Jordan v. Anixter, Inc.
Filing
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OPINION AND ORDER by Judge John E Dowdell granting in part and denying in part Defendant's Motion to Dismiss (Doc. 12). ; setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 9/29/2014, Status Report due by 10/17/2014); granting in part and denying in part 12 Motion to Dismiss (Re: State Court Petition/Complaint ) (SAS, Chambers)
1IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
BRANDON JORDAN,
Plaintiff,
v.
ANIXTER, INC., d/b/a ANIXTER
FASTENERS,
Defendant.
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Case No. 12-CV-655-JED-PJC
OPINION AND ORDER
I.
Background
Plaintiff, Brandon Jordan, asserts two claims relating to the defendant’s termination of his
employment. According to the allegations of plaintiff’s Petition, Mr. Jordan is an African
American male who worked for defendant, Anixter, Inc. (Anixter), from September 2010 to
September 2012 as a forklift operator. Jordan was injured in an on the job accident. As a result
of the injury, Jordan was drug tested, and his employment was then terminated. Jordan alleges
that Caucasian co-workers were not required to submit to drug testing after on the job accidents,
while African American workers were required to submit to such testing following accidents.
Thus, Jordan asserts that he was treated differently and less favorably than Caucasian employees,
on the basis of his race. He asserts a Title VII disparate treatment claim and a claim for
intentional infliction of emotional distress. Anixter seeks dismissal under Fed. R. Civ. P.
12(b)(6), asserting that the Petition fails to state a claim upon which relief can be granted.
II.
Dismissal Standards
In considering a Rule 12(b)(6) dismissal motion, a court must determine whether the
plaintiff has stated a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The
Rules require “a short and plain statement of the claim to show that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). A complaint must provide “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). However, the standard does “not require a heightened fact pleading of
specifics, but only enough facts to state a claim to relief that is plausible on its face,” and the
factual allegations “must be enough to raise a right to relief above the speculative level.” Id. at
555-56, 570 (citations omitted). “Asking for plausible grounds ... does not impose a probability
requirement at the pleading stage; it simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence [supporting the claim].
A well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and unlikely.’” Id. at 556. A court must accept
all the well-pleaded factual allegations of the complaint as true, even if doubtful, and must
construe the allegations in the light most favorable to the claimant. Id. at 555; Alvarado v. KOB–
TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).
III.
Discussion
A.
Title VII Claim
Title VII makes it unlawful for an employer “to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff proves a Title VII violation “either by direct
evidence of discrimination or by following the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 ... (1973).” Khalik v. United Air Lines, 671 F.3d 1188,
1192 (10th Cor. 2012). Under the burden-shifting framework, a plaintiff must first establish a
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prima facie case of discrimination, then the burden shifts to the defendant to produce a
legitimate, non-discriminatory reason for the adverse employment action. If the defendant meets
that burden, then the burden shifts back to the plaintiff to show that the plaintiff’s protected
status was a determinative factor in the employment decision or that the employer’s explanation
is pretext. Id. To set forth a prima facie case of employment discrimination, the plaintiff must
establish that he (1) is a member of a protected class, (2) suffered an adverse employment action,
(3) was qualified for the position at issue, and (4) was treated less favorably than others not in
the protected class. Id.
The plaintiff is not required to establish a prima facie case in the complaint in order to
survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Khalik, 671 F.3d at 1192.
However, analyzing the allegations of the complaint in light of the elements of each alleged
cause of action “help[s] to determine whether [the plaintiff] has set forth a plausible claim.” Id.
Jordan’s pleading contains sufficient factual allegations to state a plausible claim for
employment discrimination under Title VII. In short, he alleges that he is an African American
(Doc. 2-1 at ¶ 10), which satisfies the first element of a prima facie case. He alleges that his
employment was terminated (id. at ¶ 15), which constitutes an adverse employment action and
thus satisfies the second element. He asserts that he “was qualified to perform his job and earned
a satisfactory work record during his employment” with Anixter (id. at ¶ 11), which satisfies the
third element. He alleges that he was “treated disparately from his Caucasian coworkers with
regard to drug testing and discipline” and, specifically, that his “Caucasian co-workers were not
required to submit to drug testing after being involved in on the job accidents,” while African
American workers were required to submit to such testing following accidents. (Id. at ¶¶ 12, 16,
17).
Plaintiff accordingly alleges that he was treated differently and less favorably than
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Caucasian employees on the basis of his race. (Id. at ¶ 18). Taken as true, the allegations of
paragraphs 12, 16, 17, and 18 satisfy the fourth element.
Notwithstanding the allegations in the plaintiff’s pleading, Anixter argues that Mr. Jordan
“has not [shown] and cannot show that he is qualified for his position as a forklift operator given
the drug test at the time of his termination.” (Doc. 12 at 4) (emphasis omitted). In support,
Anixter cites a number of unpublished decisions for the proposition that an employee who fails a
drug test is not qualified for his position. (See id. at 4-5). However, those cases were decided at
the summary judgment stage upon an evidentiary record, rather than at the pleading stage, and
the cases appear to be decided on their distinct facts rather than determining, as a matter of law,
that an employee may not state a claim where he was fired based upon a drug test. For example,
in the first case cited by Anixter, Sims v. ArcelorMittal, No. 2:08-CV-0309, 2010 WL 2076915
(N.D. Ind. May 21, 2010), the court granted the defendant’s motion for summary judgment
where the plaintiff had not responded. In determining that summary judgment was appropriate,
the court noted that the defendant had presented undisputed evidence that the defendant “applied
its pre-employment drug testing policy consistently and uniformly regardless of race,” such that
plaintiff could not establish his prima facie case of employment discrimination. Id. at *4. Like
Anixter, the defendant in Sims also argued that the plaintiff was unqualified for the position
because of the failed drug test and that was the reason for the adverse decision with respect to
employment. Id. at *5. The court determined that issue, not at the pleading stage, but at the
summary judgment stage based upon undisputed evidence regarding the consistent application of
its drug testing policy with respect to job applicants. Id. The issue was decided because plaintiff
had not established that the reason offered for the employment decision was pretextual. See id.
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The cases cited by the defendant do not announce a rule that, as a matter of law, a failed
drug test renders an employee disqualified for a position. Rather, the courts in those cases
analyze the specific factual record presented. This case is at the pleading stage and, as noted,
Jordan is not required to provide any proof or evidence establishing his prima facie case or
proving pretext. That is for a later stage of the proceedings.
Anixter also asserts that Jordan’s factual allegations do not establish that Anixter treated
him less favorably than other employees outside his protected class. Because plaintiff was drug
tested following an accident that caused an injury, Anixter argues that he must establish that
Caucasian employees who were injured following an accident (rather than being involved in a
non-injury accident) were not drug tested. While the Court agrees that plaintiff will ultimately
have to prove that similarly-situated Caucasian employees were treated more favorably, the
Court is not inclined at the pleading stage to dismiss Jordan’s discrimination claim based upon
his failure to identify identically-situated Caucasian employees who were treated more favorably
as to drug testing and discipline. In his pleading, plaintiff alleges that his Caucasian co-workers
were not required to submit to drug testing after on the job accidents, while he and his African
American workers were required to submit to such testing following accidents. He asserts that
he was treated differently as to drug testing and discipline, because of his race. At this stage,
those allegations are sufficient.
As Jordan has provided allegations sufficient to set forth a plausible claim under Title
VII, Anixter’s motion to dismiss the Title VII claim is denied.
B.
Intentional Infliction of Emotional Distress
Based upon the same facts supporting his Title VII claim, Jordan asserts a claim for
intentional infliction of emotional distress under Oklahoma law. Such a claim is governed by the
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narrow standards set forth in the Restatement Second of Torts, § 46. Gaylord Entertainment Co.
v. Thompson, 958 P.2d 128, 149 (Okla.1998). In Breeden v. League Servs. Corp., 575 P.2d 1374
(Okla.1978), the Oklahoma Supreme Court explained:
Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the facts to an
average member of the community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’ The liability clearly does not extend to
mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.
Id. at 1376 (quoting Restatement (Second) § 46, cmt. d).
To state a claim, the plaintiff must allege that “(1) the defendant acted intentionally or
recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's conduct
caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.” See
Schovanec v. Archdiocese of Oklahoma City, 188 P.3d 158, 175 (Okla.2008) (quoting Computer
Publications, Inc. v. Welton, 49 P.3d 732, 735 (Okla.2002)). The trial court must assume a
“gatekeeper role” and make an initial determination that the alleged conduct “may be reasonably
regarded as sufficiently extreme and outrageous” to maintain a claim for intentional infliction of
emotional distress. Trentadue v. United States, 397 F.3d 840, 856 n.7 (10th Cir. 2005); see also
Gaylord, 958 P.2d at 149.
Jordan asserts that his allegations of employment discrimination, disparate treatment in
drug testing, and termination are sufficient to state a plausible claim for intentional infliction of
emotional distress. The Court disagrees. The Petition does not set forth any facts that would rise
to the level of outrageousness required to set forth an emotional distress claim under Oklahoma
law, because the conduct alleged is not “so extreme in degree, as to go beyond all possible
bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized
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community.” See Breeden, 575 P.2d at 1376. Moreover, Oklahoma courts have routinely held
that Title VII and other employment-related claims do not rise to the level of outrageous conduct
necessary to support a claim of intentional infliction of emotional distress. Daniels v. C.L.
Frates & Co., 641 F. Supp. 2d 1214, 1218 (W.D. Okla. 2009); see also Miner v. Mid-America
Door Co., 68 P.3d 212 (Okla. Civ. App. 2003) (claim of intentional infliction of emotional
distress was not established despite allegations of sexually explicit verbal abuse and physically
threatening conduct by a supervisor); Eddy v. Brown, 715 P.2d 74 (Okla. 1986) (allegations of
ridicule by supervisor and foreman did not amount to sufficiently outrageous conduct); Anderson
v. Oklahoma Temp. Servs., Inc., 925 P.2d 574 (Okla Civ. App. 1996) (six events including lewd
remarks about the plaintiff by her supervisor and embarrassing her by discussing her faults with
coworkers were insufficiently outrageous); Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678
(Okla. Civ. App. 1998) (allegations that employer made derogatory sexual comments about the
plaintiff’s fiancée, refused to allow plaintiff a day off of work to be with his wife and newborn
son in the hospital, and called plaintiff in the middle of the night, browbeating the plaintiff for
hours and requiring him to do unnecessary work, were not sufficiently outrageous to maintain a
claim for intentional infliction of emotional distress).
Jordan’s intentional infliction of emotional distress claim will be dismissed, for failure to
state a claim, and he will not be given leave to file an amended complaint reasserting this claim.
Jordan’s allegations that defendant treated him differently than Caucasian coworkers by
administering a drug test to him after he was involved in a workplace accident and then
terminated his employment based upon the drug test do not constitute extreme and outrageous
conduct. Jordan has not suggested that the alleged discrimination in this case is similar to any
case in which an Oklahoma court has found extreme and outrageous conduct in the workplace
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setting. He has not stated a plausible claim of intentional infliction of emotional distress, and the
Court has been provided no basis to infer that plaintiff has any additional factual allegations that
would state such a plausible claim if given leave to amend that claim.
IT IS THEREFORE ORDERED that Anixter’s Motion to Dismiss (Doc. 12) is granted
in part and denied in part. In accordance with Fed. R. Civ. P. 12(a)(4), defendant shall file an
Answer within 14 days of the filing of this Opinion and Order. The parties shall file a Joint
Status Report on or before October 17, 2014.
SO ORDERED this 15th day of September, 2014.
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