The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ANNA KATIE CULP, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-424-PRW
)
JIM REYNOLDS, in his )
official capacity as Cleveland County )
Treasurer, )
)
Defendant. )
ORDER
Before the Court is Defendant Jim Reynolds’ motion to dismiss Plaintiff’s Amended
Complaint (Dkt. 18) for failure to state a claim upon which relief can be granted. The
background of this case is laid out in the Court’s previous order granting Defendant’s
motion to dismiss (Dkt. 16). The Court dismissed the claims without prejudice to refiling,
and Plaintiff filed an amended complaint (Dkt. 18). Defendant again requests the Court to
dismiss Plaintiff’s claims, and for the reasons outlined below, the motion is granted in part
and denied in part.
Standard of Review
In reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, all well-pleaded
allegations in the complaint must be accepted as true and viewed “in the light most
favorable to the plaintiff.”1 While a complaint need not recite “detailed factual allegations,”
1 Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting David v.
City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996)).
“a plaintiff’s obligation to provide the grounds of [her] entitle[ment] to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.”2 The pleaded facts must establish that the claim is plausible.3
Analysis
Retaliation
Defendant seeks dismissal of Plaintiff’s Title VII retaliation claim related to her
reporting of alleged harassment by Brandon Jones and Kim Jones.4 Title VII makes it “an
unlawful employment practice for an employer to discriminate against any of his
employees . . . because [s]he has opposed any practice made an unlawful employment
practice by this subchapter, or because [s]he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.”5
To establish a prima facie case of retaliation,6 Plaintiff must show (1) she engaged
in protected activity under Title VII, (2) Defendant Reynolds took an adverse employment
action against her,7 and (3) a causal connection exists between the protected activity and
2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and
citations omitted) (alteration in original).
3 Id.
4 Mot. to Dismiss Pl.’s Am. Compl. & Supp. Br. (Dkt. 18) at 312.
5 42 U.S.C. § 2000e—3(a).
6 At this early stage of the case, Plaintiff need not make out a prima facie case of
discrimination. See Bekkem v. Wilkie, 915 F.3d 1258, 1274–75 (10th Cir. 2019).
7 See Braxton v. Nortek Air Sols., LLC, 769 F. App’x 600, 605–06 (10th Cir. 2019) (quoting
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)) (“For a retaliation claim
the adverse action.8 To satisfy the causation element “requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions
of the employer.”9 This equates to proof of “‘circumstances that justify an inference of
retaliatory motive.’”10
The Tenth Circuit explains how the failure to state a claim standard of Fed. R. Civ.
P. 12(b)(6) applies to a Title VII retaliation claim:
A complaint raising a claim of discrimination does not need to conclusively
establish a prima facie case of discrimination, but it must contain more than
“ ‘[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements.’ ”11 “While we do not mandate the pleading of
any specific facts in particular,” a plaintiff must include enough context and
detail to link the allegedly adverse employment action to a discriminatory or
retaliatory motive with something besides “sheer speculation.”12 “[A]
plaintiff should have”—and must plead—“at least some relevant information
to make the claims plausible on their face.”13 . . . “Pleadings that do not allow
for at least a reasonable inference of the legally relevant facts are
insufficient.”1415
under Title VII, an adverse employment action is something that would have ‘dissuaded a
reasonable worker from making or supporting a charge of discrimination.’”).
8 Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004).
9 Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
10 Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014) (quoting Williams v. W.D. Sports,
N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007)).
11 Khalik v. United Air Lines, 671 F.3d 1188, 1193 (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
12 Id. at 1194.
13 Id. at 1193.
14 Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1236 (10th Cir. 2013)
(internal quotation marks omitted).
15 Bekkem, 915 F.3d at 1274–75.
1. Retaliation based on reporting conduct of Brandon Jones
First, Defendant argues that Plaintiff fails to state a claim for retaliation related to
Brandon Jones’ alleged harassment of her coworker because this incident involved no
conduct protected by Title VII.16 According to Defendant, not only was Plaintiff not present
during the alleged sexual assault, but it “occurred outside the office and after an office-
sanctioned party had concluded.”17
Defendant further asserts that Plaintiff fails to state a retaliation claim because it is
undisputed that Brandon Jones is not a Treasurer’s Office employee.18 And although
Plaintiff “now conveniently claims that Brandon Jones was a ‘co-worker’ even though she
further states that he worked for a completely separate division of the county,” Defendant
argues this is insufficient to establish liability.19 Defendant also points out that the amended
complaint does not contain an allegation that Defendant had any supervisory authority or
control over Brandon Jones, but instead that Brandon Jones worked for “a completely
different and separately-elected County official, Commissioner Haralson.”20
Defendant continues that “Plaintiff’s allegation that she was engaging in protected
activity by encouraging the victim in reporting the incident to Treasurer Reynolds so that
he could help safeguard the victim from future harassment” fails to state a claim because
16 Mot. to Dismiss Pl.’s Am. Compl. & Supp. Br. (Dkt. 18) at 45.
17 Id. at 4.
18 Id. at 5.
19 Id.
20 Id.
“[t]his generalized possibility of future harassment in the workplace is speculative . . . .”21
Finally, Defendant contends that the amended complaint lacks a factual allegation or
insinuation that Defendant’s decision to terminate Plaintiff was motivated by her sex.22
Plaintiff responds that she has stated a retaliation claim because “assisting the victim
in reporting her sexual assault at a work-related function by the husband of a coworker to
law enforcement and her employer with the aim of preventing sexual harassment and
assault in the workplace in the future” constitutes protected opposition to discrimination.23
She continues:
[I]t is plausible that Culp and the victim reasonably believed that Brandon’s
actions violated the victim’s right to be free from sexual harassment and
assault. It is further plausible that Culp addressed the issue in the workplace
because the sexual assault was sufficiently related to the workplace to cause
her to believe that, if not addressed by the employer, the actions would likely
rise to the level of a hostile work environment. Indeed, but for Culp’s actions,
the victim could very well have been assaulted at work by Brandon, who was
likely to appear at work because he was a co-worker’s husband and fellow
employee of Cleveland County. But Culp acted to prevent this. And Title VII
protects such actions.24
Plaintiff also explains that to be protected by Title VII, she need not have
complained on her own behalf or prove an actual violation of Title VII.25 And here, Plaintiff
21 Id. at 6.
22 Id.
23 Pl.’s Resp. in Opp. to Def.’s Mot. to Dismiss Am. Compl. (Dkt. 19) at 9.
24 Id. at 1011.
25 Id. at 11.
argues, “there can be no doubt that the underlying behavior” could have escalated to a
violation based on Brandon’s close connection to the workplace.26
Upon a review of the complaint and viewing all well-pleaded facts as true and in the
light most favorable to Plaintiff, the Court finds that dismissal is inappropriate. The
amended complaint alleges that Brandon Jones is a coworker of both Plaintiff and the
victim,27 and that Plaintiff reported Brandon Jones’ misconduct to Defendant Reynolds due
to her belief that it would protect the victim from further sexual assaults in the workplace
by coworker Brandon Jones.28 Thus, although it is unclear whether Defendant Reynolds in
fact violated Title VII, the alleged facts demonstrate a reasonable good faith belief by
Plaintiff that she was engaging in a protected action under Title VII.29 Moreover, the
remaining allegations provide context and detail to link Plaintiff’s termination to a
retaliatory motive by Defendant Reynolds. Prior to her report to Defendant Reynolds,
Plaintiff contends that she was never disciplined in the workplace.30 But then at a time after
her report, Plaintiff alleges that Defendant Reynolds became upset with her and accused
26 Id. at 12.
27 Am. Compl. (Dkt. 17) at 3.
28 Id. at 4.
29 Crumpacker v. Kansas Dep’t of Human Res., 338 F.3d 1163, 1171 (10th Cir. 2003). The
Court notes that it is unclear in the amended complaint how close Brandon Jones worked
with Plaintiff and the victim. Plaintiff alleges he was a coworker, but also explains that he
worked in a different agency and had a different supervisor. Moreover, the incident
happened at a bar in a gathering of people who had just come from a workplace event.
Viewing the allegations as true and in the light most favorable to Plaintiff, she plausibly
had a reasonable good faith belief that she was reporting conduct that fell under Title VII
to Defendant Reynolds.
30 Am. Compl. (Dkt. 17) at 2.
her of telling the office about the assault.31 The amended complaint also alleges that
Defendant Reynolds reprimanded Plaintiff and told her that her behavior would not be
tolerated.32 These circumstances justify an inference of retaliatory motive, so Plaintiff
accordingly states a retaliation claim upon which relief can be granted based on her report
of Brandon Jones’ misconduct.
2. Retaliation based on reporting conduct of Kim Jones
Second, Defendant argues that Plaintiff fails to state a claim for retaliation related
to Kim Jones’ alleged sex-based harassment of Plaintiff and her coworker.33 In Defendant’s
view, Plaintiff has pleaded insufficient facts to show she engaged in protected activity and
to establish a causal connection between her termination and a protected activity.34 In
support of this argument, Defendant points to the elements of a sex-based harassment
claim.35 “To establish [that] a sexually hostile work environment existed, a plaintiff must
prove the following elements: (1) she is a member of a protected group; (2) she 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.”36
31 Id. at 4.
32 Id. at 5.
33 Mot. to Dismiss Pl.’s Am. Compl. & Supp. Br. (Dkt. 18) at 612.
34 Id.
35 Id. at 610.
36 Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007) (internal citation omitted).
Defendant Reynolds concedes that Plaintiff is a member of a protected group,37 but he
argues that the allegations do not demonstrate that Plaintiff was the victim of sexual
harassment by Kim Jones, nor that the alleged harassment occurred because of her sex or
gender.38
Defendant continues that even if the amended complaint sufficiently pleads that
Plaintiff engaged in a protected activity, dismissal is still appropriate because it “fails to
allege any facts which indicate that Reynolds terminated Plaintiff’s employment in July of
2017 because she complained of purported sexual harassment by a co-worker.”39 “At most,
she offers that she ‘reasonably believed’ that Reynolds was adopting and supporting Kim
Jones’ behavior by not disciplining Kim Jones,” and “[t]he only allegations suggesting any
retaliatory intent or motive are her own conclusory beliefs . . . .”40
Plaintiff responds that the harassment by Kim Jones was severe, but even if it
wasn’t, she doesn’t have to wait until harassment is severe to claim the protections of Title
VII.41 Plaintiff continues that she has
sufficiently alleged that the harassment was based on Culp’s protected
opposition, based on her allegation that Kim alleged that the victim would
never have come forward, but for Culp’s involvement and that Kim
threatened that if Culp and the victim didn’t shut their mouths, Kim would
shut them. Culp has also sufficiently alleged that she reasonably believed
Kim’s harassment was based on Culp’s and the victim’s gender, based on the
37 Mot. to Dismiss Pl.’s Am. Compl. & Supp. Br. (Dkt. 18) at 9.
38 Id. at 10.
39 Id. at 11.
40 Id.
41 Pl.’s Resp. in Opp. to Def.’s Mot. to Dismiss Am. Compl. (Dkt. 19) at 14.
allegation that Kim stated that she knew what kind of girls that Culp and the
victim were and that they would be found out.42
Plaintiff argues that Kim Jones’ comment that she “knew what kind of girls Culp and the
victim were” can be reasonably interpreted to reflect discriminatory animus towards
women with “loose sexual morals”43 and their “failure to conform with gender stereotypes
that expect women to hold stricter morals than men.”44 Finally, Plaintiff asserts that she
need not allege anything more for causation because she “alleged that all of Kim’s and
Reynolds’s behavior derived from her protected opposition to the initial sexual harassment
of the victim and from Culp’s complaints about Kim’s gender-based harassment.”45
The Court finds Plaintiff fails to state a retaliation claim as it relates to the alleged
sexual harassment by coworker Kim Jones because the factual allegations do not allow for
a reasonable inference of the legally relevant facts. The amended complaint states that Kim
“was openly hostile to Culp, alleging that the victim never would have come forward
without Culp’s influence;”46 Kim would leave, upset and angry, if Plaintiff or the victim
went near her desk or the breakroom when Kim was in it;47 Kim told Plaintiff and the
victim to keep their mouths shut or she would shut them;48 Kim threatened Plaintiff with
42 Id. at 1415.
43 Id. at 15.
44 Id. at 1516.
45 Id. at 17.
46 Am. Compl. (Dkt. 17) at 4.
47 Id.
48 Id. at 5.
violence;49 and Kim said that she “knew what kind of girls Culp and the victim were and
that they would be found out.”50 The amended complaint also asserts in a conclusory
manner that “Culp reasonably believed that these statements were motivated by Culp’s and
the victim’s gender and Kim’s beliefs about proper adherence to gender stereotypes.”51 It
further asserts that “Kim continued to subject the victim to harassment.”52 These
allegations are vague and conclusory, and the amended complaint lacks any factual
allegations that provide insight into how Kim Jones’ alleged harassment was based on
gender or sex. Indeed, the facts and inferences accepted as true and viewed in the light most
favorable to Plaintiff still support the conclusion that any harassment by Kim Jones was
not based on the sex of Plaintiff or the victim, but instead because they were involved with
her husband’s indiscretion and its dissemination into office chatter. The amended
complaint’s allegation that Kim made a statement about “girls” does not transform her
actions into sex-based harassment. Accordingly, Plaintiff fails to state a retaliation claim
upon which relief can be granted, so this claim is dismissed with prejudice.
Public Policy Tort
Finally, Defendant Reynolds again argues Plaintiff’s Burk tort claim must be
dismissed because an actionable public policy Burk claim cannot be based upon the cited
49 Id. at 6.
50 Id. at 4.
51 Id. at 45.
52 Id. at 5.
statutes that allegedly led to her termination.53 To state a Burk tort claim, Plaintiff must
allege in part that her termination was “in significant part for a reason that violates an
Oklahoma public policy goal [] that is found in Oklahoma’s constitutional, statutory, or
decisional law . . . .”54 Plaintiff’s second cause of action in the amended complaint is
virtually identical to that in the original complaint55 that the Court previously dismissed for
failure to state a claim.56 The Court remains unaware of any Oklahoma precedent
recognizing the use of the cited criminal statutes as a basis from which to derive actionable
public policy for a Burk claim, nor does it discern a clear and compelling public policy
from these statutes that would give rise to such a claim.57 As a result, Plaintiff’s Burk tort
claim based public policy underlying 21 O.S. §§ 267, 455, 540, and 546 still fails to state
a claim upon which relief can be granted.
In her response, Plaintiff argues for the first time that she “may base her public-
policy tort for wrongful discharge on her involvement in reporting sexual battery and
53 Mot. to Dismiss Pl.’s Am. Compl. & Supp. Br. (Dkt. 18) at 12.
54 Moore v. Warr Acres Nursing Ctr., LLC, 2016 OK 28, ¶ 19, 376 P.3d 894, 899–900
(quoting Vasek v. Board of County Commissioners, 2008 OK 35, ¶¶ 27–28, 186 P.3d 928).
55 The original complaint only includes one additional paragraph. See Compl. (Dkt. 1) at 8
(“38. Oklahoma public policy also condemns harassment based on sex. See 25 O.S. §
1350.”).
56 See Order (Dkt. 16).
57 The Court further adopts its reasoning in the first order on Defendant’s motion to dismiss.
See id. at 1017.
indecent exposure against a friend and coworker.”58 She concedes that she did not
previously invoke these statutes, but nevertheless contends that she
has sufficiently incorporated these statutes as a basis for her public-policy
tort by citing the criminal prosecution of Brandon Jones in McClain County
Case No. CJ-2017-212 at footnote 2 on page 3 of her complaint, in which
the State of Oklahoma charged Brandon Jones for violating (1) 21 O.S. §
1123(B) for sexual battery on information that he “intentionally pulled down
[the victim’s] shirt, fondled and kissed her breast, and put his hand down the
pants of [the victim] . . . in a lewd and lascivious manner and without
consent” and (2) 21 O.S. § 1021(A)(1) for indecent exposure on information
that he “willfully, knowingly, and lewdly expos[ed] his penis to [the
victim].”59
The Court disagrees that citing the state case in a footnote in the fact section of the
amended complaint was enough to put Defendant Reynolds on fair notice the basis of her
claim, when her second cause of action clearly articulates that the claim is based on 21 O.S.
§§ 267, 455, 540, and 546,60 rather than the statutes she invokes in her response to the
motion to dismiss. Viewing the allegations as true and in the light most favorable to
Plaintiff, the Court finds that Plaintiff’s Burk tort claim must be dismissed with prejudice
because amendment to specifically invoke the belatedly-invoked statutes would be futile,
as the Court is unaware of any state court precedent recognizing a Burk tort claim based on
those statutes.
58 Pl.’s Resp. in Opp. to Def.’s Mot. to Dismiss Am. Compl. (Dkt. 19) at 18.
59 Id. at 19.
60 Am. Compl. (Dkt. 17) at 8. Although not relevant to this analysis, the Court notes that
this footnote was also in the original complaint, and Plaintiff made no argument in the
motion to dismiss briefing that its inclusion incorporated the sexual battery and indecent
exposure statutes into her public policy tort claim.
Conclusion
The motion (Dkt. 18) is therefore GRANTED IN PART and DENIED IN PART.
Plaintiff’s retaliation claim based on reporting the conduct of Kim Jones and public policy
tort claim are DISMISSED with prejudice. Plaintiffs retaliation claim based on reporting
the conduct of Brandon Jones is DENIED.
IT IS SO ORDERED this 13th day of July, 2020.
PATRICK R. wae
UNITED STATES DISTRICT JUDGE
13