# Childers v. Oklahoma County Board of County Commissioners

> District Court, W.D. Oklahoma · July 12, 2019

URL: https://www.frixlaw.com/law-library/cases/10387626

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** July 12, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10387626

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

AUSTIN D. CHILDERS, )
)
Plaintiff, )
)
-vs- ) Case No. CIV-19-460-F
)
BOARD OF COMMISSIONERS OF )
OKLAHOMA COUNTY, )
)
Defendant. )

ORDER
Before the court is the Motion to Dismiss by Defendant Board of County
Commissioners of Oklahoma County, filed May 30, 2019. Doc. no. 5. Plaintiff
has responded to the motion and defendant has replied. Upon due consideration
of the parties’ submissions, the court makes its determination.
I.
Plaintiff, Austin D. Childers, is a former employee of defendant, Board of
County Commissioners of Oklahoma County. He filed an action against
defendant in the District Court of Oklahoma County, State of Oklahoma, alleging
violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e, et seq., and the Oklahoma Anti-Discrimination Act (“OADA”), 25 O.S.
2011 § 1101, et seq. Defendant timely removed the action to this court based
upon the existence of federal question jurisdiction, 28 U.S.C. § 1331. It now seeks
to dismiss plaintiff’s petition against it pursuant to Rule 12(b)(6), Fed. R. Civ. P.,
and Rule 12(b)(1), Fed. R. Civ. P. Specifically, defendant argues that the petition
fails to state Title VII claims for sexually hostile work environment and retaliation
under the pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2008)
and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). In addition, it argues that
the court lacks jurisdiction to adjudicate the Title VII retaliation claim because
plaintiff failed to exhaust his administrative remedies with respect to the claim.
Defendant further argues that the court lacks jurisdiction over the OADA claims
because plaintiff failed to file a pre-suit notice as required by the Oklahoma
Governmental Tort Claims Act, 51 O.S. 2011 § 151, et seq. Lastly, defendant
argues that the OADA claims fail as a matter of law for the same reasons as with
the Title VII claims.
II.
In adjudicating defendant’s Rule 12(b)(6) motion to dismiss, the court must
accept as true all well-pleaded factual allegations and view them in a light most
favorable to plaintiff. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014). A
pleading is required to contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Rule 8(a)(2), Fed. R. Civ. P. The Rule 8
pleading standard does not require “detailed factual allegations,” but it demands
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). To survive
defendant’s Rule 12(b)(6) motion, plaintiff’s complaint must contain “sufficient
factual matter, accepted as true, ‘to state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility
when [] plaintiff pleads factual content that allows the court to draw the reasonable
inference that [] defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
“[T]he nature and specificity of the allegations required to state a plausible
claim will vary based on context.” Shields, 744 F.3d at 641 (quotation omitted).
Making that determination requires the court to draw on “its judicial experience
and common sense.” Id. (quotation omitted).
Although generally the sufficiency of a complaint under Rule 12(b)(6) must
rest on its contents alone, the court may consider documents “referred to in the
complaint if the documents are central to the plaintiff’s claim and the parties do
not dispute the documents’ authenticity.” Gee v. Pacheco, 627 F.3d 1178, 1186
(10th Cir. 2010) (quotations omitted).
Rule 12(b)(1) motions generally take one of two forms. First, a moving
party may make a facial attack on the complaint’s allegations as to the existence
of subject matter jurisdiction. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.
1995). In reviewing the facial attack, the district court must accept the allegations
in the complaint as true. Id. Second, a party may go beyond the allegations
contained in the complaint and challenge the facts upon which subject matter
jurisdiction depends. Id. at 1003. The court has wide discretion to allow evidence
outside the pleadings and the court’s reference to such evidence does not convert
the motion into a Rule 56 motion. Id.1
III.
Title VII Retaliation Claim - Failure to Exhaust Administrative Remedies
Title VII prohibits discrimination in employment on the basis of race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). The Act also
prohibits retaliation against a person who asserts rights under the statute. 42
U.S.C. § 2000e-3(a). As a precondition to the commencement of a Title VII action
in court, a complainant must file a charge with the Equal Employment

1 A court is required to convert a Rule 12(b)(1) motion into a Rule 56 motion when resolution
of the jurisdictional question is intertwined with the merits of the case. Holt, 46 F.3d at 1003.
Here, the resolution of the jurisdictional question, discussed hereinafter, is not intertwined with
the merits.
Opportunity Commission (“EEOC”) or an appropriate state or local agency. 42
U.S.C. § 2000e-5(c), (e)(1), (f)(1). The Supreme Court recently held that Title
VII’s charge-filing precondition to suit is not jurisdictional, but is, instead, a
claims-processing rule, which is mandatory if properly raised. Fort Bend County
v. Davis, 139 S.Ct. 1843, 1846, 1849-1851 (2019). In the case at bar, defendant
has timely raised plaintiff’s failure to exhaust administrative remedies by filing
its dismissal motion. Upon review, the court concludes that the retaliation claim
is not subject to dismissal under Rule 12(b)(6).2
At the outset, it should be noted that defendant is correct on one point. The
charge of discrimination filed by plaintiff does not check the box for a retaliation
claim. See, doc. no. 5-1; doc. no. 6-2. “The failure to mark a particular box creates
a presumption that the charging party is not asserting claims represented by that
box.” Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007).
However, “[t]he presumption may be rebutted, [] if the text of the charge clearly
sets forth the basis of the claim.” Id. Here, the text of the charge, liberally
construed, can be read as providing the basis of a retaliation claim. It states that
plaintiff had been subjected to sexual harassment by his supervisor since June 13,
2018, he reported the sexual harassment to the human resources department
(“HR”) the first of August, 2018, HR investigated the conduct and the supervisor
was discharged in September 2018, the sexual harassment stopped, he was
discharged on December 27, 2018 and the County Commissioner gave “abuse of
leave” as the reason for the discharge. In the court’s view, the EEOC “charge
[contains] facts concerning the . . . retaliatory actions underlying [plaintiff’s]
claim[.]” Id.

2 Because Title VII’s charge-filing precondition is not jurisdictional, the court concludes that
the retaliation claim is subject to review and dismissal under Rule 12(b)(6).
The “plaintiff’s claim in court ‘is generally limited by the scope of the
administrative investigation that can reasonably be expected to follow the charge
of discrimination submitted to the EEOC.’” Smith v. Cheyenne Retirement
Investors L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (quoting MacKenzie v. City
& Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)). And “[t]he ultimate
question is whether ‘the conduct alleged [in the lawsuit] would fall within the
scope of an EEOC investigation which would reasonably grow out of the charges
actually made [in the EEOC charge].’” Smith, 904 F.3d at 1164 (quoting Martin
v. Nannie & Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir. 1993), overruled
on other grounds as recognized by Davidson v. America Online, Inc., 337 F.3d
1179, 1185 (10th Cir. 2003)). The court finds that the conduct alleged by plaintiff
in his petition for relief on his retaliation claim would fall within the scope of the
administrative investigation which would reasonably be expected to follow or
grow out of the discriminatory acts alleged by plaintiff in the EEOC charge. The
factual basis for the retaliation claim is discernable from the text of the charge.
That is all that is required. Because the presumption created by plaintiff’s failure
to mark the retaliation box has been rebutted by the text of the EEOC charge, the
court concludes that dismissal of the retaliation claim under Rule 12(b)(6) based
upon failure to exhaust administrative remedies is not appropriate.
Title VII Retaliation Claim – Failure to State Claim
Even if plaintiff is deemed to have exhausted his administrative remedies
for the Title VII retaliation claim, defendant argues that plaintiff’s petition fails to
provide facts plausibly stating a retaliation claim. Defendant points out that the
petition alleges that plaintiff complained of sexual harassment on August 1, 2018
and was terminated on December 27, 2018. Relying upon Nealis v. Coxcom,
LLC, 731 Fed. Appx. 787 (10th Cir. 2018), defendant maintains that the four and
one-half month period between plaintiff’s complaint of sexual harassment and
termination is not sufficient to establish the casual-connection element of a prima
facie case of retaliation.
To establish a prima facie case of retaliation, a plaintiff must, in part,
demonstrate “a causal connection exists between the protected activity and the
materially adverse action.” Hansen v. SkyWest Airlines, 844 F.3d 914, 925 (10th
Cir. 2016). Causal connection may be inferred “[i]f the protected conduct is
closely followed by adverse action.” Ward v. Jewell, 772 F.3d 1199, 1203 (10th
Cir. 2014). Under Tenth Circuit law, four and one-half months is too long to
establish causal connection. See, Piercy v. Maketa, 480 F.3d 1192, 1198 (10th Cir.
2007) (adverse employment action that happened more than three months after
the protected activity does not establish causal connection).
Nonetheless, a plaintiff may also rely upon “additional evidence” to tie the
adverse employment action to the protected activity. Anderson v. Coors Brewing
Co., 181 F.3d 1171, 1179 (10th Cir. 1999). In the petition, plaintiff alleges that he
was “initially told” that he was terminated “because his having made a complaint
about the sexual harassment he endured created a ‘hostile work environment;’
subsequently, [defendant] changed the reason for his firing to ‘abuse of leave,” a
baseless, untrue and shameful misrepresentation of the true reason for his
discharge.” Doc. no. 1-1, ¶ 14. The Tenth Circuit has considered an employer’s
proffered reasons for taking adverse action in evaluating the causal-connection
element of the prima facie case of retaliation. Wells v. Colorado Dept. of Transp.,
325 F.3d 1205, 1218 (10th Cir. 2003). Viewing the allegations of the petition in a
light most favorable to plaintiff, the court concludes that plaintiff’s petition
sufficiently alleges facts to establish the causal-connection element of a prima
facie case of retaliation. Thus, the court concludes that the retaliation claim
survives dismissal under Rule 12(b)(6). That said, the court will observe that the
retaliation claim clears the bar by an exceedingly thin margin. Given the sequence
of events in the last seven months of 2018, plaintiff should not be surprised if the
jury makes short work of his retaliation claim.
Title VII Sexually Hostile Work Environment Claim – Failure to State Claim
Defendant also argues that plaintiff’s petition fails to plausibly state a
sexually hostile work environment claim. According to defendant, the petition
fails to set forth allegations sufficient to allow the court to infer that he was
sexually harassed or subjected to a hostile work environment. Defendant
maintains that there are no allegations of the comments made, whether the
comments were threatening or humiliating or merely offensive, as to the
frequency and the severity of the conduct and whether the conduct unreasonably
interfered with his work performance.
It is well-settled that a plaintiff may establish a violation of Title VII by
showing discrimination based on sex has created a hostile or abusive working
environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To
establish a sexually hostile work environment existed, a plaintiff must prove the
following elements: “(1) [he] is a member of a protected group; (2) [he] was
subject to unwelcome harassment; (3) the harassment was based on sex; and (4)
[due to the harassment’s severity or pervasiveness], the harassment altered a term,
condition, or privilege of the plaintiff’s employment and created an abusive
working environment.” Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1263
(10th Cir. 2005).
Upon review, the court agrees with defendant that the petition’s allegations,
taken as true, fail to state a plausible sexually hostile work environment claim.
With regard to this claim, the petition merely alleges that plaintiff “was subjected
to a series of frequent, unwelcome sexual innuendo, accusations and harassment
by his manager/supervisor.3 This sexual harassment created a hostile
environment.” Doc. no. 1-1, ¶ 8. The EEOC charge referenced in the petition
alleges that the “sexual harassment was sexual natured comments that occurred
on several occasions.” Doc. no. 6-2, ECF p. 4. However, neither the petition nor
the charge sets forth facts to show that the alleged harassment was based on
plaintiff’s sex, i.e., gender. In Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 79-80 (1998), the Supreme Court recognized that same-sex sexual
harassment is actionable under Title VII. In Dick v. Phone Directories Co., Inc.,
the Tenth Circuit emphasized that “even for same-sex sexual harassment claims,
‘[i]f the nature of an employee’s environment, however unpleasant, is not due to
[his] gender, [he] has not been the victim of sex discrimination as a result of that
environment.’” 397 F.3d at 1263 (quoting Stahl v. Sun Microsystems, Inc., 19
F.3d 533, 538 (10th Cir. 1994)).4 The allegations provided by plaintiff in his
petition are clearly not sufficient to establish that plaintiff was “subjected to a
disadvantage to which the other sex [was] not.” Id. (citing Oncale, 523 U.S. at
80).
In addition, plaintiff’s allegations are not sufficient to establish that the
alleged harassment was so severe or pervasive as to alter a term, condition or
privilege of plaintiff employment and create an abusive working environment.
See, Morris v. City of Colorado Springs, 666 F.3d 654, 663-664 (10th Cir. 2012).

3 In its motion, defendant identifies the supervisor as male. Doc. no. 5, ECF p. 1.
4 In particular, the Tenth Circuit stated that “[w]orkplace harassment is not ‘automatically
discrimination because of sex merely because the words used have sexual content or
connotations’ . . . Title VII is not ‘a general civility code for the American workplace’ . . .
Rather, the critical issue in determining whether harassment is because of sex is whether
members of one sex are subjected to a disadvantage to which the other sex is not.” Dick, 397
F.3d at 1263 (quoting and citing Oncale, 523 U.S. at 80).
Relevant considerations to determine whether an environment is objectively
hostile include: “the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Id. at
664 (quotations and citation omitted). The petition gives the court no allegations
which would enable the court to plausibly infer that the work environment was
objectively hostile.
The court concludes that defendant’s motion to dismiss the Title VII
sexually hostile work environment claim under Rule 12(b)(6) must be granted.
However, the dismissal will be without prejudice. Plaintiff will be permitted to
file an amended complaint to state a plausible Title VII sexually hostile work
environment claim if his counsel determines that that can be accomplished within
the strictures of Rule 11.
IV.
OADA Claims – Failure to Provide Pre-Suit Notice
Under Oklahoma’s Governmental Tort Claims Act (GTCA or Act), “[a]ny
person having a claim against . . . a political subdivision . . . shall present [his]
claim to the . . . political subdivision for any appropriate relief including the award
of money damages,” 51 O.S. 2011 § 156(A), and such “claims against . . . a
political subdivision are to be presented within one (1) year of the date the loss
occurs.” Id. § 156(B). The GTCA further provides that “[a] person may not
initiate a suit against . . . a political subdivision unless the claim has been denied
in whole or in part.” Id. § 157.
There are no allegations in the petition that plaintiff has complied with the
GTCA. In his briefing, plaintiff suggests that he has complied with the notice
requirements. However, the court concludes that the filing of the EEOC charge
is not sufficient to provide notice under the Act. The GTCA requires written
notice of a claim to be filed with the office of the clerk of the governing body, 51
O.S. § 156(D). See, Ford v. Tulsa Public Schools, 405 P.3d 142, 147 (Okla. Civ.
App. 2017) (“[O]nly a claim filed with the office of the clerk of the governing
body . . . is sufficient to invoke the protections of the GTCA.”) (quotations
omitted). The GTCA also requires the notice to include very specific information
regarding, for example, the amount of compensation or other relief demanded. 51
O.S. § 156(E). Plaintiff’s EEOC charge does not comply with these requirements.
Prince v. City of Oklahoma City, 2009 WL 2929341, * 3 (W.D. Okla. Sept. 9,
2009). Accordingly, the court finds that dismissal of the OADA claims is
warranted. The OADA claims will be dismissed without prejudice for lack of
jurisdiction under Rule 12(b)(1). The amended complaint, which the court is
permitting plaintiff to file to state a plausible sexually hostile work environment
claim, shall not include the OADA claims. It may only allege the Title VII
retaliation and sexually hostile work environment claims.
V.
Based upon the foregoing, Motion to Dismiss by Defendant Board of
County Commissioners of Oklahoma County, filed May 30, 2019 (doc. no. 5), is
GRANTED in part and DENIED in part. Plaintiff’s claims under the
Oklahoma Anti-Discrimination Act are DISMISSED WITHOUT PREJUDICE
for lack of jurisdiction under Rule 12(b)(1), Fed. R. Civ. P. Plaintiff’s sexually
hostile work environment claim under Title VII of the Civil Rights Act of 1964 is
DISMISSED WITHOUT PREJUDICE under Rule 12(b)(6), Fed. R. Civ. P.
Plaintiff is GRANTED leave to file an amended complaint no later than
August 2, 2019, alleging the Title VII retaliation claim (as has been noted, that
claim survives dismissal under Rule 12(b)(6), albeit barely) and re-alleging the
Title VII sexually hostile work environment claim if he chooses to do so. If
plaintiff fails to file an amended complaint within the time prescribed, this case
shall proceed only on the Title VII retaliation claim alleged in plaintiff's petition
and defendant shall file its answer to plaintiff's petition with respect to the Title
VII retaliation claim on or before August 16, 2019.
IT IS SO ORDERED this 12" day of August, 2019.

STEPHEN P. [Pritt
UNITED STATES DISTRICT JUDGE

19-0460p001 rev_.docx

11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387626. Public record. Not legal advice.