McDonald v. Glanz et al

Filing 21

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 7/8/2013); granting 13 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, et al.,
Defendants.

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

OPINION AND ORDER
Before the court is Motion to Dismiss [Dkt. #13] of defendant Stanley Glanz, Sheriff of
Tulsa County (“Sheriff Glanz”).
Plaintiff Tara L. McDonald (“McDonald”), 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. Defendants removed the case to federal court and moved to
dismiss all claims against them pursuant to Fed.R.Civ.P. 12(b)(6). The court granted defendants’
motion, but gave McDonald leave to file an Amended Complaint for ADA and Title VII
discrimination. [Dkt. # 11]. After McDonald filed her Amended Complaint, the Board of

County Commissioners filed a motion to dismiss, which McDonald conceded, and the County
Commissioners’ motion was granted. [Dkt. ##14, 17, 20].
Sheriff Glanz also moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). [Dkt. #13].
Additionally, he moved to strike McDonald’s claim for punitive damages.1
I. Allegations of the Amended Complaint
McDonald, an African-American female, began working as a detention officer for
defendant on April 17, 2006. [Dkt. #12, Amended Complaint, ¶11]. During her employment,
she “underwent surgery in July 2011 due to a work related cumulative injury to her knee, which
substantially limited the Plaintiff’s major life activities of walking and standing.” [Id., ¶13].
After exhausting her FMLA leave and returning to work, she informed Human Resources of her
disability relating to her knee and her need for accommodations, specifically that “[p]laintiff was
substantially limited in certain areas involving major life activities such as walking and
standing;” she “is unable to walk or stand without an accommodation of sitting or assistance;”
she “informed Human Resources that she needed to be able to work at a desk job and was aware
of available positions.” [Id., ¶15]. She alleges “[t]here were certain desk jobs available for
detention officers upon the Plaintiff’s return to work” and “[w]ith this accommodation, the
Plaintiff was able to perform the essential functions of her position as a detention officer.” [Id.,
¶16]. McDonald alleges she “was informed that there was no light duty available and she would
be terminated.” [Id., ¶17]. However, she was aware of a number of Caucasian employees with
permanent restrictions who were given desk jobs to accommodate their disabilities and
restrictions and who were not terminated. Specifically, “Gary Brown is a white male who was
placed in master control in the front lobby after suffering an injury” and [t]his was a position that

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McDonald has conceded the punitive damage reference in ¶8 of the Amended Complaint should be stricken. [Dkt.
#17 at 1, n. 1].

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allowed one to sit.” [Id.]. “Also, Bryan Ayers is a white male who was placed in a position in
the Courthouse when he was unable to remain on patrol after an injury.” [Id.]. McDonald alleges
that “[b]ecause of the defendants’ actions, the Plaintiff believes she was treated differently and
terminated based on her race and disability due to defendants’ failure to accommodate her and
defendant’s treatment of Plaintiff’s similarly situated Caucasian coworkers.” [Id., ¶18].
McDonald was terminated on August 3, 2011. [Id., ¶19].
With respect to her ADA claim, McDonald alleges she “has physiological impairments to
her knee that substantially affect the major life activities of walking and standing within the
meaning of the ADA, as amended;” that the ADA Amendments Act of 2008 (“ADAAA”)
applies to her ADA claims of failure to accommodate and wrongful termination because those
actions took place in 2011; that she “informed Defendants of her conditions, requested a
reasonable accommodation in the form of a desk job, which would allow her to sit, and the
Defendants failed to provide reasonable accommodations of any kind, instead, terminating her
employment despite the Plaintiff being qualified to perform the essential functions of her job.”
[Id., ¶¶24-25, 27]. She alleges “[t]he effect of the practices complained above has been to
deprive the Plaintiff of equal employment opportunities, because of Plaintiff’s disabilities and/or
the perception of her disabilities.” [Id., ¶28]. 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.
With respect to her Title VII disparate treatment claim, plaintiff alleges, “By treating the
Plaintiff differently than similarly situated Caucasian employees, as described above, with regard
to job assignments and termination, the Defendants have violated Title VII of the Civil Right Act
of 1964, as amended, 42 U.S.C. § 2000e, et seq.” [Id., ¶32]. She seeks back pay and benefits,

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front pay until normal retirement, compensatory damages for non-pecuniary losses including
mental anguish pain and suffering and equitable relief.
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
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.

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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
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).

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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).
With respect to her ADA claim, McDonald’s Amended Complaint is deficient in two
respects. First, McDonald alleges “she underwent surgery in July 2011 due to a work related
cumulative injury to her knee, which substantially limited the Plaintiff’s major life activities of
walking and standing.” [Dkt. #12, ¶13]. It is unclear from this language whether the alleged
impairment is recovery from surgery or a cumulative injury to the knee.2 Second, although
McDonald alleges defendant refused to accommodate her by assigning her to a desk job, she also
states that “There were certain desk jobs available for detention officers upon the Plaintiff’s
return to work,” and “With this accommodation, the Plaintiff was able to perform the essential
functions of her position as a detention officer.” [Id., ¶16 (emphasis added)].
B. Title VII Discrimination Claim
In order to state a claim for disparate treatment on the basis of race under Title VII,
McDonald must allege (1) she belongs to a protected class; (2) she suffered an adverse
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Sheriff Glanz suggests the alleged impairment is recovery from knee surgery, which he contends is not a qualified
disability under the ADAAA. Plaintiff, in response, asserts the impairment is the “work related cumulative injury to
her knee”—rather than the surgery. [Dkt. #17 at 5].

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employment action; and (3) “disparate treatment among similarly situated employees.” Carney
v. City & Cnty of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008). Sheriff Glanz contends the
amended complaint fails to allege facts sufficient to establish the third element—disparate
treatment among similarly situated employees.
To show disparate treatment, McDonald must allege and prove she was similarly situated
to the Caucasian employees “in all relevant respects.” McGowan v. City of Eufala, 472 F.3d
736, 745 (10th Cir. 2006). “Similarly situated employees are those who deal with the same
supervisor and are subject to the same standards governing performance evaluation and
discipline.” Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997).
The Amended Complaint alleges “Gary Brown is a white male who was placed in master
control in the front lobby after suffering an injury and [t]his was a position that allowed one to
sit,” and “Bryan Ayers is a white male who was placed in a position in the Courthouse when he
was unable to remain on patrol after an injury.” [Id.]. The Amended Complaint does not,
however, state the two men are detention officers, nor does it allege their job responsibilities
were similar to McDonald’s. Additionally, it fails to state whether they had the same supervisor
as McDonald, the nature and/or severity of their impairments, or whether they returned to work
while a “no light duty” policy was in effect. In short, the Amended Complaint fails to allege
facts supporting a plausible Title VII disparate treatment claim.
IV. Conclusion
For the foregoing reasons, Sheriff Glanz’s Motion to Dismiss the Amended Complaint
[Dkt. #13] is granted. McDonald is granted leave to file a Second Amended Complaint to
correct the deficiencies identified above by July 8, 2013.

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ENTERED this 27th day of June, 2013.

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