Hibben v. State of Oklahoma et al
OPINION AND ORDER by Magistrate Judge T Lane Wilson ; granting in part and denying in part 13 Motion to Dismiss (kah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
STATE OF OKLAHOMA ex rel.
DEPARTMENT OF VETERANS
AFFAIRS a/k/a CLAREMORE
VETERANS CENTER, and
TIM POTTEIGER, individually,
Case No. 16-cv-111-TLW
ORDER AND OPINION
Before the Court is the Motion to Dismiss (dkt. 13) filed by defendants State of
Oklahoma ex rel. Department of Veterans Affairs (“ODVA”) a/k/a Claremore Veterans Center
(“Center”), and Tim Potteiger (“Potteiger”). Plaintiff Darlene Hibben (“Hibben”) brought this
action on January 26, 2016, alleging that (1) Potteiger violated the Family and Medical Leave
Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654 (“FMLA”); (2) Potteiger violated her rights
under 42 U.S.C. §1983 by retaliating against her for exercising her rights under the First
Amendment of the United States Constitution; (3) ODVA violated Article 2, § 22 of the
Oklahoma Constitution by terminating her for exercising her right to free speech under the
Oklahoma Constitution; (4) Potteiger is liable for intentional infliction of emotional distress; and
(5) Potteiger maliciously interfered with her contractual relationship with ODVA.1 See (Petition,
Dkt. 2). Defendants argue that plaintiff has failed to state a claim with respect to each of these
Plaintiff filed this lawsuit in Rogers County District Court. Potteiger, with ODVA’s consent,
removed the action to federal court. Plaintiff has not challenged the removal, and the Court
agrees that it has jurisdiction. See 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C.
§ 1367(a) (supplemental jurisdiction).
causes of action and that the Court lacks subject matter jurisdiction due to sovereign and
qualified immunity. (Dkt. 13). Plaintiff counters that her petition alleges claims in sufficient
detail, that sovereign immunity does not extend to constitutional violations, and that Potteiger
does not possess qualified immunity because his conduct violated clearly established law. (Dkt.
I. FACTUAL ALLEGATIONS
Plaintiff is a former employee of the ODVA. (Petition, Dkt. 2 at 4).2 Defendant Tim
Potteiger was her supervisor. Id. at 5. Plaintiff alleges that in December, 2012, she attended a
town hall meeting hosted by a state senator who was investigating “allegations of neglect and
abuse against the  Center.” Id. at 6. At the meeting, plaintiff was “vocal and spoke out” about
the “deplorable conditions” at the Center. Id. at 6, 8. On January 8, 2013, plaintiff applied for
and was given intermittent leave due to medical and mental health issues. Id. at 5. After she
returned to work six days later, she alleges the following occurred:
1. She was called to “the Administrator’s office for an alleged meeting” and was
not allowed to have a witness, despite her request for one;
2. At the meeting, Potteiger yelled at her, threatened her with her job, accused
her of having a “bad attitude” and of not being a “team player,” and
questioned her about whether she knew who her supervisor was (according to
plaintiff, a reference to the state senator who hosted the town hall meeting);
3. As a result of the meeting, plaintiff “had to go home that day,” required
medical and mental health treatment, and was not allowed (on her health
provider’s orders) to return to her position due to the emotional distress
caused by the meeting;
4. Approximately six months later, on July 3, 2013, she was told by ODVA that
she would no longer receive “donated time” and that Potteiger had directed
References to page numbers in the briefs are to page numbers automatically assigned to the
document by the Court’s electronic filing system and shown at the top of each page. These
numbers are not necessarily the same as the page numbers assigned to the brief by the party or
parties filing the brief.
that she would not be allowed to “return to work with any light duty or
5. At an undisclosed time, plaintiff was “admonished for and restricted from
visiting a dear friend of hers who resided at the Claremore Veterans Center”
because of policy, but plaintiff alleges that “numerous other workers were
allowed to visit residents”;
6. At an undisclosed time, plaintiff’s husband, who was employed by the Center
and who has hearing loss, “was admonished for talking too loud”;
7. “Plaintiff’s office was cleaned out while she was still medically off work and
not yet terminated”; and
8. At an undisclosed time, Potteiger undercounted plaintiff’s time in service to
prevent plaintiff from receiving early retirement benefits, although she was
ultimately awarded the benefits;
9. Also on an unspecified date, Potteiger constructively discharged or terminated
plaintiff while she remained under medical care.
Id. at 4-10.
Defendants initially argue that the claims against Potteiger should be dismissed pursuant
to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction based on
sovereign and qualified immunity. (Dkt. 13 at 11, 13-14). Although defendants’ motion does not
make it clear which claims should be deemed covered by sovereign or qualified immunity, it
appears from defendants’ reply brief that Potteiger claims qualified immunity from plaintiff’s
FMLA and §1983 claims, and that both Potteiger and ODVA claim sovereign immunity from the
claims for violation of the Oklahoma Constitution, intentional infliction of emotional distress,
and malicious interference with contract. See (Reply Br., dkt. 16 at 2-3). Plaintiff does not
acknowledge that defendants have moved to dismiss under Rule 12(b)(1), but proceeds, instead,
under the assumption that defendants have moved only under Rule 12(b)(6) for failure to state a
claim. Further, plaintiff addresses defendants’ sovereign immunity argument only indirectly as
part of her argument that ODVA violated Article 2, § 22 of the Oklahoma Constitution. See
(Resp. Br., dkt. 15 at 2, 7-11). Despite the parties’ sparse reference to Rule 12(b)(1) and heavy
emphasis on the Rule 12(b)(6), the Court will address the Rule 12(b)(1) jurisdictional issues first,
as they may dictate whether a subsequent Rule 12(b)(6) analysis is necessary.3
Standard of Review – Fed. R. Civ. P. 12(b)(1 and 12(b)(6)
Generally, a Rule 12(b)(1) motion to dismiss takes one of two forms: a facial attack or a
factual attack. E.g., Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995); see Stuart v.
Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001). A facial attack depends on
the allegations in the complaint as to subject matter jurisdiction and thus, implicates the
sufficiency of the complaint. Holt, 46 F.3d at 1002. In addressing a facial attack the district court
must accept the allegations in the complaint as true. “Second a party may go beyond allegations
contained in the complaint and challenge the facts upon which subject matter jurisdiction
depends.” Id. at 1003. In addressing a factual attack, the court does not “presume the truthfulness
of the complaint’s factual allegations,” but “has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule
12(b)(1).” Id. In this matter, defendants appear to be asserting a facial attack on plaintiff’s claims
as to subject matter jurisdiction.
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to set forth only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” However, this
statement must include “more than labels and conclusions, and a formulaic recitation of the
Plaintiff’s claims for violation of the Oklahoma Constitution, intentional infliction of emotional
distress, and malicious interference with contract arise under Oklahoma state law. The Court has
subject matter jurisdiction over them pursuant to 28 U.S.C. § 1367(a), which “broadly authorizes
the district courts to exercise supplemental jurisdiction over additional claims . . . .” Kelley v.
Michaels, 59 F.3d 1055, 1058 (10th Cir. 1995) (quoting H.R.Rep. No. 101-734, 101st Cong., 2d
Sess., 28). The parties in this case have consented to magistrate judge disposition of the case
(dkt. 18) and a scheduling order was entered (dkt. 22). At a scheduling conference on June 21,
2016, both sides indicated their preference that the Court retain supplemental jurisdiction over
remaining state law claims if all federal claims are dismissed.
elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 1965, 167 L.Ed. 2d 929 (2007). In considering a Rule 12(b)(6) motion, the Court must
“identify the allegations in the complaint that are not entitled to the assumption of truth,” then
“consider the factual allegations in [the] complaint to determine if they plausibly suggest an
entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009).
When reviewing a motion to dismiss, a court must accept plaintiff’s factual allegations as
true, even if “doubtful in fact.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965. However, courts
are “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (quoting
Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed. 2d 209 (1986)). Neither may
courts assume the truth of any legal conclusion asserted. Iqbal, 556 U.S. at 680, 129 S.Ct. at
1950. “[I]f [plaintiff’s factual 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.’” Robbins v. Oklahoma ex rel. Okla. Dep’t of Human Servs., 519
F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). In
short, “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal,
556 U.S. at 678, 129 S.Ct. at 1949 (citations omitted).
Sovereign Immunity and Plaintiff’s Claim against ODVA
Oklahoma has adopted the doctrine of sovereign immunity in the Oklahoma
Governmental Tort Claims Act (OGTCA), Okla. Stat. tit. 51, §152.1(A), stating, “[t]he state, its
political subdivisions, and all of their employees acting within the scope of their employment,
whether performing governmental or proprietary functions, shall be immune from liability for
torts. Id. The State may waive that immunity only to the extent and in the manner provided for in
the OGTCA 51 O.S. 2001 § 152.1(B). The OGTCA is the exclusive remedy by which an injured
plaintiff may recover in tort against a governmental entity in this state. Tuffy’s, Inc. v. City of
Oklahoma City, 2009 OK 4, ¶7, 212 P.3d at 1163; see, e.g., Watkins v. Central State Griffin
Memorial Hospital, 2016 OK 71, ¶21, 377 P.3d 124, 130.
The one claim to which sovereign immunity may apply in this case is the third claim:
whether ODVA violated Article 2, §22 of the Oklahoma Constitution by terminating plaintiff for
exercising her right to free speech under the Oklahoma Constitution. Defendants argue that
Potteiger is entitled to the sovereign immunity against this claim as well, but plaintiff did not sue
Potteiger for violating the Oklahoma Constitution or otherwise name him in his official capacity
as to this claim or as to plaintiff’s claims for intentional infliction of emotional distress and
malicious interference with contract. He was named in his individual capacity as to the latter two
claims. Further, as explained by the Oklahoma Supreme Court:
The OGTCA defines a “tort” as a legal wrong involving a violation of a duty
imposed by general law or otherwise resulting in a loss as the proximate result
of an act or omission of a political subdivision or employee acting within the
scope of employment. “Scope of employment” is defined as performance by an
employee acting in good faith within the duties of his office or employment or
of tasks lawfully assigned by a competent authority. Except in cases where
only one reasonable conclusion can be drawn, the question of whether an
employee has acted within the scope of employment at any given time is a
question for the trier of fact. An employee of a political subdivision is relieved
from private liability for tortious conduct committed within the scope of
employment. A political subdivision is relieved from liability for tortious
conduct committed by employees outside the scope of employment.
Tuffy’s, Inc., 2009 OK at ¶ 8, 212 P.3d at 1163–64 (internal citations omitted). Here, defendants
have not argued that Potteiger was acting within the scope of his employment when he
committed the acts alleged by plaintiff. Defendants have argued that Potteiger was acting within
the scope of his employment when he committed the acts alleged by plaintiff, but this issue is
one that is reserved for the finder of fact. Defendants may assert it in a motion for summary
judgment or later in the litigation.
As a general matter, sovereign immunity is deemed a jurisdictional bar, see Federal
Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed. 2d 308 (1994),
and may be challenged by a motion to dismiss under Rule 12(b)(1), see Holt v. United States, 46
F.3d 1000, 1002-1003 (10th Cir. 1995). Nonetheless, defendants frame the argument as a Rule
12(b)(6) motion to dismiss for failure to state a claim and specifically assert that plaintiff did not
allege compliance with the OGTCA. See (Motion to Dismiss, dkt. 13 at 18-22). The confusion is
understandable, however, in that the cases they rely upon do not indicate whether dismissal was
based on subject matter jurisdiction or failure to state a claim. The Court finds that plaintiff’s
constitutional tort claim against the ODVA should be dismissed regardless of whether it is based
on Rule 12(b)(1) or Rule 12(b)(6) because plaintiff failed to comply with the OGTCA or show
that she was not required to comply with it.
Both parties discuss the case of Bosh v. Cherokee County Governmental Building
Authority, 2013 OK 9, 305 P.3d 994, where the Oklahoma Supreme Court held that the State
Constitution provided a private cause of action for excessive force notwithstanding the
requirements and limitations of the OGTCA. Id. 2013 OK 9 at ¶ 23, 305 P.3d at 1001. Plaintiff
argues that Bosh applies to other State constitutional provisions, and that she has a private right
of action for ODVA’s violation of her exercise of free speech under the Oklahoma Constitution.
This argument is foreclosed, however, by Perry v. City of Norman, 2014 OK 119, 341 P.3d 689,
where the court held that the Bosh case was limited to its facts, an express exemption in the
OGTCA applied in that case, and the plaintiff would have been left without a remedy otherwise.
2014 OK 119, ¶19, 341 P.3d at 693. No such exemption applied in Perry. Both of these cases
dealt with excessive force claims. Defendants point out that at least one other federal court has
held that Bosh was limited to its facts and its rationale did not extend to other claims against the
State or its political subdivisions. See Hedger v. Kramer, No. CIV-13-0654-HE, 2013 WL
5873348 (W.D. Okla. Oct. 30, 2013) (unpublished) (claim against the Department of Human
services based on negligent placement of a child in foster care). Plaintiff has no private right of
action against the ODVA here for a violation of the Oklahoma Constitution.
State courts in Oklahoma have addressed similar issues regarding sovereign immunity in
cases involving wrongful termination claims against a state or political subdivision. A political
subdivision was immune from liability where the employee claimed she was fired in retaliation
for filing a workers’ compensation claim, but the employee failed to comply with the OGTCA
notice of claim provisions. Spane v. Central Oklahoma Community Action Agency, 2015 OK
CIV APP 29, ¶22, 346 P.3d 437, 443. Another court has held that the State had sovereign
immunity, and was not liable in a suit for wrongful discharge, “absent any First Amendment
violation.” Phillips v. Wiseman, 1993 OK 100, ¶7, 857 P.2d 50, 53. The implication left by
Phillips is that, if the plaintiff had alleged a First Amendment violation, the State may have been
held liable under the OGTCA, 51 O.S. 1991, §153, assuming the plaintiff complied with the
notice and exhaustion requirements of the OGTCA. Plaintiff in this matter alleged a First
Amendment free speech claim, but failed to comply with the OGTCA. Accordingly, dismissal of
this claim is appropriate.
Defendants also assert that plaintiff’s claim “likely falls” under the Oklahoma
Whistleblower Act (“OWA”), Okla. Stat. tit. 74 § 840-2.5(A) (1982)). (Motion to Dismiss, dkt.
13 at 22). The OWA provides an administrative remedy for state employees who suffer
retaliation due to their reports of governmental wrongdoing. Okla. Stat. tit. 74 § 840-2.5 (2011).
Defendants contend that plaintiff has no private right of action sounding in tort, but must pursue
her remedy under the OWA. See Rouse v. Grand River Dam Auth., 2014 OK 39, 326 P.3d 1139,
1140-43; Shephard v. CompSource Okla., 2009 OK 25, 209 P.3d 288, 290-92. The cases cited by
defendants, however, deal with whether a plaintiff may sue for wrongful termination
(constructive discharge) in violation of public policy—a Burk tort claim. See Burk v. K–Mart
Corp., 1989 OK 22, 770 P.2d 24.
Where a plaintiff asserts Article 2, § 22 of the Oklahoma Constitution, and not the OWA,
as the basis for a Burk claim, the Burk claim is not precluded by the OWA. Trant v. Oklahoma,
874 F.Supp.2d 1294, 1303-04 (10th Cir. 2012). Further, if a plaintiff’s claims are for money
damages, the plaintiff need not exhaust her administrative remedies under the OWA because the
scope of review under the OWA is limited to other remedies. Id. at 1305-06. Plaintiff did not
explicitly make a Burk claim in this case but, even if she had, the OGTCA applies to Burk
claims. See Wright v. KIPP Reach Academy Charter School, No. CIV-10-989-D, 2011 WL
1752248, at *6-7 (May 6, 2011) (unpublished). Analysis of whether plaintiff may have a Burk
claim or a claim under the OWA involves several other thorny issues which were not briefed by
the parties (e.g., whether plaintiff an at-will employee, or whether the ODVA was exempt under
the OWA), and this Court declines to analyze them, in light of its decision that plaintiff’s
constitutional tort claim against the ODVA must be dismissed due to her failure to plead
compliance with the OGTCA.
Defendants argue that plaintiff’s cause of action against the ODVA is also foreclosed
because plaintiff cannot make a claim under both Article II, §22 of the Oklahoma Constitution
and the First Amendment to the United States Constitution. (Motion to Dismiss, dkt. 13 at 21,
citing Murphy v. Spring, 58 F.Supp.3d 1241, 1260 (N.D. Okla. 2014)). Plaintiff argues that she
has stated a claim for violation of the free speech clause of the Oklahoma Constitution, which is
broader than the free speech clause of the United States Constitution. See id. at 1261. These
arguments are beside the point. As discussed above, a cause of action for violation of Article II, §
22 of the Oklahoma Constitution must be brought under the OGTCA in compliance with the
requirements for suit thereunder. Courts have held that a §1983 First Amendment claim is not
immunized or foreclosed by application of the OGTCA to a state law claim, see Tiemann v. TulCenter, Inc., 18 F.3d 851, 853 (10th Cir. 1994); Duckett v. Oklahoma ex rel. Bd. of Regents of
Univ. of Oklahoma, 986 F. Supp. 2d 1249, 1258 (W.D. Okla. 2013), but plaintiff in this matter
has not sued the ODVA based on a §1983 First Amendment retaliation claim. Plaintiff has sued
Potteiger individually under § 1983, and to this claim, as well as all of plaintiff’s claims against
Potteiger. Potteiger asserts qualified immunity, either explicitly or implicitly.
Initially, the Court notes that “qualified immunity is a defense on the merits, not a
jurisdictional bar.” Neal v. Davis, No. 12-5005, 2012 WL 1139026, at *2 (10th Cir. Apr. 6,
2012) (unpublished) (internal citations omitted). Because qualified immunity is an affirmative
defense and not a question of subject matter jurisdiction, Rule 12(b)(1) is not an appropriate
basis for dismissal on this ground. However, qualified immunity may be asserted at the motion to
dismiss stage based on Federal Rule of Civil Procedure 12(b)(6). See, e.g., Wood v. Moss,
___U.S.___, 134 S.Ct. 2056, 2066-67, 188 L.Ed. 2d 1039 (2014); Brown v. Montoya, 662 F.3d
1152, 1162 (10th Cir. 2011); Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). “The
doctrine of qualified immunity protects government officials from liability for civil damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional
right, and (2) that the right was clearly established at the time of the challenged conduct.” Wood,
134 S.Ct. at 2066-67 (quoting Ashcroft v. al–Kidd, 563 U.S. ___, ___, 131 S.Ct. 2074, 2080, 179
L.Ed. 2d 1149 (2011) (internal quotations omitted); see Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 2738, 73 L.Ed. 2d 396 (1982) (“We therefore hold that government officials
performing discretionary functions generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”)
Under the FMLA, an eligible employee is “entitled to a total of 12 workweeks of leave”
for reasons including “a serious health condition that makes the employee unable to perform the
functions of the position of such employee.” 29 U.S.C. § 2612(a)(1); see Harbert v. Healthcare
Servs. Group, Inc., 391 F.3d 1140, 1147 (10th Cir. 2004). Upon the employee’s return from
leave, the employer must reinstate the employee to the same position or an alternate position
with equivalent pay, benefits, and other conditions. 29 U.S.C. § 2614(a)(1). If an employer
interferes with this right by taking adverse action that was “related to the exercise or attempted
exercise of [the eligible employee’s] FMLA rights,” then the employer may be liable under an
FMLA entitlement theory. Jones v. Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005); see
29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided in this subchapter.”). Further, it is
“unlawful for any employer to discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2);
see Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170-71 (10th Cir. 2006).
Defendants argue that plaintiff has failed to state a claim for FMLA interference or
retaliation and, thus, as to the first prong of the qualified immunity analysis, that plaintiff has
failed to plead facts showing that Potteiger violated a statutory right under the FMLA.
Specifically, Potteiger claims that plaintiff failed to properly allege that Potteiger was her
employer, and he argues that he was not plaintiff’s employer for purposes of the FMLA. He
claims that he was merely an administrator at a facility within the agency structure of the ODVA,
plaintiff’s true employer and his as well. (Dkt. 13 at 14-15).
The FMLA defines “employer,” in relevant part, as any person . . . who employs 50 or
more employees” and the definition includes “any person who acts, directly or indirectly, in the
interest of an employer to any of the employees of such employer,” as well as any “public
agency. . . .” 29 U.S.C. § 2611(a)(4)(A). In 2014, two opinions were issued on the same day in
this district which held that public employees may be deemed “employers” under the FMLA and,
therefore, held individually liable for money damages. See Owens v. City of Barnsdall, No. 13CV-749-TCK-PJC, 2014 WL 2197798 at *6 (N.D. Okla. May 27, 2014); Kiefner v. Sullivan,
No. 13-CV-714, 2014 WL 2197812, at *9-10 (N.D. Okla. May 27, 2014). The Court
acknowledged that there was a circuit split on this question, and the Tenth Circuit had not
provided express guidance, but the Eastern and Western Districts in Oklahoma were in
agreement that individual public employees satisfy the definition of “employer” in the FMLA.
Owens, 2014 WL 2197798 at *6; Kiefner, 2014 WL 2197812, at *9-10.
Defendants argue (albeit briefly, and only in their reply brief) that plaintiff has not shown
it was clearly established law that an individual supervisor could be held liable as an employer
under the FMLA. There is some language in a footnote to the Owens and Kiefner decisions
supporting the later possibility of this argument by reference to Modica v. Taylor, 465 F.3d 174,
187-88 (5th Cir. 2006), but the Tenth Circuit has expressed a contrary view. In Gray v. Baker,
399 F.3d 1241, 1245 (10th Cir. 2005), the Tenth Circuit essentially held that this argument was
improperly framed as an argument regarding qualified immunity. Id. at 1244. The appellate court
reasoned that the defendants’ defense did not “hinge on their having acted in good faith,” and the
defendants could not claim, “given the clear requirements of the FMLA, they were unaware that
a particular course of conduct would be violative of the FMLA.” Id. at 1245.
At least three other district courts have found Gray instructive “even though the ultimate
question in Gray was whether the Tenth Circuit could properly exercise jurisdiction over the
defendants’ interlocutory appeal.” See Radeker v. Elbert Cty. Bd. of Commissioners, No. 14CV-01238-CMA-KMT, 2016 WL 1586391, at *2–3 (D. Colo. Apr. 19, 2016); Bonzani v.
Shinseki, No. 2:11-CV-0007-EFB, 2013 WL 5486808, at *15 (E.D. Cal. Sept. 30, 2013);
Brunson v. Forest Pres. Dist. of Cook Cty., No. 08C2200, 2010 WL 780331, at *8 (N.D. Ill. Mar.
3, 2010). As the Bonzani court explained: “The qualified immunity analysis focuses on whether
the right the public official violated is clearly established, not whether it is clearly established
that an individual liability attaches. See Pearson, 555 U.S. at 232 (2009) (“The doctrine of
qualified immunity protects government officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”) (emphasis added).” 2013 WL 5486808, at *15.
Likewise, the Brunson court observed: “An argument about whether some class of defendants is
subject to liability under a statute has no connection to rules of conduct imposed by that statute.”
2010 WL 780331, at *8.
The two-part standard for qualified immunity asks whether the constitutional
right allegedly violated was clearly established at the time of the alleged
violation; it does not ask whether it was clearly established that the person who
engaged in the conduct could be sued individually. . . . It would be a misuse of
qualified immunity to apply the doctrine to insulate a public employee from
suit where he does not dispute that his acts (if proven) would violate a clearly
established right, but only quarrels about whether he should have to answer for
his conduct personally or whether instead that responsibility should be borne
only by his employer.
Rasic v. City of Northlake, 563 F. Supp. 2d 885, 893 (N.D. Ill. 2008). Defendants’ Rule 12(b)(6)
motion to dismiss based on qualified immunity as to plaintiff’s FMLA action fails in this respect.
It also fails on the basis of defendants’ argument that plaintiff was not Potteiger’s
employee for purposes of the FMLA. As used in the FMLA, “eligible employee” is one “who
has been employed — (i) for at least 12 months by the employer with respect to whom leave is
requested under section 2612 of this title; and (ii) for at least 1,250 hours of service with such
employer during the previous 12–month period. 29 U.S.C. § 2611(2). Plaintiff alleged that she
was a former employee of Defendant ODVA and that she was a “qualified employee” under the
FMLA. (Petition, dkt. 2 at 4-5). Defendants point out that plaintiff did not allege that she was an
employee of Potteiger or that her employment the duration requirements set forth in the FMLA.
She did allege that he was her supervisor, id. at 10, and that she “applied for and was approved
for intermittent leave as a result of a serious health condition that she was undergoing for mental
health issues,” id. at 5. It stands to reason that plaintiff would not have been approved for FMLA
by defendants if she were not an eligible or qualified employee under the FMLA. Defendants’
argument in this regard is not well-grounded.
Their argument with regard to plaintiff’s interference claim, however, is well-grounded.
Defendants point out that plaintiff does not allege that she was prevented from taking FMLA
leave, denied reinstatement following leave, or denied permission to take leave in the first place.
The Tenth Circuit has distinguished between an FMLA interference claim and an FMLA
retaliation claim. Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007).
To prevail on her FMLA interference claim, plaintiff must show the following:
(1) That [s]he was entitled to FMLA leave;
(2) That some adverse action by the employer interfered with h[er] right to take
FMLA leave; and
(3) That the employer’s action was related to the exercise or attempted exercise
of h[er] FMLA rights.
Id. (quoting Jones v. Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005)).
As set forth above, plaintiff does allege that she is entitled to FMLA, and defendants do
not deny that she actually was eligible. However, her pleading falters as to the second element of
the claim. To establish the second element of an FMLA interference claim, “the employee must
show that she was prevented from taking the full 12 weeks of leave guaranteed by the FMLA,
denied reinstatement following leave, or denied initial permission to take leave.” Campbell, 478
F.3d at 1287. None of the facts alleged suggest that plaintiff was prevented from taking her full
leave or was denied initial permission to take leave: she states she was both granted leave and
allowed donated time, implying she was granted permission to take leave and allowed her full
amount of leave. (Petition, dkt. 2 at 5). Nor was she denied reinstatement in July, 2013, when she
returned to work, though without the “light duty or restrictions” she had requested. Id. at 3. For
these reasons, plaintiff’s effort to assert an FMLA interference claim cannot succeed.
Her retaliation claim remains available, however. Ultimately, to succeed on this claim,
plaintiff must show that:
(1) She engaged in a protected activity;
(2) [The defendant] took an action that a reasonable employee would have
found materially adverse; and
(3) There exists a causal connection between the protected activity and the
Campbell, 478 F.3d at 1278 (quoting Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d
1164, 1171 (10th Cir. 2006)).
There is no dispute that plaintiff engaged in protected activity. As to whether Potteiger
took an action that a reasonable employee would have found materially adverse, such claims are
more appropriately reserved for an analysis as to whether a genuine issue of material fact exists
on a motion for summary judgment. Much of the behavior that plaintiff alleges may not rise to
the level of being materially adverse. See Anderson v. Coors Brewing, Inc., 181 F.3d 1171, 1178
(10th Cir. 1999) (retaliation claims cannot be based on perceived infringement of a “general
civility code” or actions among the “ordinary tribulations of the workplace.”) (citation omitted).
However, plaintiff has plead some behavior that could rise to that level, although it is not clear
whether she is pleading that the acts, including her termination, were due to taking FMLA leave
or speaking out against her employer at a public form. In any event, dismissal is not warranted
for a failure to sufficiently allege a materially adverse action.
Similarly, an evaluation as to whether there exists a causal connection between the
protected activity and the adverse action is premature at this time, especially since plaintiff was
awarded intermittent leave, and it is not clear exactly when many of the activities plaintiff claims
as adverse actions occurred. More importantly, defendants do not argue that plaintiff has failed to
plead a claim for FMLA retaliation claim other than to assert that Potteiger was not an employer
and plaintiff was not an eligible employee. Consequently, the Court is not inclined to fully
evaluate plaintiff’s FMLA retaliation claim at this time or dismiss it.
42 U.S.C. § 1983 First Amendment Retaliation
For similar reasons, the Court finds that dismissal would not be proper as to plaintiff’s
claim under 42 U.S.C. § 1983 that Potteiger retaliated against her in violation of her First
Amendment rights to freedom of speech and association. Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress. . . .
42 U.S.C.A. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law.” West v. Atkins, 487
U.S. 42, 48 (1988).
Plaintiff alleges that Potteiger took several actions adverse to her, including termination,
among other things, in retaliation for her participation in a town hall meeting where she spoke
about the condition at her facility. She alleged that her speech was political in nature and was not
within her job functions. She also alleged that Potteiger was acting under color of state law. This
is sufficient to plausibly suggest an entitlement to relief.
Defendants reference several cases in which courts discuss the elements of a First
Amendment retaliation claim in the context of a motion for summary judgment. The elements
arise out of an analysis knows as the “Garcetti/Pickering” test arising out of Garcetti v. Ceballos,
547 U.S. 410 (2006) and Pickering v. Bd. of Educ. of Tp. High Sch. Dist. 205, Will Cty., Ill., 391
U.S. 563 (1968). See Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202-03
(10th Cir. 2007). Such an analysis has five elements:
(1) whether the speech was made pursuant to an employee’s official duties; (2)
whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff’s free speech interests; (4)
whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.
Cypert v. Independent Sch. Dist. No I–050 of Osage County, 661 F.3d 477 (10th Cir. 2011)
(quoting Rohrbough v. University of Colorado Hospital Authority, 596 F.3d 741, 745 (10th
Cir.2010)). The first three steps of the analysis are issues of law to be resolved by the court,
while the last two are left to the fact finder. Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d
741, 745 (10th Cir. 2010) (quoting Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009)).
While the Court believes that plaintiff has alleged sufficient facts in her Petition to meet
at least the first three steps, at the motion to dismiss stage of litigation, a plaintiff is not required
to establish or prove the elements of the claim or otherwise show that “there is no genuine
dispute as to any issue of material fact.” See Fed. R. Civ. P. 56. Nonetheless, the Court
acknowledges one case referenced by defendants where the elements were discussed on a motion
to dismiss, and the motion was granted because the plaintiff failed to provide details about her
official duties. Brown v. Smith, No. 12-cv-0043-CVE-PJC, 2012 WL 1085498, at *3 (N.D. Okla.
Mar. 29, 2012). Defendants rely on this case from this District to show that plaintiff’s claim
should be dismissed because she did not sufficiently describe her job duties in detail. The Brown
v. Smith court stated as part of its rationale that, “[b]y itself, plaintiff’s failure to provide some
indication of her job duties is a pleading deficiency.” Id.
Brown v. Smith is distinguishable, however, because the court explained: “even without
knowing plaintiff’s job duties, it is apparent that the allegedly protected speech occurred within
the chain of command and was made in opposition to instructions from her supervisors
concerning the performance of her official duties.” Id. Here, it is apparent that plaintiff’s speech
occurred outside the chain of her command. The Brown court acknowledged: “The forum in
which the speech occurs is a relevant consideration. For example, speech made within an
employee’s chain of command is likely to be made as part of the employee’s official duties,
while speech occurring outside of the workplace environment may be protected.” Id. (citing
Rohrbough, 596 F.3d at 747). It is not apparent that that plaintiff’s official duties, or the official
duties of anyone employed by ODVA, would include speaking about the ODVA in a negative
manner to a state senator at a town hall meeting.
Finally, plaintiff is not entitled to qualified immunity as to plaintiff’s claim under 42
U.S.C. §1983. In several Oklahoma cases, courts have found that defendants are not entitled to
qualified immunity where they have alleged, pursuant to 42 U.S.C. §1983, that they were
terminated in retaliation for exercising their free speech rights, and they have noted, in particular,
the clear establishment of the law that a public employer cannot retaliate against an employee for
exercising his or her right of free speech and speak out on matters of public concern. McFall v.
Bednar, 407 F.3d 1081, 1090 (10th Cir. 2005); Trant v Oklahoma, 874 F.Supp.2d 1294, 1309
(W.D. Okla. 2012); cf. Duckett v. Oklahoma ex rel. Bd. Of Regents of the University of
Oklahoma, 986 F.Supp.2d 1249, 1258 (W.D. Okla. 2013) (federal case law was clearly
established and defendants did not effectively dispute the point.) Defendants’ motion to dismiss
is denied as to plaintiff’s §1983 claim.
Intentional Infliction of Emotional Distress
Although defendants do not specifically allege that Potteiger possesses qualified
immunity as to plaintiff’s claim of intentional infliction of emotional distress, they do allege that
he is immune under the OGTCA because he acted only in his official capacity. See (Dkt. 13 at
16, 23). As set forth above, Oklahoma state government employees possess qualified immunity
in their individual capacities for torts committed within the scope of their employment pursuant
to the OGTCA, but malicious or bad faith actions are never within the scope of employment.
Pellegrino v. Okla. ex rel. Cameron Univ., 63 P.3d 535, 537 (2003); see also Harmon v.
Cradduck, 2012 OK 80, 286 P.3d 643, 650 n.20. An intentional infliction of emotional distress
claim involves allegations of bad faith and falls outside the realm of the OGTCA. See Kiefner v.
Sullivan, No. 13-cv-714-TCK-FHM, 2014 WL 2197812, at *14 (N.D. Okla. May 27, 2014).
Thus, qualified immunity does not bar this claim against Potteiger in his individual capacity.
In Kiefner, the court reviewed a motion to dismiss and stated that “Oklahoma law directs
the district court to act as a gatekeeper and make an initial determination about the validity of [an
intentional infliction of emotional distress] claim before sending it to the jury . . . . Many
employment-related factual scenarios have been deemed insufficient to satisfy the intentional
infliction of emotional distress standards . . . .” Kiefner, 2014 WL 2197812, at *13 (citing
Breeden v. League Servs. Corp., 575 P.2d 1374, 1377-78 (Okla. 1978); Gabler v. Holder &
Smith, Inc., 2000 OK CIV APP 107, 11 P.3d 1269). The parties urge this Court to evaluate the
claim by reference to the elements and the facts alleged as well. However, the Breeden court
cited in Kiefner involved the Oklahoma Supreme Court’s first time to review a trial court’s grant
of summary judgment in a tort action involving the plaintiff’s right to be free from emotional
distress. Breeden, 575 P.2d at 1377. In Gabler, the Oklahoma Court of Civil Appeals converted a
Rule 12(b)(6) motion to dismiss into a motion for summary judgment. 2000 OK CIV APP at ¶910, 11 P.3d at 1273. This Court is again, reluctant to require detailed factual allegations. The
Court must accept the plaintiff’s factual allegations as true, even if “doubtful in fact.” Twombly,
550 U.S. at 555.
The ultimately succeed with this claim, plaintiff must show: “(1) the defendant’s conduct
was intentional or reckless; (2) the defendant’s conduct was extreme and outrageous; (3) the
defendant’s conduct caused the plaintiff to suffer emotional distress; and (4) the plaintiff’s
emotional distress was severe.” Kiefner, 2014 WL 2197812, at *13 (citing Daemi v. Church’s
Fried Chicken, Inc., 931 F.2d 1379, 1387 (10th Cir. 1986)). However, “[c]onduct which, though
unreasonable, is neither ‘beyond all possible bounds of decency’ in the setting in which it
occurred, nor is one that can be ‘regarded as utterly intolerable in a civilized community’ falls
short of having actionable quality.” Brock v. Thompson, 1997 OK 127, ¶35, 948 P.2d 279, 294
(Okla. 1998) (quoting Restatement (Second) of Torts § 46 (Am. Law Inst. 1977)). Further,
[Oklahoma] appellate courts have consistently found employment related facts
. . . do not meet the [intentional infliction of emotional distress] criteria. See,
e.g., Eddy v. Brown, 715 P.2d 74 (Okla. 1986) (Among other things,
supervisor and foreman mimicked and ridiculed plaintiff in workplace);
Anderson v. Oklahoma Temporary Services, Inc., 925 P.2d 574 (Okla. 1996)
(Among other things, supervisor made lewd remarks about plaintiff and
embarrassed plaintiff by discussing her faults while with coworkers); and
Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678 (Okla. 1998) (Employer,
among other things, loudly berated plaintiff in workplace and made derogatory
sexual comments about plaintiff’s fiancee.) See also, Merrick v. Northern
Natural Gas Co., 911 F.2d 426 (10th Cir.1990) (Supervisor yelled at, cursed,
and harshly criticized plaintiff with summary judgment for employer affirmed.)
Gabler, 1997 OK at ¶64, 11 P.3d at 1280 (Okla. Civ. App., 2000).
Plaintiff alleges that Potteiger, inter alia, “yelled at” her, accused her of “having a bad
attitude,” and “not being a team player,” “derisively and maliciously” asked her questions,
“attempted to dissuade [her] from exercising her rights,” admonished her and prohibited her from
visiting a friend at the Center, and admonished her husband for “talking too loud” (Dkt. 2 at 510). While certainly not admirable behavior, Potteiger’s comments to plaintiff seem no more
outrageous than the events described in the cases cited by Gabler above, such as mimicking,
ridiculing, making lewd remarks, berating, making derogatory sexual comments about a fiancée,
or yelling, cursing, or harshly criticizing.
However, “reasonable people” could conclude that other alleged conduct was extreme or
outrageous. See Miller v. Miller, 1998 OK 24, ¶ 33, 956 P.2d 887, 902. Plaintiff has alleged that
Potteiger fired her, threatened to fire her, prohibited her from receiving donated time, cleaned out
her office while she was off work, and undercounted her service for purposes of her retirement
benefits, knowing that she had been diagnosed with major depressive disorder. The facts and
circumstances surrounding an employee’s discharge may give rise to liability for intentional
infliction of emotional distress. Hill v. Noram Investments, 22 F.3d 932 (10th Cir. 1999); Smith
v. Farmers Co-op Assoc. of Butler, 1992 OK 11, ¶ 19, 825 P.2d 1323, ___. Plaintiff here has
“nudged” her claim “across the line from conceivable to plausible.’” Robbins, 519 F.3d at 1247.
Malicious Interference with a Contractual Relationship
Plaintiff alleges that Potteiger was her supervisor, and that he “interfered with her
contractual relationship by terminating her and/or effecting a constructive discharge.” (Dkt. 2 at
10). Again, defendants do not specifically allege that Potteiger possesses qualified immunity as
to his claim for malicious interference with a contractual relationship, but they do argue that he
acted in good faith. All 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 from OGTCA coverage. Tuffy’s, Inc., 2009 OK at ¶ 15, 212
P.3d at 1165. They are excluded because bad faith is a necessary element of the tort. “The tort
requires a showing of bad faith and thus cannot be committed within the scope of employment
by an employee of a political subdivision. Id., 2009 OK at ¶ 15, 212 P.3d at 1166. The elements
of a claim for malicious interference 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. Id., 2009 OK at ¶ 14, 212 P.3d at
1165. Potteiger is not entitled to qualified immunity on this claim.
Nor is he entitled to dismissal. In general, “an agent of a principal cannot be held liable
for interfering with a contract between the principal and a third party.” Martin v. Johnson, 1998
OK 127, ¶ 30, 975 P.2d 889, 8960. However, an agent can “be held personally liable on an
interference with contract claim if the agent was acting against the interests of the principal and
in furtherance of interests of the agent.” Id. The Martin court explained: “If an employee acts in
bad faith and contrary to the interests of the employer in tampering with a third party’s contract
with the employer we can divine no reason that the employee should be exempt from a tort claim
for interference with contract. Courts in other jurisdictions agree.” Martin, 1998 OK at ¶ 32, 975
P.2d at 896-897. The Martin court concluded that the plaintiff, a school teacher, could amend her
petition to add a cause of action against her principal and superintendent for tortious interference
with contract, even though they were agents of the school district that employed her. 1998 OK at
¶ 34, 975 P.2d at 897-898.
Plaintiff in this action has sufficiently plead that Potteiger acted in bad faith and contrary
to the interests of the ODVA when he fired her and, plausibly, when he “effected a constructive
discharge” by actions such as prohibiting her from receiving donated leave, clearing out her
office, and miscalculating her service for retirement purposes.
ACCORDINGLY, IT IS HEREBY ORDERED that defendants’ motion is GRANTED
in part and DENIED in part in accordance with this opinion.
(1) Defendants’ motion is GRANTED as to plaintiff’s FMLA interference claim
and DENIED as to plaintiff’s FMLA retaliation claim;
(2) Defendants’ motion is DENIED as to plaintiff’s claim that Potteiger violated
her rights under 42 U.S.C. §1983;
(3) Defendants’ motion is GRANTED as to plaintiff’s claim that ODVA violated
Article 2, § 22 of the Oklahoma Constitution
(4) Defendants’ motion is DENIED as to plaintiff’s claim that Potteiger is liable
for an intentional infliction of emotional distress; and
(5) Defendants’ motion is DENIED as to plaintiff’s claim that Potteiger
maliciously interfered with her contractual relationship with ODVA.
DATED this 31st day of March, 2017.
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