DAVID L. RUSSELL, District Judge.
This matter comes before the Court on the Motion to Dismiss filed by Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 6) Plaintiff responded in opposition to the motion and Defendants filed a Reply in support thereof.
Defendants removed this action from the District Court of Oklahoma County. In assessing Plaintiff's First Amended Petition, the Court utilizes the federal pleading standard.
The Petition presents a multitude of claims regarding Plaintiff's employment and termination from the Council on Firefighter Training. Plaintiff alleges she was employed by the Council from August 15, 2011 until April 29, 2015, when Defendant terminated her employment. She contends her termination was in retaliation for complaints she levied against the then-executive director of the Council, Jon Hansen. She seeks to recover on claims arising under federal and state law with theories of age, sex, and racial discrimination, sexual harassment, and retaliation. She also seeks relief under 42 U.S.C. § 1983 against Defendants Kelly and Bower for alleged violation of her First Amendment and due process rights and asserts a claim under 42 U.S.C. § 1981, based on her status as an Asian American. Plaintiff also pleads state law claims of negligent hiring, training, and supervision, as well as whistleblower and public policy claims. Defendants seek dismissal of each of her claims.
Both Title VII, which governs Plaintiff's federal gender and race discrimination claims, and her claim under the Age Discrimination in Employment Act ("ADEA") apply only to "employers" as the term is defined by statute. The definition of "employer" under Title VII requires fifteen or more employees, 42 U.S.C. § 2000e(b), and the ADEA requires twenty or more. 29 U.S.C. § 630(b). Plaintiff did not plead that the Council has the required number of employees for either Title VII or the ADEA, and concedes in response to the Motion to Dismiss that standing alone the Council lacks the requisite number under either definition. She asserts, however, that the Council should be considered a State agency and/or part of the State Fire Marshal's office, and that when aggregated with the employees of either of those entities, the Council will meet the numerosity requirement for both Title VII and the ADEA. The Court finds the allegations in the Petition insufficient to state a claim under Title VII or the ADEA, because Plaintiff fails to allege that the Council is an "employer" for either statute. Furthermore, the Petition lacks any factual allegations from which the Court can infer that the Council is an agent of the State or State Fire Marshal or that either of those entities could be considered an integrated enterprise with the Council. See Avington v. Metro. Tulsa Urban League, 603 Fed.Appx. 662, 663 (10
Plaintiff did not file a formal motion to amend, but rather requested leave as part of her response to Defendant's motion. The Court hereby grants Plaintiff leave to amend with regard to her Title VII claims of race and gender discrimination, to include her claims of sexual harassment and retaliation.
Defendant seeks dismissal of Plaintiff's claims of "negligent hiring, training and supervision" as well as her claim of negligence. The allegations in both claims are nearly identical and relate to the alleged sexual harassment in the workplace. Plaintiff alleges that she formally complained about the sexual harassment by Jon Hansen. She also alleges that Defendant Mike Bower, a member of the Council, told her "when a position for COFT came open, we thought John would be a good fit if he didn't chase skirt. Jon goes a lot of places and does a lot of things he should not be doing." Complaint ¶ 81. An employer may be held liable in Oklahoma for negligent hiring, supervision, or retention of an employee. See Excue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir.2006) (applying Oklahoma law); N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla.1999). Liability attaches, "if—at the critical time of the tortious incident—the employer had reason to believe that the person would create an undue risk of harm to others. Employers are held liable for their prior knowledge of the servant's propensity to commit the very harm for which damages are sought." Presbyterian Church (U.S.A.), 998 P.2d at 600. The Court concludes that Plaintiff has sufficiently, albeit barely, alleged facts to state a plausible claim for failure to supervise with regard to sexual harassment. Although Plaintiff presents only two incidents in which she was allegedly the direct recipient of harassment, she alleges that she observed Mr. Hansen's inappropriate sexual behavior toward Alicia Hayward and that Alicia Hayward complained to Plaintiff about the harassment. Defendants' motion is denied with regard to Plaintiff's negligence claim.
Defendants seek dismissal of Plaintiff's 42 U.S.C. § 1983 claim, which is pled against Richard Kelly and Mike Bower.
Furthermore, to the extent Plaintiff argues the individual Defendants deprived her of due process with regard to her termination she has failed to allege facts to support the existence of a property interest in continued employment. The only pleading with regard to Plaintiff's employment status is her allegation that she was an at-will employee. Although she immediately thereafter alleges she had a property interest in her job as a governmental employee, she makes no specific factual allegations in support of this contention. The Supreme Court defines a property interest in the employment context as "a legitimate expectation in continued employment." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). "The existence of a property interest is `defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.'" Id. (quoting Roth, 408 U.S. at 577). Under Oklahoma law, "public employees are employed at will unless they have specific contractual arrangements entitling them to continued employment." Bunger v. Univ. of Oklahoma Bd. of Regents, 95 F.3d 987, 990 (10th Cir. 1996). Plaintiff does not allege any facts from which the Court can infer that she had a contractual arrangement entitling her to continued employment. Accordingly, even if Plaintiff sufficiently alleged that Bower or Kelly acted under color of state law, she nevertheless fails to allege a due process claim. Accordingly, the Court hereby grants the motion to dismiss with regard to Plaintiff's 42 U.S.C. § 1983 claims. Plaintiff, however, is granted leave to amend her petition in an effort to properly plead her claims.
Defendants seek dismissal of Plaintiff's 42 U.S.C. § 1981 claims. Plaintiff contends she was "in a contractual relationship with defendants within the meaning of 42 U.S.C. § 1981, as amended" Petition, ¶ 107. She contends that Defendants violated her rights because of her race, and that she did not enjoy the same benefits, privileges, and terms and conditions of employment as white employees. Plaintiff, however, fails to offer any non-conclusory allegations to support her claim. Even construing the entirety of the petition, the allegations related to Plaintiff's race are that "Executive Director Jon Hansen did not subject all races to harassment or sexual harassment." and conclusory allegations that she did not enjoy the same benefits, privileges, terms and conditions of employment as have white employees. Petition, ¶ 5, ¶ 109-111. As such, Plaintiff's 42 U.S.C. § 1981 claim is hereby dismissed; Plaintiff is granted leave to amend.
Finally, Plaintiff alleges a variety of state law claims under two headings entitled "Whistleblower's Claim" and "Violation of Oklahoma Public Policy." Petition, pp. 16, 17. Plaintiff asserts in her whistleblower claim that because the Oklahoma Merit Protection Commission concluded COFT was not a state agency, her whistleblower claim is not under the Oklahoma Whistleblower Protection Act. Because Plaintiff does not rely on the Oklahoma Whistleblower Protect Act as a basis for her claim, the Court interprets that claim as one for violation of public policy under Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989).
Walker v. Balco, Inc., 660 F. App'x 681, 684 (10th Cir. 2016). Plaintiff contends that her termination was in part the result of her reporting of fiscal mismanagement of Council money by the former Executive Director of COFT. Such allegations would be sufficient to allege a public policy discharge claim. Plaintiff, does not, however, in her whistleblower claim plead a public policy to support her claim. The public policy required to support a Burk tort must be articulated in "a specific Oklahoma court decision, state legislative or constitutional provision, or a provision in the federal constitution that prescribe a norm of conduct for the state." Darrow v. Integris Health, Inc., 176 P.2d 1204, 1212 (Okla. 2008). Accordingly, Plaintiff's whistleblower claim is hereby dismissed. As with her other claims, Plaintiff is hereby granted leave to amend.
Finally, in her claim for Violation of Oklahoma public policy, Plaintiff pleads that she was an at-will governmental employee and that COFT was her public employer. She alleges "[t]he actions of Defendants violate Oklahoma Public Policy and Oklahoma Statutory Law." Petition, ¶ 131. Thereafter she appears to attempt to plead a claim under the Oklahoma Anti-discrimination Act as well as public policy claims under Art. 2 § 22 of the Oklahoma Constitution and the First Amendment to the United States Constitution.
To the extent this final claim can be construed as asserting that Plaintiff was discharged by a state agency in violation of her rights under Article 2 § 22 of the Oklahoma Constitution because she reported financial malfeasance at COFT, Plaintiff's exclusive remedy would be the Oklahoma Whistleblower Act. Okla. Stat. tit. 74 § 804-2.5; Rouse v. Grand River Dam Auth., 2014 OK 39, 326 P.3d 1139, 1140 (Okla. 2014)("the remedies and penalties provided by the Whistleblower Act are adequate to protect the public policy of encouraging employees to report wrongdoing, and therefore, a tort claim for discharge in violation of public policy is not available to a discharged whistleblower employee.")(citation omitted); Poff v. State of Oklahoma ex rel. The Oklahoma Dept. Of Mental Health and Substance Abuse Servs., Case No. 14-1438-C, 2015 WL 1955377, *1 (W.D. Okla. April 29, 2015). Furthermore, the First Amendment cannot serve as the basis for Plaintiff's public policy discharge claim for this same reason and because Plaintiff, if she can establish that one or more Defendants is a state actor, can rely on § 1983.
To the extent Plaintiff is seeking to pursue claims under the Oklahoma Antidiscrimination Act, her pleading fails to give notice that she intends to pursue such relief. Furthermore, her allegations of race and age discrimination are insufficiently pled. Accepting as true Plaintiff's allegations, she fails to allege facts sufficient to support the inference that she was terminated because of her race or her age. The sole exception to this conclusion is with regard to Plaintiff's claim for gender discrimination premised on alleged sexual harassment. The Court concludes that the Petition, although barely, states a plausible hostile work environment claim under the OADA. Although Plaintiff presents only two incidents in which she was allegedly the direct recipient of harassment, she alleges that she observed Mr. Hansen's inappropriate sexual behavior toward Alicia Hayward and that Alicia Hayward complained to Plaintiff about the harassment. Defendant contends Plaintiff cannot rely on incidents involving other female employees. However, the Tenth Circuit has held that "incidents involving employees other than the plaintiff are relevant in establishing a generally hostile work environment." Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987).
For the reasons set forth herein, Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. The Court hereby GRANTS Plaintiff leave to file an amended complaint not later than February 28, 2017. The amended pleading should avoid reference to Defendants collectively and should make clear to the Defendants the nature and factual basis for each claim she seeks to pursue.
IT IS SO ORDERED.