Kyser v. D.J.F. Services, Inc.

Filing 38

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 29 Motion for Judgment on the Pleadings. See Order for specifics. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
EDWON KYSER,
Plaintiff,
v.
D.J.F. SERVICES, INC.,
a foreign for profit
corporation,
Defendant.

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Case No. CIV-16-542-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Judgment on the Pleadings (Docket Entry #29).

Plaintiff initiated

this action on December 8, 2016, seeking recovery under Title VII
of the Civil Rights Act and the Oklahoma Anti-Discrimination Act
(“OADA”) based upon the alleged sexual harassment which he contends
occurred

while

he

was

employed

by

Defendant.

Specifically,

Plaintiff’s Complaint included the following claims:
•

First Claim - Sexual Harassment in violation of Title VII;

•

Second Claim - Sexual harassment in violation of the OADA;

•

Third Claim - Retaliation in violation of Title VII; and

•

Fourth Claim - Negligent supervision.
Plaintiff included a claim for punitive damages among the

monetary recovery sought for these alleged violations.
Defendant filed the subject request for judgment on the
pleadings, asserting that the OADA by its terms represents the
exclusive remedy under Oklahoma law for employment discrimination.
Okla. Stat. tit. 25 §§ 1101(A), 1350(A).

As a result, Defendant

seeks judgment on the pleadings in its favor for the claims

asserted by Plaintiff for negligent supervision, any Burk related
claim, and any damages not specified in the OADA.
Plaintiff responds that he will not seek relief under his
stated Fourth Claim - Negligent supervision, will not seek damages
under his Second Claim - Sexual harassment in violation of the OADA
which are not specified by the statute, and will not pursue a Burk
claim.
Defendant bases its motion in Fed. R. Civ. P. 12(c) for
judgment on the pleadings.

In assessing a request for judgment on

the pleadings, the court is required to “accept all facts pleaded
by the non-moving party as true and grant all reasonable inferences
from the pleadings” in that party's favor. Sanders v. Mountain
America Federal Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012)
quoting Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239,
1244 (10th Cir. 2006)(negative history reported on other point of
law).

Judgment on the pleadings is appropriate only when “the

moving party has clearly established that no material issue of fact
remains to be resolved and the party is entitled to judgment as a
matter of law.”

Id. (quotations omitted).

Generally, “a motion for judgment on the pleadings under Rule
12(c) is treated as a motion to dismiss under Rule 12(b)(6).”
Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d
1138, 1160 (10th Cir. 2000).

The distinction is drawn only in the

timing of the filing - a motion for judgment on the pleadings is
filed if an answer has already been filed while a motion to dismiss
is filed before a defendant has answered.
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Fed. R. Civ. P. 12(c).

As

a

result,

Plaintiff’s

Amended

Complaint

must

meet

the

plausibility standard set forth 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).

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 (2009) quoting Bell
Atlantic, 550 U.S. at 570.
Given Plaintiff’s admission in his response, his Fourth Claim,
assertion of damages outside of the OADA, and a Burk claim, to the
extent one was asserted, are not plausible and judgment should be
entered in favor of Defendant.
IT IS THEREFORE ORDERED that Defendant’s Motion for Judgment
on the Pleadings (Docket Entry #29) is hereby GRANTED. Plaintiff’s
Fourth Claim - Negligent supervision, claim for damages outside of
backpay and liquidated damages authorized by the OADA, and Burk
claim, to the extent one was asserted, are hereby DISMISSED WITH
PREJUDICE.

An

appropriate

final

judgment

will

be

entered

reflecting this ruling at the conclusion of this case.
IT IS SO ORDERED this 31st day of October, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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