United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL UNITED STATES DISTRICT JUDGE
matter comes before the court on the Motion to Amend
Complaint [Doc. 23] of plaintiff Rodney Wayne Frazier. For
the reasons set forth below, the motion is denied.
Background and Procedural History
an employment dispute brought by plaintiff Rodney Wayne
Frazier against his former employer, State of Oklahoma ex
rel. the Office of the Chief Medical Examiner (the
“OCME”). Frazier began working for the OCME as an
in-house medicolegal death investigator in September 2015,
and was discharged from his employment on July 11, 2017.
Frazier alleges that his termination was in retaliation for a
sexual harassment complaint made by him against a female
co-worker. Additionally, Frazier asserts that, throughout his
employment, the OCME failed to properly compensate him for
hours worked in excess of forty hours in a week.
January 25, 2019, Frazier brought this case pursuant to the
court's federal question jurisdiction, 28 U.S.C. §
1331. On April 29, 2019, the OCME filed a
Partial Motion to Dismiss Plaintiff's
Complaint. [Doc. 5]. In response, Frazier amended his
complaint. [Doc. 8]. The Amended Complaint included two
claims: (1) retaliation in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
et seq., and (2) violation of the Oklahoma
Protection of Labor Act (“OPLA”), 40 Okla. Stat.
§§ 165.1 et seq. The OCME filed a motion
to dismiss only the OPLA claim [Doc. 11], which the court
granted in an order dated August 5, 2019. [Doc. 22].
now seeks leave to file a Second Amended Complaint to address
the pleading deficiencies identified by this court in its
August 5 Order. [Doc. 23]. The OCME objects to Frazier's
request. [Doc. 24]. The motion to amend is now ripe for the
Rule of Civil Procedure 15(a) permits a party to amend its
pleading once as a matter of course within twenty-one (21)
days of service or, if the pleading is one to which a
responsive pleading is required, within 21 days of service of
the responsive pleading or motion. Fed.R.Civ.P. 15(a)(1).
“In all other cases, a party may amend its pleading
only with the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2). Although a
court should freely grant leave to amend “when justice
so requires, ” Fed.R.Civ.P. 15(a)(2), “denial of
a motion to amend may be appropriate where there has been
shown ‘undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.'” Steadfast Ins.
Co. v. Agric. Ins. Co., No. 05-CV-126-GKF-TLW, 2014 WL
1901175, at *4 (N.D. Okla. May 13, 2014) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)). “‘[T]he
grant of leave to amend the pleadings pursuant to Rule 15(a)
is within the discretion of the trial court.'”
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204
(10th Cir. 2006) (alteration in original) (quoting Zenith
Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
previously stated, Frazier seeks leave to amend to include
additional factual allegations with respect to a claim for
unpaid overtime under the OPLA. In opposition, the OCME
contends that Frazier's requested amendment is futile for
three separate reasons: (1) supplemental jurisdiction does
not exist over the OPLA wage claim; (2) Frazier failed to
comply with the Oklahoma Governmental Tort Claims Act, Okla.
Stat. tit. 51, § 152.1; and (3) the allegations of the
proposed Second Amended Complaint fail to state a valid OPLA
claim. Because the court concludes that supplemental
jurisdiction does not exist and the OCME's first
contention is dispositive, the court does not consider the
OCME's other arguments.
federal supplemental jurisdiction statute, 28 U.S.C. §
1367, provides that, in civil cases in which the district
courts have original jurisdiction, “the district courts
shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such
original jurisdiction that they form part of the same
case or controversy under Article III of the United
States Constitution.” 28 U.S.C. § 1367(a)
(emphasis added). “A claim is part of the same case or
controversy if it ‘derive[s] from a common nucleus of
operative fact.'” Price v. Wolford, 608
F.3d 698, 702-03 (10th Cir. 2010) (quoting City of
Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156,
165 (1997)); see also United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 725 (1966) (internal citation
omitted) (“The federal claim must have substance
sufficient to confer subject matter jurisdiction on the
court. The state and federal claims must derive from a common
nucleus of operative fact.”).
operative facts with respect to the federal retaliation claim
and the state law overtime claim are included in the proposed
Second Amended Complaint. Frazier alleges that, on July 7,
2017, he was getting a cup of coffee when a female co-worker,
Joy Norwood, approached him and asked “whether a hug
would cheer him up.” [Doc. 23-1, ¶ 11]. Despite
Frazier repeatedly rejecting her advances, Norwood allegedly
continued following him down the hall and grabbed him from
behind [Id.]. Frazier reported Norwood's
behavior to his immediate supervisor, Dale Gross, via email
that same day. [Id. ¶ 12]. The OCME's Chief
Administrative Officer, Amy Elliot, conducted an
investigation into the incident and, on July 11, 2017, issued
a written opinion that Frazier's allegation was
meritless. [Id. ¶ 13]. That same day, the OCME
discharged Frazier from his employment for “engaging in
harassing behavior.” [Id. ¶ 14].
also alleges that, as the agency charged by statute with the
responsibility for investigating certain deaths in the State
of Oklahoma, the OCME must be able to respond to calls of
reported deaths on a 24/7 basis, 365 days out of the year.
[Id. ¶ 16]. The OCME has addressed this reality
by requiring its medicolegal investigators to work assigned
rotating shifts, which included shifts in which Frazier was
placed in an “on-call” status overnight and on
the weekends. [Id. ¶ 17]. Frazier alleges that,
at the time of his hire, OCME agency practice as explained to
him by Gross was to only compensate in-house investigators
for the time spent actively working a death call.
[Id. ¶ 18]. To the extent time spent actively
working resulted in the accrual of overtime, medicolegal
investigators were instructed to record that time on their
monthly time sheets, which would result in the accrual of
compensatory time of 1.5 hours for every one hour spent in an
overtime status. [Id.]. Frazier specifically alleges
that “[m]edicolegal investigators were expressly
prohibited from including on-call time on their spreadsheets
unless such time was directly tied to an assigned death they
were actively investigating.” [Id.].
further alleges that the OCME Statement of Policy, Procedure,
and Practice, Overtime Pay and Compensatory Time (OP-010901)
comported with the training he received upon his hire.
[Id. ¶ 19; see also Doc. 23-1, pp.
15-21]. Pursuant to the version of the policy in place at the
time of Frazier's hire, “on-call” time was
not considered “work time” unless the
employee's freedom of movement was so restricted as to
prevent the employee from using the time for personal
purposes. [Doc. 23, ¶ 19]. Frazier alleges that the
OCME's practices required him to remain awake and ready
to accept calls, to be showered and dressed in appropriate
uniform, and to be actively engaged in reading emails
throughout his on-call shift. [Id. ¶ 24].
Further, Frazier alleges that it was “clearly
communicated” to him that he would be subject to
discipline up to and including termination if he failed to
answer the phone while on call or if he did not deploy to a
scene within fifteen minutes of receipt of the assignment.
[Id.]. Further, the OCME assigned Frazier a state
vehicle for use when responding to the scene of a death.
[Id. ¶ 25]. Because both State and OCME policy
prohibit the use of state vehicles for personal reasons,
Frazier alleges his ability to leave his residence while on
call was significantly hampered given the requirement that he
deploy to an assigned scene within fifteen minutes of receipt
of the assignment. [Id.]. Frazier alleges, as a