United States District Court, N.D. Oklahoma
OPINION AND ORDER
Terence C. Kern United States District Judge.
the Court is Defendants Oklahoma Horse Racing
Commission's and Kelly Cathey's Motion to Dismiss
(Doc. 11). For the reasons discussed below, Defendants'
Motion to Dismiss is GRANTED.
case arises out of Plaintiff Jerry Goss's termination
from his job as Steward for the Oklahoma Horse Racing
Commission (“Commission”). Plaintiff worked for
the Commission for several years, and alleges that, as a
Steward, he had a protected interest in his continued
employment as a matter of state law and could only be
terminated for cause. As a Steward, Plaintiff was regularly
assigned to the Will Rogers Downs at Claremore where it
appears that he presided over hearings regarding whether to
fine, suspend, or revoke licenses issued by the Commission.
Plaintiff alleges that he was required to conduct hearings
with basic due process notions, and that he took an oath to
uphold the federal and state Constitutions, not to take a
bribe, and to discharge his duties faithfully and to the best
of his abilities.
Kelly Cathey is the Commission's Executive Director. As
Executive Director, he is responsible for the
Commission's day-to-day administrative functions, but has
a limited role in the Commission's adjudication process.
However, as a matter of course, Defendant Cathey issued
ex parte directives and edicts to disproportionately
punish, sanction, and suspend some licensees. He also
instructed Stewards, including Goss, how to decided issues
before the actual hearing. Plaintiff “took
exception” to Defendant Cathey's conduct. He
alleges that when he pointed out Defendant Cathey's rule
violations, he was told to “let it go, ”
“stop, ” or “drop it.” He also
alleges that he was told “don't mention that again,
” and “it won't be good for you.” It is
not clear who made these comments to Plaintiff. However,
Plaintiff alleges that despite these comments, he used his
best efforts to ensure lawful compliance and voted during
hearings to uphold the Commission's licensees'
Constitutional rights to a fair hearing and reasonable
enforcements of the Commission's Rules of Racing. As a
result of this conduct, Defendant Cathey terminated
Plaintiff's employment via signed letter on November 13,
2017, without notice that he had violated an employment rule
or policy, or a pre-termination hearing.
filed his Petition in Rogers County District Court on May 8,
2018. In his Petition, he alleges claims for wrongful
termination in violation of Oklahoma public policy, also
called a Burk tort (Claim One), deprivations of
property and liberty without procedural due process (Claim
Two), and intentional infliction of emotional distress (Claim
Three). Defendants Cathey and Oklahoma Horse Racing
Commission removed the case to this Court on June 8, 2018.
Motion to Dismiss Standard
considering a motion to dismiss under Rule 12(b)(6), a court
must determine whether the plaintiff has stated a claim upon
which relief may be granted. “To survive a 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 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[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).
Tenth Circuit has interpreted “plausibility, ”
the term used by the Supreme Court in Twombly, to
“refer to the scope of the allegations in a
complaint” rather than to mean “likely to be
true.” Robbins, 519 F.3d at 1247. 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
specific context of § 1983 actions in which officers are
sued personally and have asserted the defense of qualified
immunity at the Rule 12(b)(6) stage, the Tenth Circuit has
To nudge their claims across the line from conceivable to
plausible, in this context, plaintiffs must allege facts
sufficient to show (assuming they are true) that the
defendants plausibly violated their constitutional rights,
and that those rights were clearly established at the time.
This requires enough allegations to give the defendants
notice of the theory under which their claim is made. This
does not mean that complaints in cases subject to qualified
immunity defenses must include all the factual allegations
necessary to sustain a conclusion that defendant violated
clearly established law.
Id. at 1249 (10th Cir. 2008) (internal quotation
marks and citations omitted).
Plaintiff Has Failed to State a Claim for a ...