Smith v. Snodgrass et al

Filing 21

OPINION AND ORDER by Magistrate Judge Kimberly E. West. (Re: 12 Amended MOTION to Dismiss ) (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RANDY SMITH,

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Plaintiff,
v.
DEBY SNODGRASS; KRIS MAREK;
BRYCE TODD; CLAUDIA CONNER;
GREGORY SNIDER; SCOTT LANGE;
LESSLEY PULLIAM; and
MICHAEL VAUGHT,
Defendants.

Case No. CIV-14-201-KEW

OPINION AND ORDER
This matter comes before the Court on Defendants’ Amended
Motion to Dismiss (Docket Entry #12).

Plaintiff initiated this

action on October 16, 2013 in the District Court in and for
Sequoyah County, Oklahoma.
Court on May 28, 2014.

Defendants removed the case to this

Key to a determination of the subject

Motion is a review of the specific allegations in the Petition.
Plaintiff alleges he was employed by the Oklahoma Tourism and
Recreation

Department

(“OTRD”)

as

a

park

ranger

classified employee under the Oklahoma Personnel Act.

and

was

a

Defendants

Snodgrass, Marek, Todd, Conner, Snider, Lange, and Pulliam are
“believed” to be present or former members of the OTRD “who
comprised the review board to consider termination proceedings
implemented against [Plaintiff].” Defendant Vaught participated in
an investigation into the incident which gave rise to Plaintiff’s
termination.

Defendant Lang is alleged to have been the human

resources director for OTRD.
Plaintiff states that on December 18, 2012, he “made a comment

in jest” to a fellow employee, asking if he shot a park manager who
was shot and killed earlier the same year.
the comment to persons at OTRD.

The employee reported

Plaintiff was instructed to

prepare a written report regarding the incident.

He admitted the

comment and expressed regret for causing any concern.
Plaintiff further alleges that on December 28, 2012, Defendant
Snyder

hand-delivered

a

pre-termination

letter

to

Plaintiff

advising him that OTRD would seek his termination at a hearing on
January 7, 2013 at 10:00 a.m.

Plaintiff states that he requested

an extension of the hearing to secure an attorney but no extension
was granted.
In the pre-termination letter, “presumably drafted by Deby
Snodgrass but signed by Claudia Conner”, Plaintiff was accused of
failing to exhibit remorse or provide an apology until he was
required to prepare the report.

The letter also stated Plaintiff

of bringing “disrespect to the Department, the Park Ranger Program
and you” and accused him of “conduct unbecoming a public employee.”
Plaintiff contends the disciplinary procedures at OTRD “including
the obligation to follow the progressive discipline procedures” as
were ostensibly used in other incidents.
The next paragraph forms the essence of Plaintiff’s claims,
according to the briefing on the current Motion. Plaintiff alleges
the following:
Based upon Smith's knowledge and experience with the
Department, the short hearing date, the Department's
denial of an extension of the hearing to accommodate
Smith being represented by counsel, the failure to adhere
to the progressive discipline procedure, and the grossly
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disproportionate discipline sought by the Department
relative to the circumstances, Smith believed that he
would not get a fair and impartial hearing on January 7,
2013, that the Department and the individual Defendants
had predetermined that Smith would be terminated, and
that the hearing was perfunctory in nature.
Plaintiff opted to resign “out of fear that termination would
result in greater financial consequences related to his pension and
benefits.” Plaintiff states that “Defendants” placed a form in his
personnel file that he resigned “in lieu of discharge” which he
believed indicated that his termination was predetermined and that
Defendants deprived him of his protected property interest in
employment

without

due

process

of

law

in

violation

of

the

Fourteenth Amendment as enforced through 42 U.S.C. § 1983.
Through the pending Motion, Defendant contends Plaintiff’s
claims failed 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).

Defendant also asserts that Plaintiff’s negligence claim

is not legally cognizable under Oklahoma law against an insurer.
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

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(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.
Rather, in Khalik, the Tenth Circuit recognized the United States
Supreme Court’s continued endorsement of Rule 8's “short and plain
statement” requirement in the case of Erickson v. Pardus, 551 U.S.
89 (2007) wherein the Supreme Court found “[s]pecific facts are not
necessary; the statement need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’”
Id. at 93.

It is against this backdrop that the sufficiency of

Plaintiff’s Complaint is evaluated.
Defendants first contend Plaintiff failed to show that he was
deprived of a constitutional right.
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In particular, Defendants

assert Plaintiff cannot demonstrate he was denied procedural due
process.

For his part, Plaintiff counters that he received a

biased due process hearing since his termination was predetermined
by Defendants.

“[I]n order for a hearing to afford an individual

due process, the hearing tribunal must be impartial. A tribunal is
not impartial if it is biased with respect to the factual issues to
Corstvet v. Boger, 757 F.2d 223 (10th

be decided at the hearing.”
Cir. 1985).

“[A] substantial showing of personal bias is required

to disqualify a hearing officer or tribunal in order to obtain a
ruling that the hearing is unfair.”

Roberts v. Morton, 549 F.2d

158, 164 (10th Cir. 1976), cert. denied, 434 U.S. 834, 98 S.Ct.
121, 54 L.Ed.2d 95 (1977). Tribunals enjoy a presumption that they
are not biased unless it is substantially demonstrated that they
are

actually

adjudicated.

biased

with

respect

to

factual

issues

being

See, e.g., Mangels v. Pena, 789 F.2d 836, 838 (10th

Cir. 1986).
Plaintiff has identified several irregularities in the due
process

hearing

which

he

contends

illustrates

bias

including

documentation showing Plaintiff resigned in lieu of termination at
the

hearing

and

alleged

discrepancies

in

the

pre-termination

process, including a denial of an extension for Plaintiff to retain
counsel.

This showing is sufficient to give rise to a plausible

claim for a constitutional deprivation of due process.

Many of

these allegations turn on factual findings which are better suited
for summary judgment after discovery and evidentiary development.
Defendants also contend Plaintiff failed to allege personal
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participation

by

all

of

the

named

individual

Defendants.

Plaintiff, in alleging bias upon the due process tribunal, has
implicated

all

individual

termination

hearing.

Defendants

Plaintiff

participating

stated

“.

.

.the

in

the

individual

Defendants had predetermined that Smith would be terminated, and
that the hearing was perfunctory in nature.”

These are sufficient

allegations of personal participation to withstand the scrutiny
required by a dismissal motion.
Defendants also assert that Plaintiff failed to exhaust his
administrative remedies before bringing this action by failing to
bring the various avenues of appeal provided by the Oklahoma
Personnel Act since Plaintiff was a state employee.

Exhaustion is

not a prerequisite to bringing a constitutional claim under 42
U.S.C. § 1983.

Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 501

(1982).
Defendants claim qualified immunity.
the

motion

to

dismiss

stage

subjects

Qualified immunity at
defendants

to

a

more

challenging standard of review than applies on summary judgment.
Peterson

v.

Jensen,

371

F.3d

1199,

1201

(10th

Cir.

2004).

Qualified immunity may be raised in a motion to dismiss since it is
intended “to give government officials a right, not merely to avoid
‘standing trial,’ but also to avoid the burdens of ‘such pretrial
matters as discovery. . . .’” Weise v. Casper, 507 F.3d 1260, 1269
(10th Cir. 2007) quoting Behrens v. Pelletier, 516 U.S. 299, 308
(1996).

When qualified immunity is raised in connection with a

motion to dismiss rather than a motion for summary judgment, “the
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court is asked to decide whether, assuming the allegations of the
complaint are true, the defendant[] [is] entitled to dismissal as
a matter of law.”
factual question.

Id. at 1270.

It is a legal rather than a

Id.

As this Court has found, a review of Plaintiff’s Petition
demonstrates, taking the facts as alleged as true, that Plaintiff
has stated a legal claim for which relief is available under §
1983.

This Court has determined that Plaintiff has satisfied the

base requirements on a dismissal motion to demonstrate a potential
deprivation of a constitutional right.

Certainly, as the case law

cited above demonstrates, the right to an unbiased hearing tribunal
to satisfy due process requirements was clearly established at the
time the alleged violative actions were taken by the review board
of which Defendants are members.

Thus, qualified immunity at this

stage of the proceedings is not appropriate.
IT IS THEREFORE ORDERED that Defendants’ Amended Motion to
Dismiss (Docket Entry #12) is hereby DENIED.
IT IS FURTHER ORDERED that a further telephonic Scheduling
Conference be set in this case by separate notice to counsel.
IT IS SO ORDERED this 1st day of October, 2015.

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