Brewer v. Baptists Inc et al

Filing 25

ORDER granting in part and denying in part 21 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 2/11/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LEANNA VENNISSA ROSE BREWER,
Plaintiff,
v.
BAPTIST’S INC., d/b/a/ BAPTIST
ATHLETIC SUPPLY, et al.,
Defendants.

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Case No. CIV-12-244-D

ORDER
Before the Court is Defendants’ Motion to Dismiss in Part Plaintiff’s Amended Complaint
[Doc. No. 21], filed by Defendants Baptist’s, Inc. (“Baptist’s”), Wilson Baptist (“Mr. Baptist”), and
Terry Nix (“Mr. Nix”), pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff Leanna Vennissa Rose Brewer
has responded in opposition to the Motion, which is fully briefed and at issue.
By Order of November 13, 2012, the Court granted in part and denied in part Defendants’
motion to dismiss Plaintiff’s original complaint, with leave to amend certain dismissed claims.
Because the parties are familiar with the November 13 Order, the substance of the Court’s rulings
will not be repeated here. In compliance with the Order, Plaintiff filed her Amended Complaint,
which restates all claims except ones that were dismissed with prejudice. Defendants timely
answered the Amended Complaint except as to Count VIII, “Whistle Blower Retaliation,” which
is challenged by the instant Motion.
Briefly stated, Plaintiff is a former employee of Baptist’s who claims she was subjected to
sexual harassment, gender discrimination, and retaliation during her employment, and that she was
constructively discharged in September, 2010. As pertinent to Count VIII, Plaintiff alleges that
Baptist’s engaged in unlawful and fraudulent business practices involving the sale of sports

equipment and products to Oklahoma public schools. She alleges that Baptist’s, in collusion with
public school employees and athletic coaches, “generat[ed] false invoices to the public schools for
sports products [ordered] but never provid[ed] . . . so that other non-athletic personal products could
be sent to . . . coaches and their families to encourage [coaches] to purchase the sports products from
[Baptist’s].” See Am. Compl. [Doc. No. 19], ¶ 123. Plaintiff alleges this subterfuge, known by
Baptist’s employees as the “Baptist Swap,” resulted in “school coaches and their families (i.e., wife
and children) receiving the non-athletic personal products but . . . causing the public school to pay
for these personal items by the use of these false invoices.” Id. ¶ 124. Plaintiff also alleges Baptist’s
“threatened its employees, including Plaintiff, to give false information to school board members,
school personnel and others who called . . . to question invoices for ‘school equipment’ that the
school did not actually receive.” Id. ¶ 125.
By the November 13 Order, the Court dismissed without prejudice the claim now asserted
in Count VIII because “Plaintiff [had] failed to articulate a constitutional, statutory, or decisional
law basis for the Oklahoma public policy prohibiting her constructive discharge,” as required to state
a claim under Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989), and its progeny. See Order [Doc.
No. 15] at 16-17. In the Amended Complaint, Plaintiff identifies two Oklahoma statutory laws that
prohibited the alleged fraudulent scheme: the Anti-Kickback Act of 1974, Okla. Stat. tit. 74, § 3401
et seq.; and the Oklahoma Central Purchasing Act, Okla. Stat. tit. 74, § 85.1 et seq.1 Plaintiff alleges
that these statutes establish a clear and well-established public policy against Baptist’s fraudulent
sales practices, which were used 1) to give kickbacks to school employees and their families and
2) to obtain public funds without following competitive bidding requirements and protections.
1

The Amended Complaint contains an incorrect citation, but Defendants acknowledge the correct
citation in their Motion.
2

By their Motion, Defendants again challenge the sufficiency of Plaintiff’s pleading to state
a whistleblowing claim under Burk. Defendants first note that Plaintiff states in Count VIII that this
claim is asserted against all defendants, but only an employer – not individual supervisors or
managers – can be held liable under this legal theory. Plaintiff concedes this point in response to
the Motion, and agrees “any individual liability claims against [Mr. Baptist] and [Mr. Nix] must be
dismissed” with respect to her Burk tort claim. See Pl.’s Resp. Br. [Doc. No. 24] at 4.
As to a claim against Baptist’s, Defendants contend the Amended Complaint fails to
adequately allege all elements of a plausible claim. See Kruchowski v. Weyerhaeuser Co., 202 P.3d
144, 151 (Okla. 2008) (enumerating elements of a Burk claim).2 Defendants criticize the Amended
Complaint for failing to identify a particular provision of the Central Purchasing Act that was
allegedly violated, although Defendants concede the Anti-Kickback Act is implicated by Plaintiff’s
factual allegations. Defendants also fault the Amended Complaint for failing to “specify when, or
to whom, [Plaintiff] reported the alleged violations.” See Defs.’ Motion [Doc. No. 21], ¶ 10.
Finally, Defendants contend the Amended Complaint fails to sufficiently allege Plaintiff was
constructively discharged in retaliation for whistleblowing.3
Upon consideration, the Court finds the Amended Complaint sufficiently states a plausible
whistleblowing claim under Burk. In so finding, the Court applies the standards of decision set forth
in the November 13 Order. See Order [Doc. No. 15] at 4-5. Specifically, in assessing the

2

As to the second element, at-will employment, Defendants argue that Plaintiff’s allegation she was
an at-will employee is inconsistent with her claim in Count VII for tortious interference with an employment
contract. However, federal pleading rules expressly permit inconsistent claims. See Fed. R. Civ. P. 8(d)(3).
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Defendants also assert that Plaintiff fails to allege no adequate statutory remedy exists. In
argument, however, Defendants concede the Anti-Kickback Act only provides a civil remedy that permits
“the State” to recover the value of any kickback. See Defs.’ Motion, ¶ 12.
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sufficiency of the Amended Complaint under Rule 12(b)(6), the Court must accept as true all
well-pleaded factual allegations, view those allegations in the light most favorable to Plaintiff, and
draw all reasonable inferences in her favor. See Smith v. United States, 561 F.3d 1090, 1097 (10th
Cir. 2009). Further, the Court notes that determining whether a complaint states a plausible claim
for relief is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Here, Plaintiff’s Amended Complaint identifies the Oklahoma public policy goals violated
by the alleged fraudulent practices of Baptist’s, and the statutes in which these goals are found.
Plaintiff allegedly informed “her supervisors” – identified elsewhere in the Amended Complaint as
Mr. Nix and Mr. Baptist – of the fraudulent practices and “the misuse of public funds dedicated to
purchasing sports goods for the use of public school students,” and she allegedly reported violations
of the Anti-Kickback Act “within the Defendant Corporation to persons in a position to investigate
and remedy the wrongdoing.” See Am. Compl. [Doc. No. 19], ¶¶ 123, 129, 131. The Amended
Complaint identifies Mr. Baptist as the owner and operator of Baptist’s and “the ultimate supervisor
of all employees including [Mr. Nix] and Plaintiff.” Id. ¶¶ 3-4. Oklahoma law is clear that
employees who make internal complaints about an employer’s unlawful practices and “whose
actions seek to further the public good by unmasking these [practices] should be protected from an
employer’s retaliation.” Darrow v. Integris Health, Inc., 176 P.3d 1204, 1216 (Okla. 2008).
Plaintiff has sufficiently alleged that she engaged in such protected actions. Also, the Amended
Complaint expressly alleges that “[a]fter Plaintiff complained about this misuse of public funds,
[Baptist’s] encouraged its employee to retaliate against Plaintiff that ultimately resulted in her
constructive discharge from her employment.” See Am. Compl. [Doc. No. 19], ¶ 132. Construing

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these allegations in the light must favorable to Plaintff, the Court finds that a plausible Burk claim
is stated in Count VIII of the Amended Complaint.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss in Part Plaintiff’s
Amended Complaint [Doc. No. 21] is GRANTED in part and DENIED in part, as set forth herein.
Count VIII is dismissed with prejudice as to the individual defendants, Wilson Baptist and Terry
Nix, but shall proceed as to the corporate defendant, Baptist’s, Inc.
IT IS SO ORDERED this 11th day of February, 2013.

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