Knight v. Oklahoma City City of

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

CLOIS KNIGHT, )

)

Plaintiff, )

)

v. ) Case No. CIV-24-824-G

)

THE CITY OF OKLAHOMA CITY )

et al., )

)

Defendants. )

ORDER

In this action, Plaintiff Clois Knight brings claims against four defendants for

violations of the Age Discrimination in Employment Act, 42 U.S.C. § 1981, Title VII of

the Civil Rights Act of 1964, and the First Amendment. See Am. Compl. (Doc. No. 5).

Now before the Court is a Motion to Dismiss (Doc. No. 13) filed by Defendants

Jesse Hilley, Michelle Lisenby, and Lynn Huffman (hereafter “Defendants”), seeking

dismissal pursuant to Rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure.1

Plaintiff has filed a Response (Doc. No. 15) and Defendants have replied (Doc. No. 17).

I. Summary of the Pleadings

Plaintiff alleges as follows:

Plaintiff is a Black male who has been employed by The City of Oklahoma City

(“the City”) for more than 38 years and currently works as a Chief Meter Reader in the

City’s Utilities Department. See Am. Compl. ¶¶ 8-9. He applied three times for the

1 Defendant The City of Oklahoma City has filed an Answer (Doc. No. 11).

position of Field Operations Supervisor (“FOS”) but was not selected due to age and race

discrimination. See id. ¶¶ 12, 19(b), 30, 49.2 For efficiency, the Court refers to these three

events as the “First FOS Application,” the “Second FOS Application,” and the “Third FOS

Application.”

Plaintiff first applied and was interviewed for an FOS position in January 2023. Id.

¶ 12. Defendant Hilley, the City’s Unit Operations Supervisor, participated in Plaintiff’s

interview. Id. ¶ 15. Throughout Plaintiff’s employment Defendant Hilley made

disparaging comments regarding Plaintiff’s age and race. Id. ¶¶ 36-38.

Plaintiff next applied for an FOS position in the fall of 2023. He was not interviewed

and not selected for the position. Id. ¶¶ 19(b)-20. Defendants Hilley and Lisenby

conducted the interviews for this opening. Id. ¶ 21.

On November 10, 2023, Plaintiff filed the relevant charges of discrimination with

the Equal Employment Opportunity Commission (“EEOC”), alleging that the City had

discriminated and retaliated against Plaintiff based on his age and race. Id. ¶ 23. After

filing his EEOC complaint, Plaintiff met in December 2023 with the City’s Chief Inclusion

and Diversity Officer, Shalynne Jackson, about not being selected for an FOS position,

complaining of racial bias. Id. ¶ 24. Ms. Jackson referred Plaintiff to Human Resources

officer Dorothy Symington, who told Plaintiff she could not discuss the issue because it

had to do with his pending EEOC charge. Id. ¶ 25.

2 Two paragraphs in the Amended Complaint are numbered “19.” For clarity, the Court

refers to them as “19(a)” and “19(b).”

In January 2024, Defendant Huffman, who was a scheduler for the City, informed

Plaintiff that he would be relocated from his shared, enclosed office into an open

workspace. See id. ¶ 27. Plaintiff was the only employee who had to move to an open

office space. Id. ¶ 28.

In March 2024, Plaintiff applied and interviewed for an FOS position. He was

interviewed but not selected for the position. Id. ¶¶ 30-31. One of his interviewers was

Defendant Huffman. Id. ¶ 31. Plaintiff alleges that Defendant Lisenby, the City’s

Superintendent of Utilities, was involved in the hiring decision. See id. ¶ 34.

Plaintiff was issued a right to sue letter from the EEOC and subsequently

commenced this suit. See id. ¶ 5. Plaintiff’s Amended Complaint raises two causes of

action against Defendants Hilley, Lisenby, and Huffman: (1) race discrimination and

retaliation, in violation of 42 U.S.C. § 1981, and (2) pursuant to 42 U.S.C. § 1983,

retaliation for opposing racial discrimination, in violation of Plaintiff’s First Amendment

right to free speech. See Am. Compl. ¶¶ 47-57; Pl.’s Resp. at 13.

II. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a short and

plain statement of the claim showing that the plaintiff is entitled to relief. “The purpose of

a modern complaint is to give opposing parties fair notice of the basis of the claim against

them so that they may respond to the complaint, and to apprise the court of sufficient

allegations to allow it to conclude, if the allegations are true, that the claimant has a legal

right to relief.” Whitehead v. Shafer, 295 F. App’x 906, 908 (10th Cir. 2008) (internal

quotation marks omitted).

In analyzing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court “accept[s] as true all well-pleaded factual allegations in the complaint

and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec.

Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). “[T]o withstand a Rule

12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as

true, ‘to state a claim to relief that is plausible on its face.’” Khalik v. United Air Lines,

671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). While the Rule 12(b)(6) standard does not require that a plaintiff establish a

prima facie case in the pleading, the court discusses the essential elements of each alleged

cause of action to better “determine whether [the plaintiff] has set forth a plausible claim.”

Id. at 1192.

A complaint fails to state a claim on which relief may be granted when it lacks

factual allegations sufficient “to raise a right to relief above the speculative level on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555 (footnote and citation omitted). Bare legal conclusions in a

complaint are not entitled to the assumption of truth; “they must be supported by factual

allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

III. Discussion

A. Plaintiff’s Assertion of Violation of 42 U.S.C. § 1981

Section 1981 prescribes that “[a]ll persons within the jurisdiction of the United

States shall have the same right in every State and Territory to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white citizens.” 42

U.S.C. § 1981(a). The statute thus “prohibits racial discrimination in the workplace.”

Howard v. Okla. Dep’t of Corr., 247 F. Supp. 3d 1210, 1224 (W.D. Okla. 2017).

Plaintiff alleges that Defendants are liable for race discrimination under 42 U.S.C.

§ 1981 because Plaintiff is Black, applied for three FOS positions for which he was

qualified, and each time was rejected by Defendants. See Am. Compl. ¶¶ 11, 27. Plaintiff

also brings a claim for unlawful retaliation under the statute, asserting that he engaged in

protected speech when he spoke to the City’s chief diversity and inclusion officer and filed

his EEOC complaint, then was retaliated against by Defendants when they failed to hire

him for FOS positions and requested that he move office locations. See id. ¶¶ 17, 20, 27,

32.

Pursuant to Tenth Circuit authority, “damages claims against state actors for § 1981

violations must be brought under [42 U.S.C.] § 1983.” Bolden v. City of Topeka, 441 F.3d

1129, 1137 (10th Cir. 2006) (citing Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701 (1989));

accord Brown v. Keystone Learning Servs., 804 F. App’x 873, 883 (10th Cir. 2020)

(“[Section] 1983 is the ‘exclusive federal remedy for § 1981 actions against state actors.”).3

The Amended Complaint seeks damages under § 1981 against Defendants, who are

identified as City employees “acting under color of their authority.” Am. Compl. ¶¶ 51-

52, 54. The pleading does not refer to 42 U.S.C. § 1983 in connection with the § 1981

3 “[T]he thrust of Jett was not to impose a technical pleading requirement but to clarify that

a § 1981 claim against a local government cannot be predicated on respondeat superior, a

limitation imposed on § 1983 claims.” Bolden, 441 F.3d at 1134.

claim, however. Nor do the parties address whether the § 1983 remedy requirement

extends to § 1981 claims brought against “state actor defendants sued in their individual

capacities.” Dixon v. Bd. of Cnty. Comm’rs of Cnty. of Okla., No. CIV-15-196-R, 2015 WL

5839206, at *2 (W.D. Okla. Oct. 7, 2015); see also Pl.’s Resp. at 12-13 (Plaintiff

representing that he seeks to bring his § 1983 First Amendment claims against Defendants

in their individual capacities).

The Court need not consider Plaintiff’s omission of § 1983 further at this juncture,

however, because Defendants do not seek dismissal on that basis and, in race discrimination

and race retaliation suits, “the elements of a plaintiff’s case are the same whether that case

is brought under §§ 1981 or 1983.” Carney v. City & Cnty. of Denv., 534 F.3d 1269, 1273

(10th Cir. 2008) (internal quotation marks omitted); see Dixon, 2015 WL 5839206, at *2;

Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1103 n.1 (10th Cir. 1998).

1. Race Discrimination Claim

To prevail upon his § 1981 discrimination claim, Plaintiff must establish: “(1)

membership in a protected class; (2) the defendant intended to discriminate on the basis of

race; and (3) the alleged discrimination interfered with a protected activity as defined in

the statute.” Cruz v. Farmers Ins. Exch., 42 F.4th 1205, 1210 (10th Cir. 2022); see also

Khalik, 671 F.3d at 1192. Defendants challenge Plaintiff’s pleading of the second element,

arguing that Plaintiff fails to plausibly allege that, in not selecting Plaintiff for the FOS

position, Defendants “intentionally or purposefully discriminated against” Plaintiff.

Reynolds v. Sch. Dist. No. 1, Denv., 69 F.3d 1523, 1532 (10th Cir. 1995); see Defs.’ Mot.

to Dismiss at 8; see also Chambers v. Simon Prop. Grp., L.P., No. 12-1179, 2013 WL

1947422, at *3 (D. Kan. May 10, 2013) (“The second element of a § 1981 claim requires

plaintiffs to allege the existence of facts that give rise to a reasonable inference that the

defendant’s action was racially motivated.”). The Court examines Plaintiff’s allegations

against each individual Defendant in turn.

Defendant Hilley

Plaintiff alleges that Defendant Hilley made derogatory comments regarding

Plaintiff’s race. See Am. Compl. ¶ 37. Plaintiff further alleges that Defendant Hilley

interviewed him on the occasion of the First FOS Application and appeared unengaged.

See id. ¶ 16. Plaintiff alleges that Defendant Hilley was involved in the hiring decisions at

the time of the First FOS Application and the Second FOS Application. See id. ¶¶ 15, 17,

21. Plaintiff alleges that the person hired at the time of the First FOS Application was

significantly less qualified than Plaintiff. See id. ¶ 18. Through these allegations, Plaintiff

has adequately pleaded facts that, taken as true, give rise to a reasonable inference that

Defendant Hilley’s actions were motivated by an intent to discriminate.

Defendant Lisenby

As to Defendant Lisenby, Plaintiff states only that Lisenby was “white and

significantly younger than Plaintiff” and possibly involved in two of the FOS hiring

decisions. Id. ¶¶ 11, 21, 34. With respect to these two hiring decisions, Plaintiff alleges

that the people hired were both white and younger than Plaintiff but does not allege that

they were less qualified. Id. ¶¶ 29, 33. These facts do not plausibly show that Defendant

Lisenby’s actions were motivated by an intent to discriminate. See Ross v. Pentair Flow

Techs., Inc., No. 19-2690, 2020 WL 1028304, at *6 (D. Kan. Mar. 3, 2020).

Defendant Huffman

Plaintiff alleges that Defendant Huffman was “white and significantly younger than

Plaintiff,” involved in one of the FOS hiring decisions, and while employed as a scheduler

informed Plaintiff that he had to move office locations. Id. ¶¶ 27, 31, 34. With respect to

the hiring decision for which Defendant Lisenby was involved, Plaintiff alleges that the

person hired was white and younger than Plaintiff but does not allege that he was less

qualified. See id. ¶ 33. These facts do not support a reasonable inference that Defendant

Huffman’s actions were motivated by an intent to discriminate. See Ross, 2020 WL

1028304, at *6.

2. Retaliation Claim

Section 1981(a) “prohibits not only racial discrimination but also retaliation against

those who oppose it.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 355 (2013). To

state a claim upon which relief can be granted, Plaintiff

must “plausibly allege (1) that [he] engaged in protected opposition to

discrimination, (2) that a reasonable employee would have found the

challenged action materially adverse, and (3) that a causal connection existed

between the protected activity and the materially adverse action.”

Alatorre v. Ole Mexican Foods, Inc., No. CIV-21-1057-JD, 2023 WL 7308117, at *3 (W.D.

Okla. Nov. 6, 2023) (quoting Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th Cir.

2021)); see also Parker Excavating, Inc. v. LaFarge W., Inc., 863 F.3d 1213, 1220 (10th

Cir. 2017).

Defendants challenge Plaintiffs’ ability to “establish that retaliation played a part in

the employment decision.” Parker Excavating, 863 F.3d at 1220 (internal quotation marks

omitted); see Defs.’ Mot. to Dismiss at 10; see also Crowe v. ADT Sec. Servs., Inc., 649

F.3d 1189, 1194 (10th Cir. 2011). A plaintiff must ultimately show “a causal connection

between [his] protected conduct and the adverse employment action by proffering evidence

of circumstances that justify an inference of retaliatory motive.” Unal v. Los Alamos Pub.

Schs., 638 F. App’x 729, 741 (10th Cir. 2016) (internal quotation marks omitted).

“Although evidence of ‘very close’ temporal proximity will provide compelling evidence

of retaliation, and, in some cases, may be sufficient on its own, a plaintiff must also show

that the person who engaged in the adverse employment action was aware of the protected

activity.” Id. at 741-42 (alteration and citations omitted) (quoting Piercy v. Maketa, 480

F.3d 1192, 1198 (10th Cir. 2007)). “An employer’s action against an employee cannot be

because of that employee’s protected opposition unless the employer knows the employee

has engaged in protected opposition.” Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188

(10th Cir. 2002).

The Amended Complaint alleges that Defendant Hilley’s involvement was limited

to events preceding Plaintiff’s filing of an EEOC complaint or meeting with Ms. Jackson

and, thus, occurred before any alleged protected activity. As to Defendants Lisenby and

Huffman, Plaintiff has failed to allege facts from which to infer their personal knowledge

of the EEOC filing or the meeting with Ms. Jackson. Plaintiff states only that the City’s

Chief Inclusion and Diversity Officer Jackson and Human Resources officer Symington

had knowledge of his alleged protected activity. See Am. Compl. ¶¶ 24-25.

Plaintiff has not shown circumstances reasonably justifying an inference of a causal

connection between the cited protected activity and either a decision not to promote him to

a FOS position or the decision to relocate his office. See id.; see also Davis v. Unified Sch.

Dist. 500, 750 F.3d 1168, 1172-73 (10th Cir. 2014) (declining to impute human resources’

knowledge of protected activity to other employees). Plaintiff’s Amended Complaint

therefore fails to allege a § 1981 retaliation claim upon which relief can be granted as to

any individual Defendant.

B. Plaintiff’s Assertion of Violation of the First Amendment

Plaintiff alleges he is entitled to relief because Defendants were acting under the

color of their authority and in a manner that deprived Plaintiff of his First Amendment right

to the freedom of speech. See Am. Compl. ¶ 54. Plaintiff asserts that his comments and

filing at the EEOC constituted protected constitutional speech and should be categorized

as comments on a matter of public concern. See id. ¶ 55.

The First Amendment “forbids abridgment of the freedom of speech.” Janus v. Am.

Fed’n of State, Cnty., & Mun. Emps., 585 U.S. 878, 891-92 (2018). A government

employee “does not relinquish First Amendment rights to comment on matters of public

interest by virtue of government employment.” Connick v. Myers, 461 U.S. 138, 140

(1983). “Rather, the First Amendment protects a public employee’s right, in certain

circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v.

Ceballos, 547 U.S. 410, 417 (2006). “However, the interests of public employees in

commenting on matters of public concern must be balanced with the employer’s interests

in promoting the efficiency of the public services it performs through its employees.”

Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011) (internal quotation

marks omitted).

Through two decisions—Pickering v. Board of Education, 391 U.S. 563, 568

(1968), and Garcetti, 547 U.S. at 417—the Supreme Court has articulated five factors to

be considered in analyzing public-employee free-speech cases. Leverington, 643 F.3d at

724 (explaining that “after Garcetti, it is apparent that the Pickering analysis of freedom

of speech retaliation claims is a five step inquiry” that will be referred to as “the

Garcetti/Pickering analysis” (internal quotation marks omitted)). The Tenth Circuit has

summarized these factors as follows:

(1) whether the speech was made pursuant to an employee’s official duties;

(2) whether the speech was on a matter of public concern; (3) whether the

government’s interests, as employer, in promoting the efficiency of the

public service are sufficient to outweigh the plaintiff’s free speech interests;

(4) whether the protected speech was a motivating factor in the adverse

employment action; and (5) whether the defendant would have reached the

same employment decision in the absence of the protected conduct.

Eisenhour v. Weber Cnty., 744 F.3d 1220, 1227-28 (10th Cir. 2014) (internal quotation

marks omitted). “The first three elements are issues of law for the court to decide, while

the last two are factual issues typically decided by the jury.” Knopf v. Williams, 884 F.3d

939, 945 (10th Cir. 2018) (internal quotation marks omitted).

Defendants argue that Plaintiff’s allegations fail to establish that his speech can be

“fairly characterized as constituting speech on a matter of public concern.” Connick, 461

U.S. at 146; see Defs.’ Mot. to Dismiss at 12-13.4 In determining whether speech addresses

4 “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation

was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42,

48 (1988). Defendants here challenge whether Plaintiff can show that, in acting under color

of law, Defendants “subject[ed]” Plaintiff, “or cause[d] [Plaintiff] to be subjected,” “to a

a matter of public or private concern, courts must consider the “content, form, and context

of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48. “The

court will also consider the motive of the speaker to learn if the speech was calculated to

redress personal grievances [and therefore spoken as an employee] or to address a broader

public purpose [and therefore spoken as a citizen].” David v. City & Cnty. of Denv., 101

F.3d 1344, 1355 (10th Cir. 1996) (alterations in original) (internal quotation marks

omitted). “[S]peech relating to internal personnel disputes and working conditions

ordinarily will not be viewed as addressing matters of public concern.” Id. “Courts in

other jurisdictions have found that allegations of racial or national origin discrimination

can be a matter of public concern, but not when the speech concerns only matters of

personal interest.” Salemi v. Colo. Pub. Emps.’ Ret. Ass’n, 176 F. Supp. 3d 1132, 1151 (D.

Colo. 2016).

Plaintiff alleges that he personally was subjected to age and racial discrimination,

harassment, and retaliation. His work-related complaints to the EEOC and to City officials

focused only on the conditions of his own employment. See Am. Compl. ¶¶ 5, 23, 55;

Defs.’ Ex. 1, Pl.’s First EEOC Compl. (Doc. No. 13-1) at 1-3; Defs.’ Ex. 2, Pl.’s Second

EEOC Compl. (Doc. No. 13-2) at 1-4.5 Plaintiff did not allege that any cited discriminatory

practice affected or would affect other employees or that any cited act of harassment or

deprivation of his lawful rights.” Porro v. Barnes, 624 F.3d 1322, 1327 (10th Cir. 2010)

(omission and internal quotation marks omitted).

5 The Court may consider Plaintiff’s EEOC filings, as they are “referred to in the complaint

and . . . central to [Plaintiff’s] claim.” GFF Corp. v. Associated Wholesale Grocers, Inc.,

130 F.3d 1381, 1384 (10th Cir. 1997).

retaliation interfered with the City’s performance of its governmental responsibilities.

Therefore, Plaintiff’s statements do not plausibly involve matters of public concern. See

David, 101 F.3d at 1356; Salemi, 176 F. Supp. 3d at 1151. Because Plaintiff’s comments

and EEOC complaint did not involve matters of public concern, Plaintiff’s pleading fails

to state a claim for violation of the First Amendment upon which relief can be granted.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. No. 13) is

GRANTED IN PART and DENIED IN PART. Plaintiff’s 42 U.S.C. § 1981 race

discrimination claim against Defendant Jesse Hilley may proceed. All remaining claims

against Defendant Hilley and all claims against Defendants Michelle Lisenby, and Lynn

Huffman are DISMISSED without prejudice pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure.

IT IS SO ORDERED this 30th day of September, 2025.

(Vauba B. Kodo

United States District Judge

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