# Sherman-Harris-Golson v. Forest Park Police Department

> District Court, W.D. Oklahoma · November 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10389278

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** November 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10389278

## How later opinions describe it (automated extraction)

- applying Oklahoma’s two-year statute of limitations to a § 1983 claim

## Opinion text

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

21-0466p006 rev .docx

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389278. Public record. Not legal advice.