Stepp v. Talihina Public School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF OKLAHOMA

AMBER STEPP and JONATHON STEPP, )

individually and as parents and next friends )

of J.S., a minor child, )

)

Plaintiffs, )

v. ) Case No. 6:24-cv-146-JAR

)

TALIHINA PUBLIC SCHOOL DISTRICT, et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiffs Amber and Jonathon Stepp (collectively, the “Stepps”), individually

and as parents and next friends of J.S., a minor child, filed a complaint on April 23,

2024, which they amended on May 30, 2024, and again on December 5, 2024. The

second amended complaint (“SAC”) [Doc. 93]1 asserts fifteen claims against eleven

defendants for alleged violations of Title IX of the Education Amendments of 1972

(“Title IX”), 20 U.S.C. § 1681 et seq., the First, Fifth, and Fourteenth Amendments to

the United States Constitution pursuant to 42 U.S.C. § 1983 (“§ 1983”), the Equal

Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq., and Oklahoma law.

Before the court is the motion to dismiss (“Motion”) [Doc. 101] filed on behalf

of defendant Kevin McClain (“McClain”) in his individual capacity as a teacher

employed by defendant Independent School District No. 52 of LeFlore County,

Oklahoma, commonly known as Talihina Public School District (“TPSD”). McClain

1 For clarity and consistency herein, when the court cites to the record, it uses the pagination

and documents numbers provided by CM/ECF.

seeks dismissal of all five claims asserted against him in the SAC pursuant to Fed.

R. Civ. P. 12(b)(6) and 8(a), the doctrine of qualified immunity, and the Oklahoma

Governmental Tort Claims Act, Okla. Stat. tit. (“O.S.”) 51, § 151 et seq. Plaintiffs filed

a response opposing the Motion [Doc. 106], and McClain timely replied [Doc. 109].2

I. BACKGROUND

A. PLAINTIFFS’ ALLEGATIONS

At the time of the events in question, J.S. was an eleven-year-old student

enrolled in the fifth grade at Talihina Elementary. [Doc. 93, ¶ 31].3 Beginning in

August 2022 and at the direction of TPSD’s superintendent, defendant Jason

Lockhart (“Supt. Lockhart” or “Lockhart”), and the Talihina Elementary principal,

defendant Kathy Anderson (“Principal Anderson” or “Anderson”), fifth-grade

students were segregated into two classes solely on the basis of gender. [Id. ¶ 21]. The

all-boys class was taught by McClain, and the all-girls class was taught by a female

teacher. TPSD’s policy left fifth-grade students at Talihina Elementary, including

J.S., with no option but to attend gender-segregated classes. [Id. ¶¶ 22, 30, 33].

During the first week of the 2022-2023 school year—the week of August 16—

McClain frequently yelled at J.S. and his classmates. During the second week of

school—the week of August 22—McClain began targeting J.S. in several ways,

including berating J.S. until he was reduced to tears and prohibiting J.S. from leaving

2 Though generally disfavored, the court acknowledges plaintiffs’ incorporation by reference of

their response brief [Doc. 105] opposing the TPSD defendants’ separate motion to dismiss the SAC.

3 TPSD is a political subdivision and body corporate of the State of Oklahoma, duly created

and charged with the operation of Talihina Elementary School. [Id., ¶ 2 (citing 70 O.S. §§ 1-108, 5-101,

5-103, 5-105)].

the classroom when he reportedly felt unwell, despite allowing another student to

leave the classroom three separate times for the same reason. On August 24, a

concerned parent of another fifth-grade boy contacted Mrs. Stepp regarding

McClain’s use of derogatory and harassing language toward J.S. Mr. Stepp met with

Supt. Lockhart the following day to report McClain’s targeted, disproportionate

treatment of J.S. and explicitly raised concerns about his son’s safety and wellbeing

at school. TPSD responded by placing a “hall monitor” outside McClain’s classroom

to observe student-teacher interactions. [Id. ¶¶ 34-42].

While this hall monitor was purportedly on duty, McClain raised inappropriate

topics with his students, including but not limited to: encouraging discussions about

kissing girls; instructing his students not to draw male genitals because J.S. was

“queer”; and, after witnessing J.S. playfully roughhouse with classmates, instructing

his students to yell “f*g alert” upon unwanted contact from classmates. [Id. ¶¶ 43-

45]. J.S. subsequently informed Mr. Stepp a classmate had advised that the next time

McClain called him a “queer,” J.S. should respond by calling McClain a different

homophobic slur. Shocked by this language, Mr. Stepp soon discovered J.S. had

learned these slurs from McClain. Mr. Stepp then defined these slurs for J.S., who

immediately began to cry and question why McClain would refer to him using such

terms. [Id. ¶¶ 50-52].4 On or around the day that Mr. Stepp learned of McClain’s

name-calling, Mrs. Stepp separately learned of the same from a concerned

grandparent of another fifth-grade boy. [Id. ¶ 55].

4 When Mr. Stepp met with Supt. Lockhart on or about August 25, 2022, he was not yet aware

of McClain’s targeted use of derogatory and sexually harassing language toward J.S. [Id. ¶ 49].

During a subsequent phone call with the Stepps, McClain admitted to yelling

at his class, using the phrase “f*g alert,” and discussing male genitalia with his fifth-

grade students in a manner that targeted J.S. [Id. ¶¶ 46, 62-63]. McClain further

acknowledged that his conduct was generally inappropriate for fifth-grade students,

and that he would not have used certain terms or raised certain topics had fifth-grade

girls been present. Soon thereafter, the Stepps informed Principal Anderson of their

intent to file a formal Title IX complaint against McClain. Upon information and

belief, multiple defendants—including Lockhart, McClain, Anderson and Talihina

Elementary’s then-designated Title IX officer, Rebecca McLemore (“McLemore”)—

privately discussed the Stepp’s concerns regarding McClain’s behavior and

coordinated a responsive strategy for the imminent Title IX complaint. [Id. ¶¶ 64-65].

On or about August 29, 2022, the Stepps met with Supt. Lockhart, McClain,

and McLemore to gather pertinent information regarding the Title IX process and

TPSD’s grievance procedures. Supt. Lockhart prohibited McLemore from speaking

during this meeting and the Stepps received little, if any, information on how to file

a Title IX complaint. [Id. ¶¶ 66-67, 69]. McLemore contacted Mrs. Stepp directly after

the meeting, however, to apologize and recommend that the Stepps complete an

Alleged Sexual Harassment Form (“Form”). The Stepps submitted a completed Form

that same day, and TPSD officials treated said Form as a formal complaint of sexual

harassment under Title IX. [Id. ¶¶ 71-73]. Apart from the Form, the Stepps did not

receive any notice or instruction concerning Talihina Elementary’s grievance process

or its procedure for resolving formal complaints under Title IX. [Id. ¶ 76].

On the same day the Stepps submitted their Title IX complaint, TPSD officials

removed J.S. from the all-boys class but refused to remove McClain from the same

pending resolution of the Title IX investigation. [Id. ¶¶ 94-97]. Eventually, Principal

Anderson worked with the Stepps to create a modified school schedule wherein J.S.

would attend the Language Arts class for one period and would, for the remainder of

the school day, be kept alone in the library. [Id. ¶ 100]. The Stepps had no choice but

to accept Anderson’s modified schedule proposal, as they had refused an offer to place

J.S. in the all-girls class due to concerns that such a placement would further

stigmatize and ostracize their son. [Id. ¶¶ 99, 101]. While the Title IX investigation

was ongoing, J.S. received little to no general instruction from teachers and received

none of the special education support provided for in his Individual Education Plan

(“IEP”). [Id. ¶¶ 100, 102, 105]. His grades dropped as a result, and TPSD deemed him

ineligible to participate in extracurricular activities—including basketball. [Id. ¶¶

103-04]. In or around late-August or early-September of 2022, the Stepps decided J.S.

would receive a better education if he were homeschooled and withdrew their son

from TPSD. [Id. ¶ 336; Doc. 93-3 at 2].

On or about August 30, 2022, McLemore met with Principal Anderson to

discuss the investigation into the Stepp’s Title IX complaint. During this meeting,

Anderson confirmed she would provide McLemore with notes summarizing her

communications with Supt. Lockhart and McClain regarding the Stepps’ allegations

against McClain. [Doc. 93, ¶¶ 107-08]. On September 1, however, Anderson refused

to provide McLemore with any requested notes memorializing her admitted

conversations with Lockhart and McClain. According to a Title IX “Contact Sheet”

completed by McLemore, Anderson and Lockhart had privately determined

Anderson’s notes and recollection were irrelevant to the Title IX investigation. [Id.

¶¶ 112-13]. McLemore abruptly resigned as Talihina Elementary’s Title IX officer the

following week, stating: “[I]t is very apparent to me that I am not qualified to fulfill

this position. I believe to continue in this role would set me in a place of ethical and

professional liability.” [Id. ¶¶ 118-19].

Unbeknownst to plaintiffs at the time, on September 29, the Oklahoma State

Department of Education issued a letter to TPSD and Lockhart advising that

Talihina Elementary’s policy of segregating fifth-grade classes on the basis of gender

violated federal civil rights laws, including Title IX, and directing integration of fifth-

grade classes by no later than October 10, 2022. [Id. ¶¶ 138-41; Doc. 93-3]. On October

12, 2022, J.S. returned to Talihina Elementary and was placed in an integrated fifth

grade class not taught by McClain. [Id. ¶¶ 145, 333]. However, the Stepps pulled J.S.

and his siblings from Talihina Elementary—the only public school in their immediate

vicinity—following the 2022-2023 school year because they felt they could not safely

report teacher-on-student sexual harassment or bullying if and/or when such issue

arose in the future. To date, J.S. and his four younger siblings remain homeschooled.

[Id. ¶¶ 167-69].

B. SUMMARY OF DISMISSAL PLEADINGS

Plaintiffs bring the following five claims against McClain in their SAC, seeking

relief in the form of actual and punitive damages: a § 1983 claim for alleged

constitutional violations (Count Four); a § 1983 claim for civil conspiracy (Count

Seven); a state claim for intentional infliction of emotional distress (Count Eleven); a

state claim for gender discrimination pursuant to 70 O.S. § 24-157 (Count Thirteen);

and a state claim for civil conspiracy (Count Fifteen).

In late-December of 2024, the TPSD defendants and McClain separately filed

a motion to dismiss the SAC pursuant to Rule 12(b)(6). McClain argues in his Motion

that: (1) the SAC fails to allege McClain violated plaintiffs’ constitutional rights; (2)

McClain is entitled to qualified immunity on plaintiffs’ federal claims; (3) plaintiffs

fail to state a claim for intentional infliction of emotional distress because McClain’s

conduct, as alleged, is not “extreme and outrageous”; (4) there is no private right of

action under 70 O.S. § 24-157; and (5) plaintiffs fail to state conspiracy claims against

McClain under both state and federal law.5

II. STANDARD FOR MOTIONS TO DISMISS

Dismissal pursuant to Fed. R. Civ. P. 12(b)(6) “‘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,

861 F.3d 1081, 1104-05 (10th Cir. 2017). When considering whether a plaintiff’s claim

should be dismissed under Rule 12(b)(6), the Court accepts all well-pleaded factual

allegations as true and views them in the light most favorable to the plaintiff as the

nonmoving part. S.E.C. v. Shields, (“Shields”) 744 F.3d 633, 640 (10th Cir. 2014). All

that is required is “a short and plain statement of the claim showing that the pleader

5 On March 4, 2025, the court held an in-person hearing and heard oral arguments from all

parties on the pending dismissal pleadings. See [Doc. 120].

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must, however, contain

“enough facts to state a claim to relief that is plausible on its face” and “raise a right

to relief about the speculative level.” Bell Atl. Corp. v. Twombly (“Twombly”), 550

U.S. 554, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Shields, 744 F.3d at 640 (quoting Ashcroft v. Iqbal

(“Iqbal”), 556 U.S. 662, 678 (2009)). “[T]he 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 678-79.

III. CLAIMS FOR VIOLATIONS OF FEDERAL LAW

Plaintiffs’ federal claims against McClain are asserted pursuant to § 1983, the

“remedial vehicle for raising claims based on the violation of [federal] constitutional

rights.” Brown v. Buhman, 822 F.3d 1151, 1161 & n.9 (10th Cir. 2016).

A. INTRODUCTION

To state a claim under § 1983, a plaintiff must (1) “allege the violation of a

right secured by the Constitution and the laws of the United States” and (2) “show

that the alleged deprivation was committed by a person acting under color of state

law.” West v. Akins, 487 U.S. 42, 48 (1988). McClain does not dispute that he was

acting under the color of state law; thus, the issue is whether plaintiffs have

sufficiently alleged they have been deprived of a constitutional right.

1. Distinction Between Individual and Official Capacity Claims

As noted, plaintiffs seek to hold McClain liable under § 1983 in his individual

(or personal) capacity only. “Personal capacity suits seek to impose personal liability

upon a government official for actions he takes under color of state law. Official-

capacity suits, in contrast, generally represent only another way of pleading an action

against an entity of which an officer is an agent.” Kentucky v. Graham (“Graham”),

473 U.S. 159, 165-66 (1985) (internal citations omitted). “[W]hile an award of

damages against an official in his personal capacity can be executed only against the

official’s personal asserts, a plaintiff seeking to recover on a damages judgment in an

official capacity suit must look to the government entity itself.” Id. at 166.

On the merits, to establish personal liability in a § 1983 action, it is enough to

show that the official, acting under color of state law, caused the deprivation of a

federal right. Id. Thus, to hold McClain liable under § 1983 in his individual capacity,

plaintiffs must allege facts to establish his personal involvement in the purported

deprivations. See Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 768

(10th Cir. 2013). More is required to establish official capacity liability, however, “for

a [municipality] is liable under § 1983 only when the entity itself is a ‘moving force’

behind the deprivation; thus, in an official capacity suit the entity’s ‘policy or custom’

must have played a part in the violation of federal law.” Graham, 473 U.S. at 166

(internal citations omitted). With this distinction in mind, it is clear that plaintiffs’ §

1983 claims against McClain in his individual capacity cannot lead to imposition of

fee liability upon TPSD. See id. at 167. Such a result would be inconsistent with the

well-settled principle that “a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

2. Qualified Immunity

McClain is entitled to assert, and has asserted, the defense of qualified

immunity as to both § 1983 claims pending against him. See Maresca v. Bernalillo

Cty., 804 F.3d 1301, 1307 (10th Cir. 2015) (“An official [sued in their individual

capacity] may plead an affirmative defense of qualified immunity.”). “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). When a defendant asserts qualified

immunity at the motion to dismiss phase, the plaintiff “must allege facts sufficient to

show (assuming they are true) that the [1] defendant plausibly violated their

constitutional rights, and that [2] those rights were clearly established at the time”

of the defendant’s alleged conduct. Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th

Cir. 2008).6 The court may assess these two inquiries in any order. See Pearson v.

Callahan, 555 U.S. 223, 236 (2009). In making this assessment, the court must

construe the SAC in the light most favorable to plaintiffs, accept all well-pleaded

allegations as true, and draw all reasonable inferences in plaintiffs’ favor. See Bella

6 A clearly established right is one that is sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015)

(per curiam) (quotations omitted). A relevant Supreme Court or Tenth Circuit decision is alone

sufficient to establish a right for purposes of qualified immunity. A.N. v. Syling, 928 F.3d 1191, 1197

(10th Cir. 2019).

v. Chamberlain, 24 F.3d 1251, 1254 (10th Cir. 1994). If plaintiffs fail to satisfy either

prong, this court must grant qualified immunity to McClain. See Medina v. Cram,

252 F.3d 1124, 1128 (10th Cir. 2011).

B. COUNT FOUR | § 1983 CLAIMS FOR CONSTITUTIONAL VIOLATIONS

In Count Four of the SAC, plaintiffs bring a broad array of § 1983 claims

against two defendants: (1) TPSD, a municipal entity, for adopting and enforcing an

unconstitutional policy of sex-based segregation in Talihina Elementary’s fifth-grade

program; and (2) and McClain, in his individual capacity, for alleged violations of

J.S.’s constitutional rights to procedural due process, substantive due process, and

equal protection. It appears that, based on the dismissal pleadings, both parties

consider the individual capacity claims against McClain in Count Four as separate

and unrelated to the municipal liability claim against TPS.

Notwithstanding, Fed. R. Civ. P. 10(b) provides that “[a] party must state its

claims . . . in numbered paragraphs, each limited as far as practicable to a single set

of circumstances.” Rule 10(b) further provides that “[i]f doing so would promote

clarity, each claim founded on a separate transaction or occurrence . . . must be stated

in a separate count.” As established, Count Four asserts two factually and legally

distinct theories of § 1983 liability against a municipal entity and an individual

defendant in his personal capacity. See Dodds v. Richardson, 614 F.3d 1185, 1198

(10th Cir. 2010) (since “vicarious liability is inapplicable to” § 1983 suits, “a plaintiff

must plead that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.”) (quoting Iqbal, 556 U.S. at 676).

Combining these separate claims into a single count is inconsistent with Rule 10(b)’s

directive to promote clarity through distinct counts for distinct claims. Because the

claims in Count Four are legally and factually independent, plaintiffs would have

better complied with Rule 10(b) by asserting them in separate counts. Nevertheless,

the court declines to dismiss Count Four on that basis alone and instead addresses

the sufficiency of the embedded sub-claims against McClain under Rule 12(b)(6).

1. Deprivation of Procedural Due Process Rights

The Fourteenth Amendment forbids the state from depriving an individual of

life, liberty, or property without due process of law. Coutoure v. Bd. of Educ. of

Albuquerque Pub. Schs., 535 F.3d 1243, 1256 (10th Cir. 2008). The Procedural Due

Process Clause, however, does not safeguard an infinite number of interests; rather

“[a] person alleging that he has been deprived of his right to procedural due process

must prove two elements: [1] that he possessed a constitutionally protected liberty or

property interest such that the due process protections were applicable, and [2] that

he was not afforded an appropriate level of process.” Id. (citing Bd. of Regents v. Roth,

408 U.S. 564, 570 (1972) (additional citations omitted). “To determine what process

is due, courts must balance: (1) the private interests that will be affected by the

official action; (2) the risk of erroneous deprivation; and (3) the burden on the

government from additional procedural requirements.” Id. at 1258 (citing Mathews

v. Eldridge, 424 U.S. 319, 335 (1976)).

As to the first element, plaintiffs allege that McClain deprived J.S. of his

property interest in a public education and liberty interest in his reputation at

Talihina Elementary. [Doc. 93, ¶¶ 222-28; Doc. 105 at 18]. It is well-settled that

“public school students have a protected property interest in public education and a

liberty interest in their reputations, and therefore are entitled to certain procedural

due process protections within the educational context.” Id. at 1256 (citing Goss v.

Lopez, 419 U.S. 565, 574 (1975)). Turning to the second element, the Supreme Court

has held that when a “complete deprivation of education” occurs—such as when a

student accused of wrongdoing is removed from school for ten days or less—the

student at minimum is entitled to “notice and . . . some kind of hearing,” though the

“timing and content of the notice and the nature of the hearing will depend on the

appropriate accommodation of competing interests involved.” Goss, 419 U.S. at 578-

79. Here, J.S. was not accused of wrongdoing. He accused McClain of wrongdoing and,

immediately after the Stepps submitted a Title IX complaint against McClain for

sexual harassment, TPSD unilaterally removed J.S. from McClain’s classroom for

approximately six weeks without notice, without any type of hearing, and without

providing alternative options for fair and equitable instruction. [Doc. 93, ¶¶ 94-105].

Notwithstanding, McClain contends that plaintiffs fail to plausibly allege a

procedural due process claim against him because they have not shown his personal

involvement in any purported deprivations of process. [Doc. 101 at 15]. See Schneider,

717 F.3d at 768 (“Individual liability under § 1983 must be based on [the defendant’s]

personal involvement in the alleged constitutional violation.”). Plaintiffs specifically

allege that McClain deprived J.S. of his property interest in a free public education

by increasingly singling him out for “repeated and excessive discipline.” [Doc. 93, ¶¶

36, 225]. As there are no allegations that McClain actually removed J.S. from the

classroom, any loss of a property right is de minimis and not subject to procedural

protections.7 Even assuming McClain’s “repeated and excessive discipline” was

ineffective, or even counterproductive, such discipline cannot be treated as equivalent

to denying J.S. the education to which he is legally entitled. As the SAC does not

allege facts showing that McClain personally deprived J.S. of constitutionally

adequate procedural protections, plaintiffs have failed plausibly state a procedural

due process violation. Thus, McClain is entitled to qualified immunity on the § 1983

procedural due process sub-claim asserted against him in Count Four of the SAC.

2. Deprivation of Substantive Due Process Rights

Plaintiffs allege that McClain used his position of authority “to target a child

with sexual slurs, instruct classmates to bully him using the same slurs, physically

and verbally intimidate him to the point of tears in front of his peers, invite public

speculation and criticism of his nascent sexuality, encourage classmates to engage in

ostracizing conduct, and obstruct his attempts to contact his parents when, in the

midst of this abusive environment, the child began to feel unwell.” [Doc. 105 at 19

(citing Doc. 93, ¶¶ 34-39, 44-47, 303-06)]. Such arguments require the court “to wade

into the murky water of § 1983-based” substantive due process claims. Williams v.

Berney, 519 F.3d 1216, 1220 (10th Cir. 2008) (citation omitted).

7 See e.g., Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1080-81 (5th Cir. 1995) (“De

minimis or trivial deprivations of liberty in the course of the disciplining of a student do no implicate

procedural due process requirements.”); Fenton v. Steer, 423 F.Supp. 767 (W.D. Pa. 1976) (assignment

to a room and a prohibition of participation in school trip were a de minimis interference with rights);

Laney v. Farley, 501 F.3d 577, 581-82 (6th Cir. 2017) (a one-day in-school suspension did not infringe

on the plaintiff’s property or liberty interest); Hassan, supra, at 1078-80 (locking student in a holding

room when he misbehaved did not require any procedural protections).

The Supreme Court recognizes two types of substantive due process claims:

“(1) claims that the government has infringed a ‘fundamental’ right, and (2) claims

that government action deprived a person of life, liberty, or property in a manner so

arbitrary it shocks the judicial conscience.” Doe v. Woodard, 912 F.3d 1278, 1300

(10th Cir. 2019) (internal citations omitted). Here, plaintiffs have pled the latter

based on McClain’s arbitrary and conscious shocking decision to psychologically

abuse J.S. for at least ten days. “Conduct that shocks the judicial conscience” is

“deliberate government action that is ‘arbitrary’ and ‘unrestrained by the established

principles of private right and distributive justice.’” Seegmiller v. LaVerkin City, 528

F.3d 762, 767 (10th Cir. 2008) (quoting City of Sacramento v. Lewis, 523 U.S. 833,

846 (1998)). This “requires a high level of outrageousness, because the Supreme Court

has specifically admonished that a substantive due process violation requires more

than an ordinary tort[.]” Perez v. Unified Gov’t of Wyandotte Cty., Kan. City, Kan.,

432 F.3d 1163, 1168 & n.4 (10th Cir. 2005). McClain argues plaintiffs have not

plausibly stated a substantive due process violation because their allegations “do not

come close to satisfying the ‘shocks the conscience’ standard.” [Doc. 101 at 12].

Whether specific conduct shocks the conscience is a question of law for the court. Id.

The Tenth Circuit has indeed recognized that psychological abuse alone can

violate substantive due process protections, and that “matters relating to marriage,

family, procreation, and the right to bodily integrity” are generally considered to

implicate substantive due process rights. Abeyta v. Chama Valley Indep. Sch. Dist.,

No. 19, 77 F.3d 1253, 1257 (10th Cir. 1996). The SAC seems to indicate the underlying

theory forming the basis of this sub-claim is J.S.’s substantive due process right to a

free public education. [Doc. 93, ¶¶ 217, 225]. As pled, the court finds that the SAC

sufficiently alleges conduct of the “high level of outrageousness” required by clearly

established precedent. See id. at 1254-55 (requiring “a brutal and inhumane abuse of

official power literally shocking to the conscience . . . with indifference or deliberate

intent to cause psychological harm.”). As plaintiffs have stated a plausible § 1983

substantive due process sub-claim against McClain in Count Four of the SAC, his

connected request for qualified immunity is denied.

3. Deprivation of Equal Protection Rights

Plaintiffs claim that “McClain’s sexual harassment of J.S. was sufficiently

severe and pervasive to create a hostile learning environment for J.S. and otherwise

deprive J.S. of fair and equitable access to a public education.” [Doc. 93, ¶ 223].

“Denials of equal protection by a municipal entity or any other person acting under

color of state law are actionable under 42 U.S.C. § 1983.” Murrell v. Sch. Dist. No. 1,

Denver, Colo., 186 F.3d 1238, 1249 (10th Cir. 1999). In the Tenth Circuit, it has been

clearly established that “sexual harassment . . . can violate the Fourteenth

Amendment right to equal protection of the laws.” Id. at 1251. One form of actionable

sexual harassment is “hostile environment harassment.” Escue v. N. Okla. Coll., 450

F.3d 1146, 1157 (10th Cir. 2006) (quotation omitted). To prevail on such a claim,

plaintiffs must show that McClain’s “conduct was sufficiently severe or pervasive as

to interfere unreasonably with [J.S.’s] school performance and create a hostile or

abusive educational environment.” Id. The severe and pervasive inquiry “should be

judged from the perspective of a reasonable person in the plaintiff’s position,

considering all the circumstances.” Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 81 (1998) (quotation omitted). Accordingly, the analysis “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. at 82. Two such considerations are “the ages of the harasser and the

victim.” Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 651 (1999).

McClain contends the SAC is insufficient to establish an equal protection

violation because plaintiffs allege only five explicitly gender-based comments that

were directed toward J.S. [Doc. 109 at 7-8]. This argument rests on two mistaken

premises. First, “[f]acially neutral abusive conduct can support a finding of gender

animus sufficient to sustain a hostile . . . environment claim when that conduct is

viewed in the context of other, overtly gender-discriminatory conduct.” O’Shea v.

Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999). “This is because what

is important in a hostile environment claim is the environment, and gender-neutral

harassment makes up an important part of the relevant . . . environment.” Chavez v.

New Mexico, 397 F.3d 826, 833 (10th Cir. 2005). Second, McClain’s argument fails to

recognize that sexually charged comments, even if not directly about gender, qualified

as gender-related under Tenth Circuit precedent.8 Although federal courts do no not

8 See O’Shea, 185 F.3d at 1099 (comments in which co-worker “compared his wife to a Playboy

magazine and described a dream about a naked woman jumping on a trampoline” are related to

“gender or sexual animus”); Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1263 (10th Cir.

1998) (comments comparing the shape of a roof to breasts and a trip to a Hooters restaurant “have

gender-related implications”).

impose “a general civility code,” Oncale, 523 U.S. at 80, we do include comments and

actions that are inherently sexual in nature under the rubric of “gender-related.”

Though McClain argues he directed only five gender-based comments toward J.S.,

the SAC contains much more. Plaintiffs allege that, within the first ten days of the

2022-2023 school year, McClain “made J.S. cry in class twice, started at least two

inappropriately sexual conversations (about kissing and about male genitalia), called

J.S. two different slurs, affirmatively encouraged J.S.’s classmates to engage in sex-

based harassment of J.S., and screamed at J.S.’s class so many times and so violently

that J.S. ‘repeatedly’ reported the behavior to his parents and at least two concerned

parents of other children called [the Stepps] to report [McClain’s] behavior.” [Doc. 106

at 3 (citing Doc. 93, ¶¶ 34-45, 55-59, 94)].

These allegations plausibly suggest a pervasively hostile environment and

thus suffice at the motion to dismiss stage. See Iqbal, 556 U.S. at 678; Escue, 450 at

1157. As noted, in assessing the requisite degree of severity or pervasiveness to

support a hostile environment claim, the court must be mindful of “surrounding

circumstances, expectations, and relationships,” Oncale, 523 U.S. at 81, including the

“ages of the harasser and the victim,” Davis, 526 U.S. at 651. McClain’s role as an

elementary school teacher obviously requires greater sensitivity toward students

than would be required as between coworkers. See Oncale, supra, at 82 (“Common

sense, and an appropriate sensitivity to social context, will enable courts and juries

to distinguish between simple teasing or roughhousing among members of the same

sex, and conduct which a reasonable person in the plaintiff's position would find

severely hostile or abusive.”). The court concludes that plaintiffs have plausibly

stated a § 1983 equal protection sub-claim against McClain in Count Four of the SAC.

As a result, McClain’s connected request for qualified immunity is denied.

C. COUNT SEVEN | § 1983 CONSPIRACY CLAIM

McClain contends plaintiffs’ failure to allege any constitutional deprivation

resulting from his personal conduct precludes their § 1983 conspiracy claim against

him. [Doc. 101 at 28]. At the motion to dismiss stage, a plaintiff need only allege facts

demonstrating “an agreement and concerted action amongst the defendants.”

Tomkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1988). Recognizing

that “direct evidence of an agreement to join a conspiracy is rare,” the Tenth Circuit

has held that “assent can be inferred from acts furthering the conspiracy’s purpose.”

Bledsoe v. Carreno, 53 F.4th 589, 609 (10th Cir. 2022).

The SAC alleges a conspiracy involving all individual defendants, including

McClain, where they agreed to take unlawful actions to protect TPSD and McClain

against plaintiffs’ allegations of discrimination and harassment, and to deprive

plaintiffs of a fair, unbiased investigation into said allegations [Doc. 93, ¶¶ 65, 75, 81,

96-98, 106-108, 111-113, 115-117, 124, 147-152]. Accordingly, the court finds that

plaintiffs have alleged sufficient agreement to support their § 1983 conspiracy claim

against McClain. The question remains, however, of whether plaintiffs have

sufficiently alleged McClain’s personal involvement in the constitutional deprivations

arising from this purported agreement.

1. Deprivation of Procedural Due Process Rights

As established, plaintiffs have alleged facts sufficient to establish that McClain

deprived J.S. of his property interest in a public education and liberty interest in his

reputation at Talihina Elementary. [Id. ¶¶ 256, 259-67]. As for the second requisite

element of a § 1983 procedural due process claim, plaintiffs allege that McClain

entered into an agreement with individual TPSD defendants to interfere with the

Title IX investigation and deprive plaintiffs of their rights under the Title IX process.

[Id. ¶¶ 94-102, 256-262]. Nothing in the SAC links McClain to the purported

mishandling of the Title IX investigation, however. See Robbins, 519 F.3d at 1250.

Plaintiffs allege that McClain was the subject of the Title IX investigation, rather

than an investigator or a school official with authority to act on the investigation’s

results. [Id. ¶¶ 69, 121, 128-33]. Plaintiffs do not allege that McClain possessed, let

alone exercised, any level of control over the manner in which TPSD resolved the

Stepps’ Title IX complaint. In fact, the SAC alleges that TPSD failed to include

plaintiffs and McClain in any notice of the complete allegations raised during the

Title IX process. [Id. ¶ 81]. As there are no factual allegations in Count Seven

indicating that McClain deprived J.S. of constitutionally adequate procedural

protections, plaintiffs have failed to allege facts showing McClain violated their

procedural due process rights.

2. Deprivation of Substantive Due Process Rights

As noted, Count Seven asserts a conspiracy between McClain and individual

TPSD defendants to violate plaintiffs’ constitutional rights through a sham Title IX

investigation. [Id. ¶¶ 256-57]. The only factual allegation supporting McClain’s

personal involvement is his sexual harassment of J.S. from August 16 to August 29,

2022—i.e., prior to the alleged conspiracy to conduct a constitutionally deficient Title

IX investigation. [Id. ¶¶ 34, 94, 260]. The allegations in Count Seven do not support

a claim that McClain conspired with others after the fact to violate J.S.’s substantive

due process rights. Alleging prior misconduct is not sufficient to show involvement in

a later conspiracy absent factual content tying McClain to that later conduct. The

court accordingly finds that plaintiffs have failed to allege facts in Count Seven

showing McClain violated their substantive due process rights.

3. Deprivation of Equal Protection Rights

In the same vein, the only factual allegation supporting McClain’s personal

involvement in the purported violation of plaintiffs’ equal protection rights is his

sexual harassment of J.S. [Id. ¶¶ 34, 94, 260]. For the reasons set forth in the previous

section, the court finds plaintiffs have failed to allege facts showing McClain violated

their equal protection rights. Because the SAC is bereft of factual allegations that

could plausibly indicate McClain’s personal involvement in any constitutional

violations underlying the § 1983 conspiracy claim, McClain is entitled to qualified

immunity and his request for Rule 12(b)(6) dismissal of Count Seven is granted.

IV. CLAIMS FOR VIOLATIONS OF STATE LAW

Plaintiffs assert three claims under Oklahoma law against McClain, alleging

intentional infliction of emotional distress (“IIED”) (Count Eleven), violation of 70

O.S. § 24-157’s prohibition against gender discrimination in public education (Count

Thirteen), and civil conspiracy (Count Fifteen). McClain contends the latter two

claims should be dismissed because, as alleged in the SAC, any actions by him were

performed in the scope of his employment. Under the Oklahoma Governmental Tort

Claims Act (GTCA), only a governmental entity or political subdivision can be liable

for a tort committed by an employee while acting within the scope of employment.

The GTCA precludes tort actions against “an employee of the state or political

subdivision acting within the scope of his employment.” 51 O.S. § 163(C); 9 see also id.

§ 152(12) (defining “scope of employment” as “performance by an employee acting in

good faith within the duties of the employee’s office or employment of tasks lawfully

assigned by a competent authority.”). Thus, individual government employees are

immunized from tort liability for actions taken within the scope of employment. See

e.g., Tuffy’s, Inc. v. City of Okla. City, 2009 OK 4, ¶ 8, 212 P.3d 1158, 1163.

A. COUNT ELEVEN | IIED

Oklahoma recognizes the tort of IIED as an independent tort governed by the

narrow standards of the Restatement (Second) of Torts § 46 (1977). Breeden v. League

Servs. Corp., 1978 OK 27, ¶ 12, 575 P.2d 1374, 1378. To state a claim for IIED,

plaintiffs must allege facts that could reasonably show (1) McClain acted

intentionally or recklessly, (2) McClain’s conduct was extreme and outrageous, (3) the

conduct caused J.S. emotional distress, and (4) the emotional distress was severe. See

Durham v. McDonald’s Rests. of Okla., Inc., 2011 OK 45, ¶ 4, 256 P.3d 64, 66. To

9 TPSD is a “political subdivision” to which the GTCA applies. See id. § 152(11)(b); see also id.

§ 152(7) (defining “employee” as “any person who is authorized to act on behalf of a political

subdivision[.]”).

prevail on the second element, plaintiffs must set forth allegations showing McClain’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.” Comput. Publs, Inc. v. Welton (“Welton”), 2002

OK 50, ¶ 9, 49 P.3d 732, 735 (citation omitted); see also Eddy v. Brown, 1986 OK 3, ¶

7, 715 P.2d 74, 75 (holding liability does not extend to “mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities.”). For purposes of his

Motion, McClain assumes plaintiffs have sufficiently pled the first and fourth

elements. [Doc. 101 at 21 & n.6].

With respect to the second element, plaintiffs allege McClain “engaged in a

sustained campaign of fear, hatred, and bigotry aimed at breaking the spirit, ruining

the reputation, and stunting the sexual and social development of an eleven-year-old

child” and “used his position of authority” to “isolate, intimidate, and harm J.S.

through a variety of tactics[.]” [Doc. 106 at 4]. Such tactics included, without

limitation: (i) McClain telling “J.S.’s peers that J.S.’s attempts to play in the ordinary

manner of elementary school children was sexual and freakish”; (ii) McClain

encouraging J.S.’s classmates to join him in calling J.S. a “f*g”; and (iii) McClain

instructing J.S.’s classmates “that they ought not draw penises in their notebooks”

because J.S. is “queer” and “incapable of handling that sort of thing.” [Id. (citing Doc.

93, ¶¶ 44-46, 62]. McClain points to numerous cases in support of the proposition that

“yelling, verbal reprimands, cursing, verbal altercations, or similar actions are

insufficient” to clear the “extreme and outrageous” hurdle. See [Doc. 101 at 22-24].

The IIED claims in these cases, however, do not involve minors and arose from less

egregious allegations than those asserted against McClain. Ultimately, McClain’s

position—namely, it is not “extreme or outrageous” when a teacher repeatedly targets

an eleven-year-old boy in front of his male peers through yelling and the use of

derogatory language, homophobic slurs, and unequal treatment— is unpersuasive

Turning to the third element, plaintiffs allege McClain “screamed, berated, and

belittled until J.S. cried in front of all of his male friends and counterparts on more

than one occasion,” and then “blamed J.S.’s lack of masculinity—or male “maturity”—

for his sensitivity to the mistreatment. [Doc. 106 at 4 (citing Doc. 93, ¶¶ 37-38, 62)].

They further allege that, as a result of McClain’s conduct, J.S. “suffered mental and

emotional distress, mental pain and suffering, anguish, humiliation, embarrassment,

anger, and worry[.]” [Doc. 93, ¶ 312]. McClain responsively contends that J.S. did not

know enough about the terms “queer” and “f*g” to be distressed at the time McClain

introduced those words into the classroom, and if J.S. had not later asked Mr. Stepp

to define such slurs, he would not have suffered significant distress. [Doc. 101 (citing

Doc. 93, ¶ 51)]. This argument—that J.S. could not have suffered emotional distress

from being called “queer” and “f*g” because he did not initially understand the

meaning of those slurs—reflects a flawed understanding of the law and of human

experience. To suggest that an eleven-year-old child must comprehend the precise

semantic content of homophobic epithets in order to be harmed by them ignores the

obvious: that disparaging words, particularly when repeated publicly by a figure of

authority, carry emotional weight independent of a child’s technical understanding.

Worse still, McClain’s argument attempts to shift responsibility for the harm he

allegedly caused not only onto the child, but onto the child’s father—reasoning that,

had the boy never asked his father what the slurs meant, he might have remained

unharmed. This a striking example of what some courts have termed the “ostrich

method” of argumentation: a refusal to confront obvious facts by burying one’s head

in the sand. See Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934 (7th Cir. 2011)

(“The ostrich is a noble animal, but not a proper model for an appellate advocate.”).

This court is tasked with acting as a “gatekeeper” to determine whether the

acts complained of could “reasonably be regarded as sufficiently extreme and

outrageous.” Miller v. Miller, 1998 OK 24, ¶ 34, 956 P.2d 887, 901. The test is whether

McClain’s alleged conduct “has so totally and completely exceeded the bounds of

acceptable social interaction that the law must provide redress.” Durham, ¶ 9, 256

P.3d at 67. In other words, plaintiffs must allege facts that allow this court to

reasonably infer “that the recitation of defendant’s conduct to an average member of

the community would arouse the listener’s resentment against the defendant and

would lead the listener to exclaim ‘Outrageous!’” Welton, ¶ 9, 49 P.3d at 735.

Accepting all well-pleaded factual allegations as true, the court finds that McClain’s

targeted use of derogatory language, homophobic slurs, and belittling tactics toward

an eleven-year-old boy in front of his male peers may reasonably be regarded as

meeting this test. See Miller, ¶ 37, 956 P.2d at 902. The court further finds reasonable

people could conclude that such conduct meets the extreme and outrageous test. Id.

at ¶ 34. McClain’s request for dismissal of Count Eleven is therefore denied.

B. COUNT THIRTEEN | GENDER DISCRIMINATION

Oklahoma House Bill 1775 (“HB 1775” or “the Act”) was signed into law on

May 7, 2021. The Act, codified in 70 O.S. § 24-157, and its implementing regulations,

codified in Oklahoma Administrative Code (OAC) 210:10-1-23, prohibit the training

or teaching of specified subjects in Oklahoma schools. In the present case, plaintiffs

allege McClain “required or made part of his teaching or coursework discriminatory

principles” prohibited by 70 O.S. §§ 24-157(B)(1)(a), (c), (e), and (g).10 [Doc. 93, ¶ 334].

McClain argues Count Thirteen is subject to dismissal under Rule 12(b)(6) because

there is no private right of action for violation of HB 1775 and, even if this were not

so, TPSD would be the only proper party to such a claim. [Doc. 101 at 24-27].

According to plaintiffs, however, HB 1775 creates an implied private right of action.

[Doc. 105 at 29].

Under Oklahoma law, a private right of action can be implied from a regulatory

or public-law statute if the following elements are met: (1) the plaintiff is of the class

for whose benefit the statute was created; (2) some indication of legislative intent,

explicit or implicit, suggests that the Legislature intended to create a private remedy,

rather than deny the same; and (3) implying a remedy for the plaintiff would be

consistent with the underlying purpose of the legislative scheme. Owens v. Zumwalt,

2022 OK 14, ¶ 10, 503 P.3d 1211, 1215. For purposes of his Motion, McClain only

10 The Oklahoma Attorney General and his office are presently enjoined from enforcing certain

portions of HB 1775. See Black Emergency Response Team v. Drummond (“Black”), 737 F.Supp.3d

1136 (W.D. Okla. June 14, 2024). This preliminary injunction effects one of the four provisions on

which plaintiffs rely—i.e., “[n[o teacher . . . shall require or make part of a course” the concept that “an

individual should be discriminated against or receive adverse treatment solely or partly because of his

or her race or sex[.]” 70 O.S., § 24-157(B)(1)(c); Black, supra, at 1157.

disputes plaintiffs’ ability to meet the second element. [Doc. 101 at 25]. In evaluating

the second prong, courts must determine legislative intent by “looking at the precise

wording of the [statute] and studying its history.” Holbert v. Echeverria, 1987 OK 99,

¶ 11, 744 P.2d 960, 964.

The court finds no legislative intent, either implied or explicit, in HB 1775 to

create a private remedy for violations of said statute. Rather, the Act is a legislative

grant of authority to the Oklahoma State Board of Education (OSBE) to “promulgate

rules” and “implement the [Act’s] provisions.” See 70 O.S. § 24-157(B)(2). The

penalties set out for violation of the Act are administrative. See OAC 210:10-1-23(j).

Both state and federal courts have held the second prong unsatisfied where a statute

granted regulatory authority to an administrative agency rather than explicitly

creating a private right of action within the statute itself.11 Plaintiffs nevertheless

contend that, in exercising its authority to promulgate rules under the Act, the OSBE

recognized a private right of action in March of 2022:

Title VI and Title IX may be enforced by private right of action, whereby

aggrieved parties may seek relief, including monetary damages, for

violations of federal antidiscrimination laws. Victims of discrimination

may file a lawsuit directly against the Public School. In addition to any

private rights of action, aggrieved parties may seek applicable remedies

through the U.S. Department of Education’s Office for Civil Rights or

the U.S. Department Justice’s Civil Rights Division.

11 See e.g., Nichols Hills Physical Therapy v. Guthrie, 1995 OK CIV APP 97, ¶ 9, 900 P.2d 1024,

1026 (“Had the legislature intended to provide an injured patron with the right of private action . . . it

would have explicitly done so.”); Thomas v. Metro. Life Ins. Co., 540 F.Supp.2d 1212, 1230 (W.D. Okla.

Jan. 10, 2008) (“When a statute grants enforcement authority to an administrative agency or officer,

this grant implies the legislature did not intend to provide a private right of action.”); Risk v. Allstate

Life Ins. Co., No. 4-CV-333-CVE-FHM, 2006 WL 2021597 at *3 (N.D. Okla. July 17, 2006) (“In terms

of statutory construction, the inclusion of administrative enforcement impliedly excludes a private

right of action.”) (citing Holbert, ¶¶ 15-16, 744 P.2d at 965).

[Doc. 105 at 30 (citing OAC 210:10-1-23(o))]. McClain argues the implementing

regulations were not in force at the time he allegedly violated the Act. Indeed, the

pertinent regulations went into effect on September 11, 2022. See 39 Okla. Reg. 992,

2022 OK REG TEXT 603412 (NS). According to the SAC, J.S. was last in McClain’s

classroom on August 29, 2022. [Doc. 93, ¶ 84]. While plaintiffs contend the alleged

improper conduct spanned a time period from mid-August 2022 to mid-October 2022

[Doc. 105 at 31 (citing Doc. 94, ¶¶ 138-141)], the allegations against McClain under

Count Thirteen are limited to the discriminatory principles he implemented through

teaching or coursework in J.S.’s classroom. To the extent the Act provides for an

implied private right of action against teachers, plaintiffs’ claim for violation of HB

1775 against McClain fails because the implementing regulations went into effect

after his purported violation of the Act. McClain’s request for Rule 12(b)(6) dismissal

of Count Thirteen is therefore granted.12

C. COUNT FIFTEEN | CIVIL CONSPIRACY

According to the Oklahoma Supreme Court, the tort of civil conspiracy:

. . . consists of a combination of two or more persons to do an unlawful

act, or to do a lawful act by unlawful means. Unlike its criminal

counterpart, civil conspiracy itself does not create liability. To be liable

the conspirators must pursue an independently unlawful purpose or use

an independently unlawful means. There can be no civil conspiracy

where the act of and the means employed are lawful.

Brock v. Thompson, 1997 OK 127, ¶ 38, 948 P.2d 279, 294 (footnotes omitted)

(emphasis in original). McClain argues that plaintiffs fail to allege he entered into

12 Even if McClain’s purported violation of the Act occurred after the implementing rules went

into effect, he would otherwise be exempt from liability on Count Thirteen under § 163(C) of the GTCA.

any agreement with any other defendant to perform an unlawful act or to use

unlawful means. [Doc. 101 at 29]. See Gaylord Entm’t Co. v. Thompson, 1998 OK 30,

¶ 40, 958 P.2d 128, 148 (‘In order to be liable the conspirators must pursue an

independently unlawful purpose or use an independently unlawful means.”). The

court agrees, as only the following defendants are alleged to have entered into

agreements under Count Fifteen: Anderson and Lockhart [Doc. 93, ¶ 350]; Anderson

and Russell [Id. ¶ 351]; Anderson, Lockhart, Russell, Blue, Crank, Moreland, and

Woods [Id. ¶ 352]; Bryant and Blair [Id. ¶ 353]. McClain is consequently exempt from

liability under § 163(C) of the GTCA, and his request for dismissal of Count Fifteen

under Rule 12(b)(6) is granted.

V. CONCLUSION

Based on the foregoing, McClain’s motion to dismiss [Doc. 101], filed December

26, 2024, is GRANTED in part and DENIED in part. Following entry of this Order,

the status of each claim asserted against McClain in the SAC is as follows:

 Count Four. The § 1983 procedural due process sub-claim is dismissed for

failure to state a claim against McClain. The § 1983 substantive due process

and equal protection sub-claims remain pending against McClain.

 Count Seven. The § 1983 conspiracy claim is dismissed for failure to state

a claim against McClain.

 Count Eleven. The claim for intentional infliction of emotional distress

remains pending against McClain.

 Count Thirteen. The claim for violation of HB 1775’s prohibition against

gender discrimination in public education is dismissed for failure to state a

claim against McClain.

 Count Fifteen. The claim for civil conspiracy is dismissed for failure to state

a claim against McClain.

IT IS SO ORDERED this 17th day of April, 2025.

____________________________________

JASON A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE