Cronkite v. Oklahoma Attorney General

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

TERRY CRONKITE, )

)

Plaintiff, )

)

v. ) Case No. CIV-20-250-G

)

STATE OF OKLAHOMA ex rel. )

OKLAHOMA ATTORNEY GENERAL, )

)

Defendant. )

ORDER

Now before the Court are the Partial Motion to Dismiss (Doc. No. 4) filed through

counsel by Defendant State of Oklahoma ex rel. Oklahoma Attorney General, and the

Motion to Certify Questions to the Oklahoma Supreme Court (Doc. No. 12) filed through

counsel by Plaintiff Terry Cronkite. The Motions are fully briefed and at issue. See Doc.

Nos. 7, 8, 11, 13, 14.

I. BACKGROUND

Plaintiff brings this action against his former employer, asserting claims of

discrimination and retaliation based on age and disability. Plaintiff claims that he suffers

from heart conditions that limit his ability to perform certain physical activities. See Pet.

(Doc. No. 1-1) ¶ 9. On January 31, 2019, Defendant notified Plaintiff that he would be

involuntarily transferred from his position as Chief Investigator for Defendant to the

position of Drug Agent for the Oklahoma Bureau of Narcotics. Id. ¶¶ 7, 13. As the position

of Drug Agent would require physical activities that would adversely affect his heart

conditions, Plaintiff advised Defendant of his medical conditions and requested “the

reasonable accommodation of being allowed to continue in his current position.” Id. ¶¶

14-16. Plaintiff contends that Defendant denied the requested accommodation and

terminated his employment. See id. ¶¶ 19-20. He was 71 years old at the time. Id. ¶ 21.

Plaintiff asserts that Defendant’s actions constitute disability discrimination and

retaliation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§

12111 et seq., section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Oklahoma

Anti-Discrimination Act (“OADA”), Okla. Stat. tit. 25, §§ 1101 et seq., as well as age

discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. §§ 621 et seq, and the OADA. In its Partial Motion to Dismiss, Defendant seeks

dismissal of Plaintiff’s ADA, ADEA, and OADA claims as barred by sovereign immunity.

Defendant also argues that retaliation is not a cognizable claim under the OADA. See

Def.’s Partial Mot. Dismiss (Doc. No. 4) at 4-9 (citing Fed. R. Civ. P. 12(b)(1), 12(b)(6)).

In his Response, Plaintiff concedes that dismissal is appropriate as to his ADA and ADEA

claims but contests Defendant’s challenges to his OADA claims. See Pl.’s Resp. Partial

Mot. Dismiss (Doc. No. 7) at 2-6; Pl.’s Surreply Partial Mot. Dismiss (Doc. No. 11) at 1-

7.

Following the briefing of Defendant’s Partial Motion to Dismiss, Plaintiff filed a

motion seeking certification of the following questions to the Oklahoma Supreme Court:

(1) Does the OADA prohibit employment-based retaliation? (2) Does the OADA provide

a remedy to employment-based retaliation? (3) If the answer to questions 1 and/or 2 is no,

may a plaintiff who was retaliated against after challenging a discriminatory employment

practice bring a public policy Burk1 claim? See Pl.’s Mot. Certify (Doc. No. 12) at 1. In

response to the Motion to Certify, and in a subsequent Notice to the Court, Defendant

withdrew the challenges in its Partial Motion to Dismiss related to the OADA claims.

Consequently, Defendant requests that the Court grant dismissal of Plaintiff’s ADA and

ADEA claims, deem its objections to the OADA claims withdrawn, and deny Plaintiff’s

Motion to Certify as moot. See Def.’s Resp. Mot. Certify (Doc. No. 13) at 1-3; Def.’s

Notice (Doc. No. 19) at 1-4.

II. DISCUSSION

The decision to certify a question of state law “rests in the sound discretion of the

federal district court.” Allstate Ins. Co. v. Brown, 920 F.2d 664, 667 (10th Cir. 1990) (citing

Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974)). Federal courts, however, should

restrain from using the procedure “every time an arguably unsettled question of state law

comes across [their] desks.” Pino v. United States, 507 F.3d 1233, 1236 (10th Cir. 2007);

see Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988) (“Certification is not to be

routinely invoked whenever a federal court is presented with an unsettled question of state

law.”). Certification may be appropriate “where the question before [the court] (1) may be

determinative of the case at hand and (2) is sufficiently novel that [the court] feel[s]

uncomfortable attempting to decide it without further guidance.” Pino, 507 F.3d at 1236.

Plaintiff seeks certification of its questions to the Oklahoma Supreme Court despite

Defendant’s withdrawal of its challenges to the OADA claims, arguing that Defendant may

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

raise the challenges again at a later stage of the litigation. See Pl.’s Reply Mot. Certify

(Doc. No. 14) at 1. Even so, as Defendant has expressly withdrawn the challenge that is

the subject of Plaintiff's proposed questions for certification, the issue is not “before [the

court].” Pino, 507 F.3d at 1236; see Def.’s Resp. Mot. Certify at 1-3; Def.’s Notice at 1-

4. The Court need not decide the propriety of certification unless Defendant raises the

challenge again at a subsequent point in this litigation.

CONCLUSION

For the reasons discussed herein, the Court ORDERS that:

(1) Defendant’s Partial Motion to Dismiss (Doc. No. 4) is GRANTED IN PART.

Plaintiff's discrimination and retaliation claims under the ADA and Plaintiff's

discrimination claim under the ADEA are dismissed without prejudice.

Plaintiffs OADA claims remain pending, as Defendant’s Rule 12(b)(1) and

12(b)(6) challenges to those claims are withdrawn.

(2) Plaintiff's Motion to Certify Questions to the Oklahoma Supreme Court (Doc.

No. 12) is DENIED without prejudice.

IT IS SO ORDERED this 17th day of March, 2021.

(Vauba B. Kodo

United States District Judge