# Mills v. Amazon.com Services, LLC

> District Court, N.D. Oklahoma · June 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10665775

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** June 27, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
KENDALL MILLS, )
)
Plaintiff, )
)
v. ) Case No. 24-CV-0188-CVE-CDL
)
AMAZON.COM SERVICES, LLC, )
)
Defendant. )
OPINION AND ORDER
Before the Court is defendant Amazon.com Services, LLC’s motion to dismiss (Dkt. # 10),
plaintiff Kendall Mills’ response (Dkt. # 13), and defendant’s reply (Dkt. # 14). This case arises
from plaintiff, an employee of defendant, alleging in a state court petition (complaint) violations of
the Oklahoma Anti-Discrimination Act (counts 1, 2, 3, and 4), Title VII of the Civil Rights Act of
1964 (counts 5 and 6), the Americans with Disabilities Act (count 7), and 42 U.S.C. § 1981 (count
8). Plaintiff also alleges intentional infliction of emotional distress (count 9). Dkt. # 2-1.
I.
The following facts are taken from the complaint. Plaintiff is a “dark-skinned African
American male” and suffers from post-traumatic stress disorder (“PTSD”) as a disabled veteran.
Dkt. # 2-1, at 3. On August 16, 2021, defendant hired plaintiff to be an area manager at defendant’s
“Tul5” location. Id. Defendant was aware that plaintiff was a disabled veteran suffering from
PTSD. Id. In November 2021, plaintiff informed his HR manager, Cheryl Cole, that a coworker was
circulating a “false and malicious rumor regarding [plaintiff’s] sexual impropriety” and that the
rumor was causing him severe distress and anxiety. Id. Cole informed plaintiff that she would
address his concern, but took no action. Id. That same month, defendant provided Thanksgiving
pies to non-minority staff members but denied pies to plaintiff. Id. In late December 2021 or early
January 2022, defendant transferred plaintiff to night shift. Id. Tasked with assigning employees
to night shift, Cole informed plaintiff that he was chosen over Kayla Whitemand, a Caucasian
female, purportedly because she was a single parent. This was done despite the fact that plaintiff

also had childcare concerns due to having two children, and that Whitemand had previously worked
night shift for two years at another facility operated by defendant. Id.
In February 2022, HR manager and plaintiff’s supervisor, Rat Bauer, asked plaintiff to dress
up as a clown for Black History Month. Id. Defendant allegedly attempted to discard the evidence
of this suggestion by “getting the clown costume [] ‘out of the building.’” Id. at 6. Between October
2021 and March 2022, plaintiff alleges that he was also repeatedly denied certain benefits and gifts
such as branded merchandise that defendant provided to plaintiff’s non-minority peers. Id. at 3-4.

These omissions were addressed only when plaintiff and another African American employee
complained to the operation manager, Linda Baker, who instructed the HR team to issue those gifts.
Id. at 4. He also alleges that he was denied training opportunities when transferred to a new shift,
and that he was specifically assigned to police and reprimand other minority employees while a
white, Caucasian employee was assigned to police and reprimand other white, Caucasian employees.
Id. at 5.
In March 2022, plaintiff filed an ethics complaint with defendant regarding the “repeated
harassment and discriminatory treatment that plaintiff, as well as several other African American

employees, were suffering.” Id. at 4. Defendant’s HR team subsequently retaliated by opening an
investigation into plaintiff for being allegedly aggressive towards other employees. Id. In June
2022, following the filing of his complaint, another member of HR, Mary James, told an employee

2
that plaintiff was “acting crazy and causing issues at work because he has PTSD.” Id. On November
22, 2022, plaintiff filed a complaint with the Office of Civil Rights Enforcement, and received his
notice of right to sue on January 3, 2024. Id.
On April 2, 2024, plaintiff filed a petition in state court (Dkt. # 2-1) alleging numerous

claims, including discrimination on the basis of race, color, and disability under the Oklahoma Anti-
Discrimination Act (OADA), OKLA. STAT. ANN. tit. 25, § 1302 (counts 1 and 2); retaliation on the
basis of race, color, and disability under the OADA, OKLA. STAT. ANN. tit. 25, §§ 1601(1), 1350
(count 3); aiding and abetting discrimination on the basis of race, color, and disability under the
OADA, OKLA. STAT. ANN. tit. 25, §§ 1602(2), 1350 (count 4); discrimination on the basis of race
and color under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (counts 5 and 6);
retaliation on the basis of disability under the Americans with Disabilities Act (ADA), 42 U.S.C. §§

12203(a), 12203(b) (count 7); discrimination, retaliation, and/or a hostile work environment on the
basis of race, color, and disability under 42 U.S.C. § 1981 (§ 1981) (count 8); and intentional
infliction of emotional distress (IIED) (count 9).
Defendant filed a notice of removal on April 24, 2024 (Dkt. # 2) on the grounds of federal
question jurisdiction. Defendant filed a motion to dismiss the case (Dkt. # 10) under Federal Rule
of Civil Procedure 12(b)(6), for failure to state a claim. Dkt. # 10, at 1. Plaintiff filed a response to
the motion (Dkt. # 13), and defendant filed a reply (Dkt. # 14).

3
II.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine
whether the claimant has stated a claim upon which relief may be granted.’ A motion to dismiss is
properly granted when a complaint provides no “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face”
and the factual allegations “must be enough to raise a right to relief above the speculative level.”
Id. at 555, 570 (citations omitted). “Once a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in the complaint.” Id. at 562. Although
decided within an antitrust context, Twombly “expounded the pleading standard for all civil actions.”
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). For the purpose of making the dismissal determination,
court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact,
and must construe the allegations in the light most favorable to the claimant. Twombly, 550 U.S.
at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton
Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). Finally, “the 12(b)(6) standard does not
require that [p]laintiff establish a prima facie case in [the] complaint, [but] the elements of each
alleged cause of action help to determine whether [p]laintiff has set forth a plausible claim.” Khalik
v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.2012) (citations omitted).

Plaintiff argues in his response that defendant’s motion to dismiss should be treated as a
motion for summary judgment because defendant provided its own narrative of events in an
effort to discredit plaintiff's claims. Dkt. #13, at 1-3. Because the Court has not considered
matters outside the pleadings, it will not convert the motion to a motion for summary
judgment.

III.
Construing plaintiff’s complaint liberally, his claims can be grouped into the following
categories of actionable conduct: aiding and abetting discrimination; disparate treatment on the basis
of race and color; disparate treatment on the basis of disability; retaliation on the basis of race and

color; retaliation on the basis of disability; hostile work environment; and intentional infliction of
emotional distress. The Court will address these claims in turn.
A. Retaliation and aiding and abetting discrimination under the OADA
As an initial matter, defendant argues that Oklahoma law prohibits plaintiff from bringing
either a retaliation claim or an aiding and abetting discrimination claim under the OADA. The
OADA, OKLA. STAT. ANN. tit. 25, §§ 1101–1706, prohibits discrimination in employment, housing,
public accommodation, and other instances in the state of Oklahoma. Article III therein

(§1301–§1350) reflects “discrimination in employment.” Article VI (§1601–§1605) reflects “other
discriminatory practices.” The Oklahoma Supreme Court in Edwards v. Andrews, 382 P.3d 1045
(Okla. 2016), held that the “only remedies provided in an individual action for employment
discrimination are provided by Article III at section 1350.” Id. at 1047. The Court further noted that
“[§ 1601] neither defines retaliation, nor does it provide any remedy to compensate an employee who
suffers retaliation at the hands of an employer.” Id. (emphasis added). “[T]he Oklahoma Legislature
has prohibited retaliation but has not supplied any monetary remedy for an employee.” Id. A
retaliation claim against an employer under the OADA is therefore not cognizable under Oklahoma

5
law, despite the fact that § 1601(1) prohibits the discriminatory practice of retaliation.” See Sultuska
v. JPMorgan Chase Bank, No. CIV-18-669-C, 2019 WL 4888579, at *2 n.2 (W.D. Okla. Oct. 3,
2019). Because aiding and abetting discrimination is not a remedy under Article I-and particularly
not enumerated in § 1350-it also follows that under Oklahoma law, such a claim against an employer
is likewise not cognizable under the OADA. Plaintiff acknowledges as much in his response. See
Dkt. #13, at5. The Court therefore finds that plaintiffs claims for retaliation under the OADA and
aiding and abetting discrimination under the OADA should be dismissed.
B. Disparate treatment on the basis of race, color, and disability under the OADA,
Title VI, and § 1981
Plaintiff claims that he was subject to disparate treatment on the basis of race, color, and
disability in violation of the OADA (counts 1 and 2), Title VII (counts 5 and 6), and § 1981 (count
8). Title VII prohibits discrimination “against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e—2(a)(1). “The OADA is analyzed similarly to Title VII

> The Court acknowledges that there may be inconsistencies with how the Oklahoma Supreme
Court interpreted this statute. A district court in the Western District of Oklahoma found that
the language in Edwards relating to employment retaliation was “dicta” and should not be
controlling. See McDaniel v. Legend Energy Servs., LLC, No. CIV-20-1278-R, 2021 WL
535862, at *2 (W.D. Okla. Feb. 12, 2021) (finding that the conclusion in Edwards appears
“internally inconsistent” and “contrary to earlier Oklahoma Supreme Court precedent”). The
district court in McDaniel decided that the Oklahoma Supreme Court should be given the
opportunity to clarify the issue. However, the case ultimately settled before any question was
certified. Id. Absent any contrary precedent, the Court finds that the Oklahoma Supreme
Court is clear in Edwards that there is no remedy for employment retaliation under the
OADA. See also Davis v. Mercy Rehab. Hosp., No. CIV-19-561-D, 2019 WL 13113533, at
*A (W.D. Okla. Nov. 20, 2019) (“The OADA does not ‘provide any remedy to compensate
an employee who suffers retaliation at the hands of an employer.’”) (quoting Edwards, 382
P.3d at 1047).

claims.”3 Jones v. Needham, 856 F.3d 1284, 1292 (10th Cir. 2017). However, the OADA includes
“disability” as a protected class, while Title VII and § 1981 do not. Therefore, under Title VII and
§ 1981, plaintiff can allege only that he was subject to disparate treatment on the basis of race or
color. The Court will first address this claim.

“[I]n racial discrimination suits, the elements of a plaintiff’s case are the same [] whether that
case is brought under § 1981 [] or Title VII.” Drake v. City of Fort Collins, 927 F.2d 1156, 1162
(10th Cir. 1991). Therefore, a claim for racial discrimination under Title VII, the OADA, and § 1981
may be assessed congruently. While a plaintiff need not establish a prima facie case at the motion
to dismiss stage, it is helpful to set forth the basic elements of a claim for discrimination to ascertain
whether a plaintiff has stated a plausible claim. Khalik, 671 F.3d at 1192. The burden-shifting
framework of McDonnell-Douglas requires that the plaintiff show that he “(1) fell within a protected

group, (2) was qualified for his position, and (3) suffered an adverse employment action under
circumstances giving ‘rise to an inference of unlawful discrimination.’” Rodriguez v. Brown, No.
21-1124, 2022 WL 3453401, at *4 (10th Cir. Aug. 18, 2022)4 (quoting Affairs v. Burdine, 450 U.S.
248, 253 (1981)). “One method by which a plaintiff can demonstrate an inference of discrimination
is to show that the employer treated similarly situated employees more favorably.” Luster v. Vilsack,
667 F.3d 1089, 1095 (10th Cir. 2011). To survive a motion to dismiss, “[a] complaint raising a
claim of discrimination does not need to conclusively establish the prima facie case of

3 The OADA prohibits employers from discriminating “against an individual with respect to
compensation or the terms, conditions, privileges or responsibilities of employment, because
of race, color, religion, sex, national origin, age, genetic information or disability.” OKLA.
STAT. ANN. tit. 25, § 1302(A)(1).
4 This and other cited unpublished decisions are not precedential, but may be cited for their
persuasive value. 10th Cir. R. 32.1(A).
7
discrimination, but it must contain more than ‘[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.’” Bekkem v. Wilkie, 915 F.3d 1258, 1274 (10th
Cir. 2019) (quoting Iqbal, 556 U.S. at 678).
Defendant disputes only the third element, and argues that plaintiff has failed to establish that

he suffered an adverse employment action. Construing the facts in a light most favorable to plaintiff,
the Court finds otherwise. The United States Supreme Court recently noted that “courts rewrote Title
VII [to] compel[] workers to make a showing that the statutory text does not require.” Muldrow v.
City of St. Louis, Missouri, 144 S. Ct. 967, 975 (2024). The Court found that:
[t]o make out a Title VII discrimination claim, a transferee must show
some harm respecting an identifiable term or condition of employment.
What the transferee does not have to show, according to the relevant text,
is that the harm incurred was ‘significant.’ Or serious, or substantial, or
any similar adjective suggesting that the disadvantage to the employee
must exceed a heightened bar. ‘Discriminate against’ means treat worse[].
But neither that phrase nor any other says anything about how much
worse. There is nothing in the provision to distinguish, as the courts
below did, between transfers causing significant disadvantages and
transfers causing not-so-significant ones. And there is nothing to
otherwise establish an elevated threshold of harm. To demand
‘significance’ is to add words—and significant words, as it were—to the
statute Congress enacted. It is to impose a new requirement on a Title VII
claimant, so that the law as applied demands something more of her than
the law as written.
Id. at 974 (internal citations omitted). Plaintiff claims that he was repeatedly denied training
opportunities and staff benefits, was transferred to night-shift due to his race–despite his childcare
concerns–and was subject to false and malicious rumors spread by co-workers and HR personnel.
8
These allegations of adverse employment actions are sufficient to state a plausible claim for
discrimination on the basis of race and color under Title VII,5 § 1981, and the OADA.6
Plaintiff, however, has failed to allege sufficient facts to support a plausible claim for
disparate treatment on the basis of disability under the OADA. Plaintiff’s multiple allegations of

discrimination pertain only to his race. As to his disability, he states only that an HR member told
an employee that plaintiff “was acting crazy and causing issues at work because he has PTSD.”7
This alone is insufficient to support a plausible claim of disparate treatment on the basis of disability,
and therefore plaintiff’s claim of disparate treatment on the basis of disability under the OADA
should be dismissed.
C. Retaliation on the basis of race and color under § 1981
Under § 1981, an employer may not retaliate against an employee for engaging in a protected

activity. To set forth a prima facie case of retaliation, an employee must show “(1) that [he] engaged
in protected opposition to discrimination, (2) that a reasonable employee would have found the
challenged action materially adverse, and (3) that a causal connection existed between the protected

5 In a footnote, defendant argues that some of plaintiff’s specific allegations in his petition may
have occurred more than 300 days prior to the filing of his EEOC charge and may be time-
barred as discrete acts of discrimination. The Court acknowledges that defendant has
expressly reserved its right to argue that [p]laintiff has failed to exhaust his administrative
remedies–as required for his Title VII claims–as to certain discrete facts. See Dkt. # 10, at
4.
6 Because the Court has found that plaintiff’s aforementioned allegations are sufficient to show
that he could bring a claim for discrimination, the Court need not address whether the denial
of Thanksgiving pies constitutes an adverse employment action under Title VII.
7 Plaintiff did state that due to his PTSD, he suffered “severe distress and anxiety” from a
workplace rumor, but the rumor itself did not pertain to his disability, nor did defendant’s
conduct.
9
activity and the materially adverse action.” Somoza v. University of Denver, 513 F.3d 1206, 1212
(10th Cir. 2008) (internal quotations omitted). Although plaintiff has no burden to come forward
with evidence at this stage of the case, the Court finds that the elements of the prima facie case
provide a reasonable framework for evaluating whether plaintiff has sufficiently alleged a claim of
retaliation.
Defendant argues that opening an investigation does not qualify as an adverse employment
action. “For a retaliation claim, [] an adverse employment action is something that would have
‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Lincoln
v. Maketa, 880 F.3d 533, 540 (10th Cir. 2018) (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 US. 53, 68 (2006)); Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011)
(“[T]he principles set forth in Title VII retaliation cases apply with equal force in § 1981 retaliation
cases”). Defendant notes that the Tenth Circuit has generally held that initiating a workplace
investigation is not a materially adverse action.’ However, “[c]ontext matters.” White, 548 U.S. at
69. “*The real social impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships which are not fully captured by a simple recitation
of the words used or the physical acts performed.’” Id. (quoting Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 81-82 (1998)). Here, plaintiff alleges that he filed an ethics complaint

Defendant cites to Lincoln v. Maketa for the proposition that workplace investigations
initiated after an employee has filed a complaint do not give rise to a materially adverse
employment action; however, that case was decided in the First Amendment and qualified
immunity context. See Lincoln v. Maketa, 880 F.3d 533, 541 (10th Cir. 2018) (“Sgt. Stone
and the district court relied only on general standards, noting that an adverse employment
action is one that would deter reasonable persons from exercising their First Amendment
rights. But the analysis of qualified immunity is based on specific facts, not abstract
principles.”)
10

in March 2022, reporting discriminatory treatment he and other African American employees
suffered, and defendant promptly opened an investigation into plaintiff for being allegedly aggressive
towards other team members. See also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th
Cir. 1999) (“A retaliatory motive may be inferred when an adverse action closely follows protected

activity.”) He also claims that an HR staff member called him crazy. These actions taken together
could “dissuade a reasonable worker from making or supporting a charge of discrimination.” White,
548 U.S. at 68. Plaintiff’s factual allegations are therefore sufficient to state a plausible claim for
retaliation on the basis of race and color under § 1981.
D. Retaliation on the basis of disability under the ADA
Retaliation under § 1981 and the ADA9 is assessed using the same standard. Selenke v.
Medical Imaging of Colorado, 248 F.3d 1249, 1264 (10th Cir. 2001) (outlining the three elements

to assess an ADA retaliation claim). Plaintiff claims that he “filed an ethics complaint with
[d]efendant regarding the repeated harassment and discriminatory treatment that [p]laintiff, as well
as several other African American employees, was suffering.” Plaintiff has failed to allege that his
protected opposition to discrimination–filing the ethics complaint–related to discrimination on the
basis of his disability. Moreover, the factual allegations giving rise to his ethics complaint–including
being asked to dress up as a clown for Black History Month, getting transferred to night shift, and
denial of training opportunities and merchandising benefits–regard only racial discriminatory
treatment. Plaintiff has failed to allege sufficient facts that he engaged in protected opposition to

9 Defendant does not dispute that plaintiff has a disability as required to bring a claim under
the ADA.
11
discrimination on the basis of disability, and has therefore failed to state a plausible clam under the
ADA.
E. Hostile work environment under Title VII, § 1981, and the OADA
“The same substantive standards apply to a hostile work environment claim regardless of

whether the plaintiff has brought it under § 1981 or Title VII.” Lounds v. Lincare, Inc., 812 F.3d
1208, 1221 (10th Cir. 2015). The standard can also be applied to a hostile work environment claim
under the OADA. To state a prima facie case of hostile work environment, a plaintiff must allege:
(1) he is a member of a protected group; (2) he was subject to unwelcome harassment; (3) the
harassment was based on his membership in a protected group; and (4) due to the harassment’s
severity or pervasiveness, the harassment altered a term, condition, or privilege of plaintiff’s
employment and created an abusive working environment. See Harsco Corp. v. Renner, 475 F.3d

1179, 1186 (10th Cir. 2007). There is no “mathematically precise test” for a hostile work
environment claim, and courts consider the “totality of circumstances” when assessing the
harassment’s severity or pervasiveness. Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957,
959 (10th Cir.2012). These include: “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993). This is an objective standard. While plaintiff is under no obligation to establish

a prima facie case at the motion to dismiss stage, these factors are helpful to assess whether he has
stated a plausible claim for a section 1981 hostile work environment claim.
Plaintiff has not alleged sufficient facts to support a plausible hostile work environment claim
under Title VII, § 1981, and the OADA. While being asked to dress up as a clown during Black

12
History Month could indeed be deemed racially offensive, he admits that he did not end up doing
so. Plaintiff makes other generic allegations that he was subjected to an “increasingly-hostile work
environment,” but has not alleged facts that “‘a rational jury could find that the workplace is
permeated with discriminatory intimidation, ridicule, and insult.’” Delsa Brooke Sanderson v. Wy.

Highway Patrol, 976 F.3d 1164, 1176 (10th Cir. 2020) (quoting Bird v. West Valley City, 832 F.3d
1188, 1025 (10th Cir. 2016)). “‘Instead of sporadic racial slurs, there must be a steady barrage of
opprobrious racial comments.’” Lounds, 812 F.3d at 1223 (quoting Bolden v. PRC Inc., 43 F.3d
545, 551 (10th Cir.1994)). Plaintiff has not alleged more than“a few isolated incidents of racial
enmity.” Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir.1998) (internal quotations
omitted). Plaintiff has not alleged specific facts that his workplace is permeated with discriminatory
intimidation, and his factual allegations do not rise to severe or pervasive harassment as required by

the fourth element of a hostile work environment claim. Plaintiff has therefore not alleged a
plausible claim for a hostile work environment under §1981, Title VII, or the OADA, and his claims
should be dismissed.
F. Intentional infliction of emotional distress
Plaintiff’s final claim is for intentional infliction of emotional distress. According to the
Supreme Court of Oklahoma, “[t]o recover damages for intentional infliction of emotional distress,
a plaintiff must prove: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct
was extreme and outrageous; (3) the defendant’s conduct caused the plaintiff emotional distress; and

(4) the resulting emotional distress was severe.” Comput. Publ’ns, Inc. v. Welton, 49 P.3d 732, 735
(Okla. 2002). “The trial court acts as a gatekeeper regarding the outrageousness of the defendant’s
conduct and the severity of the plaintiff’s distress.” Id. The second element of this tort, whether the

13
conduct was extreme and outrageous, “requires proof that the defendant’s conduct was so outrageous
in character and so extreme in degree as to go beyond all possible bounds of decency, and that such
conduct is regarded as atrocious and utterly intolerable in a civilized community.” Id. The fourth
element, whether the resulting emotional distress was severe, “requires proof that the emotional

distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure
it.” Id. at 736 (internal quotations and alterations omitted). “While emotional distress includes all
highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment,
anger, chagrin, disappointment, worry, and nausea, it is only where the emotional distress is extreme
that liability arises.” Id. (internal quotations omitted). Plaintiff has generally alleged that he suffered
“severe emotional distress [] beyond that which a reasonable person could be expected to endure,”
but has not alleged any specific facts supporting that allegation. This allegation is no more than a

“threadbare recital[] of the elements of [this] cause of action.” Iqbal, 556 U.S. at 678. Plaintiff has
not alleged with specificity what severe distress he experienced, or otherwise demonstrated that the
defendant’s conduct was extreme and outrageous. His singular allegation of anxiety and distress,
isolated instances of rumors perpetrated by various employees, and request to dress up as a clown
does not meet the high bar required for extreme conduct and severe distress. Plaintiff has failed to
state a plausible claim of intentional infliction of emotional distress, and the claim should be
dismissed.
IV.

IT IS THEREFORE ORDERED that defendant’s motion to dismiss (Dkt. # 10) is granted
in part and denied in part. Defendant’s motion is granted as to plaintiff’s claims of disparate
treatment on the basis of disability under the OADA (part of count 1), retaliation under the OADA

14
(count 3), aiding and abetting discrimination under the OADA (count 4), retaliation under the ADA
(count 7), hostile work environment under the OADA, Title VII, and § 1981 (part of counts 2, 6, and
8) and intentional infliction of emotional distress (count 9). Defendant’s motion is denied as to
plaintiff's claims of disparate treatment on the basis of race and color under the OADA (part of
counts | and 2), Title VII (counts 5 and 6), and § 1981 (part of count 8), and retaliation on the basis
of race and color under § 1981 (part of count 8).
IT IS FURTHER ORDERED that plaintiff's claims of disparate treatment on the basis of
disability under the OADA (part of count 1), retaliation under the OADA (count 3), aiding and
abetting discrimination under the OADA (count 4), retaliation under the ADA (count 7), hostile
work environment under the OADA, Title VII, and § 1981 (part of counts 2, 6, and 8) and intentional
infliction of emotional distress (count 9) are dismissed.
IT IS FURTHER ORDERED that plaintiff's remaining claims are disparate treatment on
the basis of race and color under the OADA, Title VII, and § 1981, and retaliation on the basis of
race and color under § 1981.
IT IS FURTHER ORDERED that the parties shall file their joint status report no later than
July 19, 2024.
DATED this 27th day of June, 2024.
Midis GHe...
CLAIREV.EAGAN J
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10665775. Public record. Not legal advice.