Greene v. Oklahoma State Department of Health

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

STEPHANIE GREENE, )

)

Plaintiff, )

)

v. ) Case No. CIV-20-1122-JD

)

OKLAHOMA STATE DEPARTMENT )

OF HEALTH, )

)

Defendant. )

ORDER

Before the Court is a Motion to Dismiss (“Motion”) filed by Defendant Oklahoma

State Department of Health (“OSDH”) [Doc. No. 7]. Plaintiff Stephanie Greene (“Ms.

Greene”) has filed a response [Doc. No. 8], and OSDH filed a reply [Doc. No. 9]. For the

reasons stated below, the Court grants in part and denies in part the Motion.

I. BACKGROUND

Ms. Greene, a former OSDH employee, filed this employment discrimination

action following the termination of her employment as a human resource specialist. Ms.

Greene asserts claims for race discrimination, retaliation, and a racially hostile work

environment under Title VII, and interference with and retaliation of her Family and

Medical Leave Act (“FMLA”) rights. OSDH seeks dismissal of Ms. Greene’s claims for

failure to state a claim upon which relief can be granted under Federal Rule of Civil

Procedure 12(b)(6).

According to her allegations, Ms. Greene is an African American female who was

employed by OSDH for three years before her termination on October 23, 2019. Compl.

¶¶ 4, 12 [Doc. No. 1]. In 2018, Ms. Greene became a foster parent, which Ms. Greene

asserts made her eligible for FMLA leave, which she received in 2018 and 2019. Id.

¶¶ 13–15.

On November 16, 2018, Ms. Greene received a new supervisor, Rosangela Miguel

(a Caucasian female). Id. ¶ 16. About two weeks later, Ms. Miguel issued a written

reprimand to Ms. Greene, which Ms. Greene asserts contained a “litany of false

accusations regarding Ms. Greene’s conduct.” Id. ¶ 18. As a result, Ms. Greene filed a

grievance asserting that the written reprimand was discriminatory and reflected

harassment, bullying, and disparate treatment. Id. ¶ 19. Although an OSDH special

investigator informed Ms. Greene by letter that her grievance would be investigated, Ms.

Greene asserts that OSDH never investigated her discrimination claims. Id. ¶ 24.

Ms. Greene also describes how her FMLA leave was handled by Ms. Miguel and

alleges that Ms. Miguel rescinded 80 hours of shared leave donations Ms. Greene had

received from donors. Id. ¶¶ 25–35, 37–41. Ms. Greene asserts that the unlawful removal

of her shared leave resulted in her receiving 19.50 hours of leave without pay and

affected her future retirement calculations. Id. ¶¶ 34–35.

Upon exhausting her FMLA leave, Ms. Greene returned to work on July 23, 2019.

Id. ¶ 41. That same day, Ms. Miguel suspended Ms. Greene for ten days without pay and

cited her for misconduct and neglect of job duties. Id. Ms. Greene describes in the

Complaint additional adverse treatment by Ms. Miguel, including a requirement that Ms.

Greene report by email when she arrived at work each day, left for lunch, returned from

lunch, and left at the end of the day. Id. ¶ 44. Ms. Greene asserts that this policy applied

only to her, and that no other employee was subjected to such adverse treatment. Id.

¶¶ 44–45. Additionally, Ms. Greene alleges that Ms. Miguel gave some of Ms. Greene’s

job duties to another employee after she complained of disparate treatment. Id. ¶¶ 46–52.

OSDH terminated Ms. Greene’s employment on October 23, 2019. Id. ¶¶ 4, 53.

II. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Although a complaint does not need detailed factual assertions, a pleading that

offers only “labels and conclusions” or “pleads facts that are merely consistent with a

defendant’s liability” will not suffice. Id. (internal quotation marks and citations omitted).

The burden is on the plaintiff to plead factual allegations that “raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555. Under this standard, all well-pled

factual allegations are accepted as true. Peterson v. Grisham, 594 F.3d 723, 727 (10th

Cir. 2010). Conclusory statements, however, are not entitled to the assumption of truth

and courts are free to disregard them. Khalik v. United Air Lines, 671 F.3d 1188, 1191

(10th Cir. 2012).

III. ANALYSIS

A. Ms. Greene fails to state a claim for a racially hostile work

environment under Title VII (Count I).

OSDH argues that, accepting Ms. Greene’s allegations as true, they are

insufficient to state a claim for a racially hostile work environment under Title VII. The

Tenth Circuit has explained that the words “hostile work environment” are simply a legal

conclusion and that the Court’s focus at the motion to dismiss stage is the “alleged facts

supporting those words.” Moya v. Schollenbarger, 465 F.3d 444, 457 (10th Cir. 2006)

(internal quotations and citation omitted). The elements of a hostile work environment

claim are: (1) the plaintiff is a member of a protected group; (2) the plaintiff was

subjected to unwelcome harassment; (3) the harassment was based on race; and (4) the

harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of

the plaintiff’s employment, and created an abusive working environment. See Lounds v.

Lincare, Inc., 812 F.3d 1208, 1222 (10th Cir. 2015) (citation omitted).

The Court finds that Ms. Greene’s allegations are insufficient to state a claim upon

which relief can be granted under Twombly and its progeny. Although Ms. Greene has

alleged that she was a member of a protected group and received unwelcome harassment

by Ms. Miguel, Ms. Greene has not alleged any harassment based on race. To establish a

race-based hostile work environment claim, the “‘harassment must be racial or stem from

racial animus.’” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 960 (10th Cir.

2012) (quoting Tademy v. Union Pac. Corp., 614 F.3d 1132, 1139 (10th Cir. 2008)).

While Ms. Greene is not required to prove racial animus in her Complaint, she still must

set forth “enough facts” suggesting it is “plausible” that Ms. Miguel’s acts were racially

motivated. Twombly, 550 U.S. at 556. Absent from Ms. Greene’s Complaint are any facts

that Ms. Miguel’s requirement that Ms. Greene check in by email arose from racial

animus, or that Ms. Miguel’s decision to have another employee take over some of Ms.

Greene’s job duties was motivated by race. See, e.g., Brown v. LaFerry’s LP Gas Co.,

708 F. App’x 518, 522 (10th Cir. 2017) (unpublished)1 (noting that when retaliation is the

sole motivation for conduct, “this retaliatory conduct does not support [a] claim of

racially motivated harassment”).

Nor is the alleged harassment sufficiently severe or pervasive from an objective

standpoint. See Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1243 (10th Cir. 2001)

(finding harassing conduct must be “both objectively and subjectively abusive”).

Although Ms. Greene may have found the email check-ins to be tedious, there is no

allegation that the check-ins interfered with her ability to do her work or take advantage

of any job-related privileges. Further, there is no allegation that Ms. Greene was singled

out by Ms. Miguel because of her race. In fact, the only references to race in the

Complaint come in the form of Ms. Greene’s conclusory allegations that she is African

American, Ms. Miguel is “white,” and Ms. Miguel “relied on racially discriminatory

criteria to terminate Ms. Greene.” Compl. ¶¶ 12, 16, 23. These “conclusory statements[]

do not suffice.” Iqbal, 556 U.S. at 678. Ms. Greene does not identify the racially

discriminatory criteria, nor does she allege that she was victim to “a steady barrage of

1 All unpublished opinions are cited pursuant to FED. R. APP. P. 32.1(a) and 10th

CIR. R. 32.1.

opprobrious racial comments,” or any racial comments for that matter. Chavez v. New

Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (internal quotation marks and citation

omitted) (a plaintiff must show more than a few isolated incidents of racial hostility or

sporadic racial slurs; instead, “there must be a steady barrage of opprobrious racial

comments”). Accordingly, her hostile work environment claim cannot withstand OSDH’s

motion to dismiss.

B. Ms. Greene fails to state a claim for race discrimination under Title

VII (Count II).

Although Ms. Greene “is not required to set forth a prima facie case for each

element” of her race discrimination claim under Rule 12(b)(6), she must still “set forth

[a] plausible claim[].” Khalik, 671 F.3d at 1193; see also Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 515 (2002) (explaining that there is no “heightened pleading standard for

employment discrimination suits”). “[G]eneral assertions of discrimination and

retaliation, without any details whatsoever of events . . . , are insufficient to survive a

motion to dismiss.” Khalik, 671 F.3d at 1193. “While ‘[s]pecific facts are not necessary,’

some facts are.” Id. (emphasis added) (quoting Erickson v. Pardus, 551 U.S. 89, 93

(2007)).

“‘The 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.’” Plotke v. White, 405 F.3d 1092,

1100 (10th Cir. 2005) (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,

1227 (10th Cir. 2000)). In determining whether a plaintiff has stated a plausible claim for

race discrimination, the Court must consider the elements of the claim, which are: (1) the

plaintiff is a member of a protected class; (2) the plaintiff suffered an adverse

employment action; (3) the plaintiff was qualified for the position at issue; and (4) the

plaintiff was terminated under circumstances that give rise to an inference of unlawful

discrimination. Plotke, 405 F.3d at 1099–1100; Salguero v. City of Clovis, 366 F.3d 1168,

1175 (10th Cir. 2004).

In this case, several of Ms. Greene’s allegations “are not entitled to the assumption

of truth because they are entirely conclusory,” Khalik, 671 F.3d at 1193, including her

allegations that: (1) Ms. Miguel issued her a written reprimand listing “a long litany of

false accusations regarding Ms. Greene’s conduct”; (2) Ms. Miguel “relied on racially

discriminatory criteria to terminate Ms. Greene”; (3) the email check-in policy imposed

by Ms. Miguel was discriminatory on its face; and (4) OSDH “engaged in intentional and

unlawful employment practices in violation of Title VII,” including terminating Ms.

Greene’s employment. Compl. ¶¶ 18, 23, 45, 63.

Striking those conclusory allegations leaves the Court with the following facts,

which the Court views as true: (1) Ms. Greene is an African American female; (2) she

met the objective qualifications of her position; (3) Ms. Greene filed a grievance about

discrimination; and (4) OSDH terminated her employment. These facts do not allege

discrimination based on race, for they are, at most “general assertions of discrimination.”

Khalik, 671 F.3d at 1193. There are no allegations in the Complaint, other than sheer

speculation, linking Ms. Greene’s discharge to a racially discriminatory motive. Id. at

1194; see also Plotke, 405 F.3d at 1100 (explaining that there must “be a logical

connection between each element of the prima facie case and the inference of

discrimination”). Therefore, this claim fails as well.

C. Ms. Greene fails to state a claim for FMLA interference (Count III),

but she does state a claim for FMLA retaliation (Count IV).

The FMLA guarantees up to 12 weeks of unpaid leave during any 12-month

period for eligible employees because of the placement of a foster child with an

employee, and reinstatement to the former or an equivalent position upon return from

leave. See 29 U.S.C. §§ 2612(a)(1)(B), 2614(a). An employer may not “interfere with,

restrain, or deny the exercise of or the attempt to exercise, any right provided under [the

FMLA].” Id. § 2615(a)(1). To state an interference claim, the plaintiff must plead facts to

show: “(1) that she was entitled to FMLA leave; (2) that some adverse action by the

employer interfered with her right to take FMLA leave; and (3) that the employer’s action

was related to the exercise or attempted exercise of her FMLA rights.” Campbell v.

Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) (cleaned up). Under this

theory, interference of FMLA rights “is a violation regardless of the employer’s intent,

and the McDonnell Douglas2 burden-shifting analysis does not apply to interference

claims.” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir.

2006) (citations omitted).

2McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973) (holding that

once a plaintiff carries the initial burden of establishing a prima facie case, “[t]he burden

then must shift to the employer to articulate some legitimate, nondiscriminatory reason

for the employee’s rejection”).

To state a claim for retaliation under the FMLA, a plaintiff must plead facts to

demonstrate: “(1) she engaged in protected activity; (2) [the defendant] took an action

that a reasonable employee would have found materially adverse; and (3) there exists a

causal connection between the protected activity and the adverse action.” Campbell, 478

F.3d at 1287 (internal quotation marks and citation omitted). Unlike interference claims,

the Tenth Circuit requires the third element under a retaliation theory to include a

showing of bad intent or a “retaliatory motive” on the employer’s part; thus, interpreting

retaliation claims using the burden-shifting analysis in McDonnell Douglas. Id.

The two claims also differ regarding the timing of the adverse action. Id. For an

interference claim, “the employee must show that she was prevented from taking the full

12 weeks’ of leave guaranteed by the FMLA, denied reinstatement following leave, or

denied initial permission to take leave.” Id. A retaliation claim, on the other hand, may be

pursued when the employee successfully exhausted FMLA leave and returned to her prior

position, but was adversely affected by employment actions post-dating her return. Id. at

1287–88.

Although Ms. Greene asserts FMLA interference by OSDH, Ms. Greene factually

pleads that her FMLA leave was approved “starting January 30, 2019, for up to 480 hours

within a 12-month period.” Compl. ¶ 32. Later in the Complaint, Ms. Greene

affirmatively pleads again that she “was approved for Family Medical leave starting

January 30, 2019.” Id. ¶ 37. Additionally, Ms. Greene alleges that she received FMLA

leave in 2018 and 2019. Id. ¶ 15.

According to Ms. Greene’s allegations, Ms. Miguel notified her on July 16, 2019,

that “her approved FMLA leave for the placement of her foster children was exhausted

on July 9, 2019,” and that Ms. Greene needed to return to work within seven days or face

disciplinary action. Id. ¶ 39. Ms. Greene responded by email six days later indicating she

would return to work the next day. Id. ¶ 40. A plain and fair reading of Ms. Greene’s

Complaint is that Ms. Greene was approved for the appropriate number of statutory hours

of leave, that she took leave in 2018 and 2019, and that she was reinstated to her prior

position upon her return from leave. Under these alleged facts, she was neither denied

leave nor denied reinstatement to give rise to a claim for interference. Campbell, 478

F.3d at 1287.

Ms. Greene argues in her response that OSDH interfered with her right to FMLA

leave when Ms. Miguel ordered her to return donated FMLA shared leave. Pl.’s Resp. at

9 [Doc. No. 8]. As a result, Ms. Greene allegedly incurred leave without pay when she

took off work to care for a sick foster baby who had a 102.4-degree fever and was taken

to the emergency room. Id. The Court cannot discern from the allegations in the

Complaint whether Ms. Greene sought leave in this instance for an FMLA-qualifying

reason. See, e.g., Jones v. Denver Pub. Schools, 427 F.3d 1315, 1323 (10th Cir. 2005)

(observing that the first element of a prima facie FMLA interference claim is missing

where the plaintiff cannot show that he was entitled to FMLA leave).

Ms. Greene pled in the Complaint that she had agreed to serve as a foster parent to

a 12-year-old child and an 11-year-old child, and that she received FMLA leave in 2018

and 2019 because of the placement of the children with her for foster care. Compl. ¶¶ 13–

15; see also 29 U.S.C. § 2612(a)(1)(B). The 19.50 hours of leave taken to care for the

sick foster baby does not appear to relate to placement of the two older children in Ms.

Greene’s care. It is unclear from the Complaint whether Ms. Greene in February 2019

was concurrently exercising FMLA leave because of the placement of the two older

children in foster care. Nevertheless, to be entitled to FMLA leave under the

circumstances, Ms. Greene must state facts to indicate the sick baby suffered from “a

serious health condition,” defined under the Act as “an illness, injury, impairment, or

physical or mental condition that involves” either “inpatient care” or “continuing

treatment by a health care provider.” 29 U.S.C. § 2611(11); see also Jones, 427 F.3d at

1323. The Complaint is devoid of such facts. The Complaint, therefore, does not state a

claim for interference upon which relief can be granted.

Ms. Greene’s FMLA retaliation claim, however, presents a closer question. Ms.

Greene alleges that she engaged in a protected activity by taking FMLA leave, for which

she was approved. Compl. ¶¶ 15, 31–32, 37. On July 16, 2019, Ms. Miguel notified Ms.

Greene by email that her approved FMLA leave for the placement of her foster children

expired on July 9, 2019, and that “Ms. Greene either needed to resign or return to work

before the end of seven days,” or Ms. Greene would be subject to disciplinary action,

including possible termination. Id. ¶ 39. Ms. Greene asserts that she returned to work on

the seventh day, July 23, 2019, only to be suspended for ten days without pay for

allegedly neglecting her job duties. Id. ¶ 41. Ms. Greene argues that her return from

FMLA leave, and her unpaid suspension, are sufficiently close in time to support a

finding of causation. The Tenth Circuit has held that a “retaliatory motive may be

inferred when an adverse action closely follows protected activity.” Anderson v. Coors

Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999). The closer the adverse employment

action is to the protected activity, the more likely there is a causal connection. Id. Here,

the unpaid suspension was initiated the same day Ms. Greene returned from FMLA leave.

The Court concludes that Ms. Greene has adequately stated a claim for FMLA retaliation.

D. Ms. Greene fails to state a retaliation claim under Title VII (Count V).

The elements of a prima facie case for retaliation under Title VII are: (1) the

plaintiff engaged in protected opposition to discrimination; (2) a reasonable employee

would have found the alleged retaliatory action to be materially adverse; and (3) there is a

causal connection between the protected activity and the alleged retaliatory action.

Khalik, 671 F.3d at 1193. Ms. Greene asserts in her response that her October 4, 2019,

email to Ms. Miguel represents protected opposition to discrimination. Pl.’s Resp. at 12.

OSDH contends that the Complaint offers no factual averments about the content of the

October 4 email, other than an unspecified request for a “one on one” meeting, and that

Ms. Greene fails to allege facts sufficient to satisfy the first element of a Title VII

retaliation claim. Def.’s Reply at 6 [Doc. No. 9]; Compl. ¶ 52.

The Court agrees that the October 4 email, as loosely described in the Complaint,

does not communicate to Ms. Miguel that Ms. Greene believed she had engaged in

employment discrimination or had violated Title VII. See, e.g., Crawford v. Metro. Gov’t

of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009) (finding that an

employee’s communication to her employer asserting that the employer has engaged in a

form of employment discrimination, “virtually always constitutes the employee’s

opposition to the activity”) (internal quotation marks and citation omitted)). Thus, Ms.

Greene fails to sufficiently allege that she engaged in protected opposition as required to

state a claim for retaliation under Title VII.

IV. CONCLUSION

Based on the foregoing, the Court ORDERS as follows:

1. The Court GRANTS in part and DENIES in part the Motion to Dismiss

filed by Defendant Oklahoma State Department of Health [Doc. No. 7]. The Court

DISMISSES WITHOUT PREJUDICE Plaintiff Stephanie Greene’s claims for Title VII

hostile work environment, discrimination, and retaliation, and FMLA interference

(Counts I, II, III, and V). Only Plaintiff’s claim for FMLA retaliation (Count IV) survives

the Motion.

2. Under Federal Rule of Civil Procedure 12(a)(4), the Court ORDERS

Defendant Oklahoma State Department of Health to file and serve its responsive pleading

on Plaintiff’s FMLA retaliation claim within 14 days after the date of this Order.

3. The Court ORDERS the parties to confer through counsel and submit a

Joint Status Report and Discovery Plan in compliance with Federal Rule of Civil

Procedure 26 and Local Civil Rule 16.1, on the required form for this district, within 30

days after the date of this Order. Should the parties anticipate that a protective order on

confidentiality will be necessary for discovery, the parties must confer and file, within 30

days after the date of this Order, a motion for protective order and proposed order. Upon

the filing of the Joint Status Report and Discovery Plan, the Court will set the parties for

a status and scheduling conference to discuss and enter a scheduling order.

IT IS SO ORDERED this 3rd day of September 2021.

W. DISHMAN

UNITED STATES DISTRICT JUDGE

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