Compise v. Board of County Commissioners of Oklahoma County

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

SHARON R. COMPISE, )

)

Plaintiff, )

)

v. ) Case No. CIV-22-00489-JD

)

DAVID B. HOOTEN, individually and )

in his official capacity as Oklahoma )

County Clerk, )

)

Defendants. )

ORDER

Before the Court is a Motion to Dismiss (“Motion”) filed by David Hooten in his

official capacity. [Doc. No. 17]. It seeks dismissal of Sharon Compise’s (“Compise”)

Amended Complaint [Doc. No. 12] for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). Compise filed a response [Doc. No. 18], and Hooten filed a reply

[Doc. No. 19]. For the following reasons, the Court grants the Motion.

I. BACKGROUND

During the events in question, Hooten was the elected clerk for the Oklahoma

County Clerk’s Office. Compise was a deputy clerk at the Oklahoma County Clerk’s

Office and worked under Hooten’s supervision. In 2017, Hooten began trying to build a

more personal relationship with Compise. For example, he started asking if he could

accompany her during her lunch break. Compise agreed but later grew uncomfortable

with his company. Hooten asked her to download an app on her phone that would let him

keep track of where she was. Compise downloaded the app when Hooten was watching

but then deleted it when he was not around. Hooten watched Compise via cameras in the

office and would then “appear” wherever Compise was going. [Doc. No. 12 at 2].1 He

complimented Compise on her physical appearance and clothes several times each week,

which made Compise uncomfortable. She did not observe him engaging in similar

conduct with any male employees.

At some point before early 2020, Compise learned that Hooten had assisted a

female employee in purchasing a vehicle. He then sexually propositioned that employee

on the way from the car dealership to the office.

Hooten temporarily stopped “tracking [Compise] and making comments on her

appearance” while she and the other employees worked from home due to the COVID-19

pandemic. [Id. at 3]. When Compise returned to in-person work at the office, “it appeared

that [Hooten] was having an inappropriate relationship with another female employee.”

[Id.]. At one point, Compise “walked in on a situation that seemed to be an

inappropriately personal relationship between Hooten and the other employee.” [Id. at 3–

4].

On April 26, 2022, Hooten issued a “mandatory directive” to Compise and two

other female employees that they were all going on a “‘team building’ exercise” the next

day. [Id. at 4]. Hooten explained there would be drinking and gambling and that the

women “might have to sign a waiver for their activities.” [Id.]. He did not disclose the

precise location of this exercise but said “the females would not be allowed to drive

1 The Court uses CM/ECF page numbering from the top of docket filings in this

Order.

themselves.” [Id.]. He stated “he had been genetically altered so that he would not get

drunk.” [Id.] Compise feared Hooten intended to sexually assault her and the other two

women, so she reported his misconduct.

Compise filed this suit against Hooten in his official and individual capacity.2 She

claims Hooten violated her “Fourteenth Amendment right to be free of gender

discrimination and sexual harassment” under 42 U.S.C. § 1983. [Id. at 1].

II. LEGAL STANDARD

“Rule 12(b)(6) dismissal ‘is appropriate if the complaint alone is legally

insufficient to state a claim.’” Serna v. Denver Police Dep’t, 58 F.4th 1167, 1169 (10th

Cir. 2023) (quoting Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081,

1104–05 (10th Cir. 2017)). The Court must “view the allegations and all reasonable

inferences in favor of the plaintiffs.” Hubbard v. Okla. ex rel. Okla. Dep’t of Hum. Servs.,

759 F. App’x 693, 696 (10th Cir. 2018) (unpublished).

In considering a motion to dismiss under Rule 12(b)(6), the inquiry is “whether the

complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’”

Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible

‘when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.’” Doe v. Woodard, 912

F.3d 1278, 1299 (10th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

2 Initially, Compise also sued the Board of County Commissioners of Oklahoma

County, but it was later dismissed from the case. [Doc. Nos. 11, 12].

However, “the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions” and “whether a complaint states a

plausible claim for relief will . . . be a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 678, 679.

III. ANALYSIS

At the outset, the Court notes that to the extent Compise intended to bring a gender

discrimination claim against Hooten in his official capacity, it has been abandoned. Since

the Amended Complaint states Hooten violated Compise’s “Fourteenth Amendment right

to be free of gender discrimination and sexual harassment,” the Motion seeks to dismiss

both of these claims. [Doc. No. 12 at 1] (emphasis added). It analyzes the gender

discrimination and sexual harassment claims separately (under different headings) and

dedicates approximately four pages of varying analysis to each claim. [Doc. No. 17].

However, Compise only responded to Hooten’s arguments regarding sexual harassment

via a hostile work environment. [Doc. No. 18]. She provided the Court with no arguments

regarding her claim for gender discrimination. It seems Compise may not have intended

to bring two separate claims. Regardless, to the extent she did, her gender discrimination

claim against Hooten in his official capacity is abandoned. See United States v. Egli, 13

F.4th 1139, 1144 (10th Cir. 2021) (“Waiver comes in two flavors—invited error and

abandonment. . . . [Abandonment] ‘occurs when a party deliberately considers an issue

and makes an intentional decision to forgo it.’” (quoting United States v. Malone, 937

F.3d 1325, 1327 (10th Cir. 2019))); see also Stender v. Archstone-Smith Operating Tr.,

910 F.3d 1107, 1117 (10th Cir. 2018) (“A party’s offhand reference to an issue in a

footnote, without citation to legal authority or reasoned argument, is insufficient to

present the issue for [the court’s] consideration.” (quoting Verlo v. Martinez, 820 F.3d

1113, 1127 (10th Cir. 2016))).

Regarding Compise’s sexual harassment claim, Hooten argues that the Amended

Complaint does not plausibly allege that he violated her constitutional rights. He says that

“[t]o establish an equal protection claim based on sexual harassment, Compise must

demonstrate that Hooten’s conduct was based on her sex and was sufficiently severe or

pervasive as to interfere unreasonably with her work performance and created a hostile or

abusive work environment,” and that his alleged conduct does not satisfy this standard.

[Doc. No. 17 at 19]. Compise agrees that the severe or pervasive standard applies but

argues Hooten’s actions meet it because “a reasonable woman” would understand he was

“setting her up for a sexual assault.” [Doc. No. 18 at 7].3

3 The standard district courts are to use for evaluating sexual harassment claims

brought under the Equal Protection Clause against municipalities is not entirely clear.

This is partially because the Tenth Circuit “ha[s] only discussed Fourteenth Amendment

equal protection claims involving sexual harassment a handful of times.” Shepherd v.

Robbins, 55 F.4th 810, 818 (10th Cir. 2022). Some cases appear to just consider the

defendant’s conduct and then determine whether it deprived plaintiff of her right to equal

protection of the laws. See Starrett v. Wadley, 876 F.2d 808, 815 (10th Cir. 1989). Other

cases, such as Doe v. Hutchinson, apply the severe or pervasive standard that is also used

in Title VII cases. 728 F. App’x 829, 832 (10th Cir. 2018) (unpublished) (citing Escue v.

N. Okla. Coll., 450 F.3d 1146, 1157 (10th Cir. 2006)).

Here, neither party disputes that the severe or pervasive standard applies, and they

both argue that their positions succeed under this standard. Therefore, the Court assumes

this is the correct standard and analyzes their arguments accordingly. United States v.

Sineneng-Smith, 590 U.S. 371, 375–76 (2020) (explaining that in our adversarial system

of adjudication, courts “follow the principle of party presentation” and rely on counsel to

advance the arguments entitling them to relief; courts “do not, or should not, sally forth

each day looking for wrongs to right . . . . [they] decide only questions presented by the

parties”).

“It is well established in this circuit that sexual harassment by a state actor can

constitute a violation of the equal protection clause.” Murrell v. Sch. Dist. No. 1, Denver,

186 F.3d 1238, 1249 (10th Cir. 1999). “One form of actionable sexual harassment is

‘hostile environment harassment.’” Hutchinson, 728 F. App’x at 832 (quoting Escue, 450

F.3d at 1157). “To prevail on such a claim, a plaintiff must show that the defendant’s

‘conduct was sufficiently severe or pervasive . . . .’” Id. (quoting Escue, 450 F.3d at

1157).

When analyzing the “severe or pervasive” standard, courts “must look to a

‘totality of the circumstances,’ and ‘consider[ ] such factors as 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.’” Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012)

(quotations omitted) (alteration in original) (quoting Chavez v. New Mexico, 397 F.3d

826, 832–33 (10th Cir. 2005)). “The severe or pervasive inquiry ‘should be judged from

the perspective of a reasonable person in the plaintiff’s position, considering all the

circumstances.’” Hutchinson, 728 F. App’x at 832 (quoting Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).

First, analyzing whether Hooten’s conduct was severe, the Court cannot determine

whether Hooten’s comments about Compise’s appearance were threatening or

humiliating because she does not provide them in her Amended Complaint. Compise’s

allegations about Hooten’s inappropriate relationship with another female employee are

similarly vague. The Court is not given specifics about this relationship, only that it was

“commonly known” and Compise “walked in on a situation that seemed to be an

inappropriately personal relationship between Hooten and the other employee.” [Doc.

No. 12 at 3–4]. Without more details, the Court cannot determine the severity of these

allegations.

Hooten’s desire to follow Compise around and track her movements is troubling;

as is the fact he sexually propositioned another female employee. And the most

concerning conduct is what is described as occurring on April 22 when Hooten told

Compise and two other female employees that he was taking them for a team building

exercise where they would be drinking and gambling. This all gets closer to reaching the

“severe” standard but, in light of the Tenth Circuit jurisprudence, still does not reach it as

alleged. Even conduct that is “unquestionably juvenile, unprofessional, and perhaps

independently tortious” cannot alone be deemed severe. Morris, 666 F.3d at 668.

A defendant’s conduct has been deemed sufficiently severe where he “expos[ed]

himself” three different times to three different women, Macias v. Southwest Cheese Co.,

624 F. App’x 628, 635–36 (10th Cir. 2015) (unpublished); “forcibly kissed” a woman on

two separate occasions, Rogers v. City County Health Department of Oklahoma County,

30 F. App’x 883, 885–86 (10th Cir. 2002) (unpublished); or sexually propositioned a

woman, “massag[ed] his genitals” while staring at her lewdly, “rubbed the front side of

his body against her backside,” and called her a “fucking bitch,” Chavez v. New Mexico,

397 F.3d 826, 836 (10th Cir. 2005).

To contrast, in Penry v. Federal Home Loan Bank of Topeka where the defendant

“gave hotel clerks the impression that he and [a woman] were to share a room” on work

trips, asked a woman “if women have wet dreams,” took women to Hooters for lunch,

said he “kind of liked” to see a woman’s bra strap, constantly followed a woman when

she went to the breakroom or bathroom, and “needlessly touched [women] on many

occasions,” his conduct was not severe enough to warrant liability for sexual harassment.

155 F.3d 1257, 1260–61 (10th Cir. 1998).

Therefore, as currently alleged, Compise has failed to plead that Hooten’s conduct

was sufficiently severe to warrant liability.

Regarding whether Hooten’s conduct was pervasive, “isolated incidents of

harassment, while inappropriate and boorish, do not constitute pervasive conduct.” Smith

v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1414 (10th Cir. 1997). Here, Hooten’s

conduct was spread out over the course of five years—from 2017 to 2022. And the

Amended Complaint only includes several specific instances of his behavior. The Tenth

Circuit has “conclude[ed] that ‘five separate incidents of allegedly sexually-oriented,

offensive comments either directed to [the plaintiff] or made in her presence in a sixteen

month period’ were not sufficiently pervasive to support a hostile work environment

claim.” Morris v. City of Colo. Springs, 666 F.3d 654, 666 (10th Cir. 2012) (quoting

Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1365 (10th Cir. 1997)). Given the span of

time over which these incidents took place and the Amended Complaint’s lack of

specificity, Compise has not adequately alleged that Hooten’s conduct was sufficiently

pervasive.

Accordingly, because Compise does not plausibly allege that Hooten’s conduct

was sufficiently severe or pervasive, the Court concludes she has failed to state a claim

for sexual harassment under the Equal Protection Clause against Hooten in his official

capacity. Since Compise has failed to plausibly allege an underlying constitutional

violation, the Court does not analyze whether Oklahoma County can be held liable via

municipal liability.*

IV. CONCLUSION

For these reasons, the Court GRANTS Hooten’s Motion [Doc. No. 17] and

DISMISSES Compise’s Amended Complaint against him, in his official capacity,

WITHOUT PREJUDICE. In light of the Court’s ruling, the Court DENIES AS MOOT

Compise’s Alternative Motion to Allow Discovery to Proceed or Motion to Sever the

Actions Against Defendant Oklahoma County and Defendant Hooten [Doc. No. 20]. As

Hooten has answered Compise’s claims against him in his individual capacity, see [Doc.

No. 16], the Court will place this case on a status and scheduling docket by separate order

so that a scheduling order may be entered following receipt of the joint status report and

discovery plan to govern deadlines in this action.

IT IS SO ORDERED this 19th day of August 2024.

UNITED STATES DISTRICT JUDGE

+ The parties do not address deliberate indifference in their municipal liability

analysis. See, e.g., Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 771

(10th Cir. 2013).