McDonald v. Glanz et al

Filing 11

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 1/21/2013); granting 8 Motion to Dismiss (hbo, Dpty Clk)

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

TARA L. MCDONALD,
Plaintiff,
v.
STANLEY GLANZ, SHERIFF OF
TULSA COUNTY, in his official and
individual capacities; and
BOARD OF COUNTY COMMISSIONERS
OF TULSA COUNTY,
Defendants.

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Case No. 12-CV-374-GKF-PJC

OPINION AND ORDER
Before the court is Motion to Dismiss [Dkt. #8] of defendants Stanley Glanz, Sheriff of
Tulsa County (“Glanz”) and the Board of County Commissioners of Tulsa County (“Board”).
Plaintiff, a former detention officer with the Tulsa County Sheriff’s Office, filed suit in Tulsa
County District Court, asserting claims of disability discrimination in violation of the Americans
With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., race and disability discrimination in
violation of 42 U.S.C. § 1983, and disparate treatment race discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000c, et seq., [Dkt. #2, Ex. 1,
Petition]. Defendants removed the case to federal court pursuant to 28 U.S.C. §§ 1331, 1441 and
1446. [Dkt. #2, Notice of Removal]. Defendants seek dismissal of all claims against them
pursuant to Fed.R.Civ.P. 12(b)(6).

I. Allegations of the Complaint
Plaintiff, an African-American female, began working as a detention officer for
defendants on April 17, 2006. [Dkt. #2, Ex. 1, ¶11]. During her employment, she underwent
surgery for a work related cumulative injury. [Id., ¶12]. After exhausting her FMLA leave and
returning to work, she informed Human Resources of her permanent restrictions and her need for
accommodation, specifically that “[p]laintiff was limited in certain areas involving major life
activities such as walking and standing” and “she needed to be able to work at a desk job and
was aware of available positions.” [Id., ¶13]. Plaintiff alleges she was informed there was no
light duty available and she would be terminated. [Id., ¶14]. However, she was aware of a
number of Caucasian employees with permanent restrictions who were given desk jobs to
accommodate their disabilities and restrictions. [Id.]. Plaintiff was terminated on August 3,
2011. [Id., ¶16].
With respect to her ADA claim, plaintiff alleges she “has impairments to her body that
affect major life activities within the meaning of the ADA,” that she “informed [d]efendants of
her conditions, and that [d]efendants failed to provide reasonable accommodations of any kind.”
[Id., ¶¶21-22]. She alleges “[t]he effect of the practices complained above has been to deprive
the [p]laintiff of equal employment opportunities, because of [p]laintiff’s disabilities and/or the
perception of her disabilities.” [Id., ¶¶23]. She seeks back pay and benefits, front pay until
normal retirement, compensatory damages for non-pecuniary losses including mental anguish
pain and suffering and equitable relief.
Regarding the Section 1983 claim, she alleges Glanz “was aware of widespread
complaints of African Americans regarding difference in treatment on the basis of race, like
those of [p]laintiff” and “was further aware that his subordinates, supervisors of the Sheriff’s

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department, failed to remedy the discrimination and disparate treatment.” [Id., ¶27]. She alleges
Glanz “promulgated the ‘no light duty’ policy and implemented it, causing the [p]laintiff’s
termination” and “[a]s such, defendant Glanz himself, intentionally or with reckless indifference,
failed to remedy the difference in treatment on the basis of race as well as the failure to
accommodate the [p]laintiff’s disability.” [Id., ¶27]. Further, she contends Glanz “imposed
unlawful disciplinary practices, based on race and disability, intentionally or through reckless
indifference.” [Id., ¶29. Plaintiff alleges violations of her First, Thirteenth and Fourteenth
Amendment rights. [Id., ¶¶30-32]. She seeks back pay and benefits, front pay, compensatory
and punitive damages and injunctive relief.
In her third cause of action, plaintiff alleges “[b]y treating the [p]laintiff differently than
similarly-situated Caucasian employees with regard to job assignments and termination, the
[d]efendants have violated Title VII.” [Id., ¶35]. She seeks back pay and benefits, front pay and
compensatory damages.
II. Applicable Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
The United States Supreme Court clarified this standard in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007), ruling that to withstand a motion to dismiss, a complaint must contain
enough allegations of fact “to state a claim to relief that is plausible on its face.” 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 556. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitle[ment] to

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relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555 (internal quotations omitted). On a motion to dismiss,
courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Id.
Under the Twombly standard, “the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008), quoting Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). “The burden is on the
plaintiff to frame a complaint with enough factual matter (taken as true) to suggest that he or she
is entitled to relief.” Robbins, 519 F.3d at 1247, citing Twombly, 127 S.Ct. at 1965 (internal
quotations omitted). “Factual allegations must be enough to raise a right to relief above the
speculative level.” Id.
Although the new Twombly standard is “less than pellucid,” the Tenth Circuit Court of
Appeals has interpreted it as a middle ground between “heightened fact pleading,” which is
expressly rejected, and complaints that are no more than “labels and conclusions,” which courts
should not allow. Robbins, 519 F.3d at 1247, citing Twombly, 127 S.Ct. at 1964, 1965, 1974.
Accepting the allegations as true, they must establish that the plaintiff plausibly, and not just
speculatively, has a claim for relief. Robbins, 519 F.3d at 1247. “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. The Tenth Circuit Court of Appeals instructed
in Robbins that “the degree of specificity necessary to establish plausibility and fair notice, and
therefore the need to include sufficient factual allegations, depends on context. . . .[and] the type
of case.” Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008)). A

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simple negligence action may require significantly less allegations to state a claim under Rule 8
than a case alleging anti-trust violations (as in Twombly) or constitutional violations (as in
Robbins). Id.
III. Analysis
A. ADA Claim
To state a claim for ADA discrimination, plaintiff must allege that: (1) she is a disabled
person within the meaning of the ADA; (2) she is “qualified,” i.e., that she is able to perform the
essential functions of the job, with or without reasonable accommodation; and (3) the employer
terminated her employment under circumstances which give rise to an inference that the
termination was based on her disability. Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997).
A “disability” for purposes of the ADA consists of “(A) a physical or mental impairment
that substantially limits one or more major life activities of such individual; (B) a record of such
impairment; or (C) being regarded as having such an impairment….” 42 U.S.C. § 12102(1). The
Tenth Circuit has found that this definition contains three elements. Doebele v. Sprint/United
Management Co., 342 F.3d 1117, 1129 (10th Cir. 2003). “First, the plaintiff must have a
recognized impairment; second, the plaintiff must identify one or more appropriate major life
activities; and third, the plaintiff must show that the impairment substantially limits one or more
of those activities.” Id. “The plaintiff ‘must articulate with precision the impairment alleged and
the major life activity affected by that impairment.’” Id. (quoting Poindexter v. Atchison, Topeka
& Santa Fe Ry., 168 F.3d 1228, 1232 (10th Cir. 1999).
Plaintiff’s petition alleges plaintiff has an impairment and is limited in major life
activities such as walking and standing. However, it fails to describe with any particularity the
impairment or disability alleged. Further, the petition is devoid of even conclusory allegations

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that plaintiff is “qualified” or can perform the essential functions of her job as a detention officer
with or without reasonable accommodation, much less an factual allegations supporting such
conclusions. Therefore, the ADA claim must be dismissed for failure to meet Twombly pleading
standards.
Plaintiff will be permitted to file an amended complaint to attempt to rectify the
deficiencies of her ADA claim.
B. Section 1983 Claim
Defendants moved for dismissal of the Section 1983 claim in its entirety. Plaintiff, in her
response, did not object to defendants’ motion with respect to the claim.
In order to maintain a claim of supervisory liability under 42 U.S.C. § 1983, a plaintiff
must allege sufficient facts to show that she may plausibly establish “(1) the defendant
promulgated, created, or implemented or possessed responsibility for the continued operation of
a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of
mind required to establish the complained of constitutional deprivation.” Dodds v. Richardson,
614 F.3d 1185, 1199 (10th Cir. 2010). “[A]fter Iqbal, Plaintiff can no longer succeed on a §
1983 claim against Defendant by showing that as a supervisor he behaved knowingly or with
‘deliberate indifference’ that a constitutional violation would occur at the hands of his
subordinates, unless that is the same state of mind required by a constitutional deprivation he
alleges.” Id. at 1204 (quotation and citation omitted). An official’s “deliberate indifference to or
knowledge and acquiescence in [his] subordinates’ unconstitutional conduct or discriminatory
animus, alone, [does] not amount to the state of mind required to establish . . . purposeful
discrimination.” Id. at 1198.

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Because plaintiff alleges racial discrimination, she must plead and prove Glanz acted
with “discriminatory purpose.” Plaintiff alleges Glanz was aware of widespread complaints of
racial discrimination against African Americans, was aware his subordinates failed to remedy the
discrimination, promulgated and implemented a “no light duty” policy, and “as such …
intentionally or with reckless indifference failed to remedy the difference in treatment on the
basis of race.” [Petition, ¶27]. “Reckless indifference” clearly does not suffice to establish the
required mens rea under Iqbal and Dodd. Moreover, while the petition makes the conclusory
allegation that Glanz acted “intentionally,” the only factual allegation made in connection with
this claim is that Glanz implemented a “no light duty” policy. However, the light duty allegation
does not support an inference that the Sheriff purposefully and intentionally engaged in racial
discrimination.
The court concludes that plaintiff’s Section 1983 claim should be dismissed and she will
not be permitted to file an amended complaint with respect to this claim.
C. Title VII Discrimination Claim
The basis of plaintiff’s Title VII disparate treatment race discrimination claim is
plaintiff’s allegation that while “she was aware” that a number of Caucasian employees with
permanent restrictions were given desk jobs to accommodate their disabilities and restrictions,
her request for light duty was denied and she was terminated. [Dkt. #2, ¶¶13-16]. However, the
petition lacks sufficient factual allegations supporting the conclusory statement that Caucasian
employees were treated differently, as plaintiff’s “awareness” may be wholly based on hearsay,
and she has failed to identify the Caucasion employees who were treated differently.

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Plaintiff’s Title VII claim must be dismissed. Plaintiff will be permitted to amend her
complaint to attempt to remedy the deficiencies in the petition addressed above by identifying
the Caucasian employees who were allegedly treated differently.
IV. Conclusion
Defendants’ Motion to Dismiss [Dkt. #8] is granted. Plaintiff is granted leave to file an
amended complaint on or before January 21, 2012, with respect to her ADA and Title VII
claims. Plaintiff may not include the dismissed Section 1983 claim in the amended complaint.
ENTERED this 10th day of January, 2012.

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