Cathey v. Sheriff Vic Regalado

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

REGINALD CATHEY, )

)

Plaintiff, )

)

v. ) Case No. 19-CV-0656-CVE-FHM

)

BOARD OF COUNTY COMMISSIONERS )

OF TULSA COUNTY, and )

SHERIFF VIC REGALADO, )

in his official capacity, )

)

Defendants. )

OPINION AND ORDER

The allegations in the original complaint are summarized in the Court’s prior opinion and

order. Dkt. #13. After the Court granted defendants’ first motion to dismiss (Dkt. # 10), and

dismissed plaintiff’s claims without prejudice, plaintiff filed an amended complaint (Dkt. # 14).

Now before the Court is defendants’ motion to dismiss the amended complaint (Dkt. # 15). Plaintiff

has filed a response (Dkt. # 19), and defendants have filed a reply (Dkt. # 20).

I.

The following are the new facts plaintiff alleges in his amended complaint (Dkt. # 14):

• The [Tulsa County Sheriff’s Office (TCSO) oral interview board (Oral

Board)] only asked [p]laintiff two questions regarding the Deputy II position,

whereas it asked other, Caucasian applicants four questions relevant to the

Deputy II position.

• Upon information and belief, eleven (11) people were promoted to Deputy

II in October 2017, ten (10) of whom were Caucasian.

• Plaintiff filed a grievance on June 12, 2018[,] alleging discrimination in the

Deputy hiring process. Plaintiff discussed his grievance with Undersheriff

George Brown and complained that Corporal Eldridge, Captain Devoe, and

Sergeant McCall had discriminated against him during the Oral Board

questioning.

• Undersheriff Brown reviewed [p]laintiff’s Oral Board test results from

October 2017 and told [p]laintiff that he had scored well on two of the

questions, but fared poorly on the other two. Plaintiff countered that the

[Oral] Board had only asked him two questions relevant to the Deputy

position. Plaintiff’s assertion was supported by the fact that his test results

indicated that the [Oral] Board had made substantial comments regarding

[p]laintiff’s two positive test responses but left no comments regarding the

two purported low scores.

• In light of the suspicious grades on [p]laintiff’s previous Oral Exam and

[p]laintiff’s explanation for the confusion surrounding his daughter,

Undersheriff Brown permitted [p]laintiff to proceed with his second

application for the Deputy II position. Undersheriff Brown also promised

that none of the members of the October 2017 Oral Board would be on the

July 2018 [Oral] Board.

• The [Oral] Board asked [p]laintiff approximately eight (8) questions relevant

to the Deputy II position, which [p]laintiff feels that he answered strongly.

However, the [Oral] Board also asked [p]laintiff numerous irrelevant

questions about his background, family, and prior employment, just as they

had previously. Just before the conclusion of the exam, Corporal Eldridge

slid a note to Major Kitch, who asked [p]laintiff if the Verizon store at which

he had worked was “freestanding or in a strip mall.” Plaintiff answered that

it was in a strip mall, which seemed to amuse the [Oral] Board.

• On July 19, 2018, the very day that [p]laintiff had taken the Oral Exam,

Corporal Eldridge sent [p]laintiff a letter stating that [p]laintiff had not scored

over a 75% on his screening boards, and therefore could not continue with the

application process. The letter further stated that [p]laintiff had failed the

Background Interview, and therefore was no[t] eligible to repeat the

application process.

• Other Deputy II applicants did not find out their test results for approximately

one month, which indicates that TCSO had predetermined that [p]laintiff

would not be selected.

• Ultimately, approximately eleven (11) or twelve (12) applicants were

promoted to the Deputy II position after the July 2018 testing process, all of

whom were Caucasian.

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• It was never explained to [p]laintiff why he was denied the promotion on the

same day as his Oral Exam while other, Caucasian applicants did not find out

until nearly a month later.

• However, from December 2018 until [p]laintiff resigned from [TCSO] in

March 2019, he was never assigned any new detention officers to train

pursuant to the Jail Training Program, while his Caucasian counterparts were

assigned new detention officers to train.

Dkt. # 14, at 4-8. Defendants now move to dismiss all claims in the amended complaint under

Federal Rule of Civil Procedure 12(b)(6).

II.

In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine

whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is

properly granted when a complaint provides no “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face”

and the factual allegations “must be enough to raise a right to relief above the speculative level.”

Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing

any set of facts consistent with the allegations in the complaint.” Id. at 562. Although decided

within an antitrust context, Twombly “expounded the pleading standard for all civil actions.”

Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination,

a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact,

and must construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at

555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton

Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true

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those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs, 263

F.3d 1151, 1154-55 (10th Cir. 2001). “[C]onclusory allegations without supporting factual

averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935

F.2d 1106, 1109-10 (10th Cir. 1991).

III.

A.

Defendants argue that the Board of County Commissioners (BOCC) should be dismissed as

a party defendant. Dkt. # 15, at 9. Plaintiff concedes that BOCC is not a proper party defendant.

Dkt. # 19, at 7. Therefore, the Court finds that defendants’ motion to dismiss as to BOCC should

be granted, and BOCC should be dismissed as a party defendant without prejudice. All remaining

claims are analyzed as to Sheriff Regalado in his official capacity.

B.

Regalado argues that plaintiff has failed to state a Title VII claim for disparate treatment

based on failure to promote. Dkt. # 15, at 10. Regalado argues that plaintiff has failed to allege that

similarly situated individuals of a different race were treated differently than him. Id. at 11-14.

Regalado argues that plaintiff fails to explain how adverse employment actions that appear to involve

a promotion or reclassification to a position of more responsibility within the TCSO involved an

adverse employment action or give rise to an inference of discrimination for purposes of plausibly

alleging a claim of racial discrimination. Id. at 13-18. Plaintiff argues that he has stated a plausible

disparate treatment claim. Dkt. # 19, at 7. Plaintiff argues that he has alleged all elements of a prima

facie case of race discrimination. Id. at 8.

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“Title VII of the Civil Rights Act of 1964 prohibits, among other things, discrimination on

the basis of [race].” Carpenter v. Boeing Co., 456 F.3d 1183, 1186 (10th Cir. 2006). “Two types

of claims are recognized under Title VII: disparate treatment and disparate impact.” Id.

“Disparate treatment” . . . is the most easily understood type of discrimination. The

employer simply treats some people less favorably than others because of their race,

color, religion, sex, or national origin. Proof of discriminatory motive is critical,

although it can in some situations be inferred from the mere fact of differences in

treatment . . . .

Claims of disparate treatment may be distinguished from claims that stress “disparate

impact.” The latter involve employment practices that are facially neutral in their

treatment of different groups but that in fact fall more harshly on one group than

another and cannot be justified by business necessity. Proof of discriminatory motive

. . . is not required under a disparate-impact theory. Either theory may, of course, be

applied to a particular set of facts.

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).

Plaintiff claims disparate treatment and disparate impact. Dkt. # 14, at 9-10. To survive a

motion to dismiss, “[a] complaint raising a claim of discrimination does not need to conclusively

establish the prima facie case of discrimination, but it must contain more than threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements.” Bekkem v. Wilkie, 915

F.3d 1258, 1274 (10th Cir. 2019) (internal quotation omitted). It is plaintiff’s burden to establish

disparate treatment and disparate impact. Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 253 (1981) (“The ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.”). “The plaintiff must prove

by a preponderance of the evidence that she applied for an available position for which she was

qualified, but was rejected under circumstances which give rise to an inference of unlawful

discrimination.” Id.

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1. Disparate Treatment

The Tenth Circuit has stated that the elements of a disparate treatment case are:

(1) the victim belongs to a protected class; (2) the victim suffered an adverse

employment action; and (3) the challenged action took place under circumstances

giving rise to an inference of discrimination.

Bird v. Regents of New Mexico State University, 619 Fed. App’x 733, 741 (10th Cir. 2015)1

(quotation marks omitted). Plaintiff belongs to a protected class—African American. Dkt. # 14, at

9-10. He also suffered an adverse employment action—he was turned down for a promotion. Id.

at 9. Finally, the alleged adverse employment action took place under circumstances giving rise to

an inference of discrimination—of the alleged eleven people who were promoted to Deputy II in

October 2017, ten were Caucasian; approximately eleven or twelve applicants were promoted to the

Deputy II position after the July 2018 testing process, all of whom were Caucasian. Id. at 4, 7.

Further, the Oral Board allegedly asked plaintiff only two questions regarding the Deputy II position,

whereas it asked other, Caucasian applicants, four questions relevant to the Deputy II position. Id.

at 4. Finally, plaintiff received his negative test results the same day that he had taken the oral

examination, whereas other, Caucasian employees, received their examination scores approximately

one month later. Id. at 6-7. Regalado argues that courts have “expressed concern” about a lack of

correlation between statistics and disparate treatment. Dkt. # 20, at 4. However, at this stage in the

litigation, plaintiff need only state a plausible claim for disparate treatment. Regalado also argues

that plaintiff failed to identify any race-based questions during his second oral examination that

could have been the basis for disparate treatment. Dkt. # 15, at 12. However, based on the results

1 Unpublished decisions are not precedential, but they may be cited for their persuasive value.

See Fed. R. App. 32.1; 10th Cir. R. 32.1.

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of the test—plaintiff was denied a promotion—the Court can infer at this point in the litigation that

the test resulted in disparate treatment. The Court finds that Regalado’s motion to dismiss as to

disparate treatment should be denied.

2. Disparate Impact

Plaintiff also claims disparate impact. Dkt. # 14, at 10. “A plaintiff may establish a prima

facie case of disparate impact discrimination by showing that a specific identifiable employment

practice or policy caused a significant disparate impact on a protected group.” Carpenter, 456 F.3d

at 1187 (quotation and brackets omitted). “In other words, a plaintiff must show that there is a

legally significant disparity between . . . the [race] composition, caused by the challenged

employment practice, of the pool of those enjoying a job or job benefit; and (b) the [race]

composition of the qualified applicant pool . . . , i.e., the pool from which potential qualified

applicants might come.” Id. at 1193 (internal quotation and brackets omitted). “The court compares

the [race] composition of those who are subject to the challenged employment practice with the

[race] composition of those enjoying the benefit for which the practice selects.” Id.

Here, plaintiff alleges that “TCSO has a policy, practice, and/or custom of designing the

questions its Oral Board asks in order to deny African American employees promotions within

TCSO. The questions are subjective and often not related to the prospective job position.” Dkt. #

14, at 8. Plaintiff supports these allegations by recounting his second oral examination. There, he

noticed that there were approximately nine TCSO employees on the Oral Board, all of whom were

Caucasian. Id. at 6. The Oral Board asked plaintiff approximately eight questions relevant to the

Deputy II position, which plaintiff felt that he answered strongly. Id. Plaintiff alleges that the Oral

Board asked him numerous questions that were irrelevant, including whether he had previously

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worked in a strip mall. Id. Plaintiff stated that he had worked in a strip mall, which allegedly

seemed to amuse the Oral Board. Id. After plaintiff failed the second oral examination, he found

out that approximately eleven or twelve applicants were promoted to the Deputy II position, all of

whom were Caucasian. Id. at 7. Taking plaintiff’s version of the facts as true, plaintiff sufficiently

alleges disparate impact. The Board allegedly asked questions that allegedly caused an all-Caucasian

selection of Deputy II promotions. Regalado argues that plaintiff’s claims are “threadbare

allegations.” Dkt. # 15, at 20. However, plaintiff supports his allegations with facts demonstrating

a potential disparate impact, as discussed above. The Court finds that Regalado’s motion to dismiss

as to disparate impact should be denied.

C.

Regalado argues that plaintiff’s equal protection claim should be dismissed. Dkt. # 15, at 22.

Plaintiff’s equal protection claim is the same, whether analyzed under Title VII or the Fourteenth

Amendment. Carney v. City & Cty. Of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008) (“In racial

discrimination suits, the elements of a plaintiff’s case are the same whether that case is brought under

. . . § 1983 or Title VII.”). Because plaintiff has established a prima facie case of racial

discrimination under Title VII, the Court finds that he can maintain a cause of action for a § 1983

claim under the Equal Protection Clause. The Court finds that Regalado’s motion to dismiss as to

plaintiff’s equal protection claim should be denied.

D.

Regalado argues that plaintiff’s retaliation claim should be dismissed. Dkt. # 15, at 24. “To

state a prima facie case of retaliation, [a plaintiff] must demonstrate that: (1) [he] engaged in

protected opposition to discrimination; (2) [the defendant] took an adverse employment action

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against [him]; and (3) there exists a causal connection between the protected activity and the adverse

action.” Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004). Here, plaintiff filed a grievance

on June 12, 2018, alleging discrimination in the Deputy hiring process. Dkt. # 14, at 5. Plaintiff

discussed his grievance with Undersheriff George Brown and complained that Corporal Eldridge,

Captain Devoe, and Sergeant McCall had discriminated against him during the first oral examination

questioning. Id. Plaintiff alleges that, in light of the suspicious grades on his previous oral

examination, he was again allowed to apply for the Deputy II position. Id. After his second oral

examination, as he was exiting the room, he stopped and turned to hear Corporal Eldridge tell the

rest of the Oral Board members that plaintiff was the one who had filed a grievance against him. Id.

at 6. Plaintiff was denied the position. Id. Taking plaintiff’s version of the facts as true for purposes

of this motion, he engaged in protected opposition to discrimination when he filed a grievance,

alleging discrimination in the Deputy hiring process. Regalado then took an adverse employment

action against plaintiff by turning him down for the Deputy II position. And finally, plaintiff alleges

a causal connection between the protected activity and the adverse action: plaintiff was denied the

promotion the same day that he took the oral examination and heard the comment about his

grievance, implying that the reason he was denied the promotion was because of the grievance. With

all of the elements of a retaliation claim stated, the Court finds that Regalado’s motion to dismiss

as to plaintiff’s retaliation claim should be denied.

Regalado argues that plaintiff’s retaliation claim is based upon failure to investigate, which

is not the case, as discussed above. Regalado also argues that plaintiff’s claim is based on Sheriff

Regalado’s failure to assign plaintiff new trainees in his Jail Training Officer (JTO) position, which

again is not the case. Finally, Regalado argues that plaintiff has failed to allege a causal connection

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between the protected activity and the adverse action. Dkt. # 15, at 26. Regalado argues that

plaintiff failed to allege that Corporal Eldridge’s comment influenced the Board to deny plaintiff his

promotion. Id. However, plaintiff alleges at this stage of the litigation that the Board denied plaintiff

his promotion due, at least in part, to Corporal Eldridge’s comment, because plaintiff was allegedly

turned down for the promotion the same day that he heard the grievance comment. Dkt. # 14, at 6.

E.

Regalado finally argues that plaintiff’s request for punitive damages should be dismissed.

Dkt. # 15, at 27. “A plaintiff suing under Title VII may be awarded punitive damages if the

employer engaged in discriminatory practices with malice or with reckless indifference to the

plaintiff’s federally protected rights.” Harsco Corp. v. Renner, 475 F.3d 1179, 1189 (10th Cir. 2007)

(citing 42 U.S.C. § 1981(b)(1)). “To satisfy this standard, an employer must have acted in the face

of a perceived risk that its actions would violate federal law.” Id. In § 1983 cases, “[p]unitive

damages are available only for conduct which is ‘shown to be motivated by evil motive or intent, or

when it involves reckless or callous indifference to the federally protected rights of others.’” Searles

v. Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).

Here, as in the original complaint, plaintiff failed to allege malice or reckless indifference to his

federally protected rights. He also failed to allege evil motive or intent. Therefore, the Court finds

that Regalado’s motion to dismiss as to punitive damages should be granted

IT IS THEREFORE ORDERED that defendants’ motion to dismiss the amended

complaint (Dkt. # 15) is granted in part and denied in part: it is granted as to all claims against

the Board of County Commissioners of Tulsa County and as to the request for punitive damages, and

it is denied as to all other claims.

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IT IS FURTHER ORDERED that the Board of County Commissioners of Tulsa County

is dismissed without prejudice and is terminated as a party defendant. The parties shall amend

the case caption to reflect that there is one defendant remaining. Defendant Sheriff Vic Regalado’s

answer to the amended complaint (Dkt. # 14) is due no later than July 9, 2020.

DATED this 25th day of June, 2020.

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