# Theron v. Board of County Commissioners

> District Court, W.D. Oklahoma · September 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10666102

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 26, 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 WESTERN DISTRICT OF OKLAHOMA

RACHEL THERON et al., )
)
Plaintiffs, )
)
v. ) Case No. CIV-23-1176-G
)
CANADIAN COUNTY ex rel. )
BOARD OF COUNTY )
COMMISSIONERS et al., )
)
Defendants. )
ORDER
Plaintiffs Rachel Theron and Misty Schweitzer bring employment claims against
four defendants: Canadian County ex rel. Board of County Commissioners (“the Board”),
Judge Bobby Hughey, Melanie Johnson, and Cedric Mills. See Second Am. Compl. (Doc.
No. 1-7). Now before the Court is a Motion to Dismiss (Doc. No. 7) filed by Defendants
Johnson and Mills, as well as a Response (Doc. No. 20) and a Reply (Doc. No. 26).
I. Summary of the Pleadings
Plaintiffs allege as follows:
At all relevant times, Plaintiffs were employed by Canadian County, Oklahoma
(“the County”) and worked at the Gary E. Miller Canadian County Children’s Justice
Center (“CCCJC”). Second Am. Compl. ¶ 3. Plaintiff Theron was hired as an Accounting
Specialist at the CCCJC and began working there in October of 2021. Id. ¶ 52. The CCCJC
terminated Plaintiff Theron’s employment in March of 2022. Id. ¶ 118. Plaintiff
Schweitzer was employed at the CCCJC as a Human Resource Manager beginning or about
October 12, 2020. Id. ¶ 120. Plaintiff Schweitzer was terminated from her position on
March 25, 2022. Id. ¶ 133.
The CCCJC is a department under the fiscal umbrella of the County that provides

services and programs for children and families. Id. ¶¶ 4, 30. Program and statutory
authority for the CCCJC falls under the purview of Defendant Canadian County Associate
District Judge Bobby Hughey, who acts in a dual capacity: as an employee of the State of
Oklahoma in a judicial and administrative capacity and as an actor of the County when
acting in an administrative capacity for the CCCJC. Id. ¶¶ 5, 32.

The Board, comprising three County Commissioners, is the administrative body for
the County and is responsible for the management and decisionmaking related to County
facilities and employees. Id. ¶¶ 18-24. The Board has legal powers when acting in the
County’s welfare and the official duty to ensure the fiscal responsibility of county officers
and employees who handle county funds. Id. ¶¶ 25-28.

Defendant Johnson is the current Director at the CCCJC; she was hired and
appointed by Defendant Judge Hughey and approved by the County Commissioners. Id.
¶¶ 38, 200. The Director is responsible for appointing and removing other employees at
the facility. Id. ¶¶ 34, 37. Defendant Mills is the Assistant Director. Id. ¶ 38. He was
approved by Defendant Johnson and the County Commissioners and is supervised by

Defendant Johnson. Id. ¶ 200.
II. Applicable Standards
In analyzing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, 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.” Burnett v. Mortg. Elec.
Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). “[T]o withstand a Rule
12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as

true, ‘to state a claim to relief that is plausible on its face.’” Khalik v. United Air Lines,
671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). While the Rule 12(b)(6) standard does not require that a plaintiff establish a
prima facie case in the pleading, the court discusses the essential elements of each alleged
cause of action to better “determine whether [the plaintiff] has set forth a plausible claim.”

Id. at 1192.
A complaint fails to state a claim on which relief may be granted when it lacks
factual allegations sufficient “to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (footnote and citation omitted). Bare legal conclusions in a

complaint are not entitled to the assumption of truth; “they must be supported by factual
allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. The Motion to Dismiss
Plaintiffs bring claims pursuant to 42 U.S.C. § 1983 against Defendants Johnson
and Mills (hereinafter “Defendants”), in both their official and individual capacities. See

Second Am. Compl. ¶¶ 193-230. “To state a claim under § 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States” and “must
show that the alleged deprivation was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988). Defendants do not dispute that they were
acting under color of state law in connection with Plaintiffs’ assertions of unlawful
treatment at CCCJC. Defendants argue, however, that Plaintiffs cannot show that
Defendants “subject[ed]” Plaintiffs, “or cause[d] [Plaintiffs] to be subjected,” “to a

deprivation of [their] lawful rights.” Porro v. Barnes, 624 F.3d 1322, 1327 (10th Cir. 2010)
(internal quotation marks omitted).
A. Plaintiffs’ Official-Capacity Claims
Defendants argue that Plaintiffs’ claims against them in their official capacities as
County employees should be dismissed as duplicative of the same claims raised against the

Board. See Defs.’ Mot. to Dismiss at 19-20; Defs.’ Reply at 2. Plaintiffs offer no
substantive response to this assertion.
It is well-established that “an official-capacity suit is . . . to be treated as a suit
against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Further, “[a] suit
brought against a county’s board of county commissioners is the way Oklahoma law

contemplates suing the county.” Snow v. Bd. of Cnty. Comm’rs of Cnty. of McClain, No.
14-911-HE, 2014 WL 7335319, at *2 (W.D. Okla. Dec. 19, 2014) (citing Okla. Stat. tit.
19, § 4). And “in the § 1983 context, a suit against the board of county commissioners or
some other county official in their official capacity is, in substance, a suit against the
county.” Id. (citing Porro, 624 F.3d at 1328).

It follows that, Plaintiffs having offered no distinguishing facts or authority, the
official-capacity claims should be dismissed as redundant and duplicative. See id.;
Carskadon v. Armor Corr. Health Servs., Inc., No. CIV-18-1013-G, 2020 WL 2813526, at
*4 (W.D. Okla. May 29, 2020).
B. Plaintiffs’ Individual-Capacity Claims
Although the pleading cites various constitutional deprivations, Plaintiffs’ briefing
specifies that they are claiming Defendants’ treatment of them after they spoke out on

matters of public concern violated their First Amendment rights. See Pls.’ Resp. at 12-14.
Defendants argue that they are entitled to qualified immunity on Plaintiffs’ First
Amendment claims. “Qualified immunity protects officials from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Thomas v. Kaven, 765 F.3d 1183, 1194

(10th Cir. 2014) (internal quotation marks omitted). “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” Stewart
v. Beach, 701 F.3d 1322, 1330 (10th Cir. 2012) (internal quotation marks omitted).
While a defendant may assert the defense of qualified immunity in a motion to

dismiss, doing so “subjects the defendant to a more challenging standard of review than
would apply on summary judgment.” Thomas, 765 F.3d at 1194 (internal quotation marks
omitted). “At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the
complaint that is scrutinized for ‘objective legal reasonableness.’” Behrens v. Pelletier,
516 U.S. 299, 309 (1996) (emphasis omitted). “In resolving a motion to dismiss based on

qualified immunity, the court considers (1) whether the facts that a plaintiff has alleged
make out a violation of a constitutional right, and (2) whether the right at issue was clearly
established at the time of defendant’s alleged misconduct.” Keith v. Koerner, 707 F.3d
1185, 1188 (10th Cir. 2013) (internal quotation marks omitted).
The First Amendment “forbids abridgment of the freedom of speech.” Janus v. Am.
Fed’n of State, Cnty., & Mun. Emps., 585 U.S. 878, 891-92 (2018). A government
employee “does not relinquish First Amendment rights to comment on matters of public

interest by virtue of government employment.” Connick v. Myers, 461 U.S. 138, 140
(1983). “Rather, the First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 417 (2006). “However, the interests of public employees in
commenting on matters of public concern must be balanced with the employer’s interests

in promoting the efficiency of the public services it performs through its employees.”
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011) (internal quotation
marks omitted).1
Through two decisions—Pickering v. Board of Education, 391 U.S. 563, 568
(1968), and Garcetti, 547 U.S. at 417—the Supreme Court has articulated five factors to

be considered in analyzing public-employee free-speech cases. Leverington, 643 F.3d at
724 (explaining that “after Garcetti, it is apparent that the Pickering analysis of freedom

1 Although Defendants cite standards relevant to considering First Amendment claims in a
non-employment context, the allegations of the Second Amended Complaint most
reasonably reflect that Defendants held supervisory positions at the CCCJC over Plaintiffs
as employees. See, e.g., Second Am. Compl. ¶¶ 34, 36-38, 66-69, 71, 74, 201-202. When
a § 1983 claim is premised upon supervisor liability, the facts must demonstrate an
“‘affirmative link’ between the supervisor and the constitutional violation.” Schneider v.
City of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013) (internal quotation
marks omitted). Generally, the plaintiff must allege facts establishing: (1) the supervisory
defendant’s personal involvement in the asserted violation of federal rights; (2) a sufficient
causal connection; and (3) a culpable state of mind. Id. at 767-69; see also Dodds v.
Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).
of speech retaliation claims is a five step inquiry” that will be referred to as “the
Garcetti/Pickering analysis” (internal quotation marks omitted)). The Tenth Circuit has
summarized these factors as follows:

(1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the
public service are sufficient to outweigh the plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.

Eisenhour v. Weber Cnty., 744 F.3d 1220, 1227-28 (10th Cir. 2014) (internal quotation
marks omitted). “The first three elements are issues of law for the court to decide, while
the last two are factual issues typically decided by the jury.” Knopf v. Williams, 884 F.3d
939, 945 (10th Cir. 2018) (internal quotation marks omitted).
Defendants argue that Plaintiffs have failed to plausibly allege that their speech
involved a matter of public concern, as required to be entitled to First Amendment
protection. To adequately plead this element, Plaintiffs must allege that their speech
“involve[d] a matter of public concern and not merely a personal issue internal to the
workplace.” Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995).
Speech involves matters of public concern when it can be fairly considered
as relating to any matter of political, social, or other concern to the
community, or when it is a subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the public. The inquiry
turns on the “content, form, and context” of the speech.
Lane v. Franks, 573 U.S. 228, 241 (2014) (quoting Connick, 461 U.S. at 147). Courts also
consider the motive of the speaker: “[w]as the speech calculated to redress personal
grievances or did it have some broader public purpose?” Eisenhour, 744 F.3d at 1228.
Plaintiffs allege that they spoke out, as least at times, “as individuals” rather than as
employees regarding multiple problems at the CCCJC, including “financial
mismanagement, violations of spending and budgeting laws, diversion of funds and the

wrongful termination of employees who complained,” prior to being terminated. Second
Am. Compl. ¶¶ 51, 213; see also id. ¶¶ 199, 207-209, 212, 214-215. Construed in
Plaintiffs’ favor, these allegations plausibly reflect that Plaintiffs’ speech related to a
concern to the community and/or “a subject of legitimate news interest,” involving more
than a personal grievance or “solely . . . their working conditions.” Lane, 573 U.S. at 241

(internal quotation marks omitted); Defs.’ Reply at 6. Plaintiffs therefore have adequately
pleaded that their protected speech involved a matter of public concern for purposes of the
Garcetti/Pickering analysis.
The Court concludes that “the facts that [Plaintiffs] ha[ve] alleged” are sufficient to
“make out a violation of a constitutional right.” Keith, 707 F.3d at 1188 (internal quotation

marks omitted). Further, from the authorities cited above it is clear that this First
Amendment right was clearly established at the relevant time period of 2020 to 2022. See
supra; McFall v. Bednar, 407 F.3d 1081, 1087 (10th Cir. 2005) (“[The defendant] violated
clearly established law, and thus is not entitled to qualified immunity, if he terminated [the
plaintiff] for exercising her free speech rights.”). Dismissal of these claims is not warranted

on this basis.2

2 This finding “does not foreclose Defendants from reasserting their entitlement to qualified
immunity on a motion for summary judg[]ment should [Plaintiffs’] allegations in the
complaint prove to be unfounded.” Seamons v. Snow, 84 F.3d 1226, 1238 (10th Cir. 1996).
CONCLUSION
For all these reasons, the Motion to Dismiss (Doc. No. 7) is GRANTED IN PART
and DENIED IN PART.
Plaintiffs’ claims against Defendant Johnson and Defendant Mills in their official
capacities are DISMISSED without prejudice pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Plaintiffs’ claims against Defendant Johnson and Defendant
Mills in their individual capacities remain pending.
IT IS SO ORDERED this 26th day of September, 2024.

(Barba B. Kadota
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666102. Public record. Not legal advice.