Farrow v. Weatherford City of

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DIS TRICT OF OKLAHOMA

MELINDA FARROW, )

)

Plaintiff, )

)

v. )

) Case No. CIV-23-503-SLP

CITY OF WEATHERFORD, LOUIS )

FLOWERS, JOSH VANDEBURGH, and )

LAURA COX, )

)

Defendants. )

O R D E R

Before the Court are several related motions to dismiss filed by the three individual

defendants (the “Individual Defendants”) in this action.1 First, Defendant Josh

VanDeburgh (“Assistant Chief VanDeburgh”) filed a Motion to Dismiss First Amended

Complaint [Doc. No. 14], to which Plaintiff filed a Response, see [Doc. No. 27], and

Assistant Chief VanDeburgh replied, see [Doc. No. 35].

Second, Defendant Louis Flowers (“Chief Flowers”) filed a Motion to Dismiss and

Brief in Support [Doc. No. 16], to which Plaintiff responded, see [Doc. No. 28], and Chief

Flowers replied, see [Doc. No. 34].

Third, Defendant Laura Cox (“Lieutenant Cox”) filed a Motion to Dismiss [Doc.

No. 18], to which Plaintiff responded, see [Doc. No. 29], and Lieutenant Cox replied, see

[Doc. No. 36].

1 Defendant City of Weatherford does not seek dismissal and filed its Answer to the Amended

Complaint. [Doc. No. 25].

Each Individual Defendant seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(6) and

asserts a defense of qualified immunity. For the reasons stated below, the Motions are

GRANTED.

I. Background2

Plaintiff Matheu Farrow, formerly known as Melinda Farrow, is a transgender man

who worked for the City of Weatherford Police Department (“WPD”) from 2011 until his

resignation in 2022. Am. Compl. [Doc. No. 3] ¶¶ 14–15, 43–44.3 He began as a

Communications Officer in 2011, was promoted to Sergeant in 2015, and to Lieutenant in

2017. Id. ¶¶ 15, 17.

In January 2019, after becoming engaged to his girlfriend, Plaintiff began

experiencing issues at work, including from one coworker who made “several remarks not

approving of Plaintiff’s homosexual ‘lifestyle.’” Id. ¶ 18. Plaintiff reported these

comments to his supervisor, Assistant Chief VanDeburgh, who ignored the complaint and

instead ordered Plaintiff “to not have visitors because it made people feel uncomfortable”

and “not to be friends with any coworkers,” citing discomfort among staff. Id. ¶ 19.

Plaintiff further escalated the complaint to Chief Flowers, who “took no action.” Id.

Following Plaintiff informing Chief Flowers that he had begun hormone therapy to

transition to male, Assistant Chief VanDeburgh announced at a department meeting that

2 The factual summary herein is taken from Plaintiff’s Amended Complaint [Doc. No. 3] and

accepted as true for the purpose of deciding the Motions. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

3 Citations to the parties’ briefing submissions reference the Court’s ECF pagination.

Plaintiff would be removed from daily management responsibilities due to “issues with her

hormones changing.” Id. ¶ 34. Chief Flowers took no action, allowing Plaintiff to be

“stripp[ed] of his duties.” Id. Further, Plaintiff was told by Lieutenant Cox and Assistant

Chief VanDeburgh that Plaintiff should not have visitors because “his sexual orientation

made employees feel uncomfortable.” Id. ¶ 29. They also directed Plaintiff to remove

“homosexual material” from his social media, a restriction not imposed on heterosexual

employees. Id. ¶ 32. Aside from Plaintiff, other homosexual employees (or at least, those

perceived to be homosexual) were often the target of harassment, including homophobic

slurs. Id. ¶ 24, 27–28, 35-36, 49–51. For example, “Queer Flu” had been spelled out using

magnetic letters on the break room refrigerator, referring to Plaintiff giving Chief Flowers

the “Queer Flu.” Id. At one point, Lieutenant Cox pressured Plaintiff to fire a dispatcher

due to the dispatcher’s sexual orientation. Id. ¶ 49.

After developing a stress-related infection, Plaintiff took brief medical leave. Id. ¶

41. When he returned to work, Plaintiff was reassigned from the day shift to nights by

Assistant Chief VanDeburgh, leaving the day team without adequate senior or command

staff to deal with daily operations. Id. ¶ 42. Plaintiff ultimately submitted his resignation

“due to the amount of stress, mental and physical abuse, the discrimination he had been

enduring, and the demotion he received.” Id. ¶ 43. Although encouraged by Human

Resources and Chief Flowers to take his next shift off to reconsider his resignation,

Assistant Chief VanDeburgh issued a write up for Plaintiff being a “no call no show” to

the shift. Id. Plaintiff permanently resigned shortly thereafter.

II. Governing Standards

A. Federal Rule of Civil Procedure 12(b)(6)

A complaint is subject to dismissal if it “fail[s] to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). “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.’” Ashcroft, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, requires a litigant

to plead facts which allow “the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. “[M]ere ‘labels and conclusions,’ and ‘a formulaic

recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific

factual allegations to support each claim.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d

1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at 555). “While ‘[s]pecific facts

are not necessary,’ some facts are.” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 93

(2007)). Pleadings that do not allow for at least a “reasonable inference” of the legally

relevant facts are insufficient. Ashcroft, 556 U.S. at 678.

Further, regarding § 1983 claims, there is a “need for careful attention to particulars,

especially in lawsuits involving multiple defendants.” Pahls v. Thomas, 718 F.3d 1210,

1225 (10th Cir. 2013); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)

(explaining that when plaintiff brings § 1983 claims against multiple defendants, “it is

particularly important . . . that the complaint make clear exactly who is alleged to have

done what to whom”).

B. Qualified Immunity

“Qualified immunity applies to claims for monetary relief against officials in their

individual capacities. . .” See Meiners v. Univ. of Kansas, 359 F.3d 1222, 1233 n. 3 (10th

Cir. 2004). “When a defendant raises a qualified immunity defense, the court must dismiss

the action unless the plaintiff shows that (1) the defendant violated a statutory or

constitutional right, and (2) the right was clearly established at the time of the violation.”

Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016); see also Hunt v. Montano, 39

F.4th 1270, 1284 (10th Cir. 2022) (“[w]hen a § 1983 defendant raises qualified immunity

. . . the burden shifts to the plaintiff to establish both prongs of the defense.”); Bledsoe v.

Carreno, 53 F.4th 589, 606 (10th Cir. 2022) (“[w]here, as here, defendants moved for

dismissal of § 1983 claims under Rule 12(b)(6) based on qualified immunity, there is ‘a

presumption that the defendant is immune from suit.’” (citation omitted)).

At the motion to dismiss stage, a plaintiff “must allege sufficient facts that show—

when taken as true—the defendant plausibly violated his constitutional rights, which were

clearly established at the time of violation.” Hernandez v. Ridley, 734 F.3d 1254, 1258

(10th Cir. 2013) (citation omitted). Under the second prong, Plaintiff must identify “clearly

established” law that would have notified the Individual Defendants their actions were

unlawful. See Washington v. Unified Gov't of Wyandotte Cnty., Kansas, 847 F.3d 1192,

1202 n.3 (10th Cir. 2017).

Plaintiff may show the law to be “clearly established” by citing an on-point Supreme

Court or Tenth Circuit decision, or by showing “the clearly established weight of authority

from other courts . . . have found the law to be” as he maintains. Grissom v. Roberts, 902

F.3d 1162, 1168 (10th Cir. 2018) (internal quotation marks and citation omitted). An on-

point decision means the precedent is “particularized to the facts”—that it “involves

materially similar facts” to the case at hand. Apodaca v. Raemisch, 864 F.3d 1071, 1076

(10th Cir. 2017); see also Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“The dispositive

question is whether the violative nature of particular conduct is clearly established. This

inquiry must be undertaken in light of the specific context of the case, not as a broad general

proposition.” (internal quotation marks and citations omitted)). In other words, on-point

precedent cannot define a right at “a high level of generality.” Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011). There does not have to be “a case directly on point, but existing

precedent [nonetheless] must have placed the statutory or constitutional question beyond

debate.” Frasier v. Evans, 992 F.3d 1003, 1014 (10th Cir. 2021), cert. denied, 142 S. Ct.

427 (2021) (quoting al-Kidd, 563 U.S. at 741).

III. Discussion

Plaintiff alleges numerous violations of Title VII against the City of Weatherford

and brings a § 1983 claim against the City of Weatherford and the Individual Defendants.

Am. Compl. [Doc. No. 3]. Specifically, Plaintiff alleges that the Individual Defendants’

conduct violated his constitutional rights because they discriminated against him on the

basis of his transgender status and sexual orientation, which Plaintiff argues is inherently

sex-based discrimination.4 Id. ¶ 86 (alleging the Individual Defendants deprived Plaintiff

4 Although not included in the caption of the lawsuit, Plaintiff’s Amended Complaint asserts Count

IV against the Individual Defendants in their individual capacities only. Am. Compl. [Doc. No.

3] at 1. “A § 1983 defendant sued in an individual capacity may be subject to personal liability

and/or supervisory liability.” Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011).

of equal protection “by their hostile and disparate treatment of Plaintiff, retaliation, and

constructive discharge based on his sexual orientation”); [Doc. No. 27] at 8 (“Defendant’s

discrimination against Plaintiff for simply being a transgender and homosexual person is

discrimination because of Plaintiff’s sex and his ‘failure to comply with stereotypical

gender norms.’”).

The Individual Defendants argue, in part, that Plaintiff’s § 1983 claim is barred by

qualified immunity because Plaintiff cannot show he had a “clearly established”

constitutional right that they violated.5 They further argue that Plaintiff does not identify

any precedent that would put a reasonable official on notice that their specific actions were

unlawful in the situations they confronted. Relatedly, Lieutenant Cox argues that a

reasonable official in her shoes would not have “understood that a co-worker, not a

supervisor, was responsible for ensuring the workplace was free from any gender

orientation discrimination.” [Doc. No. 18] at 14.

Because the Court may address either prong of qualified immunity first, the Court

elects to consider whether Plaintiff’s constitutional right was clearly established at the time

of the Individual Defendants’ alleged misconduct. See Roberts v. Winder, 16 F.4th 1367,

1374 (10th Cir. 2021) (“Courts have discretion to decide the order in which they address

these two prongs.”).

5 See Motions, [Doc. No. 14] at 7–9, 11–12; [Doc. No. 16] at 28–29; [Doc. No. 18] at 14–15.

A. Clearly Established

The gravamen of Plaintiff’s § 1983 claim is that the Individual Defendants violated

his constitutional rights by their “hostile and disparate treatment of Plaintiff, retaliation,

and constructive discharge based on his sexual orientation.” Am. Compl. [Doc. No. 3] at

¶ 86. In support, he relies heavily on caselaw interpreting and applying Title VII in the

context of transgender and sex discrimination, arguing that the logic should apply in equal

force to claims under the Equal Protection Clause. For example, Plaintiff cites Bostock v.

Clayton County, 590 U.S. 644 (2020), which held that discrimination on the basis of

transgender status necessarily discriminates based on sex for purposes of Title VII. This

ruling, however, did not expressly extend to the Equal Protection Clause, and the Supreme

Court has yet to issue a ruling that does so. United States v. Skrmetti, 605 U.S. ––, 145 S.

Ct. 1816 (2025) (“We have not yet considered whether Bostock’s reasoning reaches beyond

the Title VII context, and we need not do so here.”).

On the other hand, the Tenth Circuit did recently grapple with Bostock’s

applicability to the Equal Protection Clause in Fowler v. Stitt, 104 F.4th 770 (10th Cir.

2024). There, the Tenth Circuit recognized that discrimination against transgender

individuals plausibly constituted sex discrimination under the Fourteenth Amendment. Id.

at 793 (“We thus join the courts that have applied Bostock’s reasoning to equal protection

claims.”). But Fowler came after the events in this case and, more importantly, was

recently vacated by the Supreme Court in light of the recent ruling in Skrmetti. See Stitt v.

Fowler, 145 S. Ct. 2840 (2025). Because Fowler both post-dates the alleged conduct and

no longer has precedential force, it cannot clearly establish the law for Defendants’

conduct. Milligan-Hitt v. Bd. of Trs. of Sheridan Cnty. Sch. Dist. No. 2, 523 F.3d 1219,

1233 (10th Cir. 2008) (internal quotations and citation omitted) (“To determine whether

the law was clearly established, i.e., whether it would be clear to a reasonable officer that

his conduct was unlawful, we look to the relevant precedents at the time of the challenged

actions and the obviousness of the violation in light of them.”). Further, Fowler’s vacatur

underscores that the issue remains unsettled in this Circuit even today. Thus, the Court

cannot say that Bostock, standing alone, placed the constitutional question “beyond debate”

at the times of the alleged conduct. Frasier, 992 F.3d at 1014.

Aside from Bostock, Plaintiff also looks to other Title VII caselaw. For example,

Plaintiff invokes Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Los Angeles

Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978). Both cases were also decided

under Title VII and concerned whether employment decisions based on sex stereotypes or

sex-based generalizations constitute discrimination “because of sex.” But like Bostock,

Price Waterhouse did not address the Equal Protection Clause, and Plaintiff cites to no case

that expands its reasoning beyond the context of Title VII. Thus, these cases cannot, alone

or in combination with other Title VII authorities, clearly establish a constitutional right

for § 1983 purposes.

Similarly, Plaintiff’s claims for retaliation and hostile work environment (theories

traditionally used in Title VII claims) are not clearly established theories under the Equal

Protection Clause. For example, to the extent Plaintiff asserts a retaliation claim pursuant

to the Equal Protection Claim, such a claim must fail because a pure retaliation claim is not

a legally cognizable claim under the Equal Protection Clause. See e.g., Tafoya v. Adams,

816 F.2d 555, 558 (10th Cir. 1987) (“The right to be free of retaliatory discharge provided

for by Title VII does not entitle one to relief under 1983[.]”); Unal v. Los Alamos Pub.

Sch., 638 F. App’x 729, 740 (10th Cir. 2016) (“But the Equal Protection Clause is not

generally a suitable vehicle for raising a retaliation claim”); Sherman-Harris-Golson v.

Forest Park Mun. Auth., No. CIV-21-466-F, 2021 WL 5056582, at *6 (W.D. Okla. Nov.

1, 2021) (“However, ‘a theory of liability for retaliatory conduct [does not] come within §

1983.’” (quoting Long v. Laramie Cnty. Cmty. Coll. Dist., 840 F.2d 743, 752 (10th Cir.

1988), cert. denied, 488 U.S. 825 (1988)). Relatedly, the Tenth Circuit has only assumed,

but never decided, that the Equal Protection Clause supports a right to be free from a hostile

work environment based on sex. See Ellis v. Salt Lake City Corp., 147 F.4th 1206, 1227

(10th Cir. 2025) (“Here, the violation [plaintiff] claims is of a right under the Fourteenth

Amendment's Equal Protection Clause to be free from a hostile work environment based

on her sex. For purposes of this appeal, we assume without deciding that such an equal-

protection-based claim is cognizable and actionable under § 1983.”).

Thus, Plaintiff has failed to show that that the Equal Protection Clause guarantees a

right to be free from sexual orientation discrimination. Because Plaintiff’s argument fails

at this fundamental level, Plaintiff also cannot—and does not—set forth any clearly

established caselaw that is particularized to the facts at issue here. See Apodaca, 864 F.3d

at 1076. Instead, Plaintiff’s Response briefs argue at length about whether discrimination

due to sexual orientation is inherently sex-based discrimination while overlooking whether

the “clearly established” law “involves materially similar facts.” Id.; see also Mullenix,

577 U.S. at 16 (“The dispositive question is ‘whether the violative nature of particular

conduct is clearly established.’”).

Plaintiff does not present a case on point with a particularized set of facts that would

put the Individual Defendants on notice that their specific conduct was violative of the

Fourteenth Amendment. Certainly, the conduct described in the allegations, if true, is

reprehensible, but Plaintiff has not met his burden to show it is unconstitutional. This,

alone, entitles the Individual Defendants to qualified immunity.6 Est. of Booker v. Gomez,

745 F.3d 405, 411 (10th Cir. 2014).

B. Constitutional Violation

To overcome the Individual Defendants’ assertion of qualified immunity, Plaintiff

must meet his burden on both qualified immunity prongs. Because, as discussed above,

Plaintiff failed to identify caselaw that clearly establishes his rights and places the

constitutional issue “beyond debate,” Mullenix v. Luna, 577 U.S. at 16 (quotation omitted),

the Court need not address the Individual Defendants’ arguments regarding

Plaintiff’s failure to adequately allege a constitutional violation. White v. Lucero, 135

F.4th 1213, 1218 (10th Cir. 2025); Cummings v. Dean, 913 F.3d 1227, 1242 (10th Cir.

2019) (declining to “reach the first prong of the qualified-immunity analysis” where the

6 Plaintiff argues that Chief Flowers and Assistant Chief VanDeburgh only raised the qualified

immunity defense as to the hostile work environment theory. See Pl.’s Resp. [Doc. No. 27] at 8–

9; [Doc. No. 28] at 12. Assistant Chief VanDeburgh, however, raised the defense several times.

See [Doc. No. 14] at 7, 11, 14. Further, as Plaintiff also points out, only one cause of action is

asserted against the Individual Defendants, and regardless of which theory is considered, the Court

finds that Plaintiff has not shown he has a “clearly established” constitutional right under the Equal

Protection Clause that can substantiate a Fourteenth Amendment claim against the Individual

Defendants. Thus, the Individual Defendants are entitled to dismissal of the § 1983 claim.

plaintiffs “failed to identify clearly-established law” as required under the second qualified

immunity prong).

IV. Conclusion

IT IS THEREFORE ORDERED that the Individual Defendants’ Motions to

Dismiss [Doc. Nos. 14, 16, 18] are GRANTED as set forth above. Plaintiff's claim against

the Individual Defendants is dismissed with prejudice.’

The parties are advised that, by separate order, the Court will set this matter for a

status conference.

IT IS SO ORDERED this 25" day of September, 2025.

□□

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE

7 The Court dismisses the claim against the Individual Defendants with prejudice because they

are entitled to qualified immunity and amendment would be futile. See Encinias v. New Mexico

Corr. Dep't, No. 23-2052, 2024 WL 4380477, at *6 (10th Cir. Oct. 3, 2024) (affirming district

court's order dismissing Plaintiff's claim with prejudice on the basis of qualified immunity); Clark

v. Wilson, 625 F.3d 686, 692 (10th Cir. 2010) (instructing the district court to grant defendants’

motion to dismiss based on qualified immunity “with prejudice”); McCrary v. Jones, 2015 WL

873641, at *6 (W.D. Okla. Feb. 27, 2015) (dismissing claim with prejudice where defendant was

entitled to qualified immunity).

12