Webb v. Eufaula, City of et al

Filing 28

OPINION AND ORDER by Magistrate Judge Steven P. Shreder GRANTING IN PART and DENYING IN PART 19 Motion to Dismiss Case for Failure to State a Claim by All Defendants. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
CANDY N. WEBB,
Plaintiff,
v.
CITY OF EUFAULA, a political
subdivision and municipality; DON
MURRAY; and SELINA
JAYNE-DORNAN.
Defendants.

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Case No. CIV-18-01-SPS

OPINION AND ORDER
This matter comes before the Court on motion by Defendants City of Eufaula, Don
Murry, and Selina Jayne-Dornan (collectively, “Defendants”) for dismissal of the
Plaintiff’s First Amended Complaint under Fed. R. Civ. P. 12. For the reasons set forth
below, the Court finds that the Defendant’s Motion to Dismiss Plaintiff’s First Amended
Complaint [Docket No. 19] should be hereby GRANTED IN PART and DENIED IN
PART.
BACKGROUND
The Plaintiff filed this case in state court in McIntosh County, Case No. CJ-17-46,
on June 26, 2017, as to the above-named Defendants. The Defendants then removed the
case to this Court on January 3, 2018. Plaintiff’s state court Petition set out three state law
claims – malicious interference with a contractual relationship, as to Defendants Murray
and Jayne-Dornan; intentional infliction of emotional distress, as to Defendants Murray

and Jayne-Dornan; and breach of contract, as to the City of Eufaula – as well as a federal
claim of gender discrimination under 42 U.S.C. §1983, as to Defendant Murray. The
Defendants moved to dismiss the Petition, see Docket No. 4, and this Court granted the
motion and dismissed for lack of subject matter jurisdiction but granted Plaintiff fourteen
days to file an amended complaint. See Docket No. 17. The Plaintiff timely filed her First
Amended Complaint on August 8, 2018, raising the same four claims, and Defendants have
again moved for dismissal, which Plaintiffs have again opposed. 1 See Docket Nos. 18-19.
ANALYSIS
The Defendants assert a number of arguments in support of dismissal: (i) that the
Plaintiff has failed to state a claim for gender discrimination, (ii) that her tort claims are
barred by the statute of limitations in the Oklahoma Governmental Tort Claims Act,
(iii) that she has failed to state a claim as to intentional infliction of emotional distress,
(iv) that her claims related to malicious interference with a contractual relationship and
breach of contract fail because there was no contract between the Plaintiff and the City of
Eufaula, and (v) that her claims are barred by the workers’ compensation exclusivity
provision. The Court will address each argument in turn.

1

The Plaintiff’s response to the Defendants’ Motion to Dismiss Plaintiff’s First Amended
Complaint stated that she was relying on the response and objection filed in response to
Defendants’ Motion to Dismiss Plaintiff’s Petition and Brief in Support. Thus, all references to
arguments made by the Plaintiff refer to those made in Docket No. 8. The Court notes, however,
that in filing the original response the Plaintiff failed to comply with this Court’s Loc. Civ. R.
7.1(c) (“Briefs exceeding fifteen (15) pages in length shall be accompanied by an indexed table of
contents showing headings or subheadings and an indexed table of statutes, rules, ordinances,
cases, and other authorities cited.”), regarding length and format of brief, as well as appearing at
times to fail to comply with Loc. Civ. R. 5.2(a) (“The print style . . . shall not be smaller than 12point font[.]”). The Court proceeds on the merits of the arguments of the parties, but cautions
counsel that attention should be given in the future to compliance with this Court’s Local Rules.
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A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
required, but the statement of the claim under Rule 8(a)(2) must be “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), citing
Papasan v. Allain, 478 U.S. 265, 286 (1986).

“A pleading that offers labels and

conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement . . . To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555-557, 570 [internal quotation
marks omitted]. “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Id. at 679. “While the 12(b)(6) standard does
not require that Plaintiff establish a prima facie case in h[is] 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 (10th Cir. 2012). This requires a
determination as to “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 (10th Cir. 2007), quoting Forest Guardians v.
Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
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Section 1983, as to Defendant Murray. The Court first addresses the federal claim
raised by the Plaintiff in the First Amended Complaint. The Plaintiff characterizes it as
“Count IV – 42 U.S.C. § 1983 – Gender Discrimination (as to Defendant Murray).” Docket
No. 18, p. 6. “Section 1983 creates only the right of action; it does not create any
substantive rights; substantive rights must come from the Constitution or federal statute.”
Kvech v. New Mexico Dept. of Public Safety, 987 F. Supp. 2d 1162, 1186 (D.N.M. 2013)
(citing Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir. 1989)). Rather, “[t]o state
a claim upon which relief can be granted under § 1983, a plaintiff must allege: (i) a
deprivation of a federal right; and (ii) that the person who deprived the plaintiff of that right
acted under color of state law.” Kvech, 987 F. Supp. 2d at 1186 citing West v. Atkins, 487
U.S. 42, 48 (1988). Put another way, the Plaintiff is required to “establish (1) a violation
of rights protected by the federal Constitution or created by federal statute or regulation,
(2) proximately caused (3) by the conduct of a ‘person’ (4) who acted under color of any
statute, ordinance, regulation, custom[,] or usage, of any State or Territory or the District
of Columbia.” Martinez v. Martinez, 2010 WL 1608884, at *11 (D. N.M. March 30. 2010),
quoting Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002).
Here, Plaintiff has alleged that she was discriminated against by Defendant Murray
on the basis of her gender and that, in his position as Chief of Police and her immediate
supervisor, he was a decisionmaker in the termination of her employment. And although
not specifically alleged, Defendant Murray’s position as Chief of Police leads to an
inference that he was acting under color of state law. Jojola v. Chavez, 55 F.3d 488, 493
(10th Cir. 1995) (“In the public employment context, the Supreme Court has noted ‘state
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employment is generally sufficient to render the defendant a state actor.’”), quoting Lugar
v. Edmondson Oil Co., Inc., 457 U.S. 922, 935-936 n.18 (1982). Moreover, the Plaintiff
has alleged that it was Defendant Murray’s position of authority over her that led to her
termination on the basis of her gender. Id. (“As we have stated, before conduct may be
fairly attributed to the state because it constitutes action ‘under color of state law,’ there
must be ‘a real nexus’ between the employee’s use or misuse of their authority as a public
employee, and the violation allegedly committed by the defendant.”), quoting D.T. by M.T.
v. Independent School Dist. No. 16 of Pawnee County, Okla., 894 F.2d 1176, 1188 (10th
Cir. 1990). Although the Plaintiff’s First Amended Complaint is not a model for pleading,
the Court thus construes Count IV as an allegation that Defendant Murray violated her
Equal Protection rights under 42 U.S.C. § 1983, because she has alleged that Defendant
Murray, as Chief of Police and her immediate supervisor, acted with malice and conscious
disregard of her federally secured rights. See Docket No. 18, pp. 2, 8, ¶¶ 2, 24.
“The elements of a discrimination lawsuit are the same whether brought pursuant to
§ 1983 or Title VII.” Cooper v. Northwest Rogers County Fire Protection Dist., 2017 WL
3710081, at *7 (N.D. Okla. Aug. 28, 2017).

But, “[t]he prima-facie case required to

support a claim of intentional discrimination under the Equal Protection Clause varies
based on the context and nature of the facts.” Morman v. Campbell County Memorial
Hospital, 632 Fed. Appx. 927, 934 (10th Cir. 2015). Here, the Court finds that to state a
prima facie case of discrimination, the plaintiff must allege (1) that she belongs to a
protected class, (2) that she suffered an adverse employment action, and (3) that such action

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“took place under circumstances giving rise to an inference of discrimination.” EEOC v.
PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007).
The Plaintiff has met this minimal pleading standard because she has alleged her
protected class as a woman, that she was terminated from her employment, and that her
termination was the result of discrimination based on her gender. More specifically, the
Plaintiff alleges that she was the only female police officer for the City of Eufaula, that
Murray lied to her, that he told her she did not have to report for a physical agility test then
recommended termination in part because she did not appear, and that he did not follow
progressive discipline procedures. See Docket No. 18, p. 6, ¶ 24(a)-(d). Furthermore, she
alleges that she was the only employee who was asked to perform a physical agility test
after being released for duties, that “[m]ale officers did not have to perform such test[,]”
that “Murry afforded male police officers more time” when provided notice of termination,
that “[m]ale employees who were on medical leave were not treated the same way” as she
was, that “[m]ale employees who had work-related injuries were allowed to avail their
rights without retaliation[,]” and that Defendant Murray recommended her termination
based on her gender.” Docket No. 18, p. 7, ¶ 24(f)-(m).
Although “the McDonnell-Douglas 2 burden-shifting framework applies to equalprotection claims in the employment context[,]” Morman, 632 Fed. Appx. at 934, quoting
Ney v. City of Hoisington, 264 Fed. Appx. 678, 684 (10th Cir. 2008), “the standards for
employment discrimination set forth in McDonnel Douglas simply do not ‘apply to the

2

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803.
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pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.’”
Morman, 632 Fed. Appx. at 933, quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510511 (2002) (“The prima facie case under McDonnell Douglas, however, is an evidentiary
standard, not a pleading requirement. . . . This Court has never indicated that the
requirements for establishing a prima facie case under McDonnell Douglas also apply to
the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.”).
Defendant Murray nevertheless asserts that Plaintiff’s claim fails because she was not
qualified for a position as an officer for the City of Eufaula and she failed to allege facts
that indicate she was treated less favorably than males in the same situation. The Court
finds, however, that the Plaintiff’s allegations are sufficient to allege a plausible claim of
gender discrimination as to Defendant Murray. Furthermore, the argument as to the
Plaintiff’s qualifications is more properly raised in a motion for summary judgment, as it
goes to facts not contained in the First Amended Complaint. Accordingly, the Defendants’
Motion to Dismiss is denied as to the Plaintiff’s claim against Defendant Murray for gender
discrimination pursuant to § 1983 (Count IV).
Breach of Contract, as to the City of Eufaula.

The Court next addresses

Plaintiff’s Count III (Breach of Contract) as to Defendant City of Eufaula. The Plaintiff
asserts that she had an employment contract with the City of Eufaula through the City of
Eufaula Personnel Policies Employee Manual (“the Manual”), and that she could only be
fired upon certain conditions, but that she was fired based on a fabrication created by
Defendant Murray and Defendant City of Eufaula. See Docket No. 18, p. 5, ¶ 19. The
Plaintiff attached the Manual as part of the First Amended Complaint. See Docket No. 18,
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Ex. 1. 3 The Defendants assert that there was no contract, because the Policy Manual, states
on the first page under Section 101, “Purpose,” that “[t]he Manual is not a legal
document, does not constitute a contract of employment and does not give rise to a
property right in continued employment with the city. . . . The employment
relationship with the City (except for elected positions) [sic] and may be terminated
at any time by the employee or the City solely for cause and the good of the service.”
Docket No. 18, Ex. 1, p. 9 (emphasis in original).
Plaintiff relies on Deboard v. Comanche County Court Clerk, 2012 WL 1508738
(W.D. Okla. Apr. 25, 2012), in which the District Court found that the Petition made
sufficient factual allegations to plead a breach of contract claim where “plaintiff
specifically avers the Employee Personnel Handbook for Comanche County created a
contract or agreement to which Plaintiff was either a third-party beneficiary, that
Defendants breached the contract by requiring her to exhaust her accrued leave benefits,
and that she was damaged as a result.” Id., 2012 WL 1508738, at *4. She therefore asserts
that the Policy Manual created an implied contract in this case. However, the Manual was
not made part of the Petition in that case and the District Court later granted summary
judgment on this same claim once it had the opportunity to review the Handbook, which
stated, “[T]he conditions of employment set forth therein ‘are not intended to be and do
not constitute a contract of employment.’” Deboard v. Board of County Commissioners of

3

“In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the
complaint itself, but also attached exhibits, and documents incorporated into the complaint by
reference.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (internal citations
omitted).
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County of Comanche, 2013 WL 5676750, at *1. An employee handbook thus may form
the basis of an implied contract between an employer and the employees, but “an employer
may deny (or disclaim) any intent to make the provisions of a personnel manual part of the
employment relationship,” although “the disclaimer must be clear.” Russell v. Board of
County Commissioners, Carter County, 1997 OK 80, ¶¶ 23-24, 952 P.2d 492, 501-502.
Here, there is a clear disclaimer on the part of the Defendant, and thus no contract.
Defendant City of Eufaula is entitled to dismissal of Plaintiff’s claim for breach of contract
(Count III).
Malicious Interference with a Contractual Relationship, as to Defendants
Jayne-Dornan and Murray. Defendants assert that the Plaintiff’s malicious interference
with a contractual relationship (Count I) claim is barred by the statute of limitations in the
Oklahoma Governmental Tort Claims Act (“OGTCA”). In essence, they contend that the
Plaintiff failed to comply with the notice requirement of the OGTCA, and that the assertion
of tort claims individually is an attempt to circumvent the statute of limitations. Plaintiff’s
response is that tort claims as to individuals acting outside the scope of their employment
are not subject to the notice requirement under the OGTCA. She contends that because
her First Amended Complaint indicates Murray and Jayne-Dornan were acting outside the
scope of their employment, compliance with the OGTCA was not required. Furthermore,
the Plaintiff asserts that the question of whether an employee is acting within the scope of
their employment should be left to a jury. The Court agrees that “[a]ll claims of tortious
interference with business relationship, or other names for the same tort, such as intentional
interference or malicious interference with contract or business relations, are excluded
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from OGTCA coverage.” Hibben v. Oklahoma ex rel. Dept. of Veterans Affairs, 2017 WL
1239146, at *11 (N.D. Okla. March 31, 2017). As such, the Plaintiff’s Count I does not
fall under OGTCA coverage.
In the context of at-will employment, “Oklahoma recognizes tortious interference
with prospective economic advantage, as well as tortious interference with an actual
contractual relationship. Thus, an actual contract is not a requirement for recovery.” Goff
v. Hukill, 2010 WL 2595785, at *7 (N.D. Okla. June 24, 2010), citing Gonzalez v. Sessom,
2006 OK CIV APP 61, ¶ 16, 137 P.3d 1245, 1249; McNickle v. Phillips Petroleum Co.,
2001 OK CIV APP 54, ¶ 21, 23 P.3d 949, 953–954; and Harman v. Okla. ex. rel. N. Okla.
Bd. of Regents, 2007 WL 1674205, at *3 (W.D.Okla. June 7, 2007) (unpublished)
(concluding that “[a]lthough there apparently is no Oklahoma Supreme Court authority
directly recognizing [a tortious interference with prospective economic advantage] claim
in the at-will employment context . . . lower Oklahoma courts have recognized the cause
of action without hesitation”).

See also Cooper v. Northwest Rogers County Fire

Protection District, 2017 WL 3710081, at *4-5 (N.D. Okla. Aug. 28, 2017) (“[T]he
Oklahoma Court of Civil Appeals has held that an at-will contract of employment can form
the basis for a malicious interference with a contractual relationship claim. The Court has
found no decision of the Oklahoma Supreme Court to indicate that it would disagree with
the Oklahoma Court of Civil Appeals on this issue. Moreover, several federal district courts
have determined that an at-will employee may state a claim for malicious interference with
a contractual relationship, relying on the decisions of the Oklahoma Court of Civil
Appeals.”) (internal citations omitted). “The elements of a claim for malicious interference
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are: 1) interference with a business or contractual right; 2) malicious and wrongful
interference that is neither justified, privileged, nor excusable; and 3) damage proximately
sustained as a result of the interference.” Tuffy's, Inc. v. City of Oklahoma City, 2009 OK
4, ¶ 14, 212 P.3d 1158, 1165 (internal citations omitted). “The element of malice, for
malicious interference, is defined as an unreasonable and wrongful act done intentionally,
without just cause or excuse. This element clearly requires a showing of bad faith.” Id.
The Plaintiff’s First Amended Complaint indicates that Defendant Murray was the
Eufaula Chief of Police, the Plaintiff’s immediate supervisor, and a decision maker in her
termination, and that Defendant Jayne-Dornan was the Mayor of Eufaula and likewise a
final decision maker in the Plaintiff’s termination. See Docket No. 18, p. 2, ¶¶ 2-3. She
also alleges in the Petition that “Defendants Murray and Jayne-Dornan were the
supervisors who fired Plaintiff and interfered with her contractual relationship by
terminating her[,]” and that their “interference was in bad faith and contrary to the interests
of the employer.” Id., pp.2-3, ¶¶ 6, 12. Specifically, she alleges that Defendant Murray
told her she did not have to perform a physical agility test one day, then the next ordered
her to run a physical agility test even though she was injured; that he had told her she was
fired for being “no call-no show,” but that she had not been; that he falsely accused her of
misconduct and produced false statements regarding this misconduct, but that she had been
in a different location and could not have done what she was accused of. See Docket No.
18, p. 3, ¶ 10. Furthermore, she alleges that she sought medical treatment for a condition
and was fired in retaliation by Defendant Murray and Defendant Jayne-Dornan, and that

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they accused her of malingering and dissuaded her from seeking benefits, then terminated
her while she was still under medical care. See Id., ¶ 11.
Although “[a] malicious interference claim “is viable only if the interferor is not a
party to the contract or business relationship[,]” Cooper, 2017 WL 3710081, at *5, quoting
Wilspec Tech. Inc. v. DunAn Holding Group, Co., 2009 OK 12, ¶ 15, 204 P.3d 69, “an
employee's interference with [an employer's] contract will be privileged only when the
interference is undertaken in good faith and for a bona fide organizational purpose.”
Cooper, 2017 WL 3710081, at *5. Here, the Plaintiff has alleged that the Defendants’
actions were in bad faith and against her employer’s interests, and that they interfered for
the purpose of retaliation. See Docket No. 18, p. 3, ¶ 12. The Court thus finds that the
Plaintiff has stated a claim for malicious interference with a business relationship as to
Defendants Jayne-Dornan and Murray. See Cooper, 2017 WL 3710081, at *5 (“Plaintiff
alleges that Dainty and Shockley acted in bad faith and against the interests of the District
by interfering with her employment relationship. Plaintiff further alleges that Dainty and
Shockley interfered for the purposes of concealing their allegedly unlawful conduct,
retaliating against plaintiff, and harassing her. Thus, plaintiff has stated a claim for
malicious interference with a business relationship against Dainty and Shockley (count
six).”) (internal quotations and citations omitted). Accordingly, the Defendants’ Motion
to Dismiss is DENIED as to the Plaintiff’s claim for malicious interference with a
contractual relationship (Count I).
Intentional Infliction of Emotional Distress, as to Defendants Jayne-Dornan
and Murray. Defendants likewise assert that the Plaintiff’s claim of intentional infliction
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of emotional distress (Count II) is barred by the statute of limitations in the OGTCA. The
Court agrees with the Plaintiff, however, that such a claim goes to actions outside the scope
of employment and is thus not barred by the OGTCA’s statute of limitations. Pellegrino
v. State ex rel. Cameron Univ. ex rel. Bd. of Regents of State, 2003 OK 2, ¶ 7, 63 P.3d 535,
537 (“A claim alleging that an employee injured the plaintiff while acting outside the scope
of his or her employment, an individual capacity claim, need not be based upon compliance
with the notice requirements of the Governmental Tort Claims Act[.]”). See also Harmon
v. Cradduck, 2012 OK 80, ¶ 19, n.20, 286 P.3d 643, 650 n.20 (“[A]ny malicious or bad
faith act by an employee falls outside the scope of employment for purposes of the
GTCA.”); Simington v. Parker, 2011 OK CIV APP 28, ¶ 28, 250 P.3d 351, 359 (reversing
order of dismissal where “Simington’s claims [including one of intentional infliction of
emotional distress] as pled against Parker personally also appear to be based upon
allegations that her actions were outside the scope of her employment.”).
The Court nevertheless finds that dismissal of this claim is appropriate. The
Plaintiff’s claim incorporated her earlier allegations as to the physical agility test and
seeking medical care, and additionally alleged that Defendants Murray and Jayne-Dornan
disregarded her rights even though they were fully aware that she was diagnosed with a
mental health disorder including anxiety and PTSD, and that their treatment of her
exacerbated her condition. Id., p. 4, ¶ 16. Accordingly, the Plaintiff contends that she has
presented a question of fact for the jury.

The Court finds, however, that these

“employment-related claims” are not sufficient to state a claim for intentional infliction of
emotional distress. See Rigo v. Apex Remington, Inc., 2015 WL 3746307, at *1 (N.D. Okla.
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June 15, 2015) (“[E]mployment related claims generally do not rise to the level of
outrageous conduct necessary to support a claim of intentional infliction of emotional
distress.”), citing, inter alia, Daniels v. C.L. Frates & Co., 641 F. Supp. 2d 1214, 1218
(W.D. Okla. 2009) (“Oklahoma courts, however, have routinely held that workplace
harassment claims do not rise to the level of outrageous conduct necessary to support a
claim of intentional infliction of emotional distress.”). Accordingly, Defendants are
entitled to dismissal of Plaintiff’s claim for Intentional Infliction of Emotional Distress
(Count II).
In sum, the Court finds that the Defendant’s Motion to Dismiss as to Plaintiff’s
Count II (Intentional Infliction of Emotional Distress) and Count III (Breach of Contract)
should be granted, and that it should be otherwise denied.
CONCLUSION
Consequently, IT IS ORDERED that the Defendant’s Motion to Dismiss Plaintiff’s
First Amended Complaint [Docket No. 19] is hereby GRANTED as to Counts II
(Intentional Infliction of Emotional Distress) and III (Breach of Contract), and is otherwise
DENIED.
DATED this 28th day of September, 2018.

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