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Childers v. Board of County Commissioners of Oklahoma County

United States District Court, W.D. Oklahoma

August 28, 2019

AUSTIN D. CHILDERS, Plaintiff,
v.
BOARD OF COMMISSIONERS OF OKLAHOMA COUNTY, Defendant.

          ORDER

          STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE

         Before the court is the Motion to Dismiss Amended Complaint by Defendant Board of County Commissioners of Oklahoma County, filed August 14, 2019. Doc. no. 10. Plaintiff has responded to the motion and defendant has replied. Upon due consideration of the parties' submissions, the court makes its determination.

         I.

         Background

         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 then moved 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 argued that the petition failed 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 argued that the court lacked jurisdiction to adjudicate the Title VII retaliation claim because plaintiff failed to exhaust his administrative remedies with respect to that claim. Defendant further argued that the court lacked jurisdiction over the OADA claims because plaintiff failed to file a pre-suit notice as required by the Oklahoma Governmental Tort Claims Act (GTCA), 51 O.S. 2011 § 151, et seq. Lastly, defendant argued that the OADA claims failed as a matter of law for the same reasons as was the case with the Title VII claims.

         On July 12, 2019, the court entered an order granting in part and denying in part defendant's dismissal motion. Doc. no. 8. The court dismissed plaintiff's OADA claims without prejudice for lack of jurisdiction under Rule 12(b)(1). Specifically, the court concluded that there were no allegations in the petition that plaintiff had complied with the GTCA's pre-suit notice requirement. The court also dismissed the Title VII sexually hostile work environment claim without prejudice under Rule 12(b)(6). With respect to this claim, the court concluded that neither the allegations of the petition nor the charge filed with the Equal Employment Opportunity Commission (EEOC) set forth facts to show that the alleged harassment was based on plaintiff's sex, i.e. gender, or that the alleged harassment was so severe or pervasive to alter a term, condition or privilege of plaintiff's employment and create an abusive working environment. The court, however, granted plaintiff leave to file an amended complaint to state a plausible Title VII sexually hostile work environment claim if his counsel determined that that could be accomplished within the strictures of Rule 11, Fed. R. Civ. P.

         As to the Title VII retaliation claim, the court denied dismissal under Rule 12(b)(6), concluding that plaintiff had exhausted his administrative remedies with respect to that claim, and that the allegations of the petition plausibly stated a retaliation claim.

         In its July 12th order, the court advised plaintiff that the amended complaint, permitted by the court, was to include only the Title VII retaliation and sexually hostile work environment claims.

         On July 31, 2019, plaintiff filed a First Amended Complaint. Plaintiff reasserts his Title VII sexually hostile work environment and retaliation claims. He also appears to allege a retaliation claim under the OADA. See, doc. no. 9, ¶ 18 (“[Defendant's] termination of [plaintiff] constitutes a wrongful retaliatory termination pursuant to . . . 25 O.S. § 1101 et seq.”).

         Defendant has filed the instant motion seeking to dismiss all claims alleged in the First Amended Complaint under Rule 12(b)(6) or Rule 12(b)(1). Defendant argues that the amended pleading again fails to state a plausible Title VII sexually hostile work environment claim. According to defendant, plaintiff, despite being granted a second opportunity to allege sufficient facts to state a plausible sexually hostile work environment claim, has not alleged a single new fact in the amended pleading to support that claim.

         With respect to the Title VII retaliation claim, defendant posits that the claim fails because plaintiff cannot establish a prima facie case of retaliation. Specifically, defendant argues that plaintiff cannot show that a causal connection exists between the alleged protected activity and the materially adverse action. According to defendant, plaintiff alleges in the First Amended Complaint that “[i]nitially, [defendant] told [plaintiff] his termination was because his having made a complaint about the sexual harassment he endured had created ‘a hostile work environment,' subsequently, [defendant] changed the reason for his firing to ‘abuse of leave,' a baseless, untrue and shameful misrepresentation of the true reason for his discharge.” Doc. no. 9, ¶ 14. While defendant recognizes, as the court previously found, that an employer's proffered reason for taking adverse action may be considered in evaluating the causal connection element, it argues that plaintiff's alleged proffered reason for his termination in the First Amended Complaint specifically contradicts the proffered reason stated by plaintiff in the EEOC charge. Defendant argues that plaintiff represented in the EEOC charge, under penalty of perjury, that he was informed by defendant “the reason given for [his] discharge was ‘abuse of leave.'” Doc. no. 10-1. Defendant asserts that the court does not have to accept plaintiff's contradictory allegations in the First Amended Complaint regarding the reason for his termination as true. Further, defendant argues that the allegations in the EEOC charge would not have prompted an investigation for a retaliation claim given plaintiff's statement that the reason for his termination was abuse of leave.

         Lastly, defendant argues that the court lacks subject matter jurisdiction over the OADA retaliatory claim because plaintiff fails to allege in the First Amended Complaint that he complied with the notice requirements of the GTCA. Defendant asserts that plaintiff's EEOC charge does not satisfy the notice requirement.

         II.

         Standard ...


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