Austin v. Edmond Transit Management Inc et al

Filing 28

ORDER granting in part and denying in part 17 Motion to Dismiss; granting in part and denying in part 18 Motion to Dismiss. Granting Plaintiff 14 days to file amended complaint. Signed by Honorable Timothy D. DeGiusti on 1/2/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
IVORY L. AUSTIN,

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Plaintiff,
v.
EDMOND TRANSIT
MANAGEMENT INC.,
MCDONALD TRANSIT
ASSOCIATES, INC., CITY OF
EDMOND d/b/a CITYLINK,
EDWARD ESPARZA, an individual,
and JOE SWANDA, an individual,
Defendants.

CIV-12-324-D

ORDER
Before the Court are motions to dismiss filed by Defendants Edmond Transit
Management, Inc. (“Edmond Transit”) and McDonald Transit Associates, Inc. (“McDonald”)
[Dkt. # 17], and Defendants Edward Esparza (“Esparza”) and Joe Swanda (“Swanda”)
(collectively “Defendants”) [Dkt. # 18], pursuant to Fed. R. Civ. P. 12(b)(6). The motions
are directed at Plaintiff Ivory L. Austin’s (“Austin”) Amended Complaint [Dkt. # 6].
Defendants seek dismissal of all counts. The motions are fully briefed and at issue. Because
the same facts and law apply to the disposition of each motion, and because in each motion
the parties adopt and incorporate the arguments made in support of the other motion, the
Court addresses them in a single Order. For the reasons set forth herein, dismissal is
GRANTED in part and DENIED in part.

I. Background
McDonald is a private corporation that has contracted with the City of Edmond
(“City”) to provide public transportation services to the City through its wholly-owned
subsidiary, Edmond Transit. Austin, an African-American male, is an employee of Edmond
Transit. Plaintiff alleges that during the course of his employment with Edmond Transit he
was discriminated against on the basis of race and disability by his supervisor, Esparza, and
by an Edmond Transit Dispatcher, Swanda. He has sued Edmond Transit and its parent
company, McDonald, as well as Esparza and Swanda in their individual capacities. Plaintiff
brings suit for alleged violations of his federal-statutory and constitutional rights as well as
for alleged violations of Oklahoma tort law.
Plaintiff began his employment as a bus driver for Defendants on November 30, 2009.
Am. Compl. ¶ 12. He was hired by then-Transit Director, Alonda Massey (“Massey”), an
African-American. Although Plaintiff had “suffered a stroke several years ago, [which]
cause[d] one side of his body to move more slowly than the other”, he alleges that he
performed his job “without incident” until Esparza, who is Hispanic, replaced Massey as the
Transit Director and Swanda, who is Caucasian, was hired as a Dispatcher. Id. ¶ 13. Shortly
thereafter, Plaintiff alleges that “Swanda began continuously making demeaning comments
concerning Plaintiff’s medical condition,” . . . stating that Plaintiff “walked too slow” and
that he “should not be driving a bus because he . . . had a stroke” and “would be a liability
to the company” if he had another one. Id. ¶ 14. Plaintiff further alleges that Swanda made
racially derogatory remarks, wherein he “repeatedly referred to several Black male
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employees as ‘Leroy’ and / or ‘boy’ and referred to female Black employees as ‘colored gals’
and / or ‘black girls.’” Id. ¶ 15.
Plaintiff alleges that he complained about Swanda’s behavior to his immediate
supervisor, Christopher Mitchem (“Mitchem”), in or around November 2010, and that
Mitchem informed Plaintiff that he would address the matter with Transit Director Esparza.
Id. ¶16. Thereafter, Plaintiff claims that Esparza “subjected [him] to more stringent and less
favorable work standards” than similarly-situated Caucasian and non-disabled coworkers.
Id. ¶ 17. Specifically, Plaintiff alleges that he was required to undergo a drug test and was
temporarily suspended from work while awaiting the test results after he was involved in an
automobile accident in a company vehicle. Id. ¶ 18. Conversely, when Swanda was
involved in a vehicular accident, Plaintiff alleges that Esparza did not require him to undergo
a drug test at all. Id. Additionally, after complaining to an EEOC investigator about
Swanda’s conduct, Plaintiff alleges that Esparza instructed Mitchem to repeatedly ride along
in Plaintiff’s bus so that he could overly scrutinize and unfairly evaluate his job performance.
Id. ¶ 19.
Plaintiff filed Charges of Discrimination with the EEOC on December 6, 2011, and
again on March 6, 2012. After receiving his Right to Sue letter, Plaintiff timely filed this
lawsuit on March 23, 2012. The Amended Complaint [Dkt. # 6] sets forth five causes of
action:1 Count I is against Defendants Edmond Transit and McDonald and alleges racial

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The City of Edmond was originally named in all five Counts, but has since been dismissed from this
lawsuit. See Pl.’s Notice of Partial Dismissal without Prejudice [Dkt. # 20].

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discrimination, the creation of a racially hostile work environment, and retaliation in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); Count II is against
Defendants Edmond Transit and McDonald as well as Esparza and Swanda in their
individual capacities and alleges the same claim as Count I, but is brought pursuant to 42
U.S.C. § 1981; Count III is against Defendants Edmond Transit and McDonald and alleges
disability discrimination and retaliation in violation of the Americans with Disabilities Act
(“ADA”) and the ADA Amendments Act of 2008 (“ADAA”); Count IV is against
Defendants Edmond Transit and McDonald, as well as Esparza in his individual capacity,
and alleges a violation of Plaintiff’s Fourteenth Amendment rights, actionable under 42
U.S.C. § 1983;2 and Count V is against Defendants Edmond Transit and McDonald and
alleges a tort claim for Negligent Training, Supervision, and Retention under Oklahoma law.
On July 5, 2012, Defendants filed two motions to dismiss, collectively seeking dismissal of
all counts.
II. Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be granted.” “The nature of a Rule 12(b)(6)
motion tests the sufficiency of the allegations within the four corners of the complaint after
taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)
(internal citation omitted). The sufficiency of a complaint is a question of law. Smith v.

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Plaintiff has subsequently dismissed his § 1983 claim (Count IV) pursuant to Fed. R. Civ. P. 41(a)(1)(i).
That claim is dismissed without prejudice as to all Defendants and, as such, is not further discussed in this Order.

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United States, 561 F.3d 1090, 1097 (10th Cir. 2009). When considering a Rule 12(b)(6)
motion, a court must accept as true all well-pleaded factual allegations in the complaint, view
those allegations in the light most favorable to the non-moving party, and draw all reasonable
inferences in the plaintiff’s favor. Id.; see Hous. Auth. of Kaw Tribe v. City of Ponca City,
952 F.2d 1183, 1187 (10th Cir. 1991). A complaint challenged by a Rule 12(b)(6) motion to
dismiss does not need to set forth detailed factual allegations, but a plaintiff’s burden to set
forth the grounds of his or her entitlement to relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (stating that a plaintiff’s complaint must set forth more than “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements”).
To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient facts
that, if assumed to be true, state a claim to relief that is plausible on its face. See Twombly,
550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678.
III. Analysis
A. Plaintiff’s Title VII and § 1981 claims.
In Counts I and II of the Amended Complaint, Plaintiff alleges that he was the victim
of “race discrimination, harassment, and retaliation” in violation of both Title VII and 42
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U.S.C. § 1981. Am. Compl. ¶ 8. Because Plaintiff pleads the same facts in support of each
claim, the Court addresses those claims together. Carney v. City and Cnty of Denver, 534
F.3d 1269, 1273 (10th Cir. 2008) (“In racial discrimination suits, the elements of a plaintiff’s
case are the same whether that case is brought under § 1981 or . . . Title VII.”).
1. Race Discrimination
To state a claim for race discrimination under Title VII and § 1981, a plaintiff must
plead facts to show not only (1) that he is a member of a protected class, but (2) that he
suffered an adverse employment action, and (3) that similarly situated employees were
treated more favorably. Carney, 534 F.3d at 1273; Orr v. City of Albuquerque, 417 F.3d
1144, 1149 (10th Cir. 2005). Unlike Title VII, moreover, § 1981 additionally requires that
the defendant “intentionally discriminated against [the plaintiff] on the basis of race.” Juarez
v. ACS Gov’t Solutions Group, Inc., 314 F.3d 1243, 1245 (10th Cir. 2003) (emphasis added).
Defendants assert that Plaintiff has failed to state a claim for race discrimination
because he has not alleged that he suffered an adverse employment action. Defs.’ Mem. in
Supp. of its Mot. for Summ. J. (“Defs.’ Mem.”) at 5. The Court disagrees. In his Amended
Complaint, Plaintiff alleges that he was forced to undergo a drug test and was suspended
from work for four days while the test results were processed. See Am. Compl. ¶ 18. The
drug test, Plaintiff alleges, was administered in a discriminatory manner on account of his
race. Id. On a motion to dismiss, the Court must take the well-pleaded factual allegations
of the Complaint as true, and in so doing, finds that Plaintiff has stated a claim for race
discrimination under Title VII and § 1981. Plaintiff has pled that he was suspended from
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work for a period of time to undergo a test that similarly-situated co-workers outside of his
protected class were not required to take. Id. ¶ 18. This factual allegation, if true, is
sufficient to state a claim for race discrimination that is plausible on its face. Accordingly,
Plaintiff’s Title VII race discrimination claim in Count I will proceed against Defendants
Edmond Transit and McDonald, and Plaintiff’s § 1981 race discrimination claim in Count
II will proceed against all Defendants.
2. Hostile Work Environment
To state a claim based on a racially hostile work environment under Title VII and §
1981, a plaintiff must allege facts to show the harassment “was pervasive or severe enough
to alter the terms, conditions, or privileges of employment” and that it “was racial or
stemmed from racial animus.” Chavez v. New Mexico, 397 F.3d 826, 831-32 (10th Cir.
2005). “A plaintiff cannot meet this burden by demonstrating a few isolated incidents of
racial enmity or sporadic racial slurs.” Id. at 832. “Instead, there must be a steady barrage
of opprobrious racial comments.” Id.
Defendants assert that Plaintiff’s hostile work environment claim fails because the
Amended Complaint sets forth only isolated instances of discrimination that do not rise to
the level of a hostile work environment. Defs.’ Mem. at 7. The Court agrees. Plaintiff has
pled only that his non-supervisory coworker, Swanda, “repeatedly referred to several Black
male employees as ‘Leroy’ and / or ‘boy’ and referred to female Black employees as ‘colored
gals’ and / or ‘black girls.’” Am. Compl. ¶ 15. These comments are insufficient to constitute
the “steady barrage” required to state a hostile work environment claim. See Chavez, 397
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F.3d at 832. Because Plaintiff alleges no other facts to support his contention that he was
subjected to a racially hostile work environment, the Court finds that Defendants are entitled
to dismissal. Therefore, Plaintiff’s Title VII hostile work environment claim in Count I is
dismissed against Defendants Edmond Transit and McDonald, and Plaintiff’s § 1981 hostile
work environment claim in Count II is dismissed against all Defendants; however, the Court
also grants Plaintiff leave to amend his complaint so as to cure the deficiencies identified
herein. See, e.g., Bauchman v. W. High Sch., 132 F.3d 542, 559 (10th Cir. 1997).
3. Retaliation
To state a claim for retaliation under Title VII and § 1981, a plaintiff must show (1)
that he was engaged in protected opposition to discrimination, (2) that a reasonable employee
would have found the challenged action materially adverse, and (3) that a causal connection
existed between the protected activity and the materially adverse action. Khalik v. United
Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). “In the retaliation context, the definition
of ‘adverse action’ is broader than in the disparate treatment context; any act by the employer
that would have dissuaded a reasonable employee from making or supporting a charge of
discrimination can constitute an adverse action for retaliation purposes.” Kenfield v. Colo.
Dep’t of Public Health & Envmt., 837 F. Supp. 2d 1232, 1248 (D. Colo. 2011) (citing
Burlington Northern & Sante Fe RR Co. v. White, 548 U.S. 53, 67-68 (2006).
Defendants concede that Plaintiff has alleged sufficient facts to show that he engaged
in protected activity. Defs.’ Mem. at 6. In seeking dismissal, they contend only that Plaintiff
has failed to plead that he suffered any materially adverse action as a consequence of
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engaging in such activity. Id. However, Plaintiff has pled that he was suspended from work
for a period of four days in December of 2010, and that his suspension occurred
approximately one month after he reported allegations of discrimination to his supervisor.
Am. Compl. ¶¶ 16-18. He has also pled that he was suspended for the same conduct that a
similarly-situated coworker outside of his protected class engaged in without employment
consequences. Id. ¶ 18. Taking these allegations as true, and considering “that protected
conduct closely followed by adverse action may justify an inference of retaliatory motive,”
Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996), the Court finds that
Plaintiff has stated a claim for relief for retaliation that is plausible on its face. Therefore,
Plaintiff’s Title VII race retaliation claim in Count I will proceed against Defendants Edmond
Transit and McDonald, and Plaintiff’s § 1981 race retaliation claim in Count II will proceed
against all Defendants.
B. Plaintiff’s ADA claims
In Count III, Plaintiff alleges that he suffered unlawful discrimination and retaliation
in violation of the ADA and ADAA (collectively, “ADA”). The ADA prohibits employment
discrimination against qualified disabled employees. 42 U.S.C. § 12112(a) et seq. It also
prohibits employers from retaliating against employees for engaging in certain protected
activities, such as reporting alleged violations of the statute to one’s employer or to the
EEOC. 42 U.S.C. § 12203(a).

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1. ADA Discrimination
To state a discrimination claim under the ADA, a plaintiff must plead facts that show
(1) he was a disabled person within the meaning of the statute; (2) he was qualified, with or
without reasonable accommodation, to perform the essential functions of his job; and (3) he
suffered an adverse employment action because of his disability. Carter v. Pathfinder
Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011).
Here, Defendants challenge the sufficiency of Plaintiff’s ADA discrimination claim
in the same manner as they unsuccessfully challenged the sufficiency of his Title VII and §
1981 claims. Defendants assert only that Plaintiff did not suffer an adverse employment
action because of his disability. Defs.’ Mem. at 13. For the same reasons as discussed in
Part III(A)(1) of this Order, however, the Court finds that Plaintiff has pled sufficient factual
allegations to show that he suffered an adverse employment action when he was suspended
from work for four days. Additionally, Plaintiff alleged that he was suspended for the same
conduct that a similarly-situated non-disabled coworker engaged in without employment
consequences. Am. Compl. ¶ 18. The Court finds these factual allegations, when viewed
in the light most favorable to the plaintiff, sufficient to state a claim for disability
discrimination under the ADA that is plausible on its face. Accordingly, the motion is denied
as to Plaintiff’s ADA discrimination claim in Count III, and that claim will proceed against
Defendants Edmond Transit and McDonald.

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2. ADA Retaliation3
To state a claim for retaliation under the ADA, a plaintiff must plead “that he engaged
in an act protected by the ADA, that [the] defendant retaliated and caused plaintiff harm, and
that a causal connection exists between plaintiff’s protected act and defendant’s retaliation.”
White v. Kansas Dep’t of Corrections, 2010 WL 3861848, at *5 (D. Kan., Sept. 22, 2010).
Defendants again assert that dismissal is warranted because Plaintiff has not alleged
that he suffered any adverse action because of his disability. Defs.’ Mem. at 12. However,
Plaintiff has alleged that he is disabled within the meaning of the ADA, that he was qualified
to perform his job with or without a reasonable accommodation, and that his four day
suspension constituted an adverse employment action because of his disability. Am. Compl.
¶¶ 13, 16-18. He has additionally alleged that the suspension occurred approximately one
month after he reported allegations of discrimination to his supervisor and that a similarlysituated non-disabled coworker had engaged in the same conduct but without employment
consequences. Am. Compl. ¶¶ 16-18. Taking the well-pleaded factual allegations as true,
and considering the close temporal proximity between the protected conduct and the alleged
adverse action, Marx, 76 F.3d at 329, the Court finds that Plaintiff has stated a claim for
relief for ADA retaliation that is plausible on its face. Therefore, the motion is denied as to

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As a preliminary matter, Defendants assert that Plaintiff has not alleged an ADA retaliation claim at all
because Plaintiff does not use the word “retaliation” in Count III of the Amended Complaint. Defs.’ Mem. at 12.
However, a complaint need only state facts sufficient to constitute a cause of action, and a plaintiff is not required to
name the specific theory upon which he seeks relief. See, e.g., TIG Ins. Co. v. Aon Re, Inc., 521 F.3d 351, 357
(5thCir. 2008); see also Fed. R. Civ. P. 8. The Court finds that Plaintiff has pled sufficient facts to provide
Defendants with fair notice of his retaliation claim, including the fact that Plaintiff refers to such a claim for
retaliation elsewhere in his Amended Complaint. See Am. Compl ¶ 8.

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Plaintiff’s ADA retaliation claim in Count III, and that claim will proceed against Defendants
Edmond Transit and McDonald.
C. Plaintiff’s Negligent Training, Supervision, and / or Retaliation Claim
In Count V of the Amended Complaint, Plaintiff alleges that Defendants Edmond
Transit and McDonald failed to “properly supervise and train their employees to refrain from
engaging in harassment, discrimination, and retaliation” and that these actions constitute the
tort of Negligent Training, Supervision and Retention (“Negligent TS/R”). Am. Compl. ¶¶
42-43. Plaintiff asserts that “at the critical time of the tortious incidents . . . , Defendants
knew or should have known their employees . . . would create an undue risk of harm.” Id.
¶ 45. Plaintiff cites by way of an example that another of Defendants’ employees,
Christopher Mitchem, previously complained about Swanda and Esparza, but that
Defendants “took no remedial action.” Id. ¶ 48. Mitchem subsequently filed suit in this
Court on November 11, 2010, alleging violations of federal and state law based on similar
allegations of unlawful conduct by Swanda and Esparza. See Mitchem v. Edmond Transit
Management, Inc., No. 10-1203 (W.D. Okla. filed Nov. 11, 2010).
An employer may be held liable in Oklahoma for negligent hiring, supervision, or
retention of an employee. See Excue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir. 2006)
(applying Oklahoma law); N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla.
1999). Liability attaches, “if – at the critical time of the tortious incident – the employer had
reason to believe that the person would create an undue risk of harm to others. Employers
are held liable for their prior knowledge of the servant’s propensity to commit the very harm
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for which damages are sought.” Presbyterian Church (U.S.A.), 998 P.2d at 600. Moreover,
in cases of direct liability of a corporate employer for negligent retention, knowledge may
be imputed to the employer from information obtained by its supervisory employees. See
Magnum Foods, Inc. v. Continental Cas. Co., 36 F.3d 1491, 1500-01 (10th Cir. 1994)
(applying Oklahoma law).
Defendants seek dismissal of Count V for two reasons. First, Defendants assert that
Oklahoma law does not permit a plaintiff to pursue a Negligent TS/R claim when vicarious
liability is established. Defs.’ Mem. at 14. Although this is a correct statement of Oklahoma
law, see, e.g., Jordan v. Cates, 935 P.2d 289 (Okla. 1997), the Court notes that Defendants
have, thus far, failed to stipulate that Esparza and Swanda were acting within the scope of
their employment when they allegedly engaged in discriminatory conduct. Unless and until
Defendants so stipulate, vicarious liability is not established in this case, and Plaintiff may
proceed on his Negligent TS/R claim.
Second, Defendants Edmond Transit and McDonald assert that Plaintiff has failed to
allege any facts that demonstrate their prior knowledge of Swanda’s or Esparza’s alleged
propensity to engage in discriminatory or retaliatory behavior. Defs.’ Mem. at 15. The Court
disagrees. Plaintiff clearly alleges that another of these Defendants’ employees complained
about and subsequently filed suit over the same or similar discriminatory conduct at issue
here. Defendants were certainly on notice of Swanda’s and Esparza’s alleged propensity to
engage in discriminatory or retaliatory behavior by the time Mr. Mitchem filed his lawsuit
on November 11, 2010.

Plaintiff’s Amended Complaint sets forth allegations of
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discriminatory and retaliatory behavior beginning “in or around Fall/Winter 2010" and
continuing thereafter. Am. Compl. ¶ 19. Notably, Plaintiff’s four day suspension from work
occurred over a month after Mr. Mitchem filed suit. Id. ¶ 18. Taking these well-pleaded
factual allegations as true, the Court finds that Plaintiff has stated sufficient facts to show that
Defendants had prior knowledge of Swanda’s and Esparza’s alleged propensity to
discriminate so as to state a claim for Negligent TS/R that is plausible on its face.
Accordingly, Defendants Edmond Transit’s and McDonald’s motion is denied as to
Plaintiff’s Negligent TS/R claim in Count V.
IV. Conclusion
For the foregoing reasons, Defendants’ motions are granted in part and denied in part.
Accordingly, Count I and II of the Amended Complaint shall proceed as to Plaintiff’s Title
VII and § 1981 racial discrimination and retaliation claims, but Plaintiff’s Title VII and §
1981 hostile work environment claims are dismissed with leave to amend. Additionally, the
motion is denied as to Count III and Count V, and those claims shall also proceed.
IT IS THEREFORE ORDERED that Defendants Edmond Transit’s and McDonald’s
Motion to Dismiss [Dkt. # 17] is GRANTED as to Plaintiff’s Title VII hostile work
environment claim, but is DENIED as to all other claims.
IT IS FURTHER ORDERED that Defendants Esparza’s and Swanda’s Motion to
Dismiss [Dkt. # 18] is GRANTED as to Plaintiff’s § 1981 hostile work environment claim,
but is DENIED as to all other claims.

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IT IS FURTHER ORDERED that Plaintiff is granted fourteen (14) days leave to
amend his complaint as to his Title VII and § 1981 hostile work environment claims so as
to cure the deficiencies outlined herein.
IT IS SO ORDERED this 2nd day of December, 2012.

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