Everett v. McHugh

Filing 35

OPINION AND ORDER by Judge Frank H. Seay : denying (Dkt No 29 ) Motion to Dismiss (neh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

LISA EVERETT,

)
)
Plaintiff,
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)
vs.
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)
PATRICK MURPHY, SECRETARY )
OF THE ARMY,
)
)
Defendant. )

Case No. CIV-15-372-FHS

OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to Dismiss (Dkt. No.
29) in which Defendant argues Plaintiff’s claims under the Oklahoma AntiDiscrimination Act (“OADA”), OKLA. STAT. tit. 25, §§ 1101 et seq and the Americans
with Disabilities Act (“ADA”), 42 U.S. C. § 12101 et seq, should be dismissed for lack of
subject matter jurisdiction because those claims have been preempted by the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, and/or by Title VII of the 1964
Civil Rights Act, as amended, 42 U.S.C. §2000 et seq. Defendant also asserts Plaintiff’s
OADA claim is barred by sovereign immunity. Defendant further asserts Plaintiff’s
claims under Title VII and the Rehabilitation Act should be dismissed with prejudice as
time-barred. Finally, Defendant contends, even if Plaintiff’s Title VII claims were timely
filed in federal court, she has failed to state a claim upon which relief can be granted, and
therefore, this Court should dismiss her claims pursuant to Fed.R.Civ.P. 12(b)(6).

On May 5, 2016, Plaintiff filed a response in which Plaintiff states she is
“agree[ing] to withdraw her claims only to the extent that they are brought under the
OADA and ADA. Plaintiff preserves her disability claim under the Rehabilation Act and
gender claim under Title VII.” Dkt. No. 32, at p. 2. Plaintiff argues her claim was timely
filed and that she has alleged and pled a prima facie case of gender discrimination.
To avoid dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a
complaint must present factual allegations, assumed to be true, that “raise a right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The complaint must contain “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570. A court must accept all the well-pleaded allegations of the complaint
as true, even if doubtful in fact, and must construe the allegations in the light most
favorable to the plaintiff. Id. at 555. Nonetheless, “when the allegations in a complaint,
however true, could not raise a [plausible] claim of entitlement to relief,” the cause of
action should be dismissed. Id. at 558. A dismissal under rule 12(b)(6) is proper where
there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts
alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d
696, 699 (9th Cir. 1990).
Defendant argues Plaintiff’s Title VII and ADA claims are subject to dismissal
because Plaintiff has not pled when she actually received the Final Agency Decision
(FAD). There is no dispute that a federal employee must file suit within ninety days after
receiving a final decision form either his employing agency or from the EEOC.
Plaintiff’s Complaint alleges she “requested a final agency decision (“FAD”) and is
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timely filing her civil suit within ninety (90) days of that FAD.” Dkt. # 3, at ¶ 5. While
the Complaint does not specify the actual date of receipt of the FAD, this Court finds the
statement sufficient to overcome defendant’s motion to dismiss.

If there is factual

evidence to establish the suit was not timely filed, defendant can submit such evidence in
a motion for summary judgment.
Next, defendant argues the Complaint should be dismissed because Plaintiff has
failed to establish a prima facie case of discrimination in violation of Title VII. In
particular, defendant argues plaintiff has not established that she suffered “an adverse
employment action.” Plaintiff has pled, however, that her job duties were altered and that
she was not allowed to make informed decisions regarding personnel certification and
qualification decisions, thereby preventing her from meeting or exceeding the
performance goals on her evaluation. This Court finds Plaintiff’s Complaint meets the
low threshold of a de minimis showing required for a prima facie case of gender
discrimination. Plotke v. White, 405 F.3d 1092, 1102 (10th Cir. 2005). Therefore, the
Court denies Defendant’s Motion to Dismiss (Dkt. No. 29).
It is so ordered on this 26th day of September, 2016.

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