Price v. Driscoll

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

LAMAUR PRICE, )

)

Plaintiff, )

)

v. ) Case No. CIV-24-394-GLJ

)

DANIEL P. DRISCOLL,1 )

Secretary of the Department of the Army, )

)

Defendant. )

OPINION AND ORDER

This case arises out of Plaintiff Lamaur Price’s employment at the McAlester Army

Ammunition Plant (“Plant”) in McAlester, Oklahoma. Plaintiff sues the United States,

through Daniel P. Driscoll, Secretary of the U.S. Department of the Army, alleging

unlawful reprisal for engaging in a protected activity, as well as race discrimination in

violation of Title VII. Defendant now seeks dismissal of Plaintiff’s Complaint. For the

reasons set forth below, the Court finds that Defendant United States of America’s Motion

to Dismiss and Brief in Support [Docket No. 13] should be DENIED.

I. Procedural History

Plaintiff alleges in his Complaint that he was at all relevant times employed at the

Plant in McAlester, and has most recently served in the position of Logistics Modernization

Specialist. Docket No. 2, pp. 2-3, ¶¶ 3, 9. Plaintiff alleges that he was previously denied

1 On February 25, 2025, Daniel P. Driscoll was appointed Secretary of the Department of the U.S.

Army. In accordance with Fed. R. Civ. P. 25(d), Mr. Driscoll is substituted for Christine Wormuth

as Defendant in this action.

a promotion, which is the subject of Case No. CIV-21-100-GLJ, Price v. Driscoll, in this

same Court. Id., pp. 3-6, ¶¶ 11-21. From March 30, 2023 to April 13, 2023, Supervisor

Amber Dominguez ran a vacancy announcement for the position of Supervisory Production

Controller (Ammunition and Missiles), for which Plaintiff was eligible. Id., pp. 6-8, ¶¶ 22-

30. The promotion panel reviewed eleven candidates’ resumes and selected five for

interviews; Plaintiff was not selected for the interviews. Id, p. 10, ¶¶ 42-43. Plaintiff

alleges that available temporary or permanent supervisory positions were all given to

Caucasian personnel from 2019 to present, including individuals with no justifiable skill

sets for the positions. Id., pp. 13-14, ¶¶ 52-54. Some of these individuals were friends of

Dominguez and/or family members of high-level management officials. Id. Additionally,

he alleges that the officials retaliated against him for filing his prior EEOC complaint. Id.,

p. 15, ¶ 56.

Plaintiff filed a formal complaint of reprisal with the Equal Employment

Opportunity Commission (“EEOC”) on September 25, 2023. See Docket No. 2, p. 2, ¶ 5.

The EEOC issued a Final Agency Decision on July 24, 2024; Plaintiff then filed this case

on October 18, 2024. See Id., ¶¶ 6-8. In his Complaint, Plaintiff’s claims are set forth as

follows: (i) Count I, alleging unlawful reprisal for engaging in protected activity;2 and

(ii) Count II, brought under Title VII, alleging race discrimination.

2 The portion of Plaintiff’s Complaint alleging the first cause of action, Docket No. 2, pp. 15-16,

¶¶ 57-64, does not identify the jurisdictional basis for this claim. While jurisdiction is generally

invoked pursuant to the Prohibited Personnel Practices Act, 5 U.S. § 2302 and 29 C.F.R.

§ 1614.201, id., p. 1, ¶ 2, earlier in the Complaint, that same paragraph also identifies the Age

Discrimination in Employment Act, 29 U.S.C. § 621, et seq., but no such corresponding claim is

identified in this Complaint.

II. Legal Standards

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

required, but the statement of the claim under Rule 8(a)(2) must be “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing

Papasan v. Allain, 478 U.S. 265, 286 (1986)). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’ 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.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555,

556, 557, 570). “While legal conclusions can provide the framework of a complaint, they

must be supported by factual allegations.” Id. at 679.

In Title VII cases, “[w]hile the 12(b)(6) standard does not require that Plaintiff

establish a prima facie case in her complaint, the elements of each alleged cause of action

help to determine whether Plaintiff has set forth a plausible claim.” Khalik v. United Air

Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). This requires a determination as to “‘whether

the complaint sufficiently alleges facts supporting all the elements necessary to establish

an entitlement to relief under the legal theory proposed.’” Lane v. Simon, 495 F.3d 1182,

1186 (10th Cir. 2007) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th

Cir. 2007)).

III. Analysis

Defendant moves to dismiss Plaintiff’s Complaint, arguing that the Plaintiff fails to

state a claim. In support, the Defendant contends: (i) that Plaintiff failed to exhaust

administrative remedies with regard to his racial discrimination claim, and (ii) that Plaintiff

fails to offer sufficient facts in support of both his retaliation and racial discrimination

claims. The Court now makes the following findings.

A. Exhaustion of Administrative Remedies

Defendant first contends that Plaintiff’s claim for race discrimination should be

dismissed for failure to exhaust administrative remedies. Defendant argues that Plaintiff

in his Charge, referenced in the Complaint extensively and provided by Defendant in

support of the motion to dismiss,3 only checked the box for reprisal as a reason he believed

he was discriminated against, and failed to check race discrimination. See Docket No. 13,

Ex. 1, p. 2. Plaintiff acknowledges this but asserts that the text of the charge clearly

identifies race discrimination and makes reference to racial bias multiple times.

While the filing of an EEOC complaint is not a jurisdictional requirement that must

be satisfied prior to filing suit, it is an affirmative defense that is “subject to waiver,

estoppel, and equitable tolling.” See Lincoln v. BNSF Railway Co., 900 F.3d 1166, 1183

(10th Cir. 2018). However, “the practical effect is the same in cases in which a defendant

seeks dismissal based on the plaintiff’s failure to file an EEOC charge, and courts must

3 Even on a Rule 12(b)(6) motion, the court may consider “not only the complaint itself, but also

attached exhibits and documents incorporated into the complaint by reference.” Smith v. United

States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted).

dismiss Title VII claims for failure to exhaust administrative remedies when it is

undisputed that the plaintiff has not filed a timely EEOC charge.” Ball v. Walmart, Inc.,

2025 WL 1115849, at *2 (N.D. Okla. Apr. 15, 2025) (citing Smith v. Cheyenne Retirement

Investors, L.P., 904 F.3d 1159, 1163-1164 (10th Cir. 2018) (“In most cases, including this

one, this distinction between a jurisdictional requirement and an affirmative defense is

immaterial.”).

“The failure to mark a particular box [alleging discrimination] creates a

presumption that the charging party is not asserting claims represented by that box,” but

the presumption may be rebutted “if the text of the charge clearly sets forth the basis of the

claim.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (explaining the “charge

must contain facts concerning the discriminatory and retaliatory actions underlying each

claim”), overruled on other grounds by Lincoln, 900 F.3d at 1185-1186 (reiterated in Smith,

904 F.3d at 1164). “The ultimate question is whether the conduct alleged in the lawsuit

would fall within the scope of an EEOC investigation which would reasonably grow out

of the charges actually made in the EEOC charge.” Smith, 904 F.3d at 1164-1165 (cleaned

up). Courts generally liberally construe the allegations contained in an EEOC charge

because they are typically filed by non-attorneys. Id. at 1166. The Court therefore

presumes Plaintiff only asserted a claim of reprisal unless the liberally-construed text of

his charge clearly sets forth the additional basis of race discrimination. Upon review, the

Court finds that Plaintiff’s charge rebuts this presumption. Plaintiff states in his charge

that he was denied promotions and opportunities, and that he believes “this is due to cultural

differences, racial bias (conscious or unconsciously).” Docket No. 13, Ex.1, p. 6. Later in

the charge, he questioned why he was not given opportunities for even temporary

promotions, stating, “My conclusion was this: I am a black/African American man.” Id.,

p. 8. He noted that other “white/Caucasian men and women” were given opportunities he

was not, which had “become a quite visible racial and personal bias system.” Id., pp. 8-9.

He concluded that there was an “apparent racial divide whether admitted consciously,” and

that he believed he had been denied opportunities at promotion due to racial discrimination

and reprisal for filing an EEO complaint.” Id., p. 10. Any construction of Plaintiff’s EEOC

charge clearly encompasses a claim of racial discrimination. Defendant’s motion is

therefore denied on the basis of failure to exhaust administrative remedies.

B. Reprisal/Retaliation (Count I)

As noted above at FN 2, Plaintiff fails to identify a specific statutory basis for Count

I, unlawful reprisal for protected activity. See Docket No. 2, pp. 15-16, ¶¶ 57-64. “A

federal employee asserting a claim of unlawful discrimination or retaliation may elect

either to seek review of an adverse employment action by the Merit Systems Protection

Board (MSPB) under CSRA, or to seek relief through the process authorized under Title

VII, which begins with a complaint to the EEO department of the employing agency and

ends with an appeal to the EEOC.” Pretlow v. Fanning, 2013 WL 3563679, at *1 (W.D.

Okla. July 11, 2013) (citing Coffman v. Glickman, 328 F.3d 619, 623-624 (10th Cir. 2003)

(discrimination); Dossa v. Wynn, 529 F.3d 911, 915 (10th Cir. 2008) (retaliation)).

“Whichever action is taken first is considered an election to proceed in that forum.”

Coffman, 328 F.3d at 622. Either way, administrative exhaustion is a prerequisite for

subject matter jurisdiction. See Pretlow, 2013 WL 3563679, at *1 (citing Coffman, 328

F.3d at 622). Plaintiff’s Complaint clearly alleges that he filed an EEOC complaint for

reprisal. Docket No. 2, pp. 3-4, ¶¶ 11-14. Because Plaintiff’s Complaint alleges

administrative exhaustion of a cognizable claim, and Defendant proceeds on the basis that

Count I is raised pursuant to Title VII, the Court declines to find it lacks subject matter

jurisdiction but cautions Plaintiff’s counsel should be diligent in such matters moving

forward.

At this stage of the case, the Court is required under Twombly and Iqbal to evaluate

the plausibility of Plaintiff’s claims. “[W]e can evaluate [his] claim’s plausibility only by

considering the prima facie case of discrimination that []he would need to prove in court.”

Morman v. Campbell County Memorial Hospital, 632 Fed. Appx. 927, 933 (10th Cir.

2015). “[T]he elements of each alleged cause of action help to determine whether Plaintiff

has set forth a plausible claim.” Khalik, 671 F.3d at 1192. While Plaintiff “need not set

forth a prima facie case for discrimination[, ]he must allege facts that make such a claim at

least plausible.” Morman, 632 Fed. Appx. at 933.

“To establish a prima facie claim under Title VII for retaliation, a plaintiff must

establish three elements: (1) []he engaged in protected opposition to discrimination; (2) a

reasonable employee would have found the challenged action materially adverse; and (3) a

causal connection exists between the protected activity and the materially adverse action.”

McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006) (citation omitted).

“Conduct rises to the level of ‘adverse employment action’ when it constitutes a significant

change in employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217 (10th Cir. 2003) (quotation

omitted) (emphasis added). There is no dispute that Plaintiff’s 2020 EEOC Charge was

protected opposition to discrimination,4 nor that Plaintiff suffered a materially adverse

action in failing to be promoted. The remaining issue, then, is whether Plaintiff plausibly

alleges a causal connection between the protected activity and the materially adverse

action.

Defendant contends that Plaintiff’s Complaint offers no facts that the hiring panel

was operating out of an improper motive when they did not interview and subsequently

select him for the open position. The Complaint clearly alleges that two supervisors

including Dominguez were motivated by retaliation and/or discrimination, that Dominguez

chose the hiring panel, and that one member of the hiring panel was aware of Plaintiff’s

prior EEOC Charge. Defendant also contends there is not sufficient temporal proximity to

establish causation because the 2020 EEOC charge was submitted roughly two years before

the selection process at issue in this case. Conroy v. Vilsack, 707 F.3d 1163, 1181 (10th

Cir. 2013) (“It appears clear that, if the adverse action occurs in a brief period up to one

and a half months after the protected activity, temporal proximity alone will be sufficient

to establish the requisite causal inference; but it is equally patent that if the adverse action

occurs three months out and beyond from the protected activity, then the action’s timing

alone will not be sufficient to establish the causation element.”) (citation omitted).

However, “[c]lose temporal proximity is one way, but not the only way, to prove

4 Neither party made this document available for the Court’s review.

causation.” Walker v. Wormuth, 2023 WL 2428903, at *9 (D. Kan. Mar. 9, 2023). Plaintiff

pleads that he was not promoted due to his prior EEOC Charge. “While the Court

acknowledges these facts are not detailed, they are sufficient under the pleading standard

to state a short and plain statement for retaliation on the basis of Plaintiff’s [failure to

promote.]” Id. Defendant’s motion to dismiss this claim is therefore denied.

C. Race Discrimination (Count II)

The Court likewise evaluates Plaintiff’s claim of discrimination according to the

burden-shifting framework of McDonnell Douglas. See Adamson v. Multi Cmty.

Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008); see also Morman, 632 Fed.

Appx. at 933 (“Under McDonnell Douglas, the plaintiff must first prove a prima facie case

of discrimination. If she does so, then the burden ‘shifts to the defendant to produce a

legitimate, non-discriminatory reason for the adverse employment action.’ If the defendant

provides such a reason, ‘the burden then shifts back to the plaintiff to show that the

plaintiff’s protected status was a determinative factor in the employment decision or that

the employer’s explanation is pretext.’”) (quoting Khalik, 671 F.3d at 1192). A prima facie

case of employment discrimination is established by facts showing that the plaintiff (1) is

a member of a protected class, (2) suffered an adverse employment action, (3) was qualified

for the position at issue, and (4) was treated less favorably than others not in the protected

class. Khalik, 671 F.3d at 1192; see also McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973) (prima facie case may be establish by showing: “(i) that he belongs to a

racial minority; (ii) that he applied and was qualified for a job for which the employer was

seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after

his rejection, the position remained open and the employer continued to seek applicants

from persons of complainant’s qualifications.”). As noted above, at this stage of the case

the Court is only required under Twombly and Iqbal to evaluate the plausibility of

Plaintiff’s claims although “the elements of each alleged cause of action help to determine

whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d at 1192. The parties

do not dispute Plaintiff’s membership is a protected class of race, that he suffered an

adverse employment action, or that he was qualified. The issue is the fourth factor.

Defendant contends that Plaintiff’s Complaint offers no facts that the hiring panel

was operating out of an improper motive when they did not interview and subsequently

select him for the open position. Even if that were required at this stage, the Complaint

clearly alleges that Dominguez and another supervisor were motivated by retaliation and/or

discrimination. Defendant contends the Complaint fails to allege that the hiring panel

member was biased due to Plaintiff’s race. Though perhaps sparse, Plaintiff’s Complaint

alleges that the only personnel promoted in supervisory positions were all Caucasian from

2019 to the present, and he alleges that at least one supervisor interfered to influence the

hiring panel’s process. Docket No. 2, pp. 7, ¶ 26 (and heading) & 13-14, ¶¶ 51-54. Many

of Defendant’s arguments (e.g. whether Plaintiff was actually more qualified than others

for a position, whether supervisors interfered in the hiring panel process) are better suited

at the summary judgment stage. “While the Court acknowledges these facts are not

detailed, they are sufficient under the pleading standard to state a short and plain statement

for retaliation on the basis of Plaintiff’s [failure to promote.]” Walker, 2023 WL 2428903,

at *9. Defendant’s motion to dismiss this claim is therefore denied.

CONCLUSION

Accordingly, the Court finds that the Defendant’s Motion to Dismiss Amended

Complaint [Docket No. 13] is hereby DENIED.

IT IS SO ORDERED this 11th day of July, 2025.

GERALD L. JACKSON

UNITED STATES MAGISTRATE JUDGE