)(6) asserting Plaintiff has failed
to: (1) state any claim for which relief can be granted
against individual Defendants in their official capacities;
(2) state a claim for which relief can be granted against
individual Defendants for violation of the Equal Pay Act; (3)
exhaust administrative remedies prior to bringing his Title
VII suit; (4) state a claim for which relief can be granted
as to conspiracy; and, (5) comply with Oklahoma's
Governmental Tort Claims Act (“GTCA”). Defendants
also contend that: (1) BROC cannot be held liable for
intentional torts of ...