Kimbro v. Oklahoma House of Representatives

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

AMARI KIMBRO, )

)

Plaintiff, )

v. )

) Case No. CIV-22-1003-PRW

STATE OF OKLAHOMA ex rel. )

OKLAHOMA HOUSE OF )

REPRESENTATIVES, )

)

Defendant. )

ORDER

Before the Court is Defendant State of Oklahoma ex rel. Oklahoma House of

Representatives’ Motion for Summary Judgment (Dkt. 25). This matter is fully briefed,

and for the reasons that follow, the Motion (Dkt. 25) is GRANTED.

Background1

This case arises from alleged racial discrimination and retaliation. Plaintiff Amari

Kimbro was employed as a Legislative Assistant for the Oklahoma House of

Representatives (the “House”) from January 22, 2019, until her employment was

terminated on June 2, 2021. Throughout her employment with the House, several

performance issues were documented. In November of 2019, Representative Regina

Goodwin, one of Kimbro’s assigned representatives, submitted a long and detailed list of

complaints about Kimbro’s performance to the human resources manager at the time.

1 This section is based on the undisputed facts as described in the parties’ briefs.

Kimbro was subsequently reassigned to two different representatives. In December of

2019, the Legislative Assistant Supervisor and Parliamentarian at the time, C.J. Calvin,

sent her an email informing her that it was improper for her to take time off without first

following the proper procedure for taking time off, that it was improper for her to

consistently submit late time sheets, and that some time that she had submitted working

offsite was expressly disallowed by House policy. In October of 2020, Jason Sutton, the

Director of Operations and Administration for the House, investigated Kimbro (and others)

for timecard theft. At some point not specified by the parties, a constituent of

Representative Jason Lowe left a voicemail for Sutton, complaining of Kimbro’s attitude

and lack of professionalism during a conversation with the constituent. And finally, on

April 21, 2021, Kimbro was perceived to be involved in an unlawful protest that took place

during a legislative session of the House.

Some of the details surrounding the protest are relevant to this action. On April 21,

2021, protestors supporting the Black Lives Matter movement entered the gallery of the

House while a legislative session was taking place on the floor. The protestors shouted

profanities and obscenities, so they were asked to leave due to the interruption of the

ongoing session. Kimbro left her office to watch and proceeded to take a video of the

protest. When the protest escalated, Kimbro approached some of the protesters, referring

to them by name, and asked them to leave. Kimbro then posted the video that she had

recorded onto her Facebook page and tagged an organizer of the protest in her post, all

while on the clock.

Kimbro was terminated on June 2, 2021. Following her termination, Kimbro filed a

charge with the Equal Employment Opportunity Commission alleging that the House

discriminated and retaliated against her based on her race. Upon the EEOC’s issuance of a

right-to-sue letter, Kimbro filed suit against the House, alleging race discrimination and

retaliation in violation of Title VII, 42 U.S.C. § 1981, and Oklahoma public policy (See

Dkt. 1). The House now moves for summary judgment on Kimbro’s claims.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure requires “[t]he court [to] grant

summary judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” In considering a motion for

summary judgment, a court must view all facts and reasonable inferences in the light most

favorable to the nonmovant.2 Courts are not to weigh the evidence and determine the truth

of the matter asserted, but instead are to determine only whether there is a genuine dispute

for trial before the fact-finder.3 A fact is “material” if, under the substantive law, it is

essential to the proper disposition of the claim.4 A dispute is “genuine” if there is sufficient

evidence on each side so that a rational trier of fact could resolve the issue for either party.5

When, as here, the nonmoving party has the ultimate burden of persuasion at trial,

the moving party “has both the initial burden of production on a motion for summary

2 Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citations omitted).

3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

4 Id. at 248.

5 Id.

judgment and the burden of establishing that summary judgment is appropriate as a matter

of law.”6 “The moving party may carry its initial burden either by producing affirmative

evidence negating an essential element of the nonmoving party’s claim, or by showing that

the nonmoving party does not have enough evidence to carry its burden of persuasion at

trial.”7 “Once the moving party points out the absence of evidence to create a ‘genuine

issue’ of a ‘material fact’ on which the non-moving party bears the burden of proof at trial,

. . . [t]he non-moving party must set forth specific facts showing there is a genuine issue

for trial.”8

Analysis

I. Section 1981 Claim

Kimbro first alleges that the House discriminated and retaliated against her based

on her race in violation of 42 U.S.C. § 1981. But “§ 1981 does not provide a vehicle for

remedying racial discrimination and retaliation in cases brought against state actors.”9

Instead, such claims must be brought under § 1983.10 Because the House is a state agency,

Kimbro’s claims under § 1981 against it are not permissible as a matter of law.

6 Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002), as amended

on denial of reh’g (Jan. 23, 2003) (citing Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210

F.3d 1099, 1102 (9th Cir. 2000)).

7 Id.

8 Otis v. Canadian Valley-Reeves Meat Co., 884 F. Supp. 446, 449–50 (W.D. Okla. 1994),

aff’d, 52 F.3d 338 (10th Cir. 1995) (citing Anderson, 477 U.S. at 248).

9 Hannah v. Cowlishaw, 628 F. App’x 629, 632 (10th Cir. 2016) (unpublished) (citing Jett

v. Dallas Indep. Sch. Dist., 491 U.S. 701, 705, 735 (1989)).

10 Jett, 491 U.S. at 735 (“We hold that the express ‘action at law’ provided by § 1983 for

the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and

In response, Kimbro suggests that the Court should grant her leave to amend this

claim to one brought under § 1983, citing Bolden v. City of Topeka.11 But a response to a

motion for summary judgment is not the proper vehicle for requesting leave to amend a

pleading.12 And even if Kimbro had properly requested leave to amend, such amendment

would be futile. States—and state agencies—are entitled to sovereign immunity13 unless

Congress has abrogated the states’ immunity, or the state has waived it.14 The Supreme

Court has held that § 1983 did not abrogate states’ sovereign immunity,15 and states are not

“persons” under § 1983.16 Further, Oklahoma has not waived its sovereign immunity for §

1983 claims.17 As such, even if Kimbro were granted leave to amend her complaint to

laws,’ provides the exclusive federal damages remedy for the violation of the rights

guaranteed by § 1981 when the claim is pressed against a state actor.”).

11 441 F.3d 1129 (10th Cir. 2006).

12 See LCvR 15.1; Johnson v. Spencer, 950 F.3d 680, 721 (10th Cir. 2020) (“It is well-

settled under our cases that these drive-by requests to amend the complaint do ‘not rise to

the status of a motion.’” (quoting Glenn v. First Nat'l Bank, 868 F.2d 368, 370 (10th Cir.

1989))).

13 Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 (10th Cir. 2010)

(citing Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144

(1993)).

14 Green v. Mansour, 474 U.S. 64, 68 (1985) (citing Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 99 (1984)).

15 Quern v. Jordan, 440 U.S. 332, 345 (1979).

16 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989).

17 Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (citing Ramirez v. Okla. Dep’t

of Mental Health, 41 F.3d 584, 589 (10th Cir. 1994), overruled on other grounds by Ellis

v. Univ. of Kan. Med. Ctr., 163 F.3d 1186 (10th Cir. 1998)); Berry v. Oklahoma, 495 F.

App’x 920, 921 (10th Cir. 2012) (unpublished) (“Oklahoma has not consented to be sued

in federal courts.” (citing OKLA. STAT. tit. 51, § 152.1)).

reframe her claims to ones brought under § 1983, her amendment would be futile because

the House would be entitled to sovereign immunity for her damages claim.18

The House is therefore entitled to summary judgment on Kimbro’s claims brought

under 42 U.S.C. § 1981.

II. Title VII Claims

Kimbro also alleges that the House discriminated and retaliated against her based

on her race and association with the Black Lives Matter movement in violation of Title

VII.

A. Discrimination

Under Title VII, it is unlawful for an employer “to discriminate 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[.]”19

“[A] plaintiff bears the ultimate burden of proving that her employer intentionally

discriminated against her.”20 This can be done by using either direct or circumstantial

18 In its Reply, the House acknowledges the Ex Parte Young exception to Eleventh

Amendment immunity. Def.’s Reply (Dkt. 38), at 6. The House correctly notes that Kimbro

is not seeking injunctive relief, but also, Kimbro has only sued the House, which is a state

agency. Because “the Eleventh Amendment bars federal court jurisdiction over a state

agency for both money damages and injunctive relief,” simply reframing her claim to one

brought under § 1983 would not solve the problem. Ellis v. Univ. of Kan. Med. Ctr., 163

F.3d 1186, 1196 (10th Cir. 1998).

19 42 U.S.C. § 2000e-2(a)(1).

20 Singh v. Cordle, 936 F.3d 1022, 1037 (10th Cir. 2019) (citing Adamson v. Multi Cmty.

Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008)).

evidence.21 When using circumstantial evidence, the three-step McDonnell Douglas

framework applies.22 Under McDonnell Douglas, a plaintiff must first establish a prima

facie case of race discrimination.23 Then, if the plaintiff meets this burden, the burden shifts

to the defendant to provide a “legitimate, nondiscriminatory reason for its actions.”24 If the

defendant can do so, the burden shifts back to the plaintiff to “show that the defendant’s

explanation was merely pretextual.”25

Kimbro has not identified any direct evidence of discrimination, so the McDonnell

Douglas framework applies. In its Motion, the House sets forth the “general recitation” of

the prima facie showing, which requires a showing that: (1) the plaintiff is a member of a

protected class, (2) she suffered an adverse employment action, and (3) the challenged

action occurred under circumstances giving rise to an inference of discrimination.26

21 DePaula v. Easter Seals El Mirador, 859 F.3d 957, 969 (10th Cir. 2017) (citing Tabor

v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013)).

22 Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (citing McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 800–07 (1973)).

23 DePaula, 859 F.3d at 969 (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

252–53 (1981) and Smothers v. Solvay Chems., Inc., 740 F.3d 530, 539–40 (10th Cir.

2014)).

24 Id. (citing McDonnell Douglas, 411 U.S. at 802).

25 Id. (citing Smothers v. Solvay Chems., Inc., 740 F.3d 530, 540 (10th Cir. 2014) and

Williams v. FedEx Corp. Servs., 849 F.3d 889, 900 (10th Cir. 2017)).

26 Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir. 2011) (citing E.E.O.C. v. PVNF, L.L.C.,

487 F.3d 790, 800 (10th Cir. 2007)). See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d

1220, 1227 n.6 (10th Cir. 2000) (stating that this more general recitation may “be helpful

when addressing discrimination claims that either do not fall into any of the traditional

categories (e.g., hiring or discharge) or present unusual circumstances.”); Plotke, 405 F.3d

at 1100 (explaining that the prima facie case is meant to be flexible, and can change

depending on the facts of the case); McNellis v. Douglas Cnty. Sch. Dist., 116 F.4th 1122,

1139 (10th Cir. 2024) (“We have articulated the elements of a prima facie Title VII

Kimbro does not contest the House’s proffered standard, or offer an alternative articulation.

Regardless, the focus of the prima facie case is whether the termination “occurred under

circumstances giving rise to an inference of unlawful discrimination.”27 Circumstances

giving rise to an inference of discrimination can be established a variety of ways, including

“actions or remarks made by decisionmakers[,] . . .preferential treatment given to

employees outside the protected class[,] . . . the timing or sequence of events leading to

plaintiff's termination[,]”28 or a showing that the plaintiff “was terminated and replaced in

a job [s]he was qualified for[.]”29

The House concedes that Kimbro is a member of a protected class and suffered an

adverse employment action when she was terminated. The parties dispute, however,

whether Kimbro’s termination occurred under circumstances giving rise to an inference of

discrimination claim differently from case to case,” resulting in a “flexible approach.”

(internal citations omitted)).

27 Kendrick, 220 F.3d at 1227 (quoting Tex. Dep’t of Cmty. Affairs, 450 U.S. at 253).

28 Plotke, 405 F.3d at 1101 (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91

(2d Cir. 1996)).

29 Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012) (citing Perry, 703 F.3d

at 1140).

discrimination.30 The Court will assume without deciding that Kimbro has made a prima

facie showing because, as discussed below, she has failed to establish pretext.31

The House has provided legitimate, non-discriminatory reasons for Kimbro’s

termination. The House set forth evidence of the several performance issues that took place

throughout Kimbro’s employment as a Legislative Assistant. Additionally, the House

proffered evidence supporting its belief that Kimbro was involved in the protest that

violated Oklahoma law and disrupted the legislative session taking place at the House.32

These reasons are sufficient to meet the House’s “exceedingly light” burden at this step,33

and Kimbro does not argue otherwise.

The burden shifts back to Kimbro to demonstrate that the House’s proffered

legitimate, non-discriminatory reasons are pretextual. The “relevant inquiry for

determining pretext is ‘whether the employer’s stated reasons were held in good faith at

30 On this point, the parties also dispute whether “associational” claims are viable. Compare

Frith v. Whole Foods Mkt., Inc., 38 F.4th 263, 273–74 (1st Cir. 2022) (holding that

associational claims based on an employee’s support of protected colleagues could be

“technically viable”) with Joseph v. Bd. of Regents of the Univ. Sys. of Ga., 121 F.4th 855,

870–71 (11th Cir. 2024) (holding that associational claims are viable, but requiring that the

discrimination must still be based on the plaintiff’s own race or sex). But Kimbro does not

meaningfully argue that her claim should be analyzed as an associational claim or provide

any evidence that the topic of the protest—the Black Lives Matter movement—was

relevant to her termination.

31 See, e.g., DePaula, 859 F.3d at 971 (assuming without deciding that the plaintiff made a

prima facie showing); Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir. 1997)

(same).

32 See OKLA. STAT. tit. 21, § 302 (“Any person who alone or in concert with others willfully

disturbs, disrupts or interferes with any session, meeting or proceeding of either house of

the State Legislature . . . shall be guilty of a misdemeanor.”)

33 See DePaula, 859 F.3d at 970, 973 (citing Williams, 849 F.3d at 899–900).

the time of the discharge, even if they later prove to be untrue, or whether the plaintiff can

show that the employer’s explanation was so weak, implausible, inconsistent or incoherent

that a reasonable fact find could conclude that it was not an honestly held belief but rather

was subterfuge for discrimination.’”34 A plaintiff can generally show pretext

(1) with evidence that the defendant’s stated reason for the adverse

employment action was false; (2) with evidence that the defendant acted

contrary to a written company policy prescribing the action to be taken by

the defendant under the circumstances; or (3) with evidence that the

defendant acted contrary to an unwritten policy or contrary to company

practice when making the adverse employment decision affecting the

plaintiff.35

The third method is often established using “evidence that [the plaintiff] was treated

differently from other similarly-situated employees who violated work rules of comparable

seriousness.”36 The facts are viewed from the viewpoint of the person making the decision

to terminate the plaintiff.37

Kimbro’s arguments regarding pretext are scarce. Presumably in an effort to

demonstrate that the House’s proffered reasons for her termination are pretextual, Kimbro

has produced two pieces of evidence. The first is a letter written by Representative Jason

Lowe, Chair of Oklahoma Black Legislative Caucus, to the Speaker of the House following

34 Simmons v. Sykes Enters., Inc., 647 F.3d 943, 947–48 (10th Cir. 2011) (quoting Young

v. Dillon Cos., Inc., 468 F.3d 1243, 1250 (10th Cir. 2006)).

35 Kendrick, 220 F.3d at 1230 (internal citations omitted).

36 Id. (citing Aramburu, 112 F.3d at 1404).

37 Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261 (10th Cir. 2001) (quoting

Kendrick, 220 F.3d at 1231) (other citations omitted).

Kimbro’s termination.38 The letter states that Kimbro was “a great asset to the Oklahoma

Legislative Black Caucus, The House Democratic Caucus, and the Oklahoma House of

Representatives” and concludes with “strong support for Amari Kimbro and her

reinstatement as a Legislative Assistant.”39 The second is an email written by one of

Kimbro’s assigned representatives at the time of her termination, Representative Denise

Brewer. The email summarizes qualities a candidate to replace Kimbro must have,

including “excellent work ethic, and a personality that makes [them] a ‘whole’ team again,”

suggesting that these were qualities possessed by Kimbro.40 Kimbro argues that this

evidence creates a genuine dispute of material fact as to whether her performance issues

were a pretextual reason for her termination because it shows that her assigned

representatives were happy with her work.

But Kimbro does not contest the various performance issues documented

throughout her employment with the House. Likewise, Kimbro acknowledges that the

behavior of the protestors on April 21, 2021, was inappropriate and in violation of

Oklahoma law,41 and that she posted a video tagging one of the organizers to her Facebook

page while at work.42 Further, Kimbro’s evidence does not show that Sutton, the

decisionmaker, was aware of Representatives Lowe and Brewer’s opinions of Kimbro’s

38 Letter from Rep. Jason Lowe (Dkt. 37-5).

39 Id.

40 Email from Rep. Denise Brewer (Dkt. 37-6).

41 Deposition of Amari Kimbro (Dkt. 25-1), at 188–89.

42 Id. at 180–81.

performance prior to her termination, as both the letter and email were written after the

fact.43 Because these facts are viewed from Sutton’s viewpoint, this evidence does not cast

doubt on the House’s proffered reasons for Kimbro’s termination.44

Kimbro also argues that she was never “formally disciplined” for the performance

issues. However, she provides no evidence suggesting that the House formally disciplined

other employees for the same or similar infractions as a general matter of course, or that

the House had a policy requiring formal discipline.45 And, as noted by the House, Kimbro

was subjected to some discipline—she was assigned to different representatives following

Representative Goodwin’s complaints about her performance and received an email

addressing “areas of concern” regarding her violations of the House’s timekeeping

policies.46

Kimbro makes two additional arguments—though argued in the context of her

prima facie showing—that the Court will consider.47 First, she argues that a white

43 See id. (dated June 23, 2021); Letter from Rep. Jason Lowe (Dkt. 37-5) (dated August

10, 2021).

44 See Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169–70 (10th Cir. 2007)

(“Evidence that the employer should not have made the termination decision—for

example, that the employer was mistaken or used poor business judgment—is not sufficient

to show that the employer’s explanation is unworthy of credibility.” (citations omitted)).

45 See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (“Unsubstantiated

allegations carry no probative weight in summary judgment proceedings.” (citing Phillips

v. Calhoun, 956 F.2d 949, 951 n.3 (10th Cir. 1992))).

46 See Email from C.J. Calvin (Dkt. 25-4).

47 See Orr v. City of Albuquerque, 531 F.3d 1210, 1215 (10th Cir. 2008) (Courts do not

“look at each piece of evidence in isolation; rather, in assessing whether plaintiffs have

shown pretext, we are obligated to consider their evidence in its totality.” (citations

omitted)). See also Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003)

Legislative Assistant, Tonya Pogue, partook in the same actions as Kimbro but was not

terminated. Specifically, Kimbro argues that Ms. Pogue left her office, recorded the protest,

and requested that the protesters leave. Kimbro suggests that the only difference between

herself and Ms. Pogue is the fact that Kimbro knew one of the protesters by name. But that

isn’t accurate. The House provided a video showing that Ms. Pogue did leave her office to

record the protest, and asked protesters to leave the House Chamber, but there is no

evidence that Ms. Pogue posted the video to her Facebook page while on the clock, referred

to any protestors by name, or tagged one of the organizers of the protest in a Facebook

post, creating the perception that she was involved in organizing the protest. These

situations are distinguishable, and “[d]ifferences in treatment that are . . . explained by a

nondiscriminatory motive will not sustain a claim of pretext.”48 Moreover, Kimbro offers

no evidence suggesting that Ms. Pogue had a similar disciplinary history to Kimbro or was

otherwise similarly situated.49

(quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 286 (3rd Cir. 2000), which states

that “evidence supporting the prima facie case is often helpful in the pretext stage and

nothing about the McDonnell Douglas formula requires us to ration the evidence between

one stage and another.”); Flowers v. United Parcel Serv., Inc., No. 22-2025, 2022 WL

17258431, at *5–6 (10th Cir. Nov. 29, 2022) (unpublished) (considering prima facie

evidence combined with other pretext evidence).

48 See Kendrick, 220 F.3d at 1232 (citing E.E.O.C. v. Flasher, 986 F.2d 1312, 1320 (10th

Cir. 1992)).

49 See Aramburu, 112 F.3d at 1404 (“A court should also compare the relevant employment

circumstances, such as work histories and company policies, applicable to the plaintiff and

the intended comparable employees in determining whether they are similarly situated.”

(citations omitted)).

Second, Kimbro argues that the House did not follow its typical policy of conferring

with her designated representatives prior to her termination. Kimbro offers no evidence of

any written policy establishing that this is the normal procedure in such situations. But

seemingly in an attempt to argue that conferring with representatives is the House’s

unwritten practice or policy, Kimbro references the letter written by Representative Lowe,

which states that “[Kimbro] was terminated without the proper notification and consent of

her Members and without explanation for her abrupt termination.”50 The letter then goes

on to state that “the caucus requests more transparency in any disciplinary action . . . . As

Members have full discretion in the hiring process, [they] would also like to be included in

the discipline and termination process.”51 Contrary to Kimbro’s assertion otherwise,

however, this letter does not demonstrate that representatives were usually consulted with

prior to the termination of a Legislative Assistant as the Legislative Black Caucus is

requesting such involvement in future termination decisions, to align with their “full

discretion” in hiring decisions.52

Ultimately, taking all of the evidence and viewing it in the light most favorable to

Kimbro, she has failed to show that there is a genuine dispute of material fact fit for jury

50 Letter from Rep. Jason Lowe (Dkt. 37-5).

51 Id.

52 Kimbro also argues that Sutton terminated her because she “merely knew” one of the

organizers. Pl.’s Resp. (Dkt. 37), at 9–10. However, this argument is purely conjecture, and

“speculation . . . will not suffice for evidence.” Doan v. Seagate Tech., Inc., 82 F.3d 974,

977 (10th Cir. 1996).

determination on the issue of pretext. The House is entitled to summary judgment on

Kimbro’s racial discrimination claim under Title VII.53

B. Retaliation

“Title VII retaliation claims require an employee to demonstrate that, but for her

protected activity, she would not have faced the alleged adverse employment action.”54

The same framework for proving a claim of discrimination applies to claims for

retaliation.55 As for proving a prima facie case of retaliation, a plaintiff must show: “(1)

that she 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 activity and the materially adverse action.”56

While Kimbro’s Complaint asserts a claim for retaliation in violation of Title VII,

Kimbro did not respond to the House’s argument for summary judgment on her retaliation

claim or present any evidence supporting a claim for retaliation. For this reason, Kimbro

53 It is unclear from the Complaint whether Kimbro is also alleging a claim for race

discrimination and retaliation under the Oklahoma Anti-Discrimination Act (“OADA”).

And her Response fails to provide any clarity. Nonetheless, to the extent that she is alleging

claims for race discrimination and retaliation under the OADA, the House is likewise

entitled to summary judgment on those claims as the same analysis applies equally to

claims under the OADA. Jones v. Needham, 856 F.3d 1284, 1292 (10th Cir. 2017); Wolf

v. Kum & Go, L.C., No. CIV-23-00754-PRW, 2024 WL 3706501, at *3 (W.D. Okla. Aug.

7, 2024).

54 Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1269 (10th Cir. 2015) (citing

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)).

55 Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019) (citing Khalik v. United Air

Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)).

56 Khalik, 671 F.3d at 1193 (quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998

(10th Cir. 2011) (further citation omitted)).

has abandoned her retaliation claim and summary judgment in favor of the House is

warranted on this claim.57 And even if she hadn’t abandoned this claim, Kimbro has not

provided any evidence demonstrating that she engaged in a protected activity.

III. Oklahoma Public Policy

Kimbro asserts in her Complaint that she is also alleging violations of Oklahoma

public policy. But similar to her claim of retaliation in violation of Title VII, Kimbro makes

no mention of any Oklahoma public policy that has been violated and does not respond to

the House’s argument on this issue.58 As such, the House is entitled to summary judgment

on these claims, as well.

Conclusion

For the reasons discussed above, Defendant House’s Motion to Summary

Judgement (Dkt. 25) is GRANTED. Accordingly, the House’s pending Motion to Strike

Plaintiff’s Final Exhibit List (Dkt. 33) is DENIED as moot.

57 See Hinsdale v. City of Liberal, 19 F. App’x 749, 768–69 (10th Cir. 2001) (unpublished)

(affirming district court’s decision to conclude claims were abandoned when they were not

addressed in the plaintiff’s response to the defendants’ motion for summary judgment);

Stephens v. BMAG Mgmt. Co., LLC, No. CIV-20-00306-JD, 2023 WL 5538304, at *12

(W.D. Okla. Aug. 28, 2023) (finding claim abandoned when the party failed to present

evidence or discuss the claim in its response); Midcon Data Servs., LLC v. Ovintiv USA,

Inc., No. CIV-20-00674-PRW, 2023 WL 1827860, at *5 (W.D. Okla. Feb. 8, 2023) (same).

58 See Barker v. State Ins. Fund, 40 P.3d 463, 468 (Okla. 2001) (“To prevail on a claim of

wrongful discharge in violation of Oklahoma's public policy, a plaintiff must first identify

an Oklahoma public policy goal that is well established, clear and compelling and

articulated in existing constitutional, statutory or jurisprudential law.” (citing Clinton v.

State ex rel. Logan Cnty. Election Bd., 29 P.3d 543, 546 (Okla. 2001), overruled on other

grounds in Kruchowski v. Weyerhaeuser Co., 202 P.3d 144 (Okla. 2008))).

IT IS SO ORDERED this 16th day of January 2025.

PATRICK R. WYRICK

UNITED STATES DISTRICT JUDGE

17