Alexander v. Wagoner Community Hospital et al

Filing 36

ORDER by Judge Ronald A. White denying defendants' motion to dismiss ( 15 Motion to Dismiss) and dismissing defendants Finch and Pofahal with prejudice (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MICKEY ALEXANDER,
Plaintiff,
v.
WAGONER COMMUNITY HOSPITAL,
et al.,
Defendants.

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Case No. CIV-16-137-RAW

ORDER
Before the court is the motion to dismiss of defendants. Plaintiff, a former employee
of Wagoner Community Hospital (WCH), alleged both federal claims under Title VII and
state law claims. In the complaint, plaintiff also named his direct supervisor Vanessa Finch
and a higher supervisor Barnetta Pofahal as defendants. In his response to the motion,
however, plaintiff dismisses Finch and Pofahal as defendants1 and dismisses all claims except
the federal claims “for sexual harassment and hostile work environment” (#20 at 4). Thus,
those claims will be addressed as asserted against WCH.
In reviewing a Rule 12(b)(6) motion, the court must accept as true all well-pleaded
factual allegations in the complaint and view those allegations in the light most favorable to
plaintiff. Nixon v. City and County of Denver, 784 F.3d 1364, 1368 (10 th Cir.2015). Plaintiff
is not required to establish a prima facie case in his complaint, but is only required to allege
enough factual allegations to set forth a plausible claim. Pueblo of Jemez v. United States,
790 F.3d 1143, 1172 (10th Cir.2015). “A claim has facial plausibility when the plaintiff

1

This was an appropriate decision, because relief granted under Title VII is against the employer, not
individual employees. See generally Cooks v. Industrial Piping Specialists, Inc., 2017 WL 253160, *2
(N.D.Okla.2017). Plaintiff does not specify, but the court finds dismissal of the other defendants should be
with prejudice.

pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Analysis is somewhat hampered because both plaintiff’s complaint and the present
briefing are not perfectly clear. As stated, plaintiff asserts at one point in his response he is
proceeding on claims of (1) sexual harassment and (2) hostile work environment. There is
no cognizable claim for sexual harassment per se, however. Under Title VII, harassment is
actionable only when it is sufficiently severe or pervasive such that a reasonable person
would find the environment to be hostile or abusive and the employee in fact perceived it to
be so. Debord v. Mercy Health System of Kansas, Inc., 737 F.3d 642, 650 (10 th Cir.2013).
Plaintiff alleges a hostile work environment claim, but also (as is clear from the
complaint and other statements in his response to the present motion) contends he was
discharged in violation of Title VII. It is not uncommon for a plaintiff to allege that a hostile
work environment culminated in a constructive discharge.2 Plaintiff, however, explicitly
disavows such a claim, stating “I did not resign.” (Complaint at ¶148). Defendant contends
that plaintiff did, in fact, quit (#21 at 4 n.2). Even if defendant is correct, plaintiff might still
have a claim for constructive discharge, but (as stated) plaintiff’s allegation in the complaint
is of actual discharge.
Plaintiff is an African-American male (Complaint, ¶22). His wife is white (¶38). His
supervisor Finch is African-American (¶27). Viewing the allegations in the light most
favorable to plaintiff, it appears the complaint alleges that the hostile work environment and

2

A constructive discharge occurs when an employer unlawfully creates working conditions so
intolerable that a reasonable person in the employee’s position would feel forced to resign. Lockheed Martin
Corp. v. Admin. Review Bd., 717 F.3d 1121, 1133 (10th Cir.2013). An actual discharge occurs when the
employer uses language or engages in conduct that would logically lead a prudent person to believe his
tenure had been terminated. Fischer v. Forestwood Co., Inc., 525 F.3d 972, 979 (10th Cir.2008). An actual
discharge does not occur, however, when the employee chooses to resign rather than work under undesirable
conditions. Id. at 980.

2

discharge were motivated by both race and sex, i.e., two prohibited bases under Title VII.
That is to say, some of the comments directed at plaintiff (the allegations considered true for
purposes of a Rule 12(b)(6) motion) are alleged to stem from either sexual attraction of the
supervisor to plaintiff or from resentment that plaintiff was married to a white woman.
As to the claim of hostile work environment, plaintiff must allege more than a few
isolated incidents; instead, there must be a steady barrage of opprobrious comments. See
Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005). The court finds plaintiff has
adequately stated a plausible claim which survives under Rule 12(b)(6). As for the claim of
wrongful discharge in violation of 42 U.S.C. §2000e-2(a)(1), defendant takes the position
that plaintiff is merely using a label or conclusion in calling his termination a “tangible
adverse employment action.” (#21 at 2).3 Rather, defendant argues, plaintiff must specify
who terminated plaintiff and what was said. The court disagrees. “Rule 8(a)(2) still lives.
Under Rule 8, specific 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.” Burnett v. Mortgage
Elec. Registration Sys., Inc., 706 F.3d 1231, 1235-36 (10th Cir.2013). Plaintiff’s complaint
satisfies this standard.4
It is the order of the court that the motion to dismiss (#15) is hereby denied as to
defendant Wagoner Community Hospital. Defendants Finch and Pofahal, however, are
dismissed with prejudice.

3
The present pleading standard is “a middle ground between heightened fact pleading, which is
expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic
recitation of the elements of a cause of action, which the Court stated would not do.” Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir.2012).
4

The complaint alleges plaintiff “was terminated by WCH” (¶33) and through joint conduct of
Pofahal and Finch (¶¶146-149). The testing of these allegations is, of course, for the discovery process.

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ORDERED THIS 2nd DAY OF MARCH, 2017.

Dated this 2nd day of March, 2017.
J4h4i0

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