Wheeler v. The Bd. of Cnty. Comm'rs of the Cnty. of Le Flore Cnty.

• Decision Date: 30 December 2022
• Docket Number: CIV-22-115-RAW-GLJ
• Parties: KIMBERLY WHEELER, Plaintiff, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LE FLORE 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 LE FLORE COUNTY, LANCE SMITH, DERWIN GIST, and CRAIG OLIVE, Defendants.

No. CIV-22-115-RAW-GLJ

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 Defendant Board of County Commissioners of the County of LeFlore County's (“Board”) Motion to Dismiss Plaintiff's Amended Complaint and Brief in Support (“Motion”) [Dkt. 24]. The Board seeks the dismissal of Plaintiff's Amended Complaint for failure to state a claim, asserting that Plaintiff fails to allege any facts related to her termination to support any of her many alleged claims. Plaintiff responds that she alleges sufficient facts to meet the requisite pleading standard [Dkt. #26]. 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 Defendant Board's Motion to Dismiss [Dkt. 24] should be GRANTED in part and DENIED in part.

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 her former employer and three individual LeFlore County Commissioners in their individual capacities related to her employment with LeFlore County (“County”) [Dkt 2]. Plaintiff's allegations focus on discriminatory treatment she experienced from the Commissioners and other County employees, the Board's failure to adequately address her complaints about such treatment, the failure to pay her certain wages or benefits she was due upon her termination, violation of the Open Meetings Act, and retaliation and termination for the exercise of her First Amendment and whistle-blower rights. Id. After the Board moved to dismiss the Complaint [Dkt. 17], Plaintiff filed her Amended Complaint, in which she removed a claim for a violation of the Open Meetings Act and added additional facts supporting her remaining claims. [Dkt. 22]. Specifically, Plaintiff's Amended Complaint asserts the following claims against the Board: violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 20003, et seq., for gender/sex discrimination, wage discrimination, hostile work environment, and retaliation; violation of the Equal Pay Act, 29 U.S.C. § 206; violation of the First Amendment of the U.S. Constitution; violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq.; violation of the American with Disabilities Act and the American With Disabilities Act Amendments Act, 42 U.S.C. §§ 12101, et seq., for association discrimination related to her disabled daughter; violation of the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq., for interfering with Plaintiff's rights to take qualified leave and retaliation; violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., for failure to pay Plaintiff all accrued unused compensatory time upon her termination; failure to pay earned and accumulated vacation leave in violation of 40 O.S. § 165.3; breach of implied contract for failure to pay all earned and accumulated vacation leave and comp time; and a Burk tort^[1]for wrongful termination and retaliation against Plaintiff as a whistle-blower. [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 (10^th 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. Title VII Claims

Plaintiff asserts Title VII claims of sex discrimination, wage discrimination, hostile work environment, and retaliation. [Dkt. # 22]. Under Title VII, it is unlawful “to discharge an individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove a Title VII violation through either direct or circumstantial evidence. See Furr v. AT & T Techs., Inc., 824 F.2d 1537, 1548-49 (10^th Cir. 1987).

1. Gender/Sex Discrimination.

To state a prima facie case of discrimination under Title VII, a plaintiff must allege: (1) that the victim belongs to a protected class; (2) that the victim suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination. Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10^th Cir. 2012); EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10^th Cir. 2007). Plaintiff sufficiently alleges and the Board does not dispute that she belongs to a protected class and she suffered an adverse employment action when she was terminated.

The Board asserts that Plaintiff does not allege that the challenged action took place under circumstances giving rise to an inference of discrimination. Plaintiff alleges she was discriminated against based on her sex because she was given less favorable working conditions than her male predecessor and her male successor, she was paid less than her male successor and she was subjected to gender-based remarks by several male co-workers. In particular, Plaintiff alleges that: when she applied for the Director of Emergency Management position (“Director”), Board Commissioner Ceb Scott asked Commissioner Derwin Gist if “his guy” had put in an application; after being hired as Director, Plaintiff had to fill out time sheets showing a 40-hour work week even though her predecessor did not have to submit time sheets; she had to be in the office from 8:00 a.m. until 4:30 p.m. Monday through Friday and on call 24 hours a day; she could not leave the office for lunch unless there was someone who could fill in for her; she was provided a county owned truck as her work vehicle, but it was in poor condition and frequently broke down; in the spring of 2019, then Sheriff Rob Seale told Plaintiff she needed to get rid of her boyfriend and later in 2019 that if she and another female employee got rid of their boyfriends he would take them out for a steak dinner; after rebuffing Sheriff Seale's “advances” he interfered with Plaintiff's performance of her job by instructing dispatchers not to tell Plaintiff of emergency events; in or around January 2020, acting Sheriff Donnie Edwards made several comments in Plaintiff's presence regarding the County “letting women run things”; and acting Sheriff Edwards attempted to impede Plaintiff's ability to perform her job by telling dispatchers they had to have his permission before calling Plaintiff and...