The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
KIMBERLY WHEELER, )
)
)
)
Plaintiff, )
)
v. ) Case No. CIV-22-115-RAW
-GLJ
)
THE BOARD OF COUNTY )
COMMISSIONERS OF THE )
COUNTY OF LeFLORE, et al., )
)
)
)
)
)
Defendants. )
ORDER
Before the court is the objection of the plaintiff to the Report and Recommendation
of the United States Magistrate Judge regarding the motion to dismiss of defendants Smith,
Gist, and Olive. Plaintiff was employed by LeFlore County from on or about September
2012 until she was discharged on or about November 30, 2020. Plaintiff filed an amended
complaint (#22) asserting claims under (1) Title VII; (2) the Equal Pay Act; (3) the First
Amendment; (4) the Age Discrimination in Employment Act (“ADEA”); (5) the Americans
with Disabilities Act (“ADA”) and ADA Amendments Act (“ADAAA”); (6) the Family
Medical Leave Act (“FMLA”); (7) the Fair Labor Standards Act (“FLSA”); (8) for unpaid
wages under Oklahoma law (40 O.S. §165.3); (9) breach of contract; (10) a Burk tort; (11)
interference with an employment relationship, and (12) interference with a prospective
economic advantage.1
The individual defendants filed a motion to dismiss (#25). This case having been
referred to Magistrate Judge Jackson (#34), he issued a Report and Recommendation (#37).
He recommended the motion be granted.
Plaintiff having filed a timely objection, the court must conduct a de novo review of
the issues specifically raised by the objection, and may accept, modify, or reject the
recommended disposition. See 28 U.S.C. §636(b)(1); Rule 72(b)(3) F.R.Cv.P.2 Defendants
have not filed a response to the objection.
To survive Rule 12(b)(6) F.R.Cv.P., a plaintiff’s complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief that is plausible on its face. Shipps
v. Grove, 2023 WL 3221931, *1 (10th Cir.2023)(citation omitted). A claim is facially
plausible when the complaint contains factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Id. The court
1Counts I, II, IV, V, VII, VIII, IX, and X are asserted
against Defendant County. Counts III and VI are asserted against
all defendants. Counts XI and XII are asserted against
individual defendants Smith, Gist and Olive.
2Plaintiff does not object to the entire Report and
Recommendation, and defendants did not file an objection. In the
absence of an objection, the district court may review a
Magistrate Judge’s recommendation under any standard it deems
appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th
Cir.1991). In this matter, the court has reviewed the Report and
Recommendation to satisfy itself that there is “no clear error on
the face of the record.” Rule 72(b), Advisory Committee Notes.
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must construe the allegations, and any reasonable inferences that might be drawn from them,
in the light most favorable to the plaintiff. Id.
“While the 12(b)(6) standard does not require that Plaintiff establish a prima facie
case in her complaint, the elements of each alleged cause of action help to determine whether
Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir.2012). “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Plaintiff asks the undersigned to “decline to adopt” the Report and Recommendation,
but does not articulate an objection to the Magistrate Judge’s recommendation as to
plaintiff’s First Amendment claim. After review, the recommendation will be followed and
that claim is dismissed as to the individual defendants.
Plaintiff objects to the recommended dismissal of her FMLA claim. Plaintiff notes
that the Magistrate Judge recommended denial of the Board’s motion to dismiss this claim.
The undersigned does not view this as a contradiction. The Report and Recommendation
concluded that “[a]lthough such collective references to the ‘Commissioners’ or Individual
Defendants set forth a FMLA interference claim against the County, such collective
allegations do not adequately allege a plausible claim against any of the particular Individual
Defendants.” (#37 at 17)(footnote omitted).
Plaintiff contends that the lack of specific allegations can be “easily corrected” by
permitting another amended complaint. The court declines to do so. The original complaint
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was filed over a year ago, and the necessity for specific allegations against specific
defendants is well-established in the case law cited by the Magistrate Judge. The FMLA
claim against the individual defendants is dismissed.3
Next, as to plaintiff’s claim against the individual defendants of interference with an
employment relationship, the Magistrate Judge concluded “Plaintiff does not allege any non-
conclusory facts that the Individual Defendants acted against the interests of the County,
acted in their own interest, or acted with malice or bad faith towards Plaintiff.” (#37 at 24).4
Accordingly, “Plaintiff does not sufficiently state a plausible claim that the Individual
Defendants tortiously interfered with her employment agreement.” Id. at 25. Upon de novo
review, the undersigned overrules the plaintiff’s objection and adopts this ruling.
Finally, the Magistrate Judge also recommended that plaintiff’s claim for interference
with a prospective economic advantage be dismissed. Under similar reasoning applied to the
previous claim, the Magistrate Judge found “Plaintiff does not sufficiently state a plausible
claim that the Individual Defendants tortiously interfered with prospective economic
advantage.” Id. at 27. The undersigned finds this recommendation correct as well.
3Moreover, the Magistrate Judge only found that plaintiff
had stated a plausible claim against the Board for failure to
notify of FMLA rights and discouragement from using leave. (#36
at 34). He rejected any FMLA claim of adverse action or
retaliation against the Board as to plaintiff’s termination, as
he did regarding the individual defendants. Id. at 35-37.
Failure to give notice is necessarily a “collective” action.
4Bolstering the latter finding is the fact that the
“predicate” claims of First Amendment violation or FMLA violation
were found to be subject to dismissal. (#37 at 23).
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It is the order of the court that the objection of the plaintiff (#39) is hereby denied.
The Report and Recommendation (#37) is affirmed and adopted as the order of the court.
The motion of the individual defendants to dismiss (#25) is granted in all respects. Counts
III, VI, XI, and XII are dismissed as to the individual defendants, who are dismissed as party
defendants. The case proceeds against the County on the surviving claims discussed in a
companion order.
IT IS SO ORDERED this 19th day of MAY, 2023.
_________________________________
RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
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