Sherman-Harris-Golson v. Forest Park Police Department

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

TASHA SHERMAN-HARRIS- )

GOLSON, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-21-466-F

)

FOREST PARK MUNICIPAL )

AUTHORITY, TOWN OF FOREST )

PARK, ex rel. FOREST PARK )

POLICE DEPARTMENT, TYARA )

NASH-RICHMOND, THOMAS )

GIPSON, JOSEPH MILTON, )

)

Defendants. )

ORDER

Plaintiff Tasha Sherman-Harris-Golson (Golson) was formerly employed by

defendant Forest Park Municipal Authority, Town of Forest Park, ex rel. Forest Park

Police Department (Forest Park) as a reserve police officer. According to plaintiff,

she was hired on September 13, 2018, and wrongfully terminated on November 12,

2019. At all times relevant, defendant Tyara Nash-Richmond (Richmond) was

Forest Park’s Chief of Police and defendant Thomas Gipson (Gipson) was Forest

Park’s Associate Chief of Police. The exact position of defendant Joseph Milton

(Milton) with Forest Park is unknown.

In her amended complaint, Golson alleges she was discriminated against and

harassed based on her gender by her supervisors and co-workers, was subjected to

sexual harassment, and was retaliated against because she reported incidents of

discrimination and harassment to her supervisors and co-workers. Golson avers that

her action against defendants arises under Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e, et seq. (Title VII), 42 U.S.C. § 1981 and 42 U.S.C.

§ 1983. All defendants have moved to dismiss the claims plaintiff has asserted

against them. Doc. nos. 12, 16 and 21. The motions are filed pursuant to Rule

12(b)(6), Fed. R. Civ. P. Plaintiff has responded, opposing dismissal. Doc. nos. 24,

25 and 26. Defendants have replied. Doc. nos. 27, 30 and 31. Upon review of the

parties’ submissions, the court makes its determination.

Standard of Review

In adjudicating a Rule 12(b)(6) motion, 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].” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014).

To survive dismissal, a complaint “must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting 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.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id.

“The nature and specificity of the allegations required to state a plausible

claim will vary based on context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d

1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require

a plaintiff establish a prima facie case in her complaint, the elements of each claim

may help to determine whether the plaintiff has set forth a plausible claim. Khalik

v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).

Analysis

Section 1981 Claim – All Defendants1

All defendants argue that Golson’s amended complaint fails to state a

plausible claim of discrimination, hostile work environment or retaliation under

§ 1981. Defendants acknowledge Golson is African-American, but they point out

her pleading never mentions her race, and they assert that her pleading makes no

allegations to establish they discriminated or harassed Golson based upon her race.

Defendants also assert that the amended pleading does not allege that she

complained of any racial discrimination during her employment. Golson appears to

concede the individual defendants’ challenge to her § 1981 claims, see, doc. nos. 24

and 26, ECF p. 4, and she does not address the challenge in response to Forest Park’s

motion. The court agrees that Golson’s amended complaint fails to state any

plausible claim under § 1981. For the reasons stated in defendants’ motions, and

because discrimination and harassment based upon gender are not actionable under

§ 1981, see, Shapolia v. Los Alamos Nat. Laboratory, 992 F.2d 1033, 1036 n. 3 (10th

Cir. 1993), the court finds that the § 1981 claims are subject to dismissal under Rule

12(b)(6). The § 1981 claims against all defendants will be dismissed without

prejudice.

Unidentified State Law Claims – Individual Defendants

In the amended complaint, Golson states: “Plaintiff makes no state law claims

against any Defendant in which the statute of limitations is one year from the date

of action[], but includes those claims to provide a background of the harassment and

1 The amended complaint does not specify whether the claims against the individual defendants

are individual or official capacity claims. When a pleading fails to specify the capacity in which

a governmental official is sued, the court looks to the substance of the pleadings and the course of

the proceedings to determine whether the suit is for individual or official liability. Pride v. Does,

997 F.2d 712, 715 (10th Cir. 1993). Doing so, the court construes all claims against the individual

defendants as individual capacity claims.

intimidation suffered by Plaintiff by the Defendants.” Doc. no. 4, ¶ 1. No other

reference to a state law claim is mentioned in the amended pleading. However, in

response to Gipson and Richmond’s motion, Golson asserts that defendants

committed “INDIVIDUAL TORTS,” see, doc. no. 24, ECF p. 4, and in response to

Gipson and Richmond’s motion as well as Milton’s motion, she contends “the

allegations nonetheless outline actions by [defendants that] give rise to state law

actions[.]” See, doc. nos. 24 and 26, ECF p. 4.

To the extent Golson is asserting a state law claim against the individual

defendants, the court finds the claim should be dismissed. Rule 8(a)(2), Fed. R. Civ.

P., requires “a short and plain statement of the claim showing that the pleader is

entitled to relief.” The purpose of the rule is to “give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551

U.S. 89, 93 (2007). Golson’s amended complaint fails to give any individual

defendant fair notice of a state law claim and the grounds upon which it rests. The

court thus concludes that any state law claim purportedly alleged in the amended

complaint against the individual defendants is subject to dismissal under Rule

12(b)(6). Any state law claim will be dismissed without prejudice.

Failure to Pay Wages Claim – All Defendants

Golson claims that during her employment, she was not paid wages for 80

hours spent in training and for certain periods of time she worked. Doc. no. 4, ¶¶ 20,

28, 36, 39, 40. She also alleges she was not compensated for her costs of training.

Id., ¶ 19. In her responses to the individual defendants’ motions, Golson makes

vague references of defendants’ failure to pay wages. However, she does not specify

in the amended complaint or in briefing under what law, federal or state, she is

seeking to recover the wages or training costs. To the extent Golson is seeking to

recover against any defendant for unpaid wages or training costs, the court concludes

the claim is subject to dismissal under Rule 12(b)(6). Golson’s amended complaint

fails to give any defendant fair notice of such claim. Thus, any claim for failure to

pay wages or to compensate for training costs will be dismissed without prejudice.

Title VII Claims – Individual Defendants

The individual defendants argue Golson’s Title VII claims against them fail

as a matter of law because Title VII does not impose liability against individual

supervisors. In response, Golson appears to concede defendants’ argument. See,

doc. nos. 24 and 26, ECF p. 4. Defendants’ argument is supported by well-

established Tenth Circuit precedent. In Haynes v. Williams, 88 F.3d 898 (10th Cir.

1996), the appellate court ruled that “personal capacity suits against individual

supervisors are inappropriate under Title VII.” Id. at 901 (citing Sauers v. Salt Lake

County, 1 F.3d 1122, 1125 (10th Cir. 1993)). According to the appellate court, Title

VII liability is borne only by employers, not individual supervisors. Id. Therefore,

the court finds Golson’s Title VII claims against Gipson, Milton and Richmond are

subject to dismissal under Rule 12(b)(6). As it clear that any amendment would be

futile, the Title VII claims against the individual defendants will be dismissed with

prejudice.

Title VII Claims – Forest Park

i. Gender Discrimination – Disparate Treatment

Title VII prohibits an employer from discriminating against an employee

“with respect to [her] compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . sex[.]” 42 U.S.C. § 2000e-2(a)(1). “A plaintiff can

prove [] sex discrimination with direct or circumstantial evidence.” Adamson v.

Multi Community Diversified Services, Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

“Direct evidence demonstrates on its face that the employment termination was

discriminatory.” Id. (citation omitted). “Circumstantial evidence permits the fact

finder to draw a reasonable inference from facts indirectly related to discrimination

that discrimination, in fact, has occurred.” Id. (citation omitted). In the court’s view,

Golson’s factual allegations do not disclose direct evidence of gender

discrimination. Thus, the court concludes that Golson must rely on circumstantial

evidence for her Title VII disparate treatment claim.

“When evidence of discrimination is circumstantial, rather than direct, a

plaintiff’s claim is subject to the McDonnell Douglas burden-shifting framework.”

Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (citation omitted). “Under

McDonnell Douglas, a plaintiff carries the initial burden of establishing a prima facie

case of discrimination.” Id. (citation omitted). A prima facie case of gender

discrimination generally requires a plaintiff to show “she is a member of a protected

class, she suffered an adverse employment action, and the challenged action

occurred under circumstances giving rise to an inference of discrimination.” Bennett

v. Windstream Communications, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015)

(footnote omitted).2

Upon review, the court concludes that Golson has established a prima facie

case of gender discrimination. According to her allegations, Golson is female and

was terminated from her employment.3 In addition, the factual allegations and

2 In its motion, Forest Park posits that to state a prima facie case of gender discrimination, plaintiff

must establish “she was treated less favorably than other employees not in the protected class.”

Doc. no. 16, ECF pp. 10-11. The Tenth Circuit has framed the relevant element more broadly, as

requiring a showing of circumstances giving rise to an inference of discrimination. While the

broader requirement may be satisfied by proof that the employer treated similarly situated

employees who are not part of the plaintiff’s protected class more favorably, such proof is just one

means to do it and is not an indispensable element of the prima facie case. See, Sorbo v. United

Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005). Other means include, but are not limited to,

actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory

animus and decisionmakers discharging a qualified employee and the position remaining open

after discharge. See, Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005); Hysten v. Burlington

Northern and Santa Fe Ry. Co., 296 F.3d 1177, 1181 (10th Cir. 2002).

3 The Tenth Circuit has stated that “[a]n adverse employment action ‘is 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.’” Throupe v.

reasonable inferences drawn in Golson’s favor show that her termination occurred

under circumstances giving rise to an inference of gender discrimination.

Specifically, they show (i) actions and remarks by Richmond which could be viewed

as reflecting a discriminatory animus against Golson; (ii) having that discriminatory

animus, Richmond told the town board to “get rid” of Golson; and (3) Golson was

terminated. As Golson’s burden of establishing a prima facie case is not onerous,

see, Tabor, 703 F.3d at 1216, the court concludes that Golson has stated a plausible

claim of gender discrimination under Title VII and dismissal under Rule 12(b)(6) is

not appropriate. See, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993)

(“[E]stablishment of the prima facie case in effect creates a presumption that the

employer unlawfully discriminated against the employee.”) (quotation omitted).

ii. Hostile Work Environment – Sexual Harassment

An employee can also make out a Title VII claim of sex discrimination based

on a hostile work environment. See, Meritor Savings Bank, FSB v. Vinson, 477 U.S.

57, 66 (1986). However, to do so, “‘a plaintiff must show (1) that she was

discriminated against because of her sex; and (2) that the discrimination was

sufficiently severe or pervasive such that it altered the terms or conditions of her

employment and created an abusive working environment.’” Pinkerton v. Colorado

Dept. of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009) (quoting Medina v. Income

Support Div., 413 F.3d 1131, 1134 (10th Cir. 2005)).

Forest Park argues that Golson’s factual allegations fail to articulate a

plausible sexual harassment claim. In response, Golson specifically points to her

allegations about Milton sexually assaulting her and her allegations about Barbra

Miller, a town board member, sexually harassing her. She also maintains that

University of Denver, 988 F.3d 1243, 1252 (10th Cir. 2021) (quoting Hiatt v. Colo. Seminary, 858

F.3d 1307, 1315 (10th Cir. 2017)). It appears Golson is relying upon her termination as an adverse

employment action.

Richmond created a hostile work environment by directing “Defendants” to harass,

intimidate and “get rid” of Golson because “she did not need a better qualified

female taking her position.” Doc. no. 4, ¶ 90.

Viewing the factual allegations and reasonable inferences in her favor, the

court concludes that Golson has stated a plausible Title VII hostile work

environment claim. Golson alleges that she was sexually assaulted by Milton on

two occasions—January 19, 2019 and later in 2019—in the “back area/break room

of the reserve police area where no camera was present.” Doc. no. 4, ¶ 58. She also

alleges he “inappropriately used his authority over” her. Id., ¶ 59. Although Golson

does not describe the nature of the sexual assaults, she claims she suffered physical

injury from them. Id., ¶¶ 60, 69. Golson avers that she did not initially report the

assaults because Milton threatened her. Id., ¶ 61. However, she did ultimately report

the assaults. In addition to reporting them to the EEOC, Golson reported them to

the Oklahoma County Sheriff’s Office and the Oklahoma State Bureau of

Investigation. She also reported that she had filed sexual assault charges against

Milton with Gipson and Jeans, another Forest Park employee. Id. at ¶¶ 66, 67.

Reasonable inferences drawn from Golson’s allegations indicate “conduct that

clearly could be objectively viewed as threatening and severe.” Morris v. City of

Colorado Springs, 666 F.3d 654, 667 (10th Cir. 2012). Further, Golson alleges that

the sexual assaults by Milton affected her mentally. Doc. no. 4, ¶ 69.

In her amended complaint, Golson also claims that after she informed Gipson

and Jeans of the sexual assault charges she filed, no action was taken by the police

department toward Milton. Doc. no. 4, ¶¶ 66, 67. And she alleges that after the

assaults, Milton asked that she be removed from her employment, and in performing

his duties of police scheduling, he “altered her time and was responsible for some of

her lost wages.” Id., ¶¶ 64, 75. Golson further alleges that both she and Milton were

placed on administrative leave with pay but he was allowed to continue to “‘work’

off the record.” Id., ¶ 80. Drawing all reasonable inferences from all allegations in

Golson’s favor, the court concludes the amended complaint describes circumstances

that “altered the terms or conditions of [Golson’s] employment and created an

abusive working environment.” Pinkerton, 563 F.3d at 1058. Therefore, the court

concludes that dismissal of the Title VII hostile work environment claim under Rule

12(b)(6) is not appropriate.4

iii. Retaliation

Title VII also prohibits an employer from retaliating against an employee

because the employee “has opposed any practice made an unlawful employment

practice [under Title VII].” 42 U.S.C. § 2000e-3(a). It appears that Golson relies

upon circumstantial evidence to establish her retaliation claim. To state a prima

facie case of retaliation, a plaintiff must establish three elements: (1) she engaged in

protected opposition to discrimination; (2) she suffered an adverse employment

action; and (3) there is a causal connection between the protected activity and the

adverse employment action. O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1252

(10th Cir. 2001). Golson’s complaints of sexual harassment to the EEOC and her

superiors qualifies as protected opposition to discrimination. Hertz v. Luzenac

America, Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (“Protected opposition can range

from filing formal charges to voicing informal complaints to superiors.”). In

addition, Golson’s termination qualifies as an adverse employment action for

purposes of her retaliation claim. O’Neal, 237 F.3d at 1255.

4 In light of the court’s finding, it need not specifically address whether the allegations relating to

Ms. Miller or defendant Richmond support a Title VII hostile work environment claim. The court

notes, however, that the amended complaint only alleges that Ms. Miller “sexually harassed”

Golson on or about August 8, 2019. Doc. no. 4, ¶ 86. And in briefing Golson does not make it

entirely clear whether Richmond’s alleged conduct is relied upon for the Title VII hostile work

environment claim.

The third element, causal connection, “may be shown by ‘evidence of

circumstances that justify an inference of retaliatory motive, such as protected

conduct closely followed by adverse action.’” O’Neal, 237 F.3d at 1253 (quoting

Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982)). The

Tenth Circuit has determined that a one and one-half month period between a

protected activity and retaliatory conduct may by itself establish a causal connection,

while a three-month period standing alone is not sufficient. O’Neal, 237 F.3d at

1253. If the temporal proximity is not sufficiently close, the plaintiff must offer

additional evidence of causation. Id. Golson’s amended complaint does not indicate

when she filed her complaint with the EEOC or when she complained to her

superiors about the sexual harassment. The court therefore cannot determine

whether the protected conduct was closely followed by adverse action. However,

while the elements of a prima facie case are instructive, “[i]n Swierkiewicz v.

Sorema N.A., 534 U.S. 506 [] (2002), the Supreme Court explained that McDonnell

Douglas’s prima facie case is ‘an evidentiary standard, not a pleading requirement’

. . . [and] simply [do]es not ‘apply to the pleading standard that plaintiff[] must

satisfy in order to survive a motion to dismiss.’” Morman v. Campbell County

Memorial Hosp., 632 Fed. Appx. 927, 933 (10th Cir. 2015) (quoting Swierkiewicz,

534 U.S. at 510, 511). Thus, in pleading a retaliation claim, a plaintiff need not set

forth a prima facie case of retaliation. Nonetheless, she must allege facts that make

such a claim at least plausible. Morman, 632 Fed. Appx. at 933. Golson has

specifically alleged that she was terminated “for having filed her complaint of

harassment.” Doc. no. 4, ¶ 80. Drawing reasonable inferences in her favor, the court

concludes that Golson has alleged a plausible retaliation claim under Title VII. Thus,

the Title VII retaliation claim is not subject to dismissal under Rule 12(b)(6).

In sum, the court concludes that Golson has stated plausible Title VII claims

of gender discrimination, hostile work environment and retaliation against Forest

Park.

Section 1983 Claims Against Forest Park

Golson avers in her amended complaint that her action against Forest Park

also arises under § 1983. Forest Park maintains that Golson’s amended complaint

does not specify what substantive rights she intends to vindicate under § 1983. It

“guess[es] she is attempting to assert an equal protection claim.” Doc. no. 16, ECF

p. 21. And based upon her allegation that she “was not given her due process rights

in the proceedings leading to her termination,” doc. no. 4, ¶ 88, it surmises she is

also alleging procedural and substantive due process claims. Forest Park argues that

each of those claims, if alleged, fails as a matter of law. In response, Golson

confirms that she alleges equal protection, procedural due process and substantive

due process claims against Forest Park and argues that her factual allegations

establish plausible claims.

i. Equal Protection

The amended complaint alleges Golson is seeking damages under § 1983 “to

address the deprivation of her rights from retaliatory practices based upon her

exercise of her statutorily protected rights.” Doc. no. 4, ECF p. 3. However, “a

theory of liability for retaliatory conduct [does not] come within § 1983.” See, Long

v. Laramie County Community College District, 840 F.2d 743, 752 (10th Cir. 1988),

cert. denied, 488 U.S. 825 (1988); see also, Tafoya v. Adams, 816 F.2d 555, 558

(10th Cir. 1987) (“The right to be free of retaliatory discharge provided for by Title

VII does not entitle one to relief under 1983[.]”).5 The court therefore concludes

that Golson’s equal protection claim for retaliatory conduct is subject to dismissal

under Rule 12(b)(6). The § 1983 claim will be dismissed without prejudice.

In her briefing, Golson suggests that she alleges a viable equal protection

claim premised upon gender discrimination. The court disagrees. The Equal

Protection Clause “is essentially a direction that all persons similarly situated should

be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985). An equal protection claim may be asserted with respect to classes or groups

of persons or to a “class of one,” in which a plaintiff alleges that she has been treated

differently from other similarly situated persons but does not allege that differential

treatment was due to her membership in a particular class or group. A.M. ex rel.

F.M. v. Holmes, 830 F.3d 1123, 1166 (10th Cir. 2016). However, the Supreme Court

has ruled that a “class of one” equal protection claim is not legally cognizable in the

public employment context. Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 609

(2008). Because Golson’s equal protection claim premised upon gender

discrimination is related to her public employment, she must sufficiently allege a

traditional class-based equal protection claim to state a claim for relief. Thus,

Golson “must allege facts to show that an otherwise similarly situated person was

treated differently than [she] was.” Brown v. Montoya, 662 F.3d 1152, 1173 (10th

Cir. 2011). But Golson fails to allege any facts to show that she was treated

differently from an otherwise similarly situated person. She does not “allege facts

about any particular person or persons who were treated differently from [her].” Id.

The court finds, consequently, that Golson has failed to allege a plausible equal

5 The court notes that the Tenth Circuit does permit § 1983 retaliation claims based upon the denial

of First Amendment rights. See, Bird v. West Valley City, 832 F.3d 1188, 1211-12 (10th Cir.

2016). However, Golson’s amended complaint does not set forth factual allegations supporting a

denial of her First Amendment rights.

protection claim based upon gender discrimination against Forest Park. The § 1983

claim will be dismissed without prejudice.

Golson also suggests she has alleged a viable equal protection claim based

upon sexual harassment against Forest Park. Under well-established Tenth Circuit

authority, sexual harassment by a municipal actor may constitute an equal protection

violation. Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir. 1989). “A local

government, however, cannot be held liable under § 1983 ‘solely because it employs

a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983

on a respondeat superior theory.’” Bird v. West Valley City, 832 F.3d 1188, 1207

(10th Cir. 2016) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)).

“Instead, a local government is liable only when ‘the unconstitutional actions of an

employee were representative of an official policy or custom of the municipal

institution, or were carried out by an official with final policy making authority with

respect to the challenged action.’” Bird, 832 F.3d at 1207-08 (quoting Seamons v.

Snow, 206 F.3d 1021, 1029 (10th Cir. 2000)) (emphasis in original). Golson’s factual

allegations do not establish that the alleged sexual harassment by Milton was

representative of anything that amounted to an official policy or custom of Forest

Park or that Milton was an official with final policymaking authority for Forest

Park.6 The court concludes that dismissal of the equal protection claim based upon

sexual harassment against Forest Park is appropriate. The § 1983 claim will be

dismissed without prejudice.

ii. Due Process – Procedural and Substantive

A procedural due process claim is examined on the basis of a two-fold inquiry:

(1) whether a liberty or property interest exists that has been interfered with by the

6 The factual allegations and reasonable inferences in Golson’s favor indicate Milton was a

supervisor of Golson but do not indicate that he was a final policymaker for Forest Park.

state; and (2) whether the state provided constitutionally sufficient procedures. See,

Lauck v. Campbell County, 627 F.3d 805, 811 (10th Cir. 2010).

“A government employee may have a property interest in [her] position, but

only if [she] has a legitimate claim of entitlement to that position.” Lauck, 627 F.3d

at 812 (internal quotations omitted). “This usually requires tenure, an employment

contract for a definite term, a clearly implied promise of continued employment, or

a statute, regulation, or state-law-endorsed collective bargaining agreement that

requires cause (or similar concepts) for termination.” Earles v. Cleveland, 825 Fed.

Appx. 544, 550 (10th Cir. 2020) (citing Bd. of Regents of State Colleges v. Roth, 408

U.S. 564, 576-77 (1972)); see also, Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir.

2003) (“[C]onstitutionally protected property interests are created and defined by

statute, ordinance, contract, implied contract and rules and understandings

developed by state officials.”). In the amended complaint, Golson fails to allege any

facts to plausibly establish that she had a “legitimate claim of entitlement” to her

position as reserve police officer. The court thus concludes that Golson has failed

to plausibly plead the existence of a property interest. Consequently, the court finds

that Golson has failed to plausibly plead the deprivation of a property interest in her

employment.

“A public employee has a liberty interest in [her] good name and reputation

as they relate to [her] continued employment.” McDonald v. Wise, 769 F.3d 1202,

1212 (10th Cir. 2014). To state a claim for deprivation of one’s liberty interest in

good name and reputation, the plaintiff must plausibly allege: (1) the government

“makes a statement that impugn[s] the good name, reputation, honor, or integrity of

the employee;” (2) “the statement is false;” (3) “the statement is made during the

course of termination and forecloses other employment opportunities;” and (4) “the

statement is published, in other words disclosed publically.” Id. (internal quotations

omitted) (emphasis in original). Golson’s amended complaint does not allege facts

sufficient to show that her termination “resulted in the publication of information

which was false and stigmatizing.” Graham v. City of Okla. City, 859 F.2d 142, 145

n. 2 (10th Cir. 1988) (emphasis in original). Hence, Golson has failed to “raise a

liberty interest worthy of procedural due process protection.” Earles, 825 Fed. Appx.

at 552.

Under certain circumstances, a public employee’s termination can be “so

arbitrary or capricious as to violate the concept of ‘substantive’ due process

embodied in the Fourteenth Amendment.” Brenna v. S. Colo. State Coll., 589 F.2d

475, 476 (10th Cir. 1978). However, to state a plausible substantive due process

claim, “a liberty or property interest must be present to which the protection of due

process can attach.” Id. at 476. As discussed, Golson has failed to plausibly plead

the deprivation of a property interest in her employment or the deprivation of a

liberty interest in her good name and reputation. The court therefore concludes that

Golson’s substantive due process claim also fails. See, Earles, 825 Fed. Appx. at

552.

In sum, the court concludes that Golson has failed to plead plausible

procedural due process and substantive due process claims against Forest Park, and

the procedural due process and substantive due process claims are subject to

dismissal under Rule 12(b)(6). The § 1983 claims will be dismissed without

prejudice.

Section 1983 Claim Against Individual Defendants

According to Golson, she also alleges § 1983 claims against the individual

defendants for deprivations of her equal protection rights and procedural and

substantive due process rights. It appears she alleges an equal protection claim based

upon sexual harassment against Milton and an equal protection claim based upon

gender discrimination against Gipson and Richmond. It appears she alleges

procedural due process and substantive due process claims against all individual

defendants.

i. Equal Protection - Milton

To overcome a defense of qualified immunity, which has been raised by

Milton in his motion, Golson must show: (1) the defendant’s conduct violated the

law; and (2) the law was clearly established when the violation occurred. Eisenhour

v. Weber County, 744 F.3d 1220, 1234 (10th Cir. 2014).

In Starrett v. Wadley, the Tenth Circuit recognized that sexual harassment

could constitute an equal protection violation. Starrett, 876 F.2d at 814. The Starrett

plaintiff claimed that her supervisor had made sexual advances to her. Those

advances include propositioning her, requesting her to meet him at his house or other

secluded locations, making obscene gestures toward her, placing his arm on her leg,

and pinching her buttocks. Id. at 812, 814-15. Based upon those facts, the appellate

court found that a reasonable jury could conclude that the supervisor’s conduct

discriminated against plaintiff because of her sex, thereby depriving her of equal

protection of the laws. Id. at 814.

The Tenth Circuit, in Eisenhour v. Weber, 744 F.3d 1220 (10th Cir. 2014),

also found an equal protection violation where the plaintiff’s supervisor wrote an

inappropriate poem about her, told her that he had a dream about her in which she

was naked, and rubbed his groin against her. Id. at 1234. The appellate court

concluded that the facts would allow a reasonable jury to infer that she had been

discriminated against because of her sex. Id.

In her amended complaint, Golson alleges she was sexually assaulted by

Milton on two occasions, both resulting in physical injury. Although she cannot rely

on the January 2019 assault as a basis of her § 1983 claim, since it falls outside the

applicable two-year limitations period,7 the court concludes that she may rely on the

second assault as it is not clear from her pleading that it falls outside the limitations

period. Viewing the alleged facts and reasonable inferences in Golson’s favor, the

court concludes that a reasonable jury could infer that she was discriminated against

because of her sex, thereby depriving her of the right to equal protection of the laws.

In his briefing, Milton suggests Golson’s equal protection claim based upon

sexual harassment fails because she does not allege that she was treated differently

from a similarly situated individual. However, in Eisenhour, the Tenth Circuit

rejected that argument. Eisenhour, 744 F.3d at 1235 (“In cases involving an equal-

protection violation based upon sexual harassment, we have not required the plaintiff

to show she was treated differently from a similarly situated individual. . .It is enough

that the plaintiff presents sufficient evidence that the defendant discriminated against

her because of her sex, thereby depriving her of the right to equal protection of the

laws.”) Id. (citing Starrett, 876 F.2d at 814-15).

In addition to establishing that Milton’s alleged conduct violated the law,

Golson must also demonstrate that the law was clearly established when the violation

occurred. The court concludes quite easily that Golson can satisfy that showing.

Prior to the alleged sexual assault, the Tenth Circuit stated that “[t]he right to be free

from sexual harassment is clearly established under the Equal Protection Clause[.]”

Kramer v. Wasatch County Sheriff’s Office, 743 F.3d 726, 758 (10th Cir. 2014)

(citing Starrett, 876 F.2d at 814).

Because Golson has satisfied her two-part showing, the court concludes that

she has overcome Milton’s qualified immunity defense. Therefore, the court

7 See, Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (applying Oklahoma’s two-year statute

of limitations to a § 1983 claim). Golson’s original complaint was filed on May 7, 2021.

concludes that dismissal of the § 1983 equal protection claim based upon sexual

harassment against Milton is not appropriate under Rule 12(b)(6).

ii. Equal Protection – Gipson and Richmond

As to the equal protection claims against Gipson and Richmond, the court

concludes that the claims should be dismissed without prejudice. Like Milton,

Gipson and Richmond have raised the defense of qualified immunity. Golson posits

that she has sufficiently alleged facts to establish that defendants violated her equal

protection rights. In her briefing, Golson recognizes that to assert a viable equal

protection claim against Gipson and Richmond, she must make a threshold showing

that she was treated differently from another individual similarly situated to her.

Doc. no. 24, ECF p. 5 (citing Brown, 662 F.3d at 1172-73). But, in her amended

complaint, Golson fails to allege any facts to show that Gipson and Richmond treated

her differently from an otherwise similarly situated person. In particular, she does

not “allege facts about any particular person or persons who were treated differently

from [her].” Brown, 662 F.3d at 1173. Golson, in her briefing, discusses allegations

about remarks made by Gipson and actions taken or not taken by him, as well as

allegations about remarks made and actions taken by Richmond to support her

claims, but the court concludes that none of those allegations alone or in combination

sufficiently show that Gipson and Richmond treated Golson differently from another

similarly situated person. The court thus finds that Golson has failed to plausibly

allege that Gipson and Richmond deprived her of her equal protection rights.

Consequently, the court concludes that dismissal of the § 1983 claim is appropriate,

and the claim will be dismissed without prejudice based upon qualified immunity.

See, Ellis v. Oliver, 714 Fed Appx. 847, 851 (10th Cir. 2017) (unpublished decision

cited as persuasive pursuant to 10th Cir. R. 32.1(A)).

iii. Due Process – Individual Defendants

Turning to the procedural and substantive due process claims against Gipson,

Milton and Richmond, the court concludes that the claims should be dismissed

without prejudice. For same reasons previously discussed with respect to the due

process claims against Forest Park, the court concludes that Golson has failed to

plausibly allege the deprivation of a property interest in her employment or the

deprivation of a liberty interest in her good name and reputation. The court therefore

concludes that the procedural and substantive due process claims against the

individual defendants likewise fail. Because Golson has failed to plausibly allege

that the individual defendants violated her due process rights, the court concludes

that dismissal of the § 1983 claims is appropriate, and the claims will be dismissed

without prejudice based upon qualified immunity. See, Ellis, 714 Fed. Appx. at 851.

Leave to Amend

Golson has not filed a motion seeking leave to amend her complaint, if the

court finds any claim against any defendant deficient. Nor has she specifically

requested in her briefing leave to amend to cure any deficient claim. The court

declines to grant Golson leave to file a second amended complaint to cure the

deficiencies of the amended complaint. At the scheduling conference for this case,

the court will set a deadline for filing motions to amend pleadings, if requested by

the parties. Within that time, Golson may file a motion to amend her amended

pleading in accordance with Rule 15, Fed. R. Civ. P. and LCvR 15.1.

Conclusion

Accordingly, the Motion to Dismiss by Defendants Gipson and Richmond

(doc. no. 12) is GRANTED. The Title VII claims against defendants Thomas

Gipson and Tyara Nash-Richmond are DISMISSED WITH PREJUDICE. All

remaining claims against defendants Thomas Gipson and Tyara Nash-Richmond are

DISMISSED WITHOUT PREJUDICE.

The Motion to Dismiss of Defendant Forest Park (doc. no. 16) is GRANTED

in part and DENIED in part. All claims alleged against defendant Forest Park

Municipal Authority, Town of Forest Park, ex rel. Forest Park Police Department,

except for the Title VII claims for gender discrimination, hostile work environment

and retaliation, aie DISMISSED WITHOUT PREJUDICE. The Title VII claims

for gender discrimination, hostile work environment and retaliation remain pending.

The Motion to Dismiss of Defendant, Joseph Milton (doc. no. 21) is

GRANTED in part and DENIED in part. The Title VII claims against defendant

Joseph Milton are DISMISSED WITH PREJUDICE. The § 1981 claims, any

alleged state law claim, any alleged failure to pay wages claim, and the § 1983

procedural due process and substantive due process claims are DISMISSED

WITHOUT PREJUDICE. The § 1983 equal protection claim based upon sexual

harassment remains pending.

IT IS SO ORDERED this 1‘ day of November, 2021.

AE put

STEPHEN P. FRIOT ——-—

UNITED STATES DISTRICT JUDGE

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