Williamson v. Board of Regents of the University of Oklahoma

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

DIERDRE WILLIAMSON, )

)

Plaintiff, )

)

v. ) Case No. CIV-19-256-G

)

STATE OF OKLAHOMA ex rel. )

BOARD OF REGENTS OF THE )

UNIVERSITY OF OKLAHOMA, )

)

Defendant. )

ORDER

Now before the Court is Defendant’s Motion to Dismiss (Doc. No. 8). Plaintiff has

responded in opposition (Doc. No. 10), and Defendant has replied (Doc. No. 11). Having

reviewed the parties’ submissions and the relevant record, the Court makes its

determination.

STANDARD OF DECISION

In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true

all well-pleaded factual allegations in the complaint and view[s] them in the light most

favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,

1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted

when it lacks factual allegations sufficient “to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful

in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citations

omitted); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (“[T]o

withstand a motion to dismiss, a complaint must contain enough allegations of fact to state

a claim to relief that is plausible on its face.” (internal quotation marks omitted)). Bare

legal conclusions in a complaint are not entitled to the assumption of truth; “they must be

supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009).

DISCUSSION

In its Motion, Defendant seeks dismissal of all claims raised in the Second Amended

Petition, including age discrimination in violation of the Age Discrimination in

Employment Act (“ADEA”), pay discrimination in violation of the Equal Pay Act

(“EPA”), race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), and retaliation in violation of Title VII. See Second Am. Pet. (Doc. No. 1-13) at 4-

6.1 In her Response, Plaintiff “withdraws”2 all of these claims except for her race

discrimination claim brought under Title VII.3 See Pl.’s Resp. at 1. Defendant raises two

grounds for dismissal of the remaining claim: (1) the claim is untimely, and (2) the factual

allegations fail to plausibly show discriminatory intent.

1 References to documents electronically filed in this Court use the CM/ECF pagination.

2 The Court construes Plaintiff’s statement of withdrawal as a voluntary dismissal under

Rule 41 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 41(a)(1)(A)(i).

3 In support of its argument for dismissal of Plaintiff’s retaliation claim, Defendant attached

to its Motion the Charge of Discrimination form Plaintiff submitted to the Equal

Employment Opportunity Commission (“EEOC”) on July 25, 2018. See Doc. No. 8-4;

Def.’s Mot. at 21. Because Plaintiff has withdrawn her retaliation claim, the Court has not

considered this document; nor has the Court considered any other material outside of the

pleadings. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

I. Whether Plaintiff’s Race Discrimination Claim Is Timely

A plaintiff claiming employment discrimination under Title VII must file a

complaint within 90 days of receipt of a right-to-sue letter from the EEOC. See 42 U.S.C.

§ 2000e-5(f)(1). Though Plaintiff’s original state-court petition was filed within the 90-

day period, Defendant argues that the race discrimination claim contained in her Second

Amended Petition was not alleged in the original petition and does not relate back to the

original petition under Rule 15(c)(2) of the Federal Rules of Civil Procedure. See Def.’s

Mot. at 19-21. Plaintiff does not dispute that the race discrimination claim was filed

beyond the 90-day deadline but argues that Rule 15(c) prevents the statute of limitations

from barring her claim. See Pl.’s Resp. at 4.

Rule 15(c) provides that “[a]n amendment to a pleading relates back to the date of

the original pleading when . . . the amendment asserts a claim or defense that arose out of

the conduct, transaction, or occurrence set out—or attempted to be set out—in the original

pleading.” Fed. R. Civ. P. 15(c)(1)(B). Rule 15(c) functions in “limited circumstances” to

“save[] an otherwise untimely amendment by deeming it to ‘relate back’ to the conduct

alleged in the timely original complaint.” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d

950, 961 (10th Cir. 2012). The Supreme Court has stated that the purpose of the relation-

back doctrine is “to balance the interests of the defendant protected by the statute of

limitations with the preference expressed in the Federal Rules of Civil Procedure in

general, and Rule 15 in particular, for resolving disputes on their merits.” Krupski v. Costa

Crociere S. p. A., 560 U.S. 538, 550 (2010). “The rationale of Rule 15(c) is that a party

who has been notified of litigation concerning a particular occurrence has been given all

the notice that statutes of limitations were intended to provide.” Baldwin Cty. Welcome

Ctr. v. Brown, 466 U.S. 147, 149 n.3 (1984). Thus, “relation back is improper when the

amended claim ‘asserts a new ground for relief supported by facts that differ in both time

and type from those the original pleading set forth.’” Hernandez, 684 F.3d at 962 (quoting

Mayle v. Felix, 545 U.S. 644, 650 (2005)).

Upon review, the Court finds that the facts alleged in the original petition and the

Second Amended Petition are nearly identical. Plaintiff predicates her race discrimination

claim on Defendant’s alleged “refusal to accommodate and/or issue qualifying benefits or

pay,” Second Am. Pet. at 5, and allegations of Defendant’s refusal to accommodate or issue

qualifying benefits are present in both pleadings. Defendant argues that Plaintiff’s race

discrimination claim should not relate back because “[r]ace . . . discrimination (if pled

properly) would include conduct by [Defendant] separate and distinct from conduct

amounting to disability discrimination for failure to provide reasonable accommodations.”

Def.’s Mot. at 21. This argument, however, improperly inserts considerations relevant to

Rule 12(b)(6) into the Rule 15(c) analysis, and the Court addresses those considerations

below.

Accordingly, the Court finds that Plaintiff’s race discrimination claim relates back

to the original petition as the claim is based on factual allegations that are neither new nor

discrete from the facts she originally pled. See Hernandez, 684 F.3d at 962.

II. Whether Plaintiff’s Factual Allegations Plausibly Show Race Discrimination

As an alternative basis for dismissal, Defendant argues that dismissal is required

because Plaintiff’s factual allegations “fail to establish the necessary causation required for

her to show [that Defendant] discriminated against her based upon her race.” Def.’s Mot.

at 14-16 (arguing that Plaintiff’s factual allegations do not “raise a plausible inference that

the alleged disparate treatment was a product of discriminatory intent based on her race”).

“Title VII makes it unlawful ‘to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex, or

national origin.’” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)

(quoting 42 U.S.C. § 2000e-2(a)(1)). A plaintiff may prove a Title VII violation “either by

direct evidence of discrimination or by following the burden-shifting framework of

McDonnell Douglas Corp. v. Green, [411 U.S. 792 (1973)].” Id. Under the McDonnell

Douglas framework, the Plaintiff first bears the burden of establishing a prima facie case

of discrimination; the burden then “shifts to the defendant to produce a legitimate, non-

discriminatory reason for the adverse employment action.” Id. “If the defendant does so,

the burden then shifts back to the plaintiff to show that the plaintiff’s protected status was

a determinative factor in the employment decision or that the employer’s explanation is

pretext.” Id.

The McDonnell Douglas requirement that a Plaintiff establish a prima facie case “is

an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N. A., 534

U.S. 506, 510 (2002). In clarifying the role of the McDonnell Douglas framework in a

Rule 12(b)(6) analysis, the Tenth Circuit has explained that “[w]hile the 12(b)(6) standard

does not require that [the plaintiff] establish a prima facie case in her complaint, the

elements of each alleged cause of action help to determine whether [the plaintiff] has set

forth a plausible claim.” Khalik, 671 F.3d at 1192; see Morman v. Campbell Cty. Mem’l

Hosp., 632 F. App’x 927, 933 (10th Cir. 2015) (“The inferences offered by the McDonnell

Douglass framework assist judges in resolving motions to dismiss by providing an

analytical framework to sift through the facts alleged.”).

The articulation of the prima facie case under the McDonnell Douglas framework

may “vary, depending on the context of the claim and the nature of the adverse employment

action alleged.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005). Here, the parties

agree that Plaintiff may establish her prima facie case for discrimination by showing that

(1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she

was qualified for the position at issue, and (4) her constructive discharge occurred under

circumstances that give rise to an inference of unlawful discrimination. See Def.’s Mot. at

15 (citing Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007)); Pl.’s Resp. at 2.4

Regardless of which permutation of the prima facie case applies, “[t]he critical prima facie

inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment

action occurred under circumstances which give rise to an inference of unlawful

discrimination.” Kendrick, 220 F.3d at 1227 (internal quotation marks omitted); see

4 The prima facie case for race discrimination under Title VII is expressed with slight

variances in Tenth Circuit decisions, depending on the context of the claim. See, e.g.,

Payan v. United Parcel Serv., 905 F.3d 1162, 1168 (10th Cir. 2018); Khalik, 671 F.3d at

1192; Trujillo v. Univ. of Colo. Health Sci. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998); see

also Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000)

(enumerating elements required to establish prima facie case in discriminatory discharge

context).

Swierkiewicz, 534 U.S. at 510 (explaining that the prima facie case “relates to the

employee’s burden of presenting evidence that raises an inference of discrimination”).

Plaintiff’s factual allegations include that: (1) Plaintiff is a female African-

American; (2) Plaintiff was employed by Defendant from early 2002 until her

resignation/constructive discharge in 2017; (3) Plaintiff was qualified for her job and

performed it satisfactorily; (4) Plaintiff filed an internal wage discrimination and racial

discrimination complaint and experienced workplace retaliation and a hostile work

environment5 as a result; (5) years of harassment and hostility caused her disability to

worsen; (6) Plaintiff disclosed her disability to Defendant in 2016; (7) Plaintiff was

assigned several additional work tasks in 2016; (8) other employees within the department

were not assigned the same workload; (9) Plaintiff’s supervisor refused Plaintiff’s requests

for overtime, “comp time,” free time, and additional help; (10) Plaintiff’s supervisor overly

scrutinized Plaintiff’s work, badgered Plaintiff about completing her regular job duties and

additional tasks, and ultimately issued a written disciplinary action against Plaintiff; (11)

Defendant’s lack of reasonable accommodations for Plaintiff’s disability directly caused

her constructive discharge, and the hostile workplace was a significant factor in her

5 Plaintiff does not plead the theory of hostile work environment as an independent claim

and, as noted, Plaintiff has withdrawn her Title VII retaliation claim. See Second Am. Pet.

at 5; Pl.’s Resp. at 1-2 (citing elements of disparate-treatment claim rather than hostile

work environment claim). Nor would the facts alleged support a race-based hostile work

environment claim, as they fail to plausibly “show that the work environment [was]

permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.” Brown v. LaFerry’s LP Gas Co., Inc., 708 F. App’x 518, 520 (10th

Cir. 2017) (internal quotation marks omitted).

constructive discharge; (12) Plaintiff requested “disability accommodations and/or medical

retirement” but had not received a response from Defendant. Second Am. Compl. at 1-4.

The Court finds that these facts, viewed in the light most favorable to Plaintiff, do

not state a claim for race discrimination under Title VII that is plausible on its face. Even

if the Court assumes that Plaintiff has pled sufficient facts to show an adverse employment

action,6 there is “nothing other than sheer speculation” to link the additional workload, the

failure to supply reasonable accommodations for disability, the lack of speedy response to

Plaintiff’s medical retirement request, or any behavior precipitating Plaintiff’s

“constructive discharge” to a racially discriminatory motive. Khalik, 671 F.3d at 1194.

The only specific reference to race in Plaintiff’s statement of facts is Plaintiff’s

allegation that she filed an internal race discrimination and wage discrimination complaint

with Defendant at some unspecified date between 2002 and her 2017 resignation. See

Second Am. Pet. at 2. Plaintiff alleges that she experienced workplace retaliation and

hostility “[a]s a result” of filing the internal complaint but does not allege that the retaliation

and hostility were predicated on racial animus. Id. There are no allegations linking

Plaintiff’s internal complaint or the resulting hostility to the supervisors who allegedly

denied Plaintiff reasonable accommodation for her disability in 2016 and 2017. There are

no allegations of racial slurs or insults. There are no allegations that reasonable

6 Under Title VII, “[a]n adverse employment action constitutes a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir. 2004) (internal quotation

marks omitted). Defendant does not challenge the adverse-employment-action component

of Plaintiff’s race discrimination claim.

accommodations were provided to similarly situated employees who are not African

American. While Plaintiff was not required to plead these specific facts, Plaintiff was

required to provide “at least some relevant information to make the [Title VII claim]

plausible on [its] face.” Khalik, 671 F.3d at 1193-94 (noting that the plaintiff “should know

details about how [the defendant] treated her compared to other non-Arabic or non-Muslim

employees,” “should know why she believed [the complained-of] action was connected

with discriminatory animus,” and “should know who she complained to about the

discrimination, when she complained, and what the response was”).

The Tenth Circuit has found factual allegations similar to Plaintiff’s insufficient to

survive a Rule 12(b)(6) challenge. See id. (“Plaintiff’s claims are based solely on the fact

that she is Muslim and Arab-American, that she complained about discrimination, that she

complained about the denial of [Family and Medical Leave Act] leave, and that Defendant

terminated her. Without more, her claims are not plausible under the Twombly/Iqbal

standard.”). Because Plaintiff provides no factual context from which an inference of racial

discrimination could plausibly be drawn, the Court finds that Plaintiff’s Title VII race

discrimination claim should be dismissed.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss (Doc. No. 8) is

GRANTED as to Plaintiff’s Title VII race discrimination claim, and the Court dismisses

this claim without prejudice. The Court additionally finds that Plaintiff has voluntarily

dismissed her remaining claims pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of

Civil Procedure. A separate judgment shall be entered.

Because this Order disposes of this action, the pending motion regarding the parties’

deadlines (Doc. No. 16) is DENIED AS MOOT, and the case is STRICKEN from the

Court’s trial docket.

IT IS SO ORDERED this 4th day of December, 2019.

CHARLES B. GOODWIN

United States District Judge

10