Shiel v. Edmond City of et al

Filing 26

ORDER granting in part and denying in part 13 defendants Monty Netherton, Djuana Grider, and Bjorn Hunskar's motion to dismiss as follows: (A) The Court grants the motion to dismiss as to any tort claims against the individual defendants based upon acts done within the scope of their employment and as to plaintiff's Title VII, ADEA, and ADA claims against the individual defendants and dismisses said claims, and (B) The Court denies the motion to dismiss as to any tort claims against the individual defendants based upon acts performed outside the scope of their employment (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 10/4/2011. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JAMES B. SHIEL,

)
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Plaintiff,
)
)
vs.
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CITY OF EDMOND, an Oklahoma
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Municipal Corporation, and MONTY
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NETHERTON, and DIANA GRIDER, and )
BJORN HUNSKAR, and THE
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AMERICAN FEDERATION OF STATE, )
COUNTY, AND MUNICIPAL
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EMPLOYEES, LOCAL 2739,
)
)
Defendants.
)

Case No. CIV-11-802-M

ORDER
Before the Court is defendants Monty Netherton, Djuana Grider, and Bjorn Hunskar’s
(“Individual Defendants”) Motion to Dismiss, filed August 10, 2011. On August 29, 2011, pro se
plaintiff filed his response, and on September 2, 2011, the Individual Defendants filed their reply.
Based upon the parties’ submissions, the Court makes its determination.
Plaintiff has asserted both state law tort claims and employment discrimination claims under
Title VII, the Age Discrimination in Employment Act (“ADEA”), and the Americans with
Disabilities Act (“ADA”) against the Individual Defendants. The Individual Defendants now move
to dismiss all claims against them. Specifically, they assert that plaintiff has failed to state a claim
upon which relief can be granted as to them due to (1) their immunity from suit, (2) plaintiff’s failure
to comply with the notice provisions of Oklahoma’s Governmental Tort Claims Act (“GTCA”), and
(3) the fact that they can not be held individually liable for any claims made against them pursuant
to Title VII, the ADEA, and the ADA.
The Oklahoma Supreme Court has held:

The Governmental Tort Claims Act, GTCA, (51 O.S.2001 §§ 151 et
seq.), makes a distinction between a government employee acting
within the scope of employment and one who was not. An act of the
employee is not in the scope of employment if the employee acted
maliciously or in bad faith. A government employee acting within
the scope of employment is relieved from private (individual)
liability for tortious conduct, but when an employee acts outside the
scope of employment the political subdivision is relieved from
liability. The concept of scope of employment is thus tied to whether
the employee or the government entity may be liable for a particular
act.
Pellegrino v. State ex rel. Cameron Univ., 63 P.3d 535, 537 (Okla. 2003) (internal citations omitted).
Thus, to the extent that plaintiff is asserting any tort claims against the Individual Defendants
based upon acts done within the scope of the Individual Defendants’ employment, the Court finds
that the Individual Defendants are immune from liability for these acts. However, in his response,
plaintiff asserts that the Individual Defendants were acting outside the scope of their employment.
Having carefully reviewed the parties’ submissions, and particularly plaintiff’s complaint, the Court
finds that plaintiff has alleged sufficient facts indicating that the Individual Defendants may have
been acting outside the scope of their employment. Accordingly, the Court finds that the Individual
Defendants are not immune from liability for any acts performed outside the scope of their
employment and any tort claims based upon these acts should not be dismissed.
The Tenth Circuit has held that Title VII, the ADEA, and the ADA preclude personal
capacity suits against individuals who do not otherwise qualify as employers under the statutory
definition. See Butler v. City of Prairie Village, Kan., 172 F.3d 736, 744 (10th Cir. 1999). Plaintiff
makes no allegation, and the Court finds that plaintiff could make no allegation, that the Individual
Defendants otherwise qualify as employers under Title VII, the ADEA, or the ADA. Accordingly,

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the Court finds that plaintiff’s Title VII, ADEA, and ADA claims against the Individual Defendants
should be dismissed.
Therefore, for the reasons set forth above, the Court GRANTS IN PART and DENIES IN
PART the Individual Defendants’ Motion to Dismiss [docket no. 13] as follows:
(A)

The Court GRANTS the motion to dismiss as to any tort claims against the
Individual Defendants based upon acts done within the scope of their employment
and as to plaintiff’s Title VII, ADEA, and ADA claims against the Individual
Defendants and DISMISSES said claims, and

(B)

The Court DENIES the motion to dismiss as to any tort claims against the Individual
Defendants based upon acts performed outside the scope of their employment.

IT IS SO ORDERED this 4th day of October, 2011.

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