Vesper v. Indep. Sch. Dist. No. 89 of Okla. City
| Decision Date | 20 November 2018 |
| Docket Number | Case No. CIV-17-1165-G |
| Parties | JENNIFER VESPER, Plaintiff, v. INDEPENDENT SCHOOL DISTRICT NO. 89 OF OKLAHOMA CITY et al., Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
Now before the Court is the motion of Defendant Independent School District No. 89 of Oklahoma City ("District"),1 and adopted by Defendants Aurora Lora, Eduardo Sindaco, and Janis Perrault (the "Individual Defendants"),2 to dismiss certain federal law causes of action asserted by Plaintiff Jennifer Vesper in her Third Amended Complaint. See Def.'s Mot. (Doc. No. 28); Third Am. Compl. (Doc. No. 27). Plaintiff has respondedin opposition (Doc. No. 33), and the District—joined by Lora, Sindaco, and Perrault—has replied (Doc. No. 34, Doc. No. 35 at 6-7). The motion is granted in part and denied in part.
Defendants assert that Counts I through VI of the Third Amended Complaint fail to state a claim upon which relief may be granted and, therefore, those claims should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.3
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007), the Supreme Court held that, pursuant to Federal Rule of Civil Procedure 8, a complaint need not contain "detailed factual allegations," id. at 555 (citations omitted), but it must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. That is, the federal pleading rules impose a "burden . . . on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that . . . she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556). The allegations in the operative complaint must "be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief [against the defendants]." Id. (footnote omitted).
The Court's task at this stage, therefore, is to determine whether "there are well-pleaded factual allegations" in the challenged pleading and, if so, "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroftv. Iqbal, 556 U.S. 662, 679 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the defendant[s] [are] . . . liable for the misconduct alleged." Id. at 678 (citation omitted). As the Tenth Circuit has recognized, Twombly and Iqbal do not change Rule 8's fair notice requirement4 or Rule 12(b)(6)'s requirement that a complaint state a legally recognized claim for relief; these decisions only add the "requirement of plausibility [that] serves . . . to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success." Robbins, 519 F.3d at 1248.
This "requirement of plausibility" therefore obligates Plaintiff to set forth in the Third Amended Complaint "'either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.'" Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (). And, while "[t]he nature and specificity of the allegations required to state a plausible claim will vary based on context," Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (citations omitted), neither "'naked assertion[s]' devoid of 'further factual enhancement,'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557), nor "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [will] . . . suffice," id. (citation omitted). If a pleading's factual allegations "are 'merely consistent with' a defendant's liability," id. at 678 (quotation omitted), or "do notpermit the [C]ourt to infer more than the mere possibility of misconduct," id. at 679, the plaintiff "has not 'show[n]' . . . 'that [she] . . . is entitled to relief,'" id. (quotation omitted).
Applying the foregoing standards to Counts I through VI of the Third Amended Complaint, the Court has construed all well-pled allegations in Plaintiff's favor to determine whether she has met her "obligation to provide the 'grounds' of [her] . . . 'entitle[ment] to relief.'" Twombly, 550 U.S. at 555 (citation omitted). And while mindful that Rule 12(b)(6) "does not require that [Plaintiff] establish a prima facie case," the Court has examined the essential "elements of each alleged cause of action" in order to better "determine whether [she] has set forth a plausible claim." Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (citations omitted); see also Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1236 (10th Cir. 2013) ().
During the second semester of the 2015-2016 school year, the "District5 announced that due to budget cuts [it] intended to institute a Reduction in Force," referred to as the"RIF," through which it would "reduce the number of administrator positions, including assistant principal positions, to meet an anticipated . . . shortfall in state funding." Third Am. Compl. ¶ 37, ¶ 38. Defendant Perrault (the District's Director of Human Services) and Brandon Carey (the District's General Counsel) were tasked with "developing a rubric and process for accomplishing the RIF," referred to as the "RIF Procedure." Id. ¶ 39; see also id. ¶ 5. The RIF Procedure they developed had two steps: (1) each principal would rate his or her assistant principal using four criteria, referred to as the "rubric," see id. ¶ 44(i);6 and (2) the District would then "accomplish[ ] a rack and stack of the principal[s'] scores to identify [the assistant principals] who should be eliminated." Id. ¶ 44(ii).
The RIF Procedure was presented to the Oklahoma City Building Administrators ("OCBA"), the entity that is "the exclusive bargaining agent on behalf of all principals[ ] [and] assistant principals . . . for the purposes of collective negotiations with respect to wages, hours of work, and other terms and conditions of employment." Third Am. Compl.Ex. 1 (Doc. No. 27-1) at 3. OCBA agreed to the procedure as presented, and on April 8, 2016, the District sent the rubric to principals for completion. See Third Am. Compl. ¶ 47.
Specifically, the District sent a rubric to Shelly Deas, then principal at Hillcrest Elementary School ("Hillcrest"), for her to evaluate Plaintiff Vesper, Hillcrest's assistant principal. A portion of that rubric—Plaintiff's experience and length of service—had already been completed, but the reported data was incorrect because it "did not include [Plaintiff's] prior experience as a . . . [p]rincipal." Id. ¶ 50. Deas completed the rubric and "scored . . . Vesper a '10.'" Id. ¶ 52. She then submitted the completed rubric electronically to the District. See id. Ex. 5 (Doc. No. 27-5).
Defendant Sindaco was an Instructional Leadership Director ("ILD") and, in that position, supervised administrators including those at Hillcrest. Upon receiving the score for Plaintiff, Defendant Sindaco unsuccessfully "attempted to pressure . . . Deas to lower [Plaintiff's] score . . . so that she would be identified for non-retention." Third Am. Compl. ¶ 57. Defendant Sindaco met with Defendant Perrault and Laura Holmes, outside counsel for the District, to discuss Plaintiff. Defendant Sindaco requested that "Holmes[ ] . . . physically 'pen and ink' [Plaintiff's] rubric." Id. ¶ 61. Holmes changed Plaintiff's score from "10" to "7." See id. ¶ 62; id. Ex. 6 (Doc. No. 27-6).7
"[Plaintiff] was the only administrator out of seventy-nine . . . assistant principals [who] had her RIF rubric score altered." Third Am. Compl. ¶ 70 (emphasis omitted). The lowered score "made [her] subject to termination." Id.
Despite Plaintiff's request, the District "declined to reinstate [her] initial score, or . . . describe the basis or rationale for either the change in [the RIF] [P]rocedure or the lowering of [her] score." Id. ¶ 85.
In a letter dated April 14, 2016, Perrault notified the members of the District's Board of Education (the "Board") about the RIF Procedure:
In order to select persons to be non-renewed, the [District] developed a rubric to be completed by the building principals. This rubric required the building principals to rate the assistant principals as to value, skill set, length of time in the position and length of time with the District. Each element was 25% of the total. The [District] then determined those assistant principals with the lowest scores. . . .
Id. ¶ 65 (emphasis omitted); see id. Ex. 7 (Doc. No. 27-7) at 2.
The District had "set up a hearing regimen that required each [affected] employee to participate in two . . . Board hearings: one that dealt with the RIF requirement itself, and [a] second[ ] [that] deal[t] with the individual employee." Third Am. Compl. ¶ 104. At the first hearing, held on June 7, 2016, the District "attempted to substitute" a letter by Perrault dated May 26, 2016, for Perrault's April 14, 2016 letter. Id. ¶ 109. At the hearing, it was stated "that the only change from the April letter to the May letter was to drop a couple of names because [the District had] determined that [it had] cut too deep." Id. ¶105.8 Perrault stated at the hearing "that there was nothing [in either letter to the Board] that identified any role for ILDs in the RIF process." Id. ¶ 107 (citation omitted).
The second hearing, after being postponed, was held on June 26, 2016. See id. ¶ 134. On that date, the Board orally advised Plaintiff "that it would not uphold the . . . District['s] . . . recommendation of termination . . . because the RIF [Procedure had been] applied differently in her case." Id. ¶ 135.9
On August 23, 2016, Plaintiff...
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