Bruton v. Oklahoma Department of Corrections

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ONNETA BRUTON, )

)

Plaintiff, )

)

v. ) Case No. Civ-19-34-R

)

OKLAHOMA DEPARTMENT OF )

CORRECTIONS, ET AL., )

)

Defendants. )

ORDER

Before the Court is the Motion to Dismiss (Doc. No. 12) filed by Defendants

Oklahoma Department of Corrections (“DOC”), Angela York, Don Grigsby, Greg

Williams, Millicent Newton-Embry, Patricia Bruton, Tina Hicks, William Monday, and

Patricia Ormerod. Plaintiff, appearing pro se, responded in opposition to the motion. Upon

consideration of the parties’ submissions, the Court finds as follows.

Defendants’ motion is filed pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Procedure. Federal Rule of Civil Procedure 12(b)(6) allows a party to move

for dismissal of a case for failure to state a claim upon which relief can be granted. Rule

8(a)(2), in turn, requires a complaint to contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Accordingly, in order to survive a motion to

dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although the Court must

accept all factual allegations in the complaint as true, the same is not true of legal

conclusions. Id. “[L]abels and conclusions” or “formulaic recitation[s] of the elements of

a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Thus, in ruling on a motion

to dismiss, the Court should disregard all conclusory statements of law and consider

whether the remaining specific factual allegations, if assumed to be true, plausibly suggest

the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th

Cir. 2011).

As to Defendants’ 12(b)(1) argument, they do not specifically indicate how the

Court lacks subject matter jurisdiction over Plaintiff’s claims. Although not raised by

Defendants, the Court notes Plaintiff did not include a jurisdictional statement in her

Complaint. This absence, however, is not fatal.

In the instant case, Plaintiff's Complaint is deficient as to the jurisdictional

statement. However, under 28 U.S.C. § 1653 defective allegations of

jurisdiction may be amended, upon terms, in the trial or appellate courts. If

facts giving the Court jurisdiction are set forth in the Complaint, the

provision conferring jurisdiction need not be specifically pleaded. Blue v.

Craig, 505 F.2d 830 (Fourth Cir. 1974); Williams v. United States, 405 F.2d

951 (Ninth Cir. 1969).

Hatridge v. Seaboard Sur., 74 F.R.D. 6, 8 (E.D. Okla. 1976). The Court finds the

allegations in the Complaint, considered as whole, sufficient to allege federal question

jurisdiction, despite the absence of a jurisdictional statement. As set forth herein, Plaintiff

sufficiently alleges facts to state a claim against the Department of Corrections under Title

VII of the Civil Rights Act of 1964, which supports the existence of federal question

jurisdiction under 28 U.S.C. § 1331.

Having concluded the existence of subject matter jurisdiction, the Court turns to

Defendants’ remaining arguments, mindful that because Ms. Bruton is proceeding pro se,

her pleadings are subject to liberal construction. Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). Despite liberal construction of a pro se litigant’s pleadings, the Court will

not “assume the role of advocate.” Id.

Plaintiff, a former employee of the Oklahoma Department of Corrections, filed this

action alleging violations of Title VII, specifically retaliation because she complained

about racial discrimination. (Doc. No. 13, p. 1). Among other allegations, Plaintiff contends

that she informed her supervisors that the chairman of the Department of Corrections hiring

committee and the department manager altered certain scores so that a white female

became the top candidate, to the detriment of higher-scoring Hispanic and African

American candidates. Thereafter Plaintiff alleges that she was transferred/demoted and

moved to the Central Human Resources Department. The transfer was explained to her as

a way to manage “personality differences,” which Plaintiff believes were premised on a

racially- and gender-biased work environment. Plaintiff alleges her duties were transferred

to a younger white female, who lacked the experience to perform the job.

Plaintiff alleges that after her transfer she once again complained about

discrimination, this time to the Equal Rights and Responsibilities unit; thereafter she was

told she would be moved from an office to a cubicle. Plaintiff further asserts that after her

initial internal grievance was dismissed, on October 6, 2017, she was once again re-

assigned, which resulted in an increased workload and certain of her duties being assigned

to other employees. She perceived this as retaliation. Plaintiff filed an EEOC charge on

October 16, 2017 and alleges that, following an unsuccessful mediation through the EEOC,

the hostile work environment increased, and her performance was subject to unwarranted

scrutiny. After she informed her supervisor that she intended to file a complaint regarding

alleged harassment by Don Grigsby, HR Manager, Plaintiff contends she was subjected to

retaliation with regard to leave administration and that she was terminated for false reasons.

Within this framework Defendants seeks dismissal of the Complaint, arguing (1)

that Plaintiff has no claim against the individual defendants in their official capacities; (2)

individual defendants cannot be liable under Title VII; (3) Plaintiff’s Complaint fails to

state a claim; (4) the complaint does not comply with Federal Rule of Civil Procedure 8;

(5) Plaintiff failed to comply with the Oklahoma Governmental Tort Claims Act; and (6)

the State is immune from Plaintiff’s ADEA claim. The Court will address these arguments

by considering each of Plaintiff’s claims in the order listed in the Complaint.

Defendants are correct in noting that Plaintiff’s Complaint ends rather abruptly with

a list of alleged claims that is difficult to follow and not supported in many cases by the

allegations in the Complaint. Within a multi-paragraph section labeled “34” Plaintiff ends

with the following, which immediately precedes her prayer for relief:

The Plaintiff asserts that her rights were violated based upon of Title

VII Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3 and Oklahoma state law;

retaliation for having participated in opposition to unlawful discrimination in

violation of the Age Discrimination in Employment Act (“ADEA”);

violations of the Plaintiff’s Fourteenth Amendment right to Equal Protection;

violations of the Plaintiff’s Fourteenth Amendment right to substantive and

procedural due process; violations of the Plaintiff’s First Amendment right

to freedom of speech; violations of the Fair Labor Standards Act (“FLSA”);

failure to pay wages in violation of Oklahoma Protection of Labor Act

(“OPLA”); whistleblowing in violation of state law; interference with a

prospective economic advantage; and interference with an employment

contract; ERISA; blacklisting and defamation[.]

Complaint, Doc. No. 1, p. 27.

Because Defendants challenge the Court’s jurisdiction, the Court first queries

whether Plaintiff has alleged sufficient facts to support this Court’s jurisdiction. It is

apparent that Plaintiff is relying on federal question jurisdiction rather than diversity. She

is a citizen of Oklahoma suing the state and various employees who are alleged to be

residents of the state. Additionally, Plaintiff’s Complaint is replete with references to Title

VII of the Civil Rights Act. Accordingly, the Court starts with Title VII and proceeds

through the claims in the order set forth on page 27 of Plaintiff’s Complaint, addressing

the various defenses raised as to each claim.

Title VII prohibits an employer from discriminating against anyone because of that

person’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In

addition to prohibiting discrimination in employment on the basis of race, Title VII

prohibits retaliation against a person who asserts rights under the statute. 42 U.S.C. §

2000e-3(a). To state a Title VII discrimination claim, plaintiff must allege that “(1) she is

a member of a protected class, (2) she suffered an adverse employment action, (3) she

qualified for the position at issue, and (4) she was treated less favorably than others not in

the protected class.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).

Plaintiff need not establish these elements to survive a Rule 12(b)(6) motion. Id. at 1193.

She needs only to allege facts that, if true, plausibly allow a factfinder to conclude that the

Department of Corrections violated Title VII.1 Id. To sufficiently plead a claim for

1 Individual defendants cannot be held liable under Title VII and therefore the Motion to Dismiss is GRANTED with

regard to Plaintiff’s Title VII claim as it relates to the individual Defendants. See Butler v. City of Prairie Vill., Kan.,

172 F.3d 736, 744 (10th Cir. 1999) (explaining that ADEA and Title VII define “employer” identically and concluding

that both “preclude[ ] personal capacity suits against individuals who do not otherwise qualify as employers under the

statutory definition”).

retaliation Plaintiff must allege that (1) she engaged in protected opposition to

discrimination, (2) she was subjected to a materially adverse employment action, and (3) a

causal connection existed between the protected activity and the adverse action. Vaughn v.

Epworth Villa, 537 F.3d 1147, 1150-51 (10th Cir. 2008).

One method for a plaintiff to plead a claim for race discrimination under Title VII

is to plead facts showing: (1) that she is a member of a protected class; (2) that she suffered

an adverse employment action, and (3) that similarly situated employees were treated more

favorably. Carney v. City and Cnty. of Denver, 534 F.3d 1269, 1273 (10th Cir.2008); Orr

v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.2005). Plaintiff alleges that she is

African American, that she was qualified to perform her job and was performing her job in

a satisfactory manner, but despite her record, she was terminated and replaced by a white

female. Plaintiff also alleges factual circumstances where she believes she was treated

differently than white colleagues, in particular as it related to having to substantiate that

her aunt had died in order to obtain leave. The Court finds that Plaintiff’s Title VII claim

is supported by sufficient factual allegations to avoid dismissal of her race discrimination

claim against the Department of Corrections. Therefore, Defendant’s motion in this regard

is DENIED.

Additionally, Plaintiff’s Complaint sufficiently alleges a claim for retaliation in

violation of Title VII against the Department of Corrections. Plaintiff alleges that she

informed her supervisor and the human resources manager that the chair of the hiring

committee made changes in the scoring of candidates for a position at the Department of

Corrections; a white female’s score was adjusted such that it appeared she scored higher

than a Hispanic and two African American candidates. Plaintiff further asserts that she

complained about the suspicious scoring method, and as a result, she was targeted,

including a transfer to the Central Human Resources Department.2 These allegations are

sufficient to allege that Plaintiff engaged in protected activity, specifically she opposed a

practice made unlawful by Title VII, discrimination in hiring, and shortly thereafter she

was demoted.3

To the extent Plaintiff is attempting to plead a hostile work environment claim under

Title VII, she has failed to state a claim. To plead a hostile work environment on the basis

of race, the Complaint must include factual allegations that: (1) she was subject to

unwelcome harassment, (2) the harassment was based on her race, and (3) the harassment

was so severe or pervasive that it changed the terms, conditions, or privileges of her

employment and created an abusive work environment. Unal v. Los Alamos Public

Schools, 638 F. App'x 729, 735–36 (10th Cir. 2016). Hostile work environment claims

require a plaintiff to allege facts showing “the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.” Davis

v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998)(internal quotation marks and

citation omitted). Plaintiff makes no specific allegations that she was subjected to racial

harassment, that is, statements related to her race, and certainly nothing sufficiently severe

2 Plaintiff alleges that she was asked by Travis Clerk, a Human Resource Management Specialist, if it had been

worthwhile to speak up about the illegal activity given the harassment and retaliation to which she was subjected.

3 “Even if no actionable discrimination took place, a plaintiff can still avoid dismissal if her allegations are sufficient

to allege that she had a good faith belief that her employer’s actions violated Title VII. See Clark v. Cache Valley

Elec. Co., 573 F. App’x 693, 700-01 (10th Cir. July 25, 2014).

and pervasive as to constitute a hostile work environment. Therefore, to the extent Plaintiff

intended to plead a hostile work environment claim, her Complaint fails to do so, and the

claim is DISMISSED.

Plaintiff asserts that the alleged discrimination on the basis of race violated

Oklahoma’s anti-discrimination law, presumably intending to rely on the Oklahoma Anti-

Discrimination Act (“OADA”), Okla. Stat. tit. 25 § 1101 et seq. The State, of which the

Department of Corrections is an arm, has not waived its Eleventh Amendment immunity,

and accordingly, to the extent Plaintiff is relying on the OADA, her claim against the

Department of Corrections cannot proceed in federal court and is subject to dismissal.

Plaintiff also purports to assert a retaliation claim under the Age Discrimination in

Employment Act (“ADEA”). As noted by Defendants in the Motion to Dismiss, nothing in

the ADEA abrogated the states' sovereign immunity, or that of state officials sued in their

official capacity. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (“We hold ... that,

in the ADEA, Congress did not validly abrogate the States' sovereign immunity to suits by

private individuals.”). Additionally, as noted above, the ADEA does not contain a

provision permitting individual liability See Butler, 172 F.3d at 744. Accordingly,

Defendants’ Motion to Dismiss is GRANTED with regard to Plaintiff’s ADEA claim.

Plaintiff’s claims that her rights under the First and Fourteenth Amendment were

violated are also subject to dismissal. Plaintiff does not identify which Defendants she

seeks to hold liable for the alleged violation of her constitutional rights. 42 U.S.C. § 1983

is the mechanism for asserting violation of the Constitution. Brown v. Buhman, 822 F.3d

1151, 1161 n.9 (10th Cir. 2016). “A cause of action under section 1983 requires the

deprivation of a civil right by a ‘person’ acting under color of state law.” McLaughlin v.

Bd. of Trustees, 215 F.3d 1168, 1172 (10th Cir. 2000). To the extent Plaintiff is seeking to

hold the Department of Corrections liable for allegedly violating her constitutional rights,

the claim could not succeed because Congress did not abrogate states' Eleventh

Amendment immunity in enacting 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 345

(1979), overruled on other grounds, Hafer v. Melo, 502 U.S. 21 (2001). Further, Plaintiff

does not allege that the State of Oklahoma waived its Eleventh Amendment immunity.

Finally, “[i]t is well established that arms of the state, or state officials acting in their

official capacities, are not ‘persons’ within the meaning of § 1983 and therefore are

immune from § 1983 damages suits.” Hull v. State of New Mexico Taxation and Revenue

Department’s Motor Vehicle Division, 179 F. App’x 445, 446 (10th Cir. 2006).

Accordingly, to the extent Plaintiff seeks to recover from the Department of Corrections or

any of the individual Defendants, in their official capacities, under § 1983, they are not

“persons” and any such claim would be subject to dismissal.

To the extent Plaintiff is attempting to allege a claim against an individual

Defendant in his or her individual capacity, she fails to sufficiently identify which

Defendant allegedly violated which of her constitutional rights. Where multiple defendants

are involved, “[i]t is particularly important ... that the complaint make clear exactly who is

alleged to have done what to whom, to provide each individual with fair notice as to the

basis of the claims against him or her . . . .” Kan. Penn Gaming, LLC v. Collins, 656 F.3d

1210, 1215 (10th Cir. 2011) (quoting Robbins v. Okla. ex rel. Dep’t of Human Servs., 519

F.3d 1242, 1250 (10th Cir. 2008). Additionally, individual defendants are generally entitled

to assert the defense of qualified immunity at the motion to dismiss stage—and

successively thereafter, each time with a right to an interlocutory appeal; therefore, it is

especially important that the complaint make specific allegations regarding who did what

to whom. Plaintiff’s claims that her rights under the First and Fourteenth Amendments

were violated are therefore DISMISSED.

Plaintiff’s next listed claims assert violations of the Fair Labor Standards Act

(“FLSA”) and the Oklahoma Protection of Labor Act. The FLSA permits an employee to

bring an action for unpaid minimum or overtime wages. 29 U.S.C. § 216(b). Plaintiff does

not allege that she was not paid minimum wage, nor does she allege that she worked more

than forty hours in any workweek but was denied overtime compensation despite being

entitled thereto. Therefore, her FLSA claim is DISMISSED. Plaintiff’s claim under the

Oklahoma Protection of Labor Act, Okla. Stat. tit. 40 § 165.1 et seq. is subject to dismissal

because the Department of Corrections, an arm of the State, is entitled to sovereign

immunity on the claim. Additionally, nothing in Plaintiff’s Complaint alleges facts that

would bring her claims under the provisions of the Act, which provides relief when an

employer fails to pay an employee’s wages due at the next regular pay day after

termination. Plaintiff’s OPLA claim is DISMISSED.

Plaintiff lists a whistleblowing claim under state law, again without identifying

which of the Defendants she seeks to hold liable under this theory. Oklahoma has a

Whistleblower Act, Okla. Stat. tit. 74 § 840-2.5, designed to “encourage and protect the

reporting of wrongful governmental activities and to deter retaliation against state

employees for reporting these activities.” Id. at § 840-2.5(a). Enforcement of the Act is

delegated to the Merit Protection Commission and exhaustion of available remedies is

mandated in most circumstances. Okla. Stat. tit. 74 § 840-2.6.

In addition to prohibiting officers and employees of state agencies from

taking disciplinary action against whistleblowers, the Legislature has

provided two measures to ensure the purpose of the Whistleblower Act is

carried out generally and in specific cases. The Legislature has provided (1)

an appeal with the Oklahoma Merit Protection Commission to any state

employee or former state employee aggrieved pursuant to this section, and

(2) corrective action against any employee found to have violated the

Whistleblower Act. 74 O.S. Supp.2008 § 840–2.5(G) and (H).

Shephard v. Compsource Okla., 209 P.3d 288, 291 (Okla. 2009). In Shephard, the

Oklahoma Supreme Court found that “the remedies ... provided in the Act were sufficient

to protect the statutory public policy.” Id. at 292. “Where a statutory remedy exists that is

sufficient to protect the Oklahoma public policy goal, an employee has an adequate remedy

that precludes resort to a tort cause of action to redress a termination in violation of the

public policy.” Id. at 293. Pursuant to Okla. Stat. tit 74, §§ 840–2.5(G) and (H), plaintiff

had a right to file her complaint with the MPC and if she disagreed with the Commission’s

ruling she could seek reconsideration thereof and then judicial review of any unfavorable

decision. See Okla. Stat. tit. 75 §§ 317-318. Plaintiff does not allege she chose to pursue

relief from the Commission and accordingly, the Court dismisses her whistleblowing

claim.

Plaintiff lists two similar claims next, tortious interference with a prospective

economic advantage and with a contract. Plaintiff’s allegations do not include a reference

to any contract, employment or otherwise, nor does she identify who allegedly interfered

with any such contract. Accordingly, this claim is DISMISSED. Similarly, Plaintiff does

not identify which Defendant she seeks to hold liable for allegedly interfering with her

prospective economic advantage, which presumably is intended to refer to her continued

employment with the Department of Corrections.

Next in Plaintiff’s litany of claims is reference to ERISA, the Employee Retirement

Income Security Act of 1974, 29 U.S.C. §§ 1001-1461. Plaintiff does not allege any facts

in her Complaint regarding the Department of Corrections employee benefit plan. More

fundamentally, however, employee benefit plans established by governmental entities are

exempt from ERISA. 29 U.S.C. § 1003(b)(1); see also 29 U.S.C. § 1002(32) (2000)

(defining a governmental plan to include a plan established or maintained by a state

government or any political subdivision thereof). Accordingly, Plaintiff’s ERISA claim is

dismissed.

Plaintiff also purports to allege a claim for blacklisting, presumably under Okla.

Stat. tit. 40 § 172, which provides:

No firm, corporation or individual shall blacklist or require a letter of

relinquishment, or publish, or cause to be published, or blacklisted, any

employee, mechanic or laborer, discharged from or voluntarily leaving the

service of such company, corporation or individual, with intent and for the

purpose of preventing such employee, mechanic or laborer, from engaging

in or securing similar or other employment from any other corporation,

company or individual.

Plaintiff does not identify which of the many Defendants allegedly engaged in blacklisting,

nor does she identify any facts that would support such a claim. Accordingly, her claim for

blacklisting is hereby DISMISSED.

Further, Plaintiff’s defamation claim is also subject to dismissal. To plead a claim

for defamation Plaintiff must plead facts from which the Court can infer that a Defendant

or Defendants: (1) made a false statement about her; (2) that was not privileged; (3) that

was published; and (4) that “[t]ends directly to injure [Plaintiff] in respect to [her] office,

profession, trade or business.” Okla. Stat. tit. 12, § 1442. Because Plaintiff has not parsed

out her claims sufficiently as to each Defendant, the Court cannot discern which Defendant

allegedly made a defamatory statement about Ms. Bruton, nor ascertain which defendant

she seeks to hold liable for the alleged defamatory statements. Plaintiff’s defamation claim

fails to meet the pleading standards set forth in Rule 8 and accordingly, her defamation

claim is hereby DISMISSED.

Finally, to the extent any of Plaintiff’s state law claims fall under the Governmental

Tort Claims Act, Plaintiff fails to establish that she filed the required notice of tort claim

that must be presented to the State within one year from the date of loss.

[C]laims against the state or a political subdivision are to be presented within

one (1) year of the date the loss occurs. A claim against the state or a political

subdivision shall be forever barred unless notice thereof is presented within

one (1) year after the loss occurs.

Okla. Stat. tit. 51, § 156(B). Plaintiff alleges that her employment was terminated on

January 9, 2017. Plaintiff appends a Notice of Tort Claim to her Response to the Motion

to Dismiss. (Doc. No. 13-1). The Notice is dated June 21, 2019, and asserts therein “Date

of Incidents” “in or around August 2017 to June 21, 2018.” Id. at p. 1. The date of loss with

regard to termination of employment is the date of termination, that is January 9, 2018, as

alleged by Plaintiff. See Zachary v. State ex rel. Dept. of Corrections, 34 P.3d 1171, 1173

(Okla. Civ. App. 2001). Accordingly, any of Plaintiff’s claims stemming from her

termination or actions before her termination that fall within the scope of the GTCA are

barred and dismissal is appropriate.

For the reasons set forth herein, the Defendant’s Motion to Dismiss is GRANTED

with regard to all claims and all Defendants except the Department of Corrections and

Plaintiff's Title VI race discrimination and retaliation claims.

IT IS SO ORDERED this 29" day of July 2019.

DAVID L. RUSSELL

UNITED STATES DISTRICT JUDGE

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