Johnson v. Victory Energy Operations, LLC et al

Filing 72

OPINION AND ORDER by Judge Terence Kern ; terminating party John C Viskup, Jr ; granting 28 Motion to Dismiss Party (vah, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
LEE JOHNSON,
Plaintiff,
vs.
VICTORY ENERGY OPERATIONS, LLC,
a foreign limited liability company;
JOHN VISKUP, SR., an individual;
JOHN C. VISKUP, JR., an individual;
DONNIS LONG, an individual;
CHRIS WAGNER, an individual; and
KIRBY STALLINGS, an individual,
Defendants.

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Case No. 09-CV-759-TCK-PJC

OPINION AND ORDER
Before the Court is Defendant John C. Viskup Jr.’s (“Viskup”) Motion to Dismiss Plaintiff’s
First Amended Complaint (Doc. 28).
I.

Background
Plaintiff’s First Amended Complaint alleges the following facts. Plaintiff was employed as

a saw operator at Victory Energy Operations, LLC (“Victory”) from July 2008 to April 2009.
Shortly after he began working at Victory, Defendant Chris Wagner (“Wagner”), Plaintiff’s
immediate supervisor, asked Plaintiff if he was a “spic.” (First Am. Compl. ¶ 14.) Thereafter, in
September 2008, Wagner called Plaintiff a “damn nigger.” (Id. ¶ 15.) Plaintiff alleges that he spoke
with Defendant Kirby Stallings (“Stallings”), Wagner’s supervisor, and told Stallings that he wanted
the racial slurs to cease. In October 2008, Wagner allegedly resumed making racial comments
toward Plaintiff, referring to Plaintiff as his “little niggah” and telling Plaintiff to “go pick my
cotton” after seeing Plaintiff carrying a tool on his shoulders. (Id. § 17.) In November 2008, after
President Barack Obama was elected to office, Plaintiff alleges that Wagner told Johnson, “You

damn black people think you can do whatever you want now, don’t you?” (Id. § 18.) Plaintiff again
spoke with Stallings in January 2009 to inform Stallings that Wagner continued to direct racially
derogatory comments toward him and to such a degree that his work was being adversely affected.
In response to said complaint, Plaintiff was moved to another building and no actions were taken
against Wagner. On or about April 19, 2009, Plaintiff arrived at work and found a noose hanging
at the door labeled with his name – “Lee.” Plaintiff removed the noose, took it to Stallings, and
Stallings allegedly asked Plaintiff, “What are you doing to people to make them do this to you?”
(Id. § 20.) Plaintiff further claims that Stallings told him to “keep [his] mouth shut” about the noose
and that Stallings would talk to other employees to see if they knew anything. (Id.) Subsequent to
these events, Plaintiff met with Defendant Donnis Long (“Long”), Victory’s human resources
executive, and advised Long about the above-listed incidents. Plaintiff claims, however, that no
actions were taken in response to his complaint. Plaintiff ended his employment at Victory in April
2009 as a result of the “hostile work environment created by the racially derogatory and intimidating
comments and actions directed toward him.” (Id. § 22.)
As a result of these events, Plaintiff filed suit against (1) Victory; (2) John Viskup, Sr., owner
of Victory; (3) Viskup, President of Victory; (4) Long; (5) Wagner; and (6) Stallings. Specifically,
Plaintiff has alleged two claims: (1) hostile work environment pursuant to 42 U.S.C. §1981
(“Section 1981”) (against all Defendants); and (2) hostile work environment pursuant to Title VII,
42 U.S.C. § 2000e et seq. (against Victory). Viskup now moves to dismiss the Section 1981 hostile
work environment claim against him pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule
12(b)(6)”).

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II.

Rule 12(b)(6) Standard
In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the

plaintiff has stated a claim upon which relief may be granted. The inquiry is “whether the complaint
contains ‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk,
LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544)). In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “‘nudge [ ]
[his] claims across the line from conceivable to plausible.’” Schneider, 493 F.3d at 1177 (quoting
Twombly, 550 U.S. at 570). Thus, “the mere metaphysical possibility that some plaintiff could prove
some set of facts in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Schneider, 493 F.3d at 1177.
The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme Court in
Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be
true.” Robbins v. Okla. ex rel. Okla. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).
Thus, “if [allegations] 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.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to
be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement
of plausibility serves not only to weed out claims that do not (in the absence of additional
allegations) have a reasonable prospect of success, but also to inform the defendants of the actual
grounds of the claim against them.” Id. at 1248. In addition, the Tenth Circuit has stated that “the
degree of specificity necessary to establish plausibility and fair notice, and therefore the need to

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include sufficient factual allegations, depends on context,” and that whether a defendant receives
fair notice “depends on the type of case.” Id.
III.

Analysis
Section 1981 prohibits racial discrimination in the “making, performance, modification, and

termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.” 42 U.S.C. § 1983(a),(b). To make a claim under Section 1981, a plaintiff
must show that: (1) he is a member of a racial minority; (2) the defendant had an intent to
discriminate on the basis of race; and (3) the discrimination interfered with a protected activity as
defined in Section 1982, i.e. the making or enforcing of a contract. Hampton v. Dillard Dept. Stores,
Inc., 247 F.3d 1091, 1101-02 (10th Cir. 2001). “These elements ‘are flexible and are not to be
applied rigidly.’” Id. at 1102 (citing Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 530 n. 2
(10th Cir. 1994)). Further, “[a] claim seeking personal liability under [S]ection 1981 must be
predicated on the actor’s personal involvement” and “[t]here must be some affirmative link to
causally connect the actor with the discriminatory action.” Allen v. Denver Pub. Sch. Bd., 928 F.2d
978, 983 (10th Cir. 1991), overruled on other grounds by Kendrick v. Penske Transp. Servs., 220
F.3d 1220, 1228 (10th Cir. 2000); see also Whidbee v. Garzarelli Food Specialities, Inc., 223 F.3d
62, 75 (2d Cir. 2000) (citing Allen and stating, “[w]e agree with the Tenth Circuit . . . that in order
to make out a claim for individual liability under [Section] 1981, a plaintiff must demonstrate ‘some
affirmative link to causally connect the actor with the discriminatory action’”).
The factual allegations in Plaintiff’s Amended Complaint are not sufficient to “state a claim
to relief [under Section 1981] that is plausible on its face.” Schneider, 493 F.3d at 1177.
Specifically, the Amended Complaint contains no allegations that Viskup was personally involved

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in any of the incidents giving rise to the present action, as Viskup is not explicitly mentioned in any
of the allegations contained therein. The only accusation that could be read as implicating Viskup
is the statement that “management level employees of Victory knew or should have know of” the
alleged discrimination. (First Am. Compl. ¶ 32.) Such a conclusory statement fails to specifically
refer to Viskup much less allege that Viskup was personally involved in the discriminatory incidents
alleged in Plaintiff’s First Amended Complaint. The Court therefore finds dismissal proper pursuant
to Rule 12(b)(6). See Hathron v. Quick-Trip Corp., No. 08-CV-618-CKF-PJC, 2008 WL 5122605,
at *2 (N.D. Okla. Dec. 4, 2008) (dismissing Section 1981 claim pursuant to Rule 12(b)(6) when
complaint did not allege that the defendant was personally involved in incidents giving rise to
claim); Kelley v. New York Life Ins. and Annuity Corp, No. 07-cv-01702-LTB-BNB, 2008 WL
1782647, at *4 (D. Colo. April 17, 2008) (finding Section 1981 discrimination claim was subject
to dismissal pursuant to Rule 12(b)(6) when allegations in complaint consisted of “unsubstantiated
and speculative conclusions”).
IV.

Conclusion
For the reasons discussed herein, Viskup’s Motion to Dismiss Plaintiff’s First Amended

Complaint (Doc. 28) is GRANTED, and John C. Viskup, Jr. is dismissed as a party to this action.
A separate Judgment of dismissal will be entered forthwith.

SO ORDERED this 21st day of September, 2011.

______________________________________
TERENCE C. KERN
United States District Judge
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