# Betchan v. Board of Regents of the University of Oklahoma

> District Court, W.D. Oklahoma · November 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10388597

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** November 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10388597

## How later opinions describe it (automated extraction)

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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10388597. Public record. Not legal advice.