Wheeler v. The Bd. of Cnty. Comm'rs of the Cnty. of Leflore Cnty.

• Decision Date: 30 December 2022
• Docket Number: 22-cv-00115
• Parties: KIMBERLY WHEELER, Plaintiff, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LEFLORE COUNTY, LANCE SMITH, DERWIN GIST, and CRAIG OLIVE, Defendants.
• Court: U.S. District Court — Eastern District of Oklahoma

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KIMBERLY WHEELER, Plaintiff, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LEFLORE COUNTY, LANCE SMITH, DERWIN GIST, and CRAIG OLIVE, Defendants.

No. 22-cv-00115

United States District Court, E.D. Oklahoma

December 30, 2022

REPORT AND RECOMMENDATION

GERALD L. JACKSON UNITED STATES MAGISTRATE JUDGE

Now before the Court is the Defendants Smith, Gist and Olive's (“Individual Defendants”) Motion to Dismiss Plaintiff's Amended Complaint and Brief in Support (“Motion”) [Dkt. 25]. The Individual Defendants seek the dismissal of Plaintiff's Amended Complaint for failure to state a claim, asserting that Plaintiff fails to allege any facts related to her treatment or termination to support any of her alleged claims and that they have qualified immunity as to Plaintiff's First Amendment claim. Plaintiff responds that she alleges sufficient facts to meet the requisite pleading standard [Dkt. #27]. On October 14, 2022, the Court referred this case to the undersigned Magistrate Judge for all further proceedings in accordance with jurisdiction pursuant to 28 U.S.C. § 636 [Dkt. 34]. For the reasons set forth below the undersigned Magistrate Judge finds that the Individual Defendant's Motion to Dismiss [Dkt. 24] should be GRANTED.

I. BACKGROUND

Plaintiff is a female who was over the age of 40 at all times relevant to her claims. She originally filed this action against the Board of County Commissioners of LeFlore County (“Board”) and the three individual LeFlore County Commissioners (“Commissioners”) in their individual capacities, related to issues arising out of her employment with LeFlore County (“County”) [Dkt 2]. Plaintiff's allegations against the Individual Defendants focused on the discouragement of using and retaliation related to her medical leave rights, retaliation and termination for the exercise of her First Amendment rights, Open Meetings Act violation, and interference with her employment relationship and economic advantage. Id. After the Individual Defendants moved to dismiss the Complaint [Dkt. 18], Plaintiff filed her Amended Complaint, in which she removed the claim for the Open Meetings Act violation and added additional facts supporting her remaining claims. [Dkt. 22]. Specifically, Plaintiff's Amended Complaint asserts the following claims against the Individual Defendants: violation of the First Amendment of the U.S. Constitution; violation of the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq., for interfering with Plaintiff's right to take qualified leave and retaliation; tortious interference with an employment relationship under Oklahoma common law; and tortious interference with a prospective economic advantage under Oklahoma common law. See Dkt. 22.

Plaintiff was originally hired by the County in September 2012 as the Administrative Assistant in Emergency Management, where she reported to Michael Davidson, then the Director of Emergency Management for the County. Id. at ¶¶ 9-10 and 18. Plaintiff later became the County's Deputy Director of Emergency Management, which was a part-time position. Id. at ¶ 22. In January 2018, Plaintiff succeeded Mr. Davidson as Director of Emergency Management. Id. at ¶¶ 25 and 30. At the time of her November 30, 2020 termination, Plaintiff also held the titles of Safety Director, County Flood Plain Administrator and County Grant Writer, as well as being responsible for the County's 911 Addressing and Mapping and being over the Sign Shop. Id. at ¶ 12. Plaintiff was an at-will employee during her entire tenure with the County. Id. at ¶ 9. On November 30, 2020, Plaintiff was informed by County Commissioner Lance Smith that she was being terminated, but was not given a reason for her termination. Id. at ¶¶64 and 66.

II. MOTION TO DISMISS STANDARD

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 562. “While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10^th Cir. 2012). Thus, the appropriate inquiry is “whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10^th Cir. 2007) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)). For the purpose of making the dismissal determination, a court must accept all the well-pled allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10^th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10^th Cir. 2002). However, the court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee County Bd. of County Comm'rs, 263 F.3d 1151, 1154-55 (10^th Cir. 2001). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1006, 1109-10 (10^th Cir. 1991).

III. ANALYSIS

A. First Amendment Claim / Qualified Immunity of the Individual Defendants

Plaintiff asserts a claim under 42 U.S.C. § 1983 based on a violation of her right to free speech under the First Amendment.^[1]Specifically, Plaintiff alleges that she was terminated by the Individual Defendants because she reported her concerns that that the County was misusing public funds received under a CARES Act grant. See Dkt. 22 at ¶¶ 97-99. The Individual Defendants invoke the qualified immunity defense, arguing that no constitutional violation occurred that violated a clearly established right about which they would have known. Plaintiff contends the Individual Defendants are not entitled to qualified immunity because: (1) the Individual Defendants infringed upon her freedom of speech, and (2) the Individual Defendants knew or had reason to know that terminating her would violate her rights.

To address the Individual Defendants' claim of qualified immunity, the undersigned Magistrate Judge must first consider whether Plaintiff alleges a deprivation of an actual constitutional right. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Person v. Callahan, 555 U.S. 223 (2009). If such a violation is sufficiently alleged, then the undersigned Magistrate Judge must next determine whether “that right was clearly established at the time of the alleged violation.” Id.; see also Pearson, 555 U.S. at 232.

1. First Amendment Claim.

As a general matter, “[t]he First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.” Garcetti v. Ceballos, 547 U.S. 410, 418-19 (2006); see also Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). The five-step Garcetti/Pickering analysis applies when a public employer restricts the speech of a public employee. Garcetti, 547 U.S. at 418-19; Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10^th Cir. 2007).^[2]“First, the court must determine whether the employee speaks ‘pursuant to [her] official duties.'” Brammer-Hoelter, 492 F.3d at 1202 (quoting Garcetti, 547 U.S. at 421). “If the employee speaks pursuant to [her] official duties, then there is no constitutional protection because the restriction on speech ‘simply reflects the exercise of employer control over what the employer itself has commissioned or created.'” Id. (quoting Garcetti, 547 U.S. at 422). This is a question of law to be resolved by the Court. Id. at 1203.

The Tenth Circuit “ha[s] taken a broad view of the meaning of speech that is pursuant to an employee's official duties.” Rohrbough v. Univ. of Colo. Hosp Auth., 596 F.3d 741, 746 (10^th Cir. 2010) (quoting Thomas v. City of Blanchard, 548 F.3d 1317, 1324 (10^th Cir. 2008)). “[T]he Tenth Circuit has taken a case-by-case approach, looking both to the content of the speech, as well as the employee's chosen audience, to determine whether the speech is made pursuant to an employee's official duties.” Id. “In general, the court has focused on whether the speech activity ‘stemmed from and [was of] the type . . . that [the employee] was paid to do,' and has highlighted that the ultimate question in determining whether speech falls within an employee's official duties is ‘whether the employee speaks as a citizen or instead as a government employee.'” Id. (first quoting Green v. Bd. of Cty. Comm'rs, 472 F.3d 794, 801 (10^th Cir. 2007), then quoting Brammer-Hoelter, 492 F.3d at 1203)). Examples of protected government employee speech include “activity afforded citizens” such as communicating with newspapers or legislators, or discussing politics with a coworker. Id. (quoting Green, 472 F.3d at 800). In contrast, “a government employee's speech is not...