The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DONNA S. LEE, )
)
Plaintiff, )
)
-vs- ) Case No. CIV-23-240-F
)
STATE OF OKLAHOMA, ex rel., ) (District Court of Oklahoma County
COMMISSIONERS OF THE LAND ) Case No. CJ-2023-785)
OFFICE, )
)
Defendant. )
ORDER
Plaintiff Donna S. Lee was formerly employed by Defendant, State of
Oklahoma, ex rel., Commissioners of the Land Office as an audit technician IV. Her
employment was terminated in December 2021. After her termination, plaintiff
commenced an action in the District Court of Oklahoma County, State of Oklahoma,
alleging claims of age, gender (gender-plus) and disability discrimination under
federal and state law. Defendant removed the action to this court based upon the
existence of federal question jurisdiction under 28 U.S.C. § 1331.
Having conducted discovery, defendant has moved for summary judgment on
all of plaintiff’s claims. See, doc. no. 21. Plaintiff has responded to the motion. See,
doc. no. 24. Defendant has replied. See, doc. no. 26. The matter is at issue.
Defendant moves for summary judgment, contending that plaintiff has “no
factual or evidentiary basis for her claims of gender and age discrimination.” Doc.
no. 21, ECF. p. 8. It also argues that regardless of whether plaintiff may establish a
prima facie case of gender and age discrimination, plaintiff cannot refute that its
decision to terminate her employment was motivated by a legitimate
non-discriminatory purpose. In addition, with respect to plaintiff’s
failure-to-accommodate claim, defendant argues that it is entitled to summary
judgment because plaintiff’s requested accommodation was not reasonable. Further,
it argues that it did not terminate her employment or otherwise discipline her due to
her disability or any dissatisfaction with the reasonable accommodations that
defendant provided to plaintiff for her disability. Further, defendant argues that the
Oklahoma Governmental Tort Claims Act (OGTCA) precludes the Oklahoma
Anti-Discrimination Act claims because plaintiff did not comply with the OGTCA’s
notice and commencement provisions.
In response, plaintiff states in relevant part:
Although this action was brought based on gender and age,
it does appear that the predominate motivating factor in
terminating her was Ms. Lee’s disability. Ms. Lee
acknowledges that the [Commissioners of the Land
Office] is a state agency and is not subject to suit under the
[American with Disabilities Act (ADA)]. Ms. Lee,
however, initiated her action in state court and based her
disability claim on the Oklahoma-Anti-Discrimination
Act (OADA).
Accordingly, it would appear that the proper course of
action in this case would be to remand that claim back to
state court for determination.
Doc. no. 24, ECF p. 7.
Further, in her response, plaintiff states while addressing whether the OGTCA
excludes coverage of the actions covered by the OADA:
[W]hile some federal judges have expressed a different
view, state court judges continue to hold that the OADA
controls the OGTCA. []
Because of this conflict, if the federal claims were
dismissed, the state law claims should be remanded to
state court where a binding determination of state law is
capable of being obtained.
Id. at ECF pp. 19-20. (emphasis omitted).
Lastly, in the concluding paragraph of her response, plaintiff
states:
[I]t is clear that the OADA super[s]edes the OGTCA, or,
at the least this is a state law question which should be
remanded back to state court.
Id. at ECF p. 26.
Defendant, in reply, urges the court to continue its exercise of supplemental
jurisdiction over the state law claims. It points out that deciding all claims—
especially after discovery has been conducted and dispositive motions have been
filed—would weigh in favor of judicial economy, convenience, and fairness to all
litigants. It also points that that the OADA disability claims are evaluated using the
same standards as claims under the ADA.
Upon review, it appears that plaintiff is urging the court to dismiss all of her
federal law claims and remand the remaining state law claims back to state court.
Rule 41, Fed. R. Civ. P., does not allow the dismissal of less than all claims in an
action. See, Gobbo Farms & Orchards v. Poole Chemical Co., 81 F.3d 122, 123
(10th Cir. 1996). Instead, an amendment under Rule 15, Fed. R. Civ. P., is the proper
procedure for voluntarily dismissing some, but not, all claims. See, Norbert v. Board
of County Commissioners of Lincoln County, Case No. CIV-20-968-R, 2020 WL
7033992, at *1 (W.D. Okla. Nov. 30, 2020) (citing Gronholz v. Sears, Roebuck &
Co., 836 F.2d 515, 518 (Fed. Cir. 1987) and Klay v. United Health Group, Inc., 376
F.3d 1092, 1106 (11th Cir. 2004)). The court therefore construes plaintiff’s summary
judgment response as a motion to amend the complaint to dismiss all federal law
claims under Rule 15(a)(2), Fed. R. Civ. P. Mindful that leave to amend should be
freely given “when justice so requires” and not satisfied that any reason for denying
leave to amend exists, such as undue delay, bad faith or dilatory motive on the part
of plaintiff, or undue prejudice to defendant, see, Foman v. Davis, 371 U.S. 178, 181
(1962), the court concludes that plaintiff’s summary judgment response construed
as a motion to amend the complaint to dismiss all federal law claims should be
granted. Rather than require plaintiff to file an amended complaint dropping all
federal law claims, the court will deem the complaint amended to dismiss all the
federal law claims.
With the dismissal of all federal claims, only state law claims remain.
Although defendant urges the court to exercise supplemental jurisdiction over the
claims rather than remand them to state court, the court declines to do so. The court
takes heed of the Supreme Court’s statement in Carnegie-Mellon University v.
Cohill, 484 U.S. 343, 350 n. 7 (1988), that “in the usual case in which all federal-
law claims are eliminated before trial, the balance of factors to be considered under
the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and
comity—will point toward declining to exercise over the remaining state-law
claims.” (emphasis added). In addition, the court takes heed of the Tenth Circuit’s
statement in Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011), that
“[w]hen all federal claims have been dismissed, the court may, and usually should,
decline to exercise jurisdiction over any remaining state claims.’” (quoting Smith v.
City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998)). As
the federal law claims are dismissed before trial, the court concludes that it is
appropriate to decline supplemental jurisdiction over the remaining state law claims.
Consequently, the court will remand the remaining state law claims to state court.
Accordingly, Plaintiff’s Response to Summary Judgment (doc. no. 24) is
construed as a motion to amend the complaint to dismiss all federal law claims under
Rule 15(a)(2), Fed. R. Civ. P., and is GRANTED. Plaintiff's complaint is
DEEMED AMENDED to dismiss all federal law claims. With the dismissal of all
federal law claims, the court DECLINES to exercise supplemental jurisdiction over
the remaining state law claims and REMANDS the remaining state law claims and
this action to the District Court of Oklahoma County for further proceedings. The
clerk of the court shall effect the remand of this action to the District Court of
Oklahoma County.
In light of the court’s ruling, the court also STRIKES Defendant’s Motion for
Summary Judgment without prejudice to refiling in state court.
DATED this 30" day of January, 2024.
AE Dun
UNITED STATES DISTRICT JUDGE
23-0240p005.docx