Dixon v. Regional University System of the Oklahoma Board of Regents

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

MARCI D. WALKINGSTICK DIXON, )

)

Plaintiff, )

)

v. ) Case No. CIV-19-391-KEW

)

STATE OF OKLAHOMA, ex rel. )

the Regional University System )

Of the Oklahoma Board of )

Regents d/b/a Northeastern )

State University; )

RICHARD REIF, individually; )

SHEILA SELF, individually; )

BRIANA CLIFTON-DRURY, )

individually, )

)

Defendants. )

OPINION AND ORDER

This matter comes before the Court on Individual Defendants Richard

Reif, Sheila Self, and Briana Clifton Drury’s Motion to Dismiss (Docket

Entry #22). Plaintiff initiated this action on November 15, 2019 and

amended the Complaint on February 4, 2020. Plaintiff alleges that she

was employed by Northeastern State University from September 16, 2013

through August 16, 2018 and that she was subjected to gender, race, and

disability discrimination and retaliation in violation of Title VII of

the Civil Rights Act of 1964 and the Rehabilitation Act. She also

contends that Defendants Dr. Richard Reif (“Reif”), Shelia Self (“Self”),

and Briana Clifton Drury (“Drury”)(collectively referred to as the

“Individual Defendants”) interfered with the exercise of her rights under

the Family Medical Leave Act (“FMLA”).

Specifically, Plaintiff asserts she is a Native American female

with a disability – a seizure disorder. She states in the Amended

Complaint that she was employed by Defendant as the Director of

Enterprise Systems Information Technology Services under the supervision

of Defendant Reif, the Chief Information Officer/Director of IT, since

2015. Plaintiff alleges that, although her performance exceeded

required expectations, she experienced harassment and differential

treatment from Reif.

On her gender discrimination claim, Plaintiff contends she was one

of three directors under Reif, but the only female director. She states

that Reif subjected her to disparate and demeaning treatment, including:

 requiring Plaintiff to take notes of weekly meetings performing a

gender-sterotyped secretarial function;

 for holiday events, Reif would tell Plaintiff and the administrative

assistant, “why don’t you girls take care of the party planning”;

 male directors were allowed to come and go without making reports

while she was required to account for her time and activities;

 male directors were given coaching, training, and resources when they

had job performance issues by Reif while not doing the same for

Plaintiff;

 Plaintiff was also not given equal time to discuss her work at director

meetings and Reif would have one-on-one meetings with male directors

while not affording Plaintiff the same opportunity; and

 Reif was “resistant” to Plaintiff’s ideas and efforts, refused to

share information on projects and excluded Plaintiff from meetings,

stating he was “afraid of the Plaintiff”.

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Plaintiff also alleges that Reif was aware she was involved in

tribal activities and government. In this respect, Reif allegedly

 made offensive and demeaning comments such as “I don’t want you going

on a warpath” and “let’s have a powwow”;

 made derogatory comments about the Chief of the Keetoowah Tribe to

Plaintiff; and

 made such offensive comments “a couple of times per month” throughout

Plaintiff’s employment.

Plaintiff alleges that on January 22, 2018, she requested a meeting

with the University’s Title IX Coordinator Compliance Officer wherein

she complained and reported Reif’s conduct. Thereafter, Plaintiff

alleges Reif became more confrontational and combative by isolating her

in the workplace, ignoring her questions, comments, and concerns, and

refusing to meet with Plaintiff.

Plaintiff alleges that on May 4, 2018, she submitted a formal

complaint of Reif’s actions to the University’s human resources

department and Vice President of Administration and Finance.

Plaintiff also asserts she was admitted to the hospital for

seizures in July of 2018 and was discharged two days later but without

a release to work. She was released to work on July 19, 2018 and

returned to work. Upon her return Plaintiff was directed to fill out

FMLA documentation of her absence. She also met with the Assistant Vice

President of Student Affairs and General Counsel of the President’s

office to discuss her formal complaint but alleges no remedial actions

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were taken.

Plaintiff states in the Amended Complaint that her FMLA leave was

approved and one day later, she received a meeting request from the Vice

President of Administration and Finance and Director of Human Resources.

Plaintiff alleges she was told that her employment was ending that day

due to performance issues. Plaintiff contends that the reason given for

her termination was pretext and the real reason was retaliation for

reporting race and gender discrimination. Plaintiff asserts the

following claims against the named Defendants:

 Count I – Racial and gender discrimination, retaliation, and

hostile work environment in violation of Title VII against

Defendant State of Oklahoma;

 Count II – Disability discrimination and retaliation in

violation of the Rehabilitation Act against Defendant State

of Oklahoma; and

 Count III – Retaliation for and interference with the

exercise of FMLA leave against the Individual Defendants.

Through the pending Motion, the Individual Defendants contend

Plaintiff=s claim against them failed to meet the plausibility standard

enunciated in United States Supreme Court cases of Bell Atlantic Corp.

v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662

(2009). The Individual Defendants also challenge whether they may be

individually liable under the FMLA since they were not Plaintiff’s

“employer” as defined by the Act.

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As an initial matter, Plaintiff concedes that the claim against

Defendants Drury and Self should be dismissed without prejudice.

However, she continues to pursue the FMLA claim against Defendant Reif.

The Court addresses Reif’s arguments in reverse order since the

base question of whether an individual may be held liable for violating

an employee’s FMLA rights is potentially dispositive as a matter of law.

Nothing in the case authority since its issuance has altered this Court’s

reasoning set out in Roberts v. LeFlore Co. Hosp. Auth., 2014 WL 1270422

(E.D. Okla. March 26, 2014). The Tenth Circuit remains silent on the

issue of whether a public employee can be held individually liable for

monetary damages under the FMLA. The Circuit Courts remain split on the

issue. Compare Modica v. Taylor, 465 F.3d 174, 184–86 (5th Cir. 2006)

(individual public employees fall within (ii)(I) and may be liable), and

Darby v. Bratch, 287 F.3d 673, 680–81 (8th Cir.2002), with Mitchell v.

Chapman, 343 F.3d 811, 832 (6th Cir.2003) (individual public employees

do not fall within (ii)(I) and may not be liable), and Wascura v. Carver,

169 F.3d 683, 687 (11th Cir. 1999).

The question turns upon whether the FMLA's definition of an

employer encompasses individual supervisors and other such persons with

managerial authority. The FMLA specifically defines an “employer” as

follows:

(A) In general

The term “employer”—

(i) means any person engaged in commerce or

in any industry or activity affecting commerce who

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employs 50 or more employees for each working day

during each of 20 or more calendar workweeks in

the current or preceding calendar year;

(ii) includes—

(I) any person who acts, directly or

indirectly, in the interest of an employer to any

of the employees of such employer; and

(II) any successor in interest of an

employer;

(iii) includes any “public agency”, as

defined in section 203(x) of this title; and

(iv) includes the Government Accountability

Office and the Library of Congress.

(B) Public agency

For purposes of subparagraph (A)(iii), a

public agency shall be considered to be a person

engaged in commerce or in an industry or activity

affecting commerce.

29 U.S.C. § 2611(4).

The Tenth Circuit has determined that state employees from whom

monetary damages are sought in their individual capacities under the

FMLA cannot enjoy Eleventh Amendment immunity simply because the state

may ultimately satisfy any judgment against them. Cornforth v. Univ. of

Okla. Bd. of Regents, 263 F.3d 1129, 1132–33 (10th Cir. 2001). As this

Court previously determined, “[t]he court, however, did not reach the

issue of whether the public employee could be held individually liable,

although it would appear to be an academic exercise to reach the

conclusion in [Cornforth] if individual liability could not be conferred

on public employees.” Id. at *4.

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The vast majority of the cases considering the positions on this

issue have sided with the Eighth and Fifth Circuit Courts and concluded

that individual liability may be conferred upon a “person who acts,

directly or indirectly, in the interest of an employer to any of the

employees of such employer.” See Miles v. Unified School Dist. No. 500,

347 F.Supp. 3d 626, 630 (D.Kans. 2018); Richards v. Schoen, 2018 WL

447731, at 5 (D.Kans. Jan. 17, 2018); Cordova v. New Mexico, 283 F.Supp.

3d 11028, 1037 (D.N.M. 2017); Hibben v. Oklahoma ex rel. Dep't of

Veterans Affairs, 2017 WL 1239146, at *6 (N.D. Okla. Mar. 31, 2017);

McFadden v. Tulsa Cty. Bd. of Cty. Comm'rs, 2016 WL 6902182, at *2 (N.D.

Okla. Nov. 23, 2016); Washington–Walker v. Univ. of Okla. Bd. of Regents,

2016 WL 1453053, at *3 (W.D. Okla. Apr. 13, 2016); Kiefner v. Sullivan,

2014 WL 2197812, at *9–10 (N.D. Okla. May 27, 2014); Owens v. City of

Barnsdall, 2014 WL 2197798, at *6 (N.D. Okla. May 27, 2014); Jeffers v.

Redlands Comm. College Bd. of Regents, 2012 WL 137412, at *2 (W.D. Okla.

Jan. 18, 2012); Saavedra v. Lowe's Home Centers, Inc., 748 F.Supp.2d

1273, 1291 (D.N.M. 2010) but see Arbogast v. Kansas, No. 13-CV-4007-

JAR/KMH, 2014 WL 1304939, at *5–6 (D. Kan. Mar. 31, 2014); Lacher v. Bd.

of Co. Comm’rs for Okla. Co. ex rel. Okla. Co. Clerk’s Office, 2013 WL

268983, at 5 (W.D.Okla. Jan. 24, 2013). This Court specifically declines

to follow the reasoning in Lacher, relied upon by Reif in the briefing,

as the basis for the opinion ignores the plain and express language of

the statute which extends liability to “any person who acts, directly

or indirectly, in the interest of an employer to any of the employees

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of such employer.”

Reif also contends that Plaintiff was not his “employee” as defined

by the FMLA (“The term ‘eligible employee’ means an employee who has

been employed -- (i) for at least 12 months by the employer with respect

to whom leave is requested under section 2612 of this title; and (ii)

for at least 1,250 hours of service with such employer during the

previous 12-month period.” 29 U.S.C.A. § 2611(2)(A).) Again, Reif takes

the terms “employee” and “employer” literally as the dictionary defines

them, ignoring the express language of the FMLA under which the

definition applicable to this case is determined. From the well-plead

allegations in the Amended Complaint, Reif may be determined to be

subject to individual liability based upon his position and duties with

the University under the FMLA. The definition of “employee” cited by

Reif merely establishes which persons are “eligible” to seek and obtain

FMLA benefits and does not limit individual liability expressly

established by 29 U.S.C. § 2611(4). The FMLA by its terms can subject

Reif as Plaintiff’s superior to individual liability.

In this same vein, Reif’s argument that the State of Oklahoma’s

sovereign immunity insulates him from liability ignores the statute’s

provision which extends liability to the individual supervisor.

Moreover, just as “a state cannot extend its sovereign immunity to its

employees by voluntarily assuming an obligation to indemnify them”, it

cannot extend its sovereign immunity to an individual simply because it

is immune. See Cornforth, 263 F.3d 1129 at 1132-33.

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Reif also contends that he is entitled to qualified immunity. “To

overcome a defendant's claim of qualified immunity in the context of a

Rule 12(c) motion, a plaintiff's pleadings must establish both that the

defendant's actions violated a federal constitutional or statutory right

and that the right violated was clearly established at the time of the

defendant's actions.” Ramirez v. Dep't of Corr., Colo., 222 F.3d 1238,

1240 (10th Cir. 2000). It is clearly established that the denial of

qualifying leave and the termination of employment in relation to an

FMLA leave request is a violation of the law. See Twigg v. Hawker

Beechcraft Corp., 659 F.3d 987, 1006 (10th Cir. 2011). In this case,

Plaintiff has set forth allegations in the Amended Complaint which

indicates (1) she requested FMLA leave at the request of the Human

Resources Department of her employer; (2) her leave request was granted;

and (3) her employment was terminated in close proximity to the request

and approval of FMLA leave. It is at this point that this Court must

analyze the Amended Complaint under the Twombly standard for

plausibility.

Clearly, Bell Atlantic changed the legal analysis applicable to

dismissal motions filed under Fed. R. Civ. P. 12(b)(6), creating a

refined standard on such motions. Khalik v. United Airlines, 671 F.3d

1188, 1191 (10th Cir. 2012)(citation omitted). Bell Atlantic stands for

the summarized proposition that A[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to

state a claim for relief that is plausible on its face. Ashcroft v.

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Iqbal, 129 S.Ct. 1937, 1949 (2009) quoting Bell Atlantic, 550 U.S. at

570. The Supreme Court did not parse words when it stated in relation

to the previous standard that a complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would

entitle him to relief is Abest forgotten as an incomplete, negative gloss

on an accepted pleading standard. Bell Atlantic, 550 U.S. at 546.

The Tenth Circuit has interpreted the plausibility standard as

referring Ato the scope of the allegations in the complaint: if they

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. Robbins v. Oklahoma, 519 F.3d 1242,

1247 (10th Cir. 2008). The Bell Atlantic case, however, did not intend

the end of the more lenient pleading requirements of Fed. R. Civ. P.

8(a)(2). Khalik, 671 F.3d at 1191. Rather, in Khalik, the Tenth Circuit

recognized the United States Supreme Court’s continued endorsement of

Rule 8's Ashort and plain statement requirement in the case of Erickson

v. Pardus, 551 U.S. 89 (2007) wherein the Supreme Court found [s]pecific

facts are not necessary; the statement need only give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests.

Id. at 93.

To demonstrate a claim for interference with FMLA rights, Plaintiff

must allege “(1) she was entitled to FMLA leave, (2) an adverse action

by her employer interfered with her right to take FMLA leave, and (3)

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this adverse action was related to the exercise or attempted exercise

of the employee's FMLA rights.” DePaula v. Easter Seals El Mirador, 859

F.3d 957, 978 (10th Cir. 2017) (quoting Brown v. ScriptPro, LLC, 700

F.3d 1222, 1226 (10th Cir. 2012)). “A deprivation of these rights is a

violation regardless of the employer's intent, and the McDonnell Douglas

burden shifting analysis does not apply.” DePaula, 859 F.3d at 978.

The facts presented by Plaintiff’s Amended Complaint establish (1)

she was entitled to FMLA leave, (2) she took FMLA leave, (3) she applied

and was approved retroactively for FMLA leave by her employer. The

facts as alleged do not establish an adverse action which interfered

with Plaintiff’s right to take the FMLA leave – she, in fact, took the

leave without interference. As a result, Plaintiff has not stated a

plausible claim for interference with her FMLA rights. Since the Amended

Complaint cannot be further amended to cure this deficiency without

changing the facts of the already stated case, this claim will be

dismissed.

The same cannot be said, however, for the FMLA retaliation claim.

An FMLA retaliation claim is subject to a different analysis than the

claim of interference. See Dewitt v. Southwestern Bell Telephone Co.,

845 F.3d 1299, 1318 (10th Cir. 2017) (“[R]etaliation claims under the

FMLA are subject to the burden-shifting analysis of McDonnell Douglas.”).

“Under this analysis, the plaintiff bears the initial burden of

establishing a prima facie case of retaliation, by proving that (1) she

engaged in a protected activity; (2) [Reif] took an action that a

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reasonable employee would have found materially adverse; and (3) there

exists a causal connection between the protected activity and the adverse

action.” Id. “Once the plaintiff successfully asserts a prima facie

retaliation case, the burden shifts to the defendant to offer a

legitimate, non-retaliatory reason for the employment action. The

plaintiff then bears the ultimate burden of demonstrating that the

defendant's proffered reason is pretextual.” Id. at 1319.

A plaintiff may proceed under a mixed motives theory and provide

direct evidence of retaliation, although the Tenth Circuit Court of

Appeals has questioned whether this approach is applicable in an FMLA

retaliation claim. Twigg, 659 F.3d at 1004. “[A] plaintiff proceeding

under the direct/mixed motives approach must present direct or

circumstantial evidence that directly shows that retaliation played a

motivating part in the employment decision at issue. In the FMLA

context, the retaliatory animus must relate to the employee's FMLA-

protected activities, including, inter alia, the taking of FMLA leave.”

Id. at 1004–05 (citations omitted).

Plaintiff has sufficiently stated facts to present a plausible

claim against Reid for retaliation for exercising her FMLA rights. She

alleges Reid participated in the termination of her employment in

relatively close temporal proximity to the exercise of her FMLA leave

rights. Accordingly, she has stated a prima facie case for retaliation

and this claim against Reid will be permitted to proceed.

IT IS THEREFORE ORDERED that Individual Defendants Richard Reif,

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Shelia Self, and Briana Clifton Drury’s Motion to Dismiss (Docket Entry

#22) is hereby GRANTED, in part, in that the claims against Defendants

Shelia Self and Briana Clifton Drury are hereby DISMISSED.

Additionally, the interference with FMLA rights claim asserted against

Defendant Richard Reif is also DISMISSED. The Motion to Dismiss as it

pertains to the retaliation for exercising FMLA rights claim asserted

against Defendant Reif is hereby DENIED.

IT IS FURTHER ORDERED that Defendant Reif shall file an answer to

the Amended Complaint no later than DECEMBER 17, 2020.

IT IS SO ORDERED this 3rd day of December, 2020.

______________________________

KIMBERLY E. WEST

UNITED STATES MAGISTRATE JUDGE

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