Thompson v. The Hous. Auth. of the Cherokee Nation

Decision Date03 January 2023
Docket NumberCIV-22-173-JAR
CourtU.S. District Court — Eastern District of Oklahoma


This matter comes before the Court on Defendants' Motion to Dismiss Petition (Docket Entry #6). The parties presented oral argument on the Motion at a hearing before the Court.

Plaintiff commenced this action in the District Court in and for Cherokee County, Oklahoma on November 1, 2021. He alleges that he was an employee of Defendant Housing Authority of the Cherokee Nation (HACN) for twenty years prior to his termination. Plaintiff further alleges that on January 30, 2020, a committee of the Cherokee Nation Tribal Council held a meeting to discuss a potential amendment of the Cherokee Nation's implementation of the Indian Child Welfare Act. The Petition states that Plaintiff's employment with the HACN “required him to travel from site to site throughout the day, to inspect work on residences” and “therefore [Plaintiff] did not have a fixed jobsite or specific schedule for his lunch break.”

Plaintiff states that his “schedule allowed for him to attend the meeting of the committee of the Cherokee Nation ....” on January 30, 2020 during his lunch break. After several members of the Tribal Council voted to table action on the amendments indefinitely, Plaintiff states that he posted to social media the next morning concerning the meeting. He alleges that he “expressed his frustration” at the Tribal Council's actions which resulted in Tribal Council members receiving “significant public criticism.”

Plaintiff states in his Petition that [w]ithin hours of him posting to social media”, Defendants Gary Cooper, the Executive Director of HACN (Cooper) and Dwight Tyner, the Director of HACN (Tyner) “began conspiring to retaliate against Plaintiff for his social media posts.” Cooper and Tyner allegedly demanded that Plaintiff account for his whereabouts and work status during the Tribal Council meeting. Plaintiff was placed on administrative leave on February 5, 2020 to allow further investigation by HACN. On February 7, 2020, Plaintiff was terminated from his employment with HACN effective immediately, allegedly for violating policy.

Plaintiff alleges that he was actually terminated “for engaging in Constitutionally protected speech in his personal capacity by speaking publicly about matters of great public concern involving action taken by certain members of the Tribal Council of the Cherokee Nation....” He alleges that the policy violations cited for his termination “were simply pretext for this retaliation.”

Plaintiff asserts eight claims in this action -

Count One: Burk Tort against HACN - alleging the wrongful termination for engaging in Constitutionally protected speech of public concern;
Count Two: Constitutional Tort against HACN - alleging that HACN breached its duty to Plaintiff established under the Oklahoma and United States Constitutions by placing him on administrative leave and terminating him for engaging in protected speech under the pretext of having violated policy;
Count Three: 42 U.S.C. § 1983 against HACN - alleging his speech was protected by the First and Fourteenth Amendments to the United States Constitution as dealing with a matter of public concern;
Count Four: 42 U.S.C. § 1983 against Cooper and Tyner -alleging the same bases as under Count Three;
Count Five: Burk Tort against Cooper and Tyner - alleging the same bases as Count One. Plaintiff pleads this claim in the alternative should it be determined Cooper and Tyner acted outside the scope of their employment;
Count Six: Constitutional Tort against Cooper and Tyner -alleging the same bases as Count Two. Plaintiff pleads this claim in the alternative should it be determined Cooper and Tyner acted outside the scope of their employment;
Count Seven: Intentional Infliction of Emotional Distress against Cooper and Tyner - alleging that these Defendants' “actions in conspiring to and retaliating against Plaintiff . . . were so extreme and outrageous as to go beyond all possible bounds of decency and were atrocious and utterly intolerable in a civilized society.”
Count Eight: Civil Conspiracy against Cooper and Tyner -alleging these Defendants conspired with one another to retaliate against Plaintiff for engaging in Constitutionally protected activities.
Service Upon Defendant Cooper

Defendant Cooper contends that he was not served in a timely manner. As noted, this action was filed on November 1, 2021 which required under Oklahoma law that Defendant Cooper be served within 180 days or by May 1, 2022. Okla. Stat. tit. 12 § 2004(I). On April 20, 2022, Plaintiff mailed the summons and Petition to Defendant Cooper, return receipt and certified mail restricted delivery. See Motion to Remand (Docket Entry #12), Exh. No. 4. On April 25, 2022, the summons and Petition was delivered. The signature on the return receipt is illegible and the address for the recipient appears to read “HUD.” Id.

Plaintiff clearly complied with the service statue under Oklahoma law. Okla. Stat. tit. 12 § 2004(C)(2)(b). It appears that the United States Post Office failed in its mission to deliver the summons and Petition as directed. However, even if service was not accomplished within the 180 days provided by Oklahoma law, federal law provided Plaintiff with an additional 120 days by which to accomplish service after removal. Fed.R.Civ.P. 4(m); Wallace v. Microsoft Corp., 596 F.3d 703, 707 (10th Cir. 2010). At the hearing on this matter, Cooper's counsel stated that he was authorized to accept service for Cooper. The spirit and letter of the service statutes have been met.

Counts One and Two - Tort Claims Against HACN

HACN contends that Plaintiff failed to properly allege compliance with the notice provisions of the Oklahoma Governmental Tort Claims Act was accomplished, citing Simington v Parker, 250 P.3d 351 (Okla. Civ. Ct. App. 2011). Plaintiff states in the Petition that Plaintiff Marcus Thompson made timely demand on Defendant HACN pursuant to the Oklahoma Governmental Tort Claims Act, 51 O.S. § 151, et seq. “Compliance with the statutory notice provisions of the GTCA is a jurisdictional requirement to be completed prior to the filing of any pleadings.” Stout v. Cleveland Cnty. Sheriff's Dep't, 419 P.3d 382, 389 (Okla. Ct. Civ. App. 2018). Implicit within the statement that Plaintiff made “timely demand” is that notice was provided to HACN. An action against a political subdivision must be “commenced within one hundred eighty (180) days after denial of the claim.” Okla. Stat. tit. 51 § 157(B). Plaintiff alleges in the Petition that the claim was deemed denied by HACN's failure to respond. While not a model of clarity, this Court finds these statements are sufficient to satisfy the notice provisions of the Oklahoma Governmental Tort Claims Act.[1]

Counts Five, Six, Seven, and Eight - State Claims Against Cooper and Tyner

Cooper and Tyner contend that the other state law claims must be dismissed because the Oklahoma Governmental Tort Claims Act precludes claims against employees of a political subdivision of the State of Oklahoma while acting within the scope of their authority. Okla. Stat. tit. 51 §§ 153(C), (D), and 152(7). While Plaintiff has expressly plead these claims in the alternative should it be determined that Cooper and Tyner were acting outside the scope of their authority, they must be authorized by case authority against individuals. Alternative pleading is permitted but the claim asserted must be legally cognizable. This Court will address the issue of whether the tort claims may be asserted against individuals in the order raised in the Motion.

Counts Three and Four - Federal Constitutional Claims Against HACN, Cooper, and Tyner

Defendants assert that Plaintiff has failed to provide sufficient factual detail in the Petition on the claims brought pursuant to 42 U.S.C. § 1983. A plaintiff's claims are required to meet the plausibility standard enunciated in United States Supreme Court cases of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Clearly, Bell Atlantic changed the legal analysis applicable to dismissal motions filed under Fed.R.Civ.P. 12(b)(6), creating a “refined standard” on such motions. Khalik v. United Airlines, 671 F.3d 1188, 1191 (10th Cir. 2012)(citation omitted). Bell Atlantic stands for the summarized proposition that [t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.' Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) quoting Bell Atlantic, 550 U.S. at 570. The Supreme Court did not parse words when it stated in relation to the previous standard that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief” is “best forgotten as an incomplete, negative gloss on an accepted pleading standard.” Bell Atlantic, 550 U.S. at 546.

The Tenth Circuit has interpreted the plausibility standard as referring “to the scope of the allegations in the complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.' Robbins v Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). The Bell Atlantic case, however, did not intend the end of the more lenient pleading requirements of Fed.R.Civ.P. 8(a)(2). Khalik, 671 F.3d at 1191...

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