Betchan v. Board of Regents of the University of Oklahoma

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

KIMBERLY BETCHAN et al., )

)

Plaintiffs, )

)

v. ) Case No. CIV-20-128-G

)

STATE OF OKLAHOMA ex rel. )

BOARD OF REGENTS OF THE )

UNIVERSITY OF OKLAHOMA et al., )

)

Defendants. )

ORDER

Now before the Court are three motions to dismiss filed through counsel by

Defendant State of Oklahoma ex rel. Board of Regents of the University of Oklahoma

(“University”) (Doc. No. 5), Defendant Shannon McEntire (Doc No. 6), and Defendant

Rebecca Halley (Doc. No. 7). Plaintiffs Kimberly Betchan and Michelle Boyd have

responded in opposition (Doc. Nos. 15, 16, 22), and Defendants have replied (Doc. Nos.

18, 19, 23). Having reviewed the parties’ submissions and the operative pleading, the

Court makes its determination.

BACKGROUND

Plaintiffs’ claims arise from their employment with OU Physicians Fountain Lake

Clinic (“Fountain Lake”), a division of the OU Health Sciences Center. See Second Am.

Pet. (Doc. No. 1-6) ¶¶ 4-6, 27, 52. Plaintiffs allege that the Board of Regents of the

University of Oklahoma (“OU”) is an arm of the State of Oklahoma and that the OU Health

Sciences Center “is an agency and an integral part of OU.” Id. ¶ 5.

At the times relevant to this litigation, Plaintiff Kimberly Betchan served as a Patient

Services Representative Team Lead and Plaintiff Michelle Boyd served as a Triage Nurse.

Id. ¶¶ 28, 53. Defendant Shannon McEntire was Fountain Lake’s Clinic Director and was

supervisor to both Plaintiffs. Defendant Rebecca Halley served as Fountain Lake’s Senior

Human Resources Manager. Id. ¶¶ 7, 9, 29, 54.

In their pleading, Plaintiffs bring the following claims: (1) an Age Discrimination

in Employment Act (“ADEA”) claim against Defendants McEntire and Halley in their

official capacities; (2) a 42 U.S.C. § 1983 First Amendment retaliation claim against

Defendants McEntire and Halley in their individual capacities; (3) a 42 U.S.C. § 1983

Fourteenth Amendment claim against Defendants McEntire and Halley in their individual

capacities; (4) an Oklahoma Anti-Discrimination Act (“OADA”) claim against Defendant

University; and (5) a Burk1 tort claim against Defendant University. Additionally, Plaintiff

Boyd brings two claims individually: (6) an Americans with Disabilities Act (“ADA”)

claim against Defendants McEntire and Halley in their official capacities; and (7) a

Rehabilitation Act claim against Defendants University, McEntire, and Halley.

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

1 Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989).

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 citation

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

The Court first considers the two claims brought by Plaintiff Boyd individually and

then turns to the claims brought by the Plaintiffs jointly.

I. Plaintiff Boyd’s ADA Claim

Plaintiff Boyd alleges that on September 19, 2017, she “suffered a needle stick with

a dirty needle.” Second Am. Pet. ¶ 55. To ensure that she had not been exposed to

pathogens, Boyd was required to have her blood drawn and tested on five occasions,

including “one day, one month, two months, six months, and one year after the initial

needle stick.” Id. ¶¶ 59-60. Boyd alleges that her requests for time off for these tests were

denied on three separate occasions during the last four months of her employment and that

she was “retaliated against for requesting reasonable time off” for the blood tests. Id. ¶¶

61-63; see also id. ¶¶ 105-117. Boyd brings her ADA claim against Defendants McEntire

and Halley in their official capacities.

The ADA prohibits employers from discriminating “on the basis of disability in

regard to job application procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). The Act specifically addresses when an employer

may require that an employee undergo medical examination and when such requirement

would constitute discrimination. Id. § 12112(d). For current employees, like Boyd was

during the relevant time period, a covered employer is permitted to require a medical

examination from an employee only when the examination “is shown to be job-related and

consistent with business necessity.” Id. § 12112(d)(4)(A); 29 C.F.R. § 1630.14.

Boyd does not contend that § 12112(d) did not authorize Fountain Lake to require

that Boyd submit herself to a one-year testing protocol following her needle-stick injury.

Such a requirement is plainly permitted under the statute. Ascertaining whether a nurse

who suffers a blood-to-blood exposure with a patient, and therefore is at an elevated risk

of contracting a communicable disease and through her work exposing others to that

disease, is both job-related and consistent with business necessity.

Instead, Boyd asserts that her possible exposure to disease rendered her disabled

within the meaning of the ADA, or that Fountain Lake regarded her as disabled, and that—

among other discriminatory acts—Fountain Lake failed to reasonably accommodate this

disability by giving her time off for the tests. Defendants argue in their Motions that

Plaintiff Boyd fails to state a claim upon which relief can be granted because neither the

potential exposure to pathogens nor the need for periodic blood testing constitutes a

disability under the ADA. See Def. McEntire’s Mot. (Doc. No. 6) at 15-16; Def. Halley’s

Mot. (Doc. No. 7) at 13-15; Fed. R. Civ. P. 12(b)(6).

To establish a prima facie case of discrimination under the ADA, a plaintiff must

demonstrate that “(1) she is a disabled person as defined by the ADA; (2) she is qualified,

with or without reasonable accommodation, to perform the essential functions of the job

held or desired; and (3) the employer discriminated against her because of her disability.”

Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000); see DeWitt v. Sw. Bell Tel.

Co., 845 F.3d 1299, 1308 (10th Cir. 2017). The ADA defines disability as: “(A) a physical

or mental impairment that substantially limits one or more major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having such an

impairment.” 42 U.S.C. § 12102(1).

Boyd alleges that her disability falls within subsection (C) of § 12102(1). See Pls.’

Resp. to Def. McEntire’s Mot. (Doc. No. 16) at 17. For purposes of this subsection, a

plaintiff “meets the requirement of ‘being regarded as having such an impairment’ if the

individual establishes that he or she has been subjected to an action prohibited under this

chapter because of an actual or perceived physical or mental impairment whether or not

the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §

12102(3)(A). Subsection 12102(1)(C), however, does not apply to “impairments that are

transitory and minor.” Id. § 12102(3)(B).

Thus, to show that Defendants regarded Boyd as having an impairment for purposes

of § 12102(1)(C), Boyd “must show that (1) [s]he has an actual or perceived impairment,

(2) that impairment is neither transitory nor minor, and (3) the employer was aware of and

therefore perceived the impairment at the time of the alleged discriminatory action.” Adair

v. City of Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016). Boyd argues that “needing

blood testing periodically for a year was an actual or perceived impairment” and that the

“blood testing was neither transitory [n]or minor.” Pls.’ Resp. to Def. McEntire’s Mot. at

18. Boyd’s argument fails for several reasons.

First, Boyd has not plausibly alleged an actual impairment. Plaintiffs’ allegations

reflect that Boyd was required to undergo testing due to the possibility that she was infected

as a result of a needle-stick injury, not because of any known infection. And although it is

alleged that the needle-stick injury “temporarily affected [Boyd’s] immune system,”

Second Am. Pet. ¶ 57, Boyd provides no factual or scientific support for such a contention.

Neither does she provide any authority supporting her contention that such a temporary

effect, or the need for medical testing in general, constitutes an actual physical or mental

impairment. See 42 U.S.C. § 12102(1)(A) (an impairment under the ADA must be a

physical or mental impairment); see also Tesone v. Empire Mktg. Strategies, 942 F.3d 979,

996-97 (10th Cir. 2019) (“The ADA does not define ‘physical or mental impairment,’ but

an EEOC regulation specifies that the terms encompass ‘[a]ny physiological disorder, or

condition . . . affecting one or more body systems, such as neurological, musculoskeletal,

special sense organs, respiratory (including speech organs), cardiovascular, reproductive,

[or] digestive . . . .’ 29 C.F.R. § 1630.2(h)(1).” (alterations and omissions in original)). The

Court determines that Boyd’s allegations do not plausibly reflect an actual impairment

within the meaning of the ADA.

Second, Boyd alleges no facts from which a plausible inference could be drawn that

Defendants perceived Boyd’s condition or need for blood testing as a physical or mental

impairment. Again, Boyd has alleged no facts indicating that Defendants believed her to

be infected with any disease—only that she was required to undergo testing due to the

possibility of infection.

Finally, even assuming the need for blood testing constitutes an impairment, Boyd’s

testing was “transitory and minor” as contemplated under the statute. See 42 U.S.C. §

12102(3)(B). The ADA defines a transitory impairment as one “with an actual or expected

duration of 6 months or less.” Id. While Boyd alleges that the five occasions on which she

had her blood drawn spanned a period of one year, the durational requirement of §

12102(1)(C) is not met when the alleged impairment impacts only five days of that year.

For these reasons, the Court determines that Plaintiff Boyd has failed to plausibly

allege an ADA claim.

II. Plaintiff Boyd’s Rehabilitation Act Claim

Next, Plaintiff Boyd alleges that Defendant University and Defendants McEntire

and Halley in their official capacities violated Section 504 of the Rehabilitation Act, under

which “[n]o otherwise qualified individual with a disability in the United States, as defined

in section 705(20) of [Title 29], shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a); see

Second Am. Pet. ¶¶ 177-192; Pls.’ Resp. to Def. McEntire’s Mot. at 26-27. Section

705(20), in turn, prescribes that for purposes of § 794, an individual with a disability is

“any person who has a disability as defined in section 12102 of [the ADA].” Id. §

705(20)(B).

The Court has already determined that Plaintiff Boyd has failed to plausibly plead

an actual disability as defined under the ADA. See supra Section I. Accordingly, Boyd’s

Rehabilitation Act claim must likewise fail. See Rivero v. Bd. of Regents of Univ. of N.M.,

950 F.3d 754, 758 (10th Cir. 2020) (“Whether § 504(a) has been violated by employment

discrimination is to be determined using the standards applied under title I of the [ADA].”

(internal quotation marks omitted)).

III. Plaintiffs’ ADEA Claim

Both Plaintiff Betchan and Plaintiff Boyd claim that Defendant McEntire treated

them less favorably than younger employees and that they were terminated from their

employment due to their age. See Second Am. Pet. ¶¶ 81-104. Plaintiffs bring their ADEA

claim against Defendants McEntire and Halley in their official capacities.

Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). Generally, to establish a prima facie case of age

discrimination, a plaintiff must prove that “1) she is a member of the class protected by the

ADEA; 2) she suffered an adverse employment action; 3) she was qualified for the position

at issue; and 4) she was treated less favorably than others not in the protected class.” Jones

v. Okla. City Pub. Schs., 617 F.3d 1273, 1279 (2010) (alteration and internal quotation

marks omitted). The adverse-employment-action prong is satisfied not by “a mere

inconvenience or an alteration of job responsibilities,” but by 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.” Id. (internal quotation marks omitted).

Aside from their termination, Plaintiffs’ general allegations of harassment fail to

rise to the level of an adverse employment action. Plaintiffs allege that Defendant

McEntire “treated them . . . less favorably than employees who were younger” and that

McEntire unfairly chastised Betchan for unsatisfactory work. Second Am. Pet. ¶¶ 87-97.

But these allegations show only a “mere inconvenience,” not a “significant change in

employment status.” Jones, 617 F.3d at 1279 (internal quotation marks omitted). Plaintiffs

do broadly allege that they “were not promoted or given raises, were overlooked for

promotions for which they were otherwise qualified, [and] have lost wages and benefits.”

Second Am. Pet. ¶ 101. But Plaintiffs provide no additional facts regarding these alleged

actions, and the pleading therefore does not adequately “permit[] the defendant[s]

sufficient notice to begin preparing [their] defense.” Nasious v. Two Unknown B.I.C.E.

Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a

complaint must explain what each defendant did to him or her; when the defendant did it;

how the defendant’s action harmed him or her; and, what specific legal right the plaintiff

believes the defendant violated.”).

Thus, Plaintiffs’ ADEA claim rests solely on their alleged termination. In their

pleading, however, Plaintiffs only nominally reference their termination in relation to their

ADEA claim. See Second Am. Pet. ¶ 103 (“Plaintiffs . . . were subjected to adverse

employment actions by the Defendants including hostile work environment and

termination of their position[s] due to discrimination against them based on their age.”).

This sole, conclusory allegation fails to plausibly suggest that Plaintiffs’ “age was a ‘but-

for’ cause, or ‘the factor that made a difference’” as to their termination. Simmons v. Sykes

Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011) (citations omitted).

Moreover, when the alleged adverse employment action is the plaintiff’s

termination, a variance of the prima facie case applies: the plaintiff must demonstrate that

he or she was “(1) within the protected class of individuals 40 or older; (2) performing

satisfactory work; (3) terminated from employment; and (4) replaced by a younger person,

although not necessarily one less than 40 years of age.” Adamson v. Multi Cmty.

Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008); see Wilkerson v. Shinseki,

606 F.3d 1256, 1266 (10th Cir. 2010); Rivera v. City & Cnty. of Denver, 365 F.3d 912, 920

(10th Cir. 2004). Here, Plaintiffs fail to allege that they were replaced by younger

individuals.

Plaintiffs argue that, though their pleading does not make this affirmative

allegation, it is plausible that they were replaced by younger individuals because of

McEntire’s alleged age bias. See Pls.’ Resp. to Def. McEntire’s Mot. at 14 (admitting that

“the exact age of a replacement is unknown,” but arguing that McEntire’s “treatment of

other employees around Plaintiffs’ ages” makes it “plausible that, at the very least,

McEntire interviewed and/or offered Plaintiffs’ former positions to those younger than

Plaintiffs”). Yet, the plausibility standard “asks for more than a sheer possibility that a

defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. In the absence of allegations

supporting this material element, Plaintiffs’ pleading fails to provide “specific factual

allegations . . . plausibly suggest[ing] the defendant[s] [are] liable.” Kan. Penn Gaming,

LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (“[A] plaintiff must offer specific

factual allegations to support each claim.”); Khalik v. United Air Lines, 671 F.3d 1188,

1192 (10th Cir. 2012) (“[T]he elements of each alleged cause of action help to determine

whether Plaintiff has set forth a plausible claim.”).

Accordingly, Defendants’ request for dismissal of Plaintiffs’ ADEA claim must be

granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

IV. Plaintiffs’ 42 U.S.C. § 1983 First Amendment Retaliation Claim

Plaintiffs next allege that Defendants McEntire and Halley violated their First

Amendment rights by “[taking] adverse employment action” against them for filing

internal grievances against McEntire. Second Am. Pet. ¶¶ 144-153. Plaintiffs bring this

claim against Defendants McEntire and Halley in their individual capacities.

To successfully plead a freedom-of-speech retaliation claim, Plaintiffs must

plausibly allege, among other elements, that the speech at issue is a matter of public

concern. See Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1205-06

(10th Cir. 2007). In determining whether speech qualifies as a matter of public concern,

Courts “may consider the motive of the speaker and whether the speech is calculated to

disclose misconduct or merely deals with personal disputes and grievances unrelated to the

public’s interest.” Id. at 1205 (internal quotation marks omitted).

Plaintiffs’ pleading contains only sparse allegations regarding their internal

grievances. Plaintiffs allege that in early October 2017, Betchan filed a grievance against

McEntire in which Boyd was listed as a witness. See Second Am. Pet. ¶¶ 41-42, 66.

Plaintiffs claim that McEntire subsequently “began a course of retaliation against

Betchan,” which consisted of giving Betchan an allegedly unwarranted written warning for

“lack of attention to detail.” Id. ¶¶ 43-46. Though the pleading fails to set out the contents

of Betchan’s grievance, the grievance appears to be related to McEntire’s alleged

“singl[ing] out” and “chastis[ing]” of Betchan, McEntire’s “lack of communication,” and

“the policy changes McEntire was implementing in the clinic.” Id. ¶¶ 38-43, 93-95. With

regard to Boyd, the only grievance referenced in the pleading is related to McEntire’s

alleged denial of Boyd’s requests for time off for blood testing. See id. ¶¶ 61-63, 111.

Boyd filed the grievance against McEntire in early October 2017. See id. ¶¶ 64-66.

The Tenth Circuit has expressly held that “comments reflect[ing] [p]laintiffs’

dissatisfaction with their supervisors’ performance . . . are not matters of public concern.”

Brammer-Hoelter, 492 F.3d at 1206; see also id. at 1205 (“[S]peech that simply airs

grievances of a purely personal nature typically does not involve matters of public

concern.” (internal quotation marks omitted)); id. (“[W]e have held that the following are

not matters of public concern: speech regarding grievances about internal departmental

affairs, disputes over the term of employment, and workplace frustration.” (citations

omitted)); Bunger v. Univ. of Okla. Bd. of Regents, 95 F.3d 987, 992 (10th Cir. 1996)

(explaining that grievances that are “internal in scope and personal in nature” are not

matters of public concern).

Plaintiffs argue that dismissal on this point is premature, as Plaintiffs have not had

an opportunity to develop the record. See Pls.’ Resp. to Def. McEntire’s Mot. at 26. But

Plaintiffs should know the nature and content of their own grievances at the pleading stage

of litigation. And the only reasonable inference to be drawn from the few relevant factual

allegations is that the grievances were purely internal complaints regarding workplace

behavior rather than “attempt[s] to expose some malfeasance that would directly affect the

community at large.” Colburn v. Trs. of Ind. Univ., 973 F.2d 581, 586 (7th Cir. 1992); see

also Kan. Penn Gaming, 656 F.3d at 1215 (noting that “[t]he Twombly standard may have

greater bite in the context of a § 1983 claim against individual government actors” (internal

quotation marks omitted)).

Accordingly, the Court determines that Plaintiffs’ First Amendment retaliation

claim should be dismissed.

V. Plaintiffs’ 42 U.S.C. § 1983 Fourteenth Amendment Claim

Plaintiffs predicate their Fourteenth Amendment claim on allegations that

Defendants McEntire and Halley accessed Betchan’s medical records without her

permission. Plaintiffs bring this claim against Defendants McEntire and Halley in their

individual capacities.

Relevant to this claim, Plaintiffs allege that on or around December 15, 2017,

Betchan, who had previously been a patient at Fountain Lake, approached a Fountain Lake

physician “in the hallway of the clinic to ask if he could write a note for Betchan’s other

employer regarding a particular medical issue.” Second Am. Pet. ¶¶ 68-69. The physician

directed Betchan to have a nurse “check Betchan’s medical records” to determine if they

contained the diagnosis code for the specific medical issue. Id. ¶ 70. As directed, Betchan

asked Boyd to access her medical records, and Boyd complied. Id. ¶¶ 71-72. Defendant

Halley was notified on or around January 24, 2018, that Betchan’s medical records had

been accessed. After conducting an investigation, Halley “believed that Betchan had

instructed Boyd to add a diagnosis code to Betchan’s medical record” and “believed

Betchan’s and Boyd’s actions violated Fountain Lake’s [Health Information Portability and

Accountability Act (“HIPAA”)] policy and the minimum necessary rule.” Id. ¶¶ 75-79.

Plaintiffs further allege that Defendant McEntire “conducted an audit of Betchan’s

medical records” during this time to determine whether Plaintiffs had violated Fountain

Lake’s policies. Id. ¶ 131. They assert that McEntire was accessing the health records “in

relation to [her] role as the Clinic Director” rather than her role as a health care provider.

Id. ¶¶ 131-135 (alleging that “Betchan only executed a release [of medical information] for

purposes of treatment[,] not employment,” and “[a]n employer does not have a right to

access a party’s medical records absent a properly authorized waiver”). Plaintiffs were

terminated on January 25, 2018, “for allegedly violating Fountain Lake’s policies.” Id. ¶

80.

Plaintiffs now claim that McEntire and Halley’s access of Betchan’s medical

information violated HIPAA, as well as Betchan’s right to privacy under the Fourteenth

Amendment. The parties agree that “HIPAA does not create a private right of action for

alleged disclosures of confidential medical information.” Wilkerson, 606 F.3d at 1267 n.4.

Plaintiffs argue, however, that the facts underlying Defendants’ alleged HIPAA violation

support a § 1983 claim for violation of privacy under the Fourteenth Amendment.

Defendants, in turn, argue that they are entitled to qualified immunity on the claim, as

conduct commensurate with a HIPAA violation does not violate clearly established

constitutional rights.

Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

“In resolving a motion to dismiss based on qualified immunity, the court considers (1)

whether the facts that a plaintiff has alleged make out a violation of a constitutional right,

and (2) whether the right at issue was clearly established at the time of defendant’s alleged

misconduct.” Keith v. Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013) (internal quotation

marks omitted); see Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (holding that

courts can undertake the two-part test of a qualified-immunity defense in either order).

As an initial matter, the allegations fail to demonstrate that Plaintiff Boyd suffered

a privacy violation of any kind. As the sole predicate of the Plaintiffs’ Fourteenth

Amendment claim is the alleged access of Plaintiff Betchan’s medical information, Boyd

has not plausibly alleged that she personally experienced an unconstitutional violation of

her privacy rights. Accordingly, Boyd’s claim is subject to dismissal under the first prong

of the qualified-immunity analysis. See Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir.

1990) (“[A] section 1983 claim must be based upon the violation of the plaintiff’s personal

rights, and not the rights of someone else.”).

As to Betchan’s claim, the Court need not determine whether the first prong of the

analysis is satisfied, as Plaintiffs have failed to meet their burden of identifying clearly

established law that would have put Defendants on notice that their conduct was unlawful.

See Cummings v. Dean, 913 F.3d 1227, 1238, 1239 (10th Cir. 2019). To demonstrate that

a right is clearly established, a plaintiff must either “identif[y] an on-point Supreme Court

or published Tenth Circuit decision that establishes the unlawfulness of the defendant’s

conduct” or, alternatively, demonstrate that “the clearly established weight of authority

from other courts [has] found the law to be as the plaintiff maintains.” Id. at 1239 (internal

quotation marks omitted). Here, Plaintiffs rely on two cases: Whalen v. Roe, 429 U.S. 589

(1977), and Eagle v. Morgan, 88 F.3d 620 (8th Cir. 1996). See Pls.’ Resp. to Def.

McEntire’s Mot. at 21-22. Only Whalen warrants discussion.2

In Whalen, the Supreme Court recognized “a right to privacy in the non-disclosure

of personal information.” Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000) (citing

Whalen). While broadly relevant, this authority fails to “demonstrate . . . that [Defendants’]

actions in a ‘more particularized sense’ constitute a violation of a constitutional right.”

Douglas v. Dobbs, 419 F.3d 1097, 1101 (10th Cir. 2005) (quoting Brosseau v. Haugen,

543 U.S. 194, 199 (2004)).

“Although it is not necessary for the facts in the cited authority to correspond exactly

to the situation the plaintiff complains of, the plaintiff must demonstrate a substantial

correspondence between the conduct in question and the prior law allegedly established

that the defendant’s actions were clearly prohibited.” Estate of B.I.C. v. Gillen, 761 F.3d

1099, 1106 (10th Cir. 2014) (internal quotation marks omitted). An unpublished decision

of the Tenth Circuit illustrates the lack of substantial correspondence between Whalen’s

2 In Eagle v. Morgan, the Eighth Circuit determined that the public disclosure of the

plaintiff’s prior criminal history did not constitute a constitutional violation of privacy. See

Eagle, 88 F.3d at 624-27. Not only is this case not controlling authority within the Tenth

Circuit, but the factual allegations fail to correspond to the alleged facts underlying

Plaintiffs’ claim.

holding that disclosure of personal information may violate the right to privacy and

Plaintiff Betchan’s assertion that her right to privacy was violated by conduct constituting

a HIPAA violation, namely the disclosure of confidential medical information. In

Thompson v. Larned State Hosp., 597 F. App’x 548, 550 n.1 (10th Cir. 2015), the Tenth

Circuit noted that it has “not squarely addressed alleged HIPAA violations in the context

of a § 1983 action” but that “at least two of [its] sister circuits have and have ruled that

HIPAA violations cannot be remedied through a § 1983 action.” Id. (citing Dodd v. Jones,

623 F.3d 563 (8th Cir. 2010), and Seaton v. Mayberg, 610 F.3d 530 (9th Cir. 2010)). Were

there clearly established authority that a HIPAA violation could constitute a Fourteenth

Amendment violation, it would have been evident to the Tenth Circuit in Thompson. See

also Pls.’ Resp. to Def. McEntire’s Mot. at 22 (stating that “the Tenth Circuit has not ruled

on the issue of what violates an individual’s Fourteenth Amendment right to privacy”).

Accordingly, Whalen does not demonstrate that Defendants violated a clearly established

constitutional right by accessing Betchan’s medical records.

For these reasons, the Court determines that Defendants McEntire and Halley are

entitled to qualified immunity on Plaintiffs’ Fourteenth Amendment claim.

VI. Plaintiffs’ State-Law Claims

Plaintiffs also assert two state-law claims against Defendant University, one pursuant

to Burk v. K-Mart Corporation, 770 P.2d 24 (Okla. 1989), and the other pursuant to the

OADA, Okla. Stat. tit. 25, §§ 1101 et seq. Because Defendants are entitled to dismissal on

each of Plaintiffs’ federal claims, and Plaintiffs have not alleged or established diversity of

citizenship within the meaning of 28 U.S.C. § 1332, the Court declines to exercise

supplemental jurisdiction over Plaintiffs’ state-law claims. See 28 U.S.C. §§ 1331, 1332,

1367(c)(3); Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir.

1998) (“When all federal claims have been dismissed, the court may, and usually should,

decline to exercise jurisdiction over any remaining state claims.”).

CONCLUSION

The federal pleading standard “serves two purposes: ‘to ensure that a defendant is

placed on notice of his or her alleged misconduct sufficient to prepare an appropriate

defense,’ and ‘to avoid ginning up the costly machinery associated with our civil discovery

regime on the basis of a largely groundless claim.’” Kan. Penn Gaming, 656 F.3d at 1215

(internal quotation marks omitted) (quoting Pace v. Swerdlow, 519 F.3d 1067, 1076 (10th

Cir. 2008) (Gorsuch, J., concurring)).

In view of these objectives, and for the reasons stated herein, the Court GRANTS

Defendants’ Motions to Dismiss (Doc. Nos. 5, 6, 7). Plaintiffs’ ADA, Rehabilitation Act,

ADEA, First Amendment, and Fourteenth Amendment claims are DISMISSED without

prejudice. The Court DECLINES to exercise supplemental jurisdiction over Plaintiffs’

state-law claims. A separate judgment shall be entered.

IT IS SO ORDERED this 30th day of November, 2020.

(Vauba B. Kodo

United States District Judge

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