Barnes

Qnited States District Court

for the sorthern District of Oklahoma

Case No. 25-cv-117-JDR-JFJ

GELON LUVERN BARNES, JR.,

Plaintiff,

versus

MAYES EMERGENCY SERVICES TRUST AUTHORITY,

Defendant.

OPINION AND ORDER

Plaintiff Gelon Barnes was injured while working as an EMT for his

former employer Defendant Mayes Emergency Services Trust Authority

(MESTA). He was fired soon after he sought leave to recuperate from his in-

jury. Dkt. 15-1 at 4-7.’ Mr. Barnes sued MESTA in state court for failure to

make reasonable accommodations, and MESTA promptly removed the case.

Dkts. 2, 2-1. Mr. Barnes now moves to amend his complaint to add two new

Defendants, Alan Davis and Brad Reed, and multiple new causes of action.

Dkts. 15, 15-1. MESTA argues that Mr. Barnes’s proposed amended com-

plaint violates Rule 8 of the Federal Rules of Civil Procedure and that any

amendment would be futile. Dkt. 16. For the reasons set forth below, the

Court finds that Mr. Barnes’s proposed amended complaint does not violate

Rule 8, but the Court also finds that several of Mr. Barnes’s claims would be

futile as they are susceptible to a dismissal under Rule 12(b)(6). Accordingly,

the Court grants in part and denies in part his motion to amend. Mr. Barnes

' All citations use CM/ECF pagination.

No. 25-cv-117

is directed to file an amended complaint without the futile causes of action by

March 16, 2026.

The Court turns first to MESTA’s argument that the proposed

amended complaint fails to comply with Rule 8, which requires a complaint

to include “a short and plain statement” of the claim for relief. Dkt. 16 at 4.

MESTA characterizes Mr. Barnes’s proposed amended complaint as “not

short, nor... plain and concise.” Jd. MESTA likens Mr. Barnes’s amended

complaint to those in Abdelsamed v. United States, 13 F. App’x 883, 884 (10th

Cir. 2001) (a case addressing a seventy-six-page complaint with “nonsensi-

cal” claims which the court found “incomprehensible”) and Mann »., Boat-

right, 477 F.3d 1140, 1148 (10th Cir. 2007) (a case addressing an eighty-three-

page complaint that “neither identifie[d] a concrete legal theory nor tar-

get[ed] a particular defendant’’). These cases are readily distinguishable. Mr.

Barnes’s proposed complaint is only fourteen pages long—far shorter than

those at issue in Mann and Abdelsamed. Dkt. 15-1. And his amended complaint

is reasonably organized and includes five separate defined counts with multi-

ple sub-counts. Jd.

Mr. Barnes’s proposed amended complaint is sufficiently concise and

clear for this Court to make out his claims. The Court will not deny Mr.

Barnes’s motion on Rule 8 grounds.

I]

The Court next considers MESTA’s argument that Mr. Barnes’s

amendment should be denied as futile. Mr. Barnes’s motion is governed by

Rule 15(a)(2) of the Federal Rules of Civil Procedure, which permits a party

to file an amended complaint with either leave of the Court or the opposing

party’s written consent. Although MESTA does not consent to Mr. Barnes’s

proposed amendment, Rule 15(a)(2) states that the Court “‘should freely give

leave [to amend] when justice so requires.” But Rule 15(a)(2) does not require

No. 25-cv-117

the Court to accept all amendments. It is within the Court’s discretion to

deny Mr. Barnes leave to amend based on, among other reasons, “futility of

amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment is

futile when the amended complaint “would be subject to dismissal” under

Rule 12(b)(6). Mountain View Pharmacy v. Abbott Lab’ys, 630 F.2d 1383, 1389

(10th Cir. 1980).

To address whether the amended complaint would be subject to dis-

missal, the Court must determine whether Mr. Barnes’s complaint sets forth

sufficient factual allegations “to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The allega-

tions must be enough that, if assumed to be true, the plaintiff plausibly (not

just speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242,

1247 (10th Cir. 2008). In other words, the Court must determine whether,

taking all well-pleaded allegations as true, the complaint provides a “reason

to believe that [Mr. Barnes] has a reasonable likelihood of mustering factual

support for [his] claims.” Ridge at Red Hawk, L.L.C. v. Schnieder, 493 F.3d

1174, 1177 (10th Cir. 2007).

MESTA argues that Mr. Barnes’s proposed amended complaint does

not “make clear exactly who is alleged to have done what to whom” and does

not “provide [MESTA, Mr. Davis, and Mr. Reed] with fair notice as to the

basis of the claims against [them].” Dkt. 16 at 3 (quoting Robbins, 519 F.3d at

1250) (emphasis in original). MESTA challenges Mr. Barnes’s claims against

Mr. Davis, his Family Medical Leave Act claim, his tortious interference with

contract and business relationship claims, and his Oklahoma Open Records

Act claim. Dkt. 16. The Court addresses each in turn.

MESTA first argues that Mr. Barnes’s theories of liability against Mr.

Davis are precluded by Okla. Stat. tit. 60, § 179, which states that “[n]o trus-

tee or beneficiary shall be charged personally with any liability whatsoever by

No, 25-cv-117

reason of any act... committed... in the performance of such trust” and

that, instead, the liability falls upon the trust itself. Dkt. 16 at 4-5. Mr. Barnes

did not respond to this argument in his reply. Dkt. 17.

MESTA is a public trust. Dkt. 15-1 at 2-3. Mr. Davis is a member of

MESTA’s board of trustees and is thus covered by the plain language of Okla.

Stat. tit. 60, § 179. /d. On its own, this bars Mr. Barnes’s claim for relief

against Mr. Davis. But even if it did not, the Court notes that Mr. Barnes’s

proposed amended complaint only pleads a single fact concerning Mr. Da-

vis—that Mr. Davis signed the letter terminating Mr. Barnes’s employment.

Id. at 7. This lone allegation does not permit the Court to infer that Mr. Davis

acted outside of his capacity as a MESTA trustee or was otherwise liable to

Mr. Barnes under any cognizable legal theory. The amended complaint fails

to state a claim against Mr. Davis, and Mr. Barnes’s claims against him are

futile.

MESTA next argues that Mr. Barnes does not state a claim for relief

under the FMLA because Mr. Barnes never advised MESTA or any MESTA

employees of his intent to take FMLA leave. Dkt. 16 at 6-8. Mr. Barnes disa-

grees, arguing that a plaintiff need not request leave, advise his employer of

his intent to use FMLA leave, or indeed cite the FMLA at all to establish a

right to relief. Dkt. 17 at 8-9.

“If the employer is on notice that the employee might qualify for

FMLA benefits, the employer has a duty to notify the employee that FMLA

coverage may apply.” Tate ». Farmland Indus., Inc., 268 F.3d 989, 997 (10th

Cir. 2001). “The FMLA .. . does not require a covered employee to specifi-

cally ask for FMLA benefits [and] [an employee need not expressly assert

rights under the FMLA or even mention the FMLA.” Jd. Under Tate, the

relevant inquiry is not whether Mr. Barnes made a request for FMLA benefits

but whether MESTA was aware that Mr. Barnes “might qualify” for those

No. 25-cv-117

benefits. /d.* Although the Tenth Circuit has not conclusively ruled that su-

pervisors are subject to FMLA claims, other courts within the Tenth Circuit

have found that the majority of circuit courts have concluded that individual

supervisors may be held liable as “employers” under the FMLA. Miles v. Uni-

fied Sch. Dist. No. 500, Kansas City, Kansas, 347 F. Supp. 3d 626, 630 (D. Kan.

2018); see also Saavedra v. Lowe’s Home Centers, Inc., 748 F. Supp. 2d 1273,

1284 (D.N.M. 2010) (collecting cases). A court must consider if the supervi-

sor in question “has the power to hire and fire employees, supervises and

controls employee work schedules, determines the rate and method of pay-

ment, and maintains employee records.” Miles, 347 F. Supp. 3d at 630. In ef-

fect, the question is whether the supervisor “possessed the power to control

the worker in question.” Jd.

In his proposed amended complaint, Mr. Barnes alleges he “sustained

a partial torn rotator cuff” while lifting a patient and informed MESTA of his

injury a few hours later by filling out an incident report and telling his super-

visor. Dkt. 15-1 at 4. He allegedly told MESTA employees, including Mr.

Reed, that he intended to file a worker’s compensation claim, then went to an

urgent care facility that contacted MESTA about his injury and restricted him

from “lifting, pulling or pushing” for two weeks. /d. at 5. Mr. Barnes also al-

leges he emailed those restrictions and his medical instructions to MESTA.

Id. Mr. Reed communicated with Mr. Barnes about the “timeline of when

[Mr. Barnes would] be able to return to work” and stated that Mr. Barnes

“may be gone a few months for workers comp.” Jd. at 6.

Based on these allegations, MESTA and Mr. Reed were on notice that

Mr. Barnes suffered a workplace injury and would need time to recuperate.

2 MESTA argues, without citation, that “merely alerting your employer of an on-

the-job injury does not indicate FMLA leave is at issue.” Dkt. 16 at 7. This argument is

precluded by the Tenth Circuit’s holding in 7ate. Alerting an employer of an on-the-job

injury and active work restrictions is sufficient to put an employer “on notice that the em-

ployee might qualify for FMLA benefits.” Tate, 268 F.3d at 997.

No, 25-cv-117

MESTA argues that Mr. Barnes intended to use his sick leave instead of in-

voking the FMLA but cites no legal argument for why this is relevant to its

duty to inform Mr. Barnes of his rights under the FMLA, only arguments that

it could require him to use his sick leave before his FMLA benefits began.

Dkt. 16 at 7. Tate places the burden on the employer to “notify the employee

that FMLA coverage might apply.” 268 F.3d at 997. Mr. Barnes alleges that

MESTA and Mr. Reed failed to do so.

But Mr. Barnes has not alleged facts sufficient to indicate that Mr.

Reed “had the power to hire and fire [him] . . . determine[d] the rate and

method of [Mr. Barnes’s] payment, and maintain[ed] employee records” or

““possessed the power to control” Mr. Barnes. Miles, 347 F. Supp. 3d at 630.

At most, Mr. Barnes states that Mr. Reed had the title of “director,” but notes

that another person, Erick Dickover, was “executive director” and that a

third, Jason Gilstrap, was responsible for disciplining Mr. Barnes. Dkt. 15-1

at 5-6. Mr. Barnes does not make clear which individuals in his complaint ac-

tually had the power to hire, fire, and otherwise control him, and so has not

stated a claim that Mr. Reed was a covered employer liable under the FMLA.

But Mr. Barnes has stated a claim for MESTA’s alleged FMLA violations,

and his proposed amendment is not futile on this count.’

MESTA next argues that Mr. Barnes’s claims for malicious interfer-

ence with contract and tortious interference with a business relationship

3 Mr. Barnes also asserts his FMLA claim against Mr. Davis. Although Oklahoma

law cannot immunize Mr. Davis from a federal cause of action, Mr. Barnes has only levied

a single allegation against him—that he signed the termination letter. Dkt. 15-1 at 7. On its

own, this action does not implicate the FMLA or show that Mr. Davis was on notice that

Mr. Barnes might qualify for FMLA benefits. Mr. Barnes’s FMLA proposed amendment

against Mr. Davis for violating the FMLA is futile.

No. 25-cv-117

against Mr. Reed and Mr. Davis* are barred for two reasons: first, it argues

that these claims are subject to the Oklahoma Governmental Tort Claims Act

and, second, that Mr. Reed and Mr. Davis are not third parties to Mr.

Barnes’s employment contract and cannot be held liable on a malicious or

tortious interference theory.

MESTA argues that the Oklahoma Governmental Tort Claims Act

precludes Mr. Barnes’s claims against either Mr. Reed or Mr. Davis because

it grants immunity to all government employees “acting within the scope of

their employment.” Okla. Stat. tit. 51, § 152.1. Mr. Barnes argues that the

OGTCA does not apply because Mr. Reed and Mr. Davis “acted maliciously

and intentionally,” and therefore outside the scope of their employment and

thus outside the protection of the OGTCA. Dkt. 17 at 4.

Torts for “malicious interference” or “tortious interference” with

contract or business relationship “cannot be committed within the scope of

employment by an employee of a political subdivision” such as MESTA.

Tuffy’s, Inc. v. City of Oklahoma City, 2009 OK 4, 715, 212 P.3d 1158, 1166.

As a result, Mr. Barnes’s claims can proceed if—and only if—he can plead

facts to state a viable claim for malicious and tortious interference.

To do so, Mr. Barnes must allege sufficient facts that if true would

show “‘(i) that Plaintiff had a contractual right [or business relationship] with

which [Mr. Reed and Mr. Davis] interfered; (ii) that the interference was ma-

licious and wrongful, and neither justified, privileged nor excusable; and (iii)

damage was proximately sustained as a result of the complained interfer-

ence.” ATS Grp., LLC ». Legacy Tank & Indus. Servs. LLC, 407 F. Supp. 3d

1186, 1194-95 (W.D. Okla. 2019). Mr. Barnes must allege some “facts that

* As discussed in section II-A, supra, Mr. Davis is not liable under any of Mr.

Barnes’s state-law theories pursuant to Okla. Stat. tit. 60, § 179; however, the Court will

assume that Mr. Davis could be liable for purposes of analyzing Mr. Barnes’s claims on this

count.

No. 25-cv-117

would support an inference that [Mr. Davis or Mr. Reed were] acting outside

of the scope of their employment,” because an employee or agent will not

“generally be held liable” simply for carrying out his job duties. Bostic ». City

of Jenks, No. 19-cv-0541-CVE-JFJ, 2020 WL 3065915, at *13 (N.D. Okla.

June 9, 2020).

Mr. Barnes did not allege facts against Mr. Davis sufficient to state a

claim for malicious or tortious interference. The on/y concrete fact Mr. Barnes

pleads concerning Mr. Davis is that he signed the termination letter. Dkt. 15-

1 at 7. Signing termination notices is clearly within the scope of Mr. Davis’s

role as a member of MESTA’s board and, without more factual allegations,

cannot form the basis for a malicious or tortious interference claim.

Mr. Barnes has more to allege against Mr. Reed, who allegedly “told

[Mr. Barnes] that he was getting written up,” requested additional infor-

mation from Mr. Barnes about the incident after receiving information from

Mr. Barnes’s urgent care visit, discussed the amount of time Mr. Barnes

would be gone for recovery, and assured Mr. Barnes that “you have not been

fired” before sending Mr. Barnes a termination letter. Jd. at 4-7. These alle-

gations, while more substantial than those against Mr. Davis, likewise do not

support an inference that Mr. Reed was acting outside the scope of his em-

ployment. To the contrary, Mr. Reed’s alleged actions are well within the pur-

view of management at any institution and do not permit the court to infer

that Mr. Reed was acting maliciously or in any way that would permit the

Court to conclude that he tortiously or maliciously interfered with Mr.

Barnes’s employment contract.

Mr. Barnes argues that cases like Wilson v. City of Tulsa, 2004 OK CIV

APP 44, 718, 91 P.3d 673, 679, support his claim that Mr. Davis and Mr. Reed

could be liable for interfering with his employment contract and working re-

lationship with MESTA. But Wilson required a showing of “bad faith” and

actions “contrary to the interest of the employer,” to the point where the

No. 25-cv-117

alleged interferer was “gross[ly] reckless[|” in the termination of the em-

ployee. Jd. , 19, 91 P.3d 673, 679. The Court in Wilson also held that a party’s

actions “cannot be characterized as malicious or in bad faith based only on

the fact of the interference with the contract.”* /d. Mr. Barnes has not alleged

facts to show maliciousness or bad faith on the part of Mr. Davis or Mr. Reed.°

Mr. Barnes’s allegations of tortious interference against Mr. Davis and

Mr. Reed are futile because they fail to state a viable claim and because the

OGTCA precludes relief against Mr. Davis and Mr. Reed on the facts alleged.

Last, MESTA argues that Mr. Barnes’s claim that MESTA violated

the Oklahoma Open Records Act is false, and points to what it alleges would

be exhibits to Mr. Barnes’s amended complaint as evidence for its argument.

Dkt. 16 at 11-12. Mr. Barnes’s response to this argument is unclear, but he

argues that MESTA has not yet complied with the Open Records Act. Dkt.

17 at 9-10. Determining MESTA’s compliance with the Open Records Act is

a fact-bound analysis requiring consideration of multiple documents. The

° Mr. Barnes also relies on the Oklahoma Supreme Court’s opinion in Martin ».

Johnson, 1998 OK 127, J 33, 975 P.2d 889, 896, which permitted a plaintiff to amend her

complaint to state a claim of tortious interference in her employment contract by her super-

visor when she alleged that her termination was caused by her resistance to her supervisor’s

harassment. But Martin specifically noted that “characterizing an employee’s conduct as

contrary to the interests of the employer cannot be based merely upon the employee’s in-

terference with the contract.” Jd. And although the court in Martin did not explicitly rule

that an employee’s harassment is not in the employer’s interest, Mr. Barnes has not pleaded

facts sufficient to create an inference that Mr. Davis’s or Mr. Reed’s actions relating to Mr.

Barnes’s termination were similarly contrary to MESTA’s interests.

° Mr. Barnes’s allegations against Mr. Reed consist of statements that Mr. Reed (1)

participated in a meeting where Mr. Barnes was written up, (2) requested additional infor-

mation about Mr. Barnes’s health condition and recovery plan, (3) informed Mr. Barnes

that he had not yet been fired, and (4) later emailed the termination letter bearing Mr. Da-

vis’s signature. Dkt. 15-1 at 4-7. At most, these allegations permit the Court to infer that

there was indecision or confusion about MESTA’s continued employment of Mr. Barnes

on Mr. Reed’s part—not that he was some way acting contrary to MESTA’s interests or

with malice towards Mr. Barnes.

No. 25-cv-117

Court declines to find that Mr. Barnes’s claim is futile as a matter of law when

resolution of the issue requires determinations of fact.

IV

For the reasons given above, the Court concludes that Mr. Barnes’s

proposed amended complaint states claims for relief against MESTA under

the FMLA, the ADA’, and the Open Records Act, but fails to state a claim

with respect to any of the causes of action asserted against Mr. Davis or Mr.

Reed. Mr. Barnes’s motion [Dkt. 15] is thus granted in part and denied in part.

Mr. Barnes will be permitted to file an amended complaint stating these

causes of action—and only these causes of action—against MESTA. See Jen-

sen v. W. Jordan City, No. 2:12-cv-00736-DAK, 2015 WL 2384048, at *5 (D.

Utah May 19, 2015) (directing plaintiff to file an amended complaint contain-

ing only those amendments permitted by the Court); see also Ofori v. Fleming,

No. 7:20-cv-00344, 2022 WL 3584904, at *21 (W.D. Va. Aug. 22, 2022)

(granting in part and denying in part a motion to amend based on futility of

some alleged claims); Manes ». JPMorgan Chase Bank, N.A., No. 20-cv-11059

(VEC), 2022 WL 671631, at *9 (S.D.N.Y. Mar. 7, 2022) (same). Mr. Barnes

must file this amended complaint by March 16, 2026. Failure to do so will

preclude Mr. Barnes from alleging his new causes of action against MESTA.

MESTA will have fourteen days after receiving service of the amended com-

plaint to file a responsive pleading. Fed. R. Civ. P. 15(a)(3).

Mr. Barnes’s ADA claim is present in both his original complaint (where it is di-

rected against MESTA) and proposed amended complaint, and the Defendants do not ob-

ject to its inclusion in his proposed amended complaint. Dkt. 2-1 at 1; Dkt. 15-1 at 9; Dkt.

16 at 2. But Mr. Barnes’s proposed amended complaint does not specify which defendants

he claims violated the ADA. Dkt. 15-1 at 9. As discussed in section II-A, supra, Mr. Barnes

has not alleged facts sufficient to state a claim against Mr. Davis on any cognizable legal

theory. And supervisors cannot be held liable under the ADA, so Mr. Reed is likewise im-

mune from this claim. Timmons v. United Parcel Serv., No. 21-1243-JWB, 2022 WL 2191794,

at *2 (D. Kan. June 16, 2022) (citing Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 744

(10th Cir. 1999)). Insofar as Mr. Barnes’s ADA claim against MESTA is not futile, any ADA

claim he purports to levy against either Mr. Davis or Mr. Reed would be.

No. 25-cv-117

The Court recognizes that this is Mr. Barnes’s first attempt to amend

this case since arriving in federal court. And district courts regularly give

plaintiffs a second chance to amend their complaints. See, e.g., Ruel v. First

Illinois Bancorp, Inc., No. 22-cv-228, 2023 WL 279737, at *3 (S.D. Ill. Jan. 18,

2023) (denying leave to amend only after a plaintiff had two opportunities to

state his claims); S. Jersey Gas Co. v. Mueller Co., No. CIV. 09-4194 RBK/JS,

2011 WL 5873028, at *9 (D.N.J. Nov. 18, 2011) (holding “since this is the

first time the merits of plaintiff’s CFA claim have been addressed, the Court

will grant plaintiff another opportunity to cure its pleading deficiencies”’);

Barron v. Martel, No. CIV S-10-1567 WBS, 2011 WL 4829300, at *2 (E.D.

Cal. Oct. 11, 2011) (granting a plaintiff two opportunities to amend, and no

more). If Mr. Barnes wishes to amend his complaint to include claims against

Mr. Davis and Mr. Reed, he may file a motion for leave to amend with a new

proposed amended complaint that cures the deficiencies identified in this

opinion. This motion for leave and second proposed amended complaint

must be made separately from the new complaint the Court directs him to file

with his claims against MESTA. Mr. Barnes is warned, however, that he will

only have one additional opportunity to plead claims against Mr. Davis and

Mr. Reed. If he pleads further, futile claims against them, the Court will deny

him further leave to amend with prejudice.

DATED this 2d day of March 2026.

Tl

JOHN D. RUSSELL

United States District Judge