Gregory v. United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

MYRA GREGORY, )

)

Plaintiff, )

)

v. ) Case No. CIV-20-308-JAR

)

UNITED STATES OF AMERICA; )

UNITED STATES DEPARTMENT )

OF HEALTH AND HUMAN SERVICES; )

JASON HILL, an individual; )

WILLIAM HAYES, an individual; )

and JOHN DOES 1-30, unknown )

individuals of the Choctaw )

Nation Healthcare Services )

Authority, )

)

Defendants. )

OPINION AND ORDER

This matter comes before the Court on the following motions:

1) Defendant United States of America’s Motion to Dismiss

Plaintiff’s Second Amended Complaint (Docket Entry #46); and

2) Defendants Jason Hill and William Hayes’ Motion to Dismiss

Second Amended Complaint (Docket Entry #47).

Procedural History

This case was initiated by Plaintiff Myra Gregory on September 8,

2020. (Docket Entry #2). Thereafter, Plaintiff filed a First Amended

Complaint on November 14, 2020. (Docket Entry #19). On November 23,

2021, this Court entered an Opinion and Order granting the Motions to

Dismiss which had been filed by Defendants United States of America,

Jason Hill, and William Hayes. (Docket Entry #44). Plaintiff, however,

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was given leave to file a Second Amended Complaint as a final attempt

to resurrect the claims which had been dismissed. Id. Consequently,

Plaintiff filed a Second Amended Complaint on December 7, 2021. (Docket

Entry #45). In response, Defendant United States and Defendants Hill

and Hayes filed separate motions to dismiss.

Allegations Relevant to All Pending Motions

Plaintiff Myra Gregory is a former employee and physician for the

Choctaw Nation through the Choctaw Nation Health Services Authority

(“CNHSA”). She was originally hired in the spring of 2015 but alleges

she was later terminated.

During her employment, Plaintiff alleges that CNHSA’s executive

board and Defendants Hill and Hayes, who were members of the board, took

certain actions against her which she believes support actionable legal

claims. Reviewing the Second Amended Complaint, including the additions

to the allegations of factual support for her claims which were not a

part of the First Amended Complaint finds the following summarized

actions:

•

Complaints that Plaintiff did not see enough “clinic”

patients instead of hospital patients in the clinic.

•

Criticism of Plaintiff’s medication prescribing.

•

Being falsely accused of making “too many mistakes” by

Defendants Hill and Hayes, who ordered her to leave the

property and not return to work.

•

Refusing to show Plaintiff the charts supporting the

mistakes she allegedly made, including not allowing her

to take a random file home with her of one of the alleged

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mistakes.

•

Plaintiff was instructed to go home because of a

“disability” when she became ill and was required to

have surgery. She was not trusted with patient care

and had to remain home until her physician authorized

her return to work.

•

Plaintiff was not removed from the work schedule while

she awaited her surgery in an effort to undermine her

ability to obtain short-term disability and leave her

without income.

•

After her surgery, Plaintiff took time off to recuperate

but was forced to request a return to work early because

she was struggling financially due to her not being

allowed to work. Defendant Hill refused to allow her

to return to work.

•

After returning to work, Plaintiff was not allowed to

earn extra income by taking after-hours call work and

admit work.

•

Under her employment agreement, Plaintiff states that

she had “the lawful right to examine all evidence and

charts used by the Defendants to remove her medical

privileges.” Defendants, Plaintiff suggests, refused

her requests to seek the records.

•

Plaintiff was instructed to meet with the executive

committee. At the meeting, she demanded to see the

evidence of her “mistakes” but her demand was “rebuffed”

and she was told not to discuss the meeting with anyone.

While others attended the meeting, only Defendants Hill

and Hayes were permitted to speak.

•

Plaintiff told the committee that she could return to

work, but she was refused. Defendant Hayes told her

she had committed numerous “mistakes” but because she

could not see the records, she did not know the

circumstances or the patient involved.

•

Plaintiff was only allowed to return to work after a

certain number of charts had been reviewed by Defendants

Hayes and Hill, with the number of charts changing.

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•

Plaintiff believed her “days were numbered as a CNHSA

employee, fearing she would become unemployed.

•

In the fall of 2017, another female physician allegedly

complained of sexual harassment. She ultimately quit

when the executive committee investigated her and the

male employee was allowed to stay.

•

Defendant Hill accused Plaintiff of causing a pneumonia

to develop in a patient admitted to another facility,

despite knowing Plaintiff had not seen the patient for

some time and the patient had refused to fill a

prescription to treat the illness. The daughter of the

patient was a CNHSA employee who assisted in Plaintiff’s

termination. Defendant Hayes later informed Plaintiff

that her care of the patient was not “negligent or

violated a known standard of care.”

•

Plaintiff was required to disclose that her medical

privileges had been revoked at CNHSA to state licensing

officials.

•

Despite being entitled to disability benefits, Plaintiff

was informed that those responsible for scheduling and

supervising Plaintiff knew she would not receive

disability benefits because of their efforts.

•

Plaintiff was subjected to “punitive and humiliating

oversight requirements and threats, including drug

testing, threats to have her reviewed by the medical

review board, and publicly accusing her of negligence

or medical care below the standard of medical care.

•

The revocation of Plaintiff’s medical privileges

negatively impacted her medical license and

insurability.

•

Plaintiff asked Defendant Hayes to reinstate her

privileges. He laughed and told her that no one at

CNHSSA had actually revoked her privileges.

•

On May 12, 2019, Plaintiff was informed that her

employment contract would be terminated in 60 days,

without providing and explanation.

•

Before the 60-day period had expired, she was called

and told not to render treatment to a patient and to

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vacate the premises. Plaintiff’s employment agreement

provided for the automatic renewal for a 12-month term

beginning on the date of execution, March 27, 2015.

CNHSA breached the agreement.

•

None of the bases for termination of Plaintiff’s

employment under the agreement were present at her

termination. She was terminated eight months before

her employment term expired under the agreement.

•

Defendants Hill and Hayes publicly claimed Plaintiff “

walked off the job.” They told CNHSA staff that

Plaintiff was not competent.

•

CNHSA was required to “manage its business affairs in

accordance with any applicable federal, state, or local

laws, or its statutes, and that all employees must

maintain all federal Medicare credentialing. Plaintiff

also claims that discovery would uncover evidence

“establishing that the acts and omissions of Dr. Hill,

Dr. Hayes, and John Does 1-30 were under color of

authority of federal law, and such were the cause in

fact of the violation of [Plaintiff’s] constitutional

rights. She also asserts that records in CNHSA’s

possession would demonstrate Defendants were acting

under color of federal law.

•

Plaintiff sets out in the Second Amended Complaint

various other instances involving intimidation of other

physicians, particularly female physicians, with whom

the executive committee and Defendants Hill and Hayes

disagreed in an effort to terminate them.

Plaintiff maintains the following claims in the Second Amended

Complaint:

1. Negligence and Negligence Per Se Against Defendant

United States – Plaintiff alleges Defendant United

States “owed common law and statutory duties to protect

persons such as [Plaintiff] from tortious acts committed

by its employees or officers” including constitutional

violations and discriminatory conduct. Plaintiff

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includes within these “statutory duties” “blacklisting”

and “defamation” in violation of state laws. She also

states that “employees of the United States must follow

and comply with prescribed statutes, regulations, and

policies that govern the implementation of the duties,

tasks, and behavior concerning each employee.”

Plaintiff also cites to 28 U.S.C. §1346(b),

stating that the United States is liable where it would

be liable as a private person. She states that “Federal

employees subject to the FTCA such as the named

defendants and those CNHSA employees that participated

in the abuse [Plaintiff] endured, are not authorized by

federal statute, regulation, or policy, or otherwise

have any discretion, to commit grossly negligent or

intentional torts of defamation, false light,

blacklisting, unlawful termination, and gender

discrimination.” She alleges that “CNHSA through its

employees/representatives, had not discretion, much

less a personal judgment, in engaging in tortious and

unlawful acts of abuse and intimidation leading to

[Plaintiff’s] termination and thereafter post-

employment behavior.”

Plaintiff alleges that “The CNHSA, through its

employees/representatives such as Drs. Hill and Hayes,

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Dr. Baughman, and members of the CNHSA executive

committee, were mandated by federal law, policy and

regulation, not to publicly utter false and malicious

allegations of malfeasance or negligence by [Plaintiff],

arbitrarily deprive her of rights to counsel during

committee review, to withhold from her evidence and

medical charts that allegedly supported those

allegations, to baselessly deprive her of her medical

privileges, allow [Plaintiff] to inform state licensing

bodies that her privileges had been revoked even though

they knew that to be false, to actively undermine

through scheduling schemes to deny her rights to

disability payments, accuse [Plaintiff] of walking off

the job to her former patients, ordering [Plaintiff] to

stop caring for a particular patient mid-procedure with

the intent of communicating to the patient and CNHSA

staff she was a danger; and all activities they engaged

in after she was no longer an employee and no longer

had any relationship to her.” She further states that

“All errors, omissions and commissions of which

[Plaintiff] alleges of CNHSA and the individually-named

defendants are the sole result of ministerial acts” and

“At all times material to this action, Defendant, by

and through its staff, employees and/or agents, acting

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within the course and scope of their employment and/or

agency negligently breached legal duties owed to

[Plaintiff].”

2. Intentional Infliction of Emotional Distress Against

Defendants1 – Plaintiff sets out the acts of Defendants

which give rise to the claim. These acts include

requiring drug testing “for no reasonable purpose but

only to humiliate her”; accusing her of child

trafficking; lying to her about her medical privileges

being suspended; firing her then ordering her away from

a patient in the middle of treatment; ordering her to

immediately exit the facility to leave the impression

she was a danger patients; forcing her to “essentially

lie” to Oklahoma’s medical licensing body when she

informed it that her privileges were suspended or

revoked; publicly defaming and humiliating her before

her former co-workers and patients “by lying about her

work performance”; wrongfully and unlawfully

blacklisting her to potential employers “by lying to

them about her work performance; and generally making

it substantially difficult for her to find new

1 The title to the Second Cause of Action is “Intentional Infliction of

Emotional Distress – Dr. Gregory vs. Defendants”, implying that the claim is

asserted against all of the named Defendants. The prayer for relief to this

claim requests “this Court enter Judgment against the Defendants” with “costs

and expenses, punitive damages against Drs. Hill and Hayes.”

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employment.

3. False Light Against Defendants Hill and Hay2 – Plaintiff

alleges Defendants Hill and Hayes “publicly accused

[her] in 2015-2019 of committing negligent and injurious

acts on her patients to numerous CNHSA employees and

the public in general, they questioned her medical

decision-making and accused her of making inappropriate

medical decisions, and publicly stated to [Plaintiff’s]

former patients and her coworkers that she abandoned

them or ‘walked of the job’ in June of 2019.” Plaintiff

alleges that the intent of making these statements was

to place Plaintiff in “a false and negative light.”

4. Wrongful Termination – Public Policy Violation/Gender

Discrimination Against Defendant United States –

Plaintiff alleges that a “significant and motivating

factor” in the actions taken by Defendants was to

terminate Plaintiff because of her gender. Plaintiff

contends these actions are against public policy in

Oklahoma and that Title VII does not provide her with

an adequate remedy under federal law.

2 The title to the Third Cause of Action is “False Light – Dr. Gregory vs.

Defendants”, implying that the claim is asserted against all of the named

Defendants. The prayer for relief to this claim, however, requests “the Court

enter Judgment against the Defendants, in particular Dr. Hill and Dr. Hayes.”

This Court interprets this limitation as an assertion that the claim is only

brought against Defendants Hill and Hayes.

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5. Defamation Against Defendants Hill and Haye3 – Plaintiff

asserts that Defendants Hill and Hayes “made false and

unprivileged publications” which gave “rise to a slander

per se claim against them individually pursuant to 12

O.S. §1442.” Statements made by these Defendants after

Plaintiff was no longer an employee of CNHSA “were

intended to directly injure her both personally and to

leave her unemployable.

Plaintiff seeks $10,000,000.00 in damages for

these alleged transgressions.

Standard in Evaluating Dismissal Requests

All Defendants seek dismissal based in Fed. R. Civ. P. 12(b)(1), a

lack of subject matter jurisdiction. Rule 12(b)(1) empowers a court to

dismiss a complaint for “lack of subject matter jurisdiction.” Fed. R.

Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on

the merits of a plaintiff's case, but only a determination that the court

lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d

1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of

limited jurisdiction and may only exercise jurisdiction when

specifically authorized to do so). A court lacking jurisdiction “must

3 The title to the Fifth Cause of Action is “Defamation – Dr. Gregory vs.

Defendants”, implying that the claim is asserted against all of the named

Defendants. The prayer for relief to this claim, however, requests “the Court

enter Judgment against the Defendant Dr. Hill, Dr. Hayes, and John Does 1-30.”

This Court interprets this limitation as an assertion that the claim is only

brought against Defendants Hill and Hayes.

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dismiss the cause at any stage of the proceeding in which it becomes

apparent that jurisdiction is lacking.” Basso v. Utah Power & Light

Co., 495 F.2d 906, 909 (10th Cir. 1974).

A Rule 12(b)(1) motion to dismiss “must be determined from the

allegations of fact in the complaint, without regard to mere [conclusory]

allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677

(10th Cir. 1971). The burden of establishing subject matter

jurisdiction is on the party asserting jurisdiction. See Basso, 495

F.2d at 909.

Since Defendant United States is a sovereign, Plaintiff must also

show that she relies upon a statute which provides for a specific waiver

of the United States’ sovereign immunity. “’The concept of sovereign

immunity means that the United States cannot be sued without its

consent.’ Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks, 960 F.2d

911, 913 (10th Cir. 1992). Courts lack subject matter jurisdiction over

a claim against the United States for which sovereign immunity has not

been waived. Normandy Apartments, Ltd. v. U.S. Dep't of Hous. & Urban

Dev., 554 F.3d 1290, 1295 (10th Cir. 2009). Consequently, plaintiffs may

not proceed unless they can establish that the United States has waived

its sovereign immunity with respect to their claim. See Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d

67 (1984); Sydnes v. United States, 523 F.3d 1179, 1182–83 (10th Cir.

2008).” Iowa Tribe Of Kansas & Nebraska v. Salazar, 607 F.3d 1225, 1232

(10th Cir. 2010).

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Defendants Hill and Hayes also seek dismissal of some of the claims

against them under Fed. R. Civ. P. 12(b)(6), alleging the claims fail

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). 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

“[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. 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 “best

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 “to 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

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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 “short 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.

United States’ Dismissal Request under Rule 12(b)(1)

Defendant United States contends that the claims asserted against

it by Plaintiff – First Cause of Action for negligence and Fourth Cause

of Action for wrongful termination against public policy and it appears

also for the Second Cause of Action for Intentional Infliction of

Emotional Distress – brought pursuant to the Federal Tort Claims Act

(“FTCA”) should be dismissed for a lack of subject matter jurisdiction.

Defendant United States alleges in the Motion that Plaintiff has failed

to “allege cognizable claims to avoid dismissal under the [FTCA].”

Defendant also contends that the exception under the FTCA for

discretionary functions precludes Plaintiff from obtaining relief under

the First and Fourth Cause of Actions.

Through the FTCA, “Congress granted a ‘limited waiver of sovereign

immunity’ by ‘making the Federal Government liable to the same extent

as a private party for certain torts of federal employees.’” Ohlsen v.

13

United States, 998 F.3d 1143, 1153 (10th Cir. 2021) quoting United States

v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976).

Specific exceptions to this limited waiver are recognized under the FTCA.

The Tenth Circuit has provided three “guiding principles” in analyzing

any waiver to the United States’ sovereign immunity - “that a ‘waiver

of sovereign immunity must be strictly construed, in terms of its scope,

in favor of the sovereign,’ (2) that ‘[e]xceptions to the FTCA are to

be narrowly construed,’; and (3) that the party suing the government

bears the burden to prove a waiver of sovereign immunity.” Id. at 1154

(internal citations omitted).

The exception to the FTCA’s waiver of sovereign immunity applicable

to this case is the discretionary function exception. This provision

excepts from liability “[a]ny claim . . . based upon the exercise or

performance or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency or an employee of the

Government, whether or not the discretion involved be abused.” 28 U.S.C.

§ 2680(a). As the Tenth Circuit explains, “[p]ut simply, ‘if a

government official in performing his statutory duties must act without

reliance upon a fixed or readily ascertainable standard, the decision

he makes is discretionary and within the [discretionary-function

exception]. Conversely if there is a standard by which his action is

measured, it is not within the exception.’” Id. at 1160 quoting Miller

v. United States, 710 F.2d 656, 663 (10th Cir. 1983).

14

In order for Plaintiff to avoid the application of the

discretionary function exception, she must satisfy the two-prong test

set forth in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954,

100 L.Ed.2d 531 (1988). First, the Court must determine “whether the

action is a matter of choice for the acting employee.” Id. at 536. “The

requirement of judgment or choice is not satisfied if a ‘federal statute,

regulation, or policy specifically prescribes a course of action for an

employee to follow,’ because ‘the employee has no rightful option but

to adhere to the directive.’” United States v. Gaubert, 499 U.S. 315,

322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz, 486 U.S.

at 536, 108 S.Ct. 1954).

While Plaintiff has provided further elaboration on the facts

supporting her claim in the Second Amended Complaint, she had wholly

failed to identify any statute, regulation, or policy of the United

States which would require a certain treatment of employees at the CNHSA.

Moreover, the organization of the CNHSA necessarily precludes such

mandatory treatment. CNHSA and the Choctaw Nation Medical Center which

it operates are entities of the Choctaw Nation, a sovereign separate and

apart from the United States. Plaintiff would be hard pressed to find

an applicable federal statute, regulation, or policy which would govern

their actions. As this Court previously noted, the FTCA is not a vehicle

for asserting claims against the United States which would be unavailable

against the CNHSA because of tribal sovereign immunity. Miller v. United

15

States, 992 F.3d 878, 886 (9th Cir. 2021)(“[W]e note at the outset that

Tribes are expressly excluded from coverage under the relevant laws that

would preclude a private employer or a federal agency from doing whet

that Tribe allegedly did here.”). As a result, this Court finds

Plaintiff has failed in the first stage of the Berkovitz test.

In the second stage, if we determine that there is a matter of

choice or judgment, we must determine “whether that judgment is of the

kind that the discretionary function exception was designed to shield.”

Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. This “prevent[s] judicial

second-guessing of legislative and administrative decisions grounded in

social, economic, and political policy.” Gaubert, 499 U.S. at 323, 111

S.Ct. 1267 (internal quotation marks and citation omitted); see also

Harrell v. United States, 443 F.3d 1231, 1235–36 (10th Cir. 2006) (“[T]he

court must consider whether the nature of the actions taken implicate

public policy concerns, or are susceptible to policy analysis.” (internal

quotation marks and citation omitted)). The Court does “not inquire

into the intent of the government supervisor when making a specific

personnel decision, and neither do we ask whether policy analysis is the

actual reason for the decision in question.” Sydnes v. United States,

523 F.3d 1179, 1185 (10th Cir. 2008) (internal quotation marks and

citations omitted). Both prongs must be met for Plaintiff to avoid the

application of the discretionary function exception. Id. at 1183.

The Tenth Circuit has necessarily determined that “[d]ecisions

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regarding employment and termination are inherently discretionary . . .

and such sensitive decisions are precisely the types of administrative

action the discretionary function exception seeks to shield from judicial

second-guessing.” Richmond v. Straley, 48 F.3d 1139, 1146-47 (10th Cir.

1995).

Nothing in the additional allegations set out in the Second Amended

Complaint removes the actions taken by CNHSA from this discretion

necessarily exercised in the employment actions taken against Plaintiff.

This Court will not second-guess the employment decisions made by the

governing body within the CNHSA – regardless of “the actual reason for

the decision in question”, Sydnes, 523 F.3d at 1185 or “whether the

government's conduct was negligent or wrong.” Binion v. United States,

2014 WL 5780713, at *4 (D. Colo. Oct. 31, 2014) (citing Duke v. Dept.

of Agric., 131 F.3d 1407, 1410 (10th Cir. 1997).

Having failed to demonstrate that the discretionary function

exception to the FTCA does not apply in this case, Plaintiff’s claims

based in state law for negligence, negligence per se, wrongful

termination, and intentional infliction of emotional distress cannot be

maintained. This Court is deprived of the necessary subject matter

jurisdiction to consider these claims and they must, therefore, be

dismissed as they are alleged against Defendant United States.4

4 Defendant United States also contends the claims Plaintiff asserts against it

are not cognizable and are subject to dismissal under Rule 12(b)(6). Because

this Court lacks the necessary jurisdiction to address Plaintiff’s claims

against the United States, further analysis under Rule 12(b)(6) is not required.

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Defendants Hill’s and Hayes’ Dismissal Requests

Under Rule 12(b)(1)

Defendants Hill and Hayes requests that this Court reconsider its

prior ruling that the sovereign immunity of the Choctaw Nation bars suit

against them. In formulating her Second Amended Complaint, Plaintiff

specifically states that the claims asserted against Defendants Hill and

Hayes are brought against them in their individual capacity, rightly or

wrongly under the facts and circumstances of the case. Factually,

Plaintiff maintains allegations against the individual Defendants

separate and apart from CNHSA or the United States. Sovereign immunity

“does not erect a barrier against suits to impose individual and personal

liability” although the Court must look to determine from whom relief

is requested. Lewis v. Clark, ____ U.S. ____, 137 S.Ct. 1285, 1290-91

(1991). Consequently, this Court will not apply sovereign immunity to

the claims against the individual Defendants.

Defendants Hill’s and Hayes’ Dismissal Request

Under Rule 12(b)(6)

The Court turns to the sustainability of Plaintiff’s state law

claims against the individual Defendants. In the Second Cause of Action,

Plaintiff asserts a claim for intentional infliction of emotional

distress. Such a claim requires a showing that (1) the alleged

tortfeasor acted intentionally or recklessly; (2) the alleged

tortfeasor's conduct was extreme and outrageous; (3) the conduct caused

the plaintiff emotional distress; and (4) the emotional distress was

severe. Durham v. McDonald's Restaurants of Oklahoma, Inc., 256 P.3d

18

64, 66 (Okla. 2011) citing Computer Publications, Inc. v. Welton, 49

P.3d 732, 735 (Okla. 2002). The Court is required to “make the

‘gatekeeper’ or threshold determination of whether the defendant's

conduct may reasonably be regarded as extreme and outrageous. . . . The

test is whether the conduct is so extreme in degree as to go beyond all

possible bounds of decency, and is atrocious and utterly intolerable in

a civilized community. Id. at 67.

This Court maintains that the Second Amended Complaint lacks the

required specificity of who committed the allegedly outrageous act –

Plaintiff addresses “Defendants Hill and Hayes” as a single entity

through much of the document, when did they commit it, and what precisely

did each Defendant say or do that was outrageous. As previously noted,

“[w]ork place discrimination cases rarely present facts sufficient to

constitute the type of extreme and outrageous behavior required to stat

a claim for IIED.” Puckett v. Spirit Aerosystems, Inc. 2013 WL 1944889,

at *2 (N.D. Okla. May 9, 2013). Because Plaintiff’s claims lack the

specificity required as to each Defendant, the intentional infliction

claim is subject to dismissal. Bruton v. Okla. Dept. of Corr., 2019 WL

3413853, *6 (W.D. Okla. July 29, 2019).

Additionally, this Court does not find that the actions of the

individual Defendants are of a sufficiently outrageous character to be

actionable. They do not “go beyond all possible bounds of decency” and,

therefore, is subject to dismissal

Plaintiff also asserts a claim for false light against the

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individual Defendants. In order to prevail on a false light claim,

Plaintiff must demonstrate (1) the individual Defendants gave publicity

to a matter concerning Plaintiff that placed Plaintiff before the public

in a false light; (2) the false light in which Plaintiff was placed would

be highly offensive to a reasonable person; and (3) the individual

Defendants had knowledge of or acted in reckless disregard as to the

falsity of the publicized matter and the false light in which the other

would be placed. Mitchell v. Griffin Television, L.L.C., 60 P.3d 1058,

1061 (Okla. Ct. App. 2002) citing McCormack v. Oklahoma Pub. Co., 613

P.2d 737, 740 (Okla. 1980). Further, “the right of action for false

light invasion of privacy is a product of the same societal need as the

tort of outrage or intentional infliction of emotional distress, which

will lie only in the presence of extreme and outrageous conduct.”

Colbert v. World Pub. Co., 747 P.2d 286, 292 (Okla. 1987).

Certainly, if the conduct alleged was not sufficiently outrageous

to maintain a claim for intentional infliction of emotional distress,

the same conduct does not rise to the level of being actionable for false

light. Plaintiff essentially made little to no effort to improve the

specificity of the allegations in the Second Amended Complaint. She

continues to fail to attribute the conduct alleged to each individual

Defendant, instead choosing to treat them as a group. As such, the

allegations as stated are insufficient to state a claim for false light

against the individual Defendants and must be dismissed.

The final claim asserted against the individual Defendants is one

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for defamation. The statute of limitations for defamation is one year.

Okla. Stat. tit. 12 § 95(A)(4). The case was filed on September 8, 2020

and the conduct alleged to support the defamation claim occurred outside

of one year prior to this date. The claims prior to September 8, 2019

are time barred. Those that allegedly arise after that date lack the

required specificity as to the individual Defendant involved, the timing

of the conduct, and the nature of the comments such that they may not

be found to be defamatory. The defamation claim, therefore, must be

dismissed. Bruton, supra at *6.

Since Plaintiff has previously been allowed leave to amend the

allegations made in this action, further opportunity to amend would be

futile. Consequently, this action will be dismissed in its entirety.

IT IS THEREFORE ORDERED that Defendant United States of America’s

Motion to Dismiss Plaintiff’s Second Amended Complaint (Docket Entry

#46) is hereby GRANTED. The claims asserted against Defendant United

States of America are hereby DISMISSED.

IT IS FURTHER ORDERED that Defendants Jason Hill and William Hayes’

Motion to Dismiss Second Amended Complaint (Docket Entry #47) is hereby

GRANTED. All claims asserted against Defendants Hill and Hayes are

hereby DISMISSED.

IT IS FURTHER ORDERED that the action against the unidentified

parties “John Does 1-30” is also DISMISSED as improper.

IT IS SO ORDERED this _3_0_t_h_ day of September, 2022.

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______________________________

JASON A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE

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