Sims v. Workspace Solutions Inc et al

Filing 16

ORDER granting 13 Partial Motion to Dismiss. Signed by Honorable David L. Russell on 10/17/12. (kw, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JENNIFER SIMS,
Plaintiff,
v.
WORKSPACE SOLUTIONS, INC, d/b/a
SCOTT RICE and WORKSPACE SOLUTIONS,
LLC d/b/a SCOTT RICE,
Defendants.

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Case No. CIV-12-724-R

ORDER
This matter comes before the Court on the Motion to Dismiss, filed by Defendants.
Plaintiff responded in opposition to the motion. Having considered the parties' submissions,
the Court finds as follows.
Plaintiff filed this action alleging that she was an employee of Defendants, and that
they discriminated against her on the basis of her gender, specifically because she was
terminated as a result of her pregnancy. Plaintiff further alleges that her termination violated
the Family Medical Leave Act and retaliation. In support of her claim for retaliation Plaintiff
alleges that "Defendants retaliated against Plaintiff for engaging in protected activity by
discriminating against her in violation of Title VII and the FMLA." Complaint, ¶ 17. In the
instant motion Defendant seeks dismissal of Plaintiff's claim for retaliation, asserting that she
has not sufficiently plead a claim for retaliation because she plead mere legal conclusions and
no facts in support of her contention that she engaged in protected activity.

Title VII prohibits an employer from retaliating against an employee for making a
claim of discrimination or otherwise opposing discrimination. See 42 U.S.C. § 2000e-3(a).
To prevail on a Title VII retaliation claim, a plaintiff must show “that retaliation played a
part in the employment decision....” Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1224 (10th
Cir.2008). To state a plausible claim for relief on her retaliation claim, Plaintiff must allege
facts which, if true, would establish thee elements of her claim, specifically, that 1) she
engaged in protected opposition to discrimination; 2) her employer subsequently took action
that a reasonable employee would have found materially adverse—that is, that the action
might dissuade a reasonable worker from making or supporting a charge of discrimination;
and 3) there is a causal connection between her protected activity and the adverse action.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68, 126 S. Ct. 2405, 165 L. Ed.
2d 345 (2006); E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 803 (10th Cir.2007). Having
reviewed the complaint, the Court agrees that Plaintiff has alleged no facts in support of her
contention that she engaged in protected activity. In response to the motion to dismiss,
Plaintiff alleges that the protected activity in which she engaged was that she informed
Defendant she was pregnant to begin the process for taking leave when it became necessary.
Response to Motion, p. 1. "Plaintiff was afforded neither the opportunity to take leave, nor
the chance to complain about Defendants' discrimination in violation of Title VII." Id.
Plaintiff further admits she was fired before she could "fully engage in any protected
activity." Id. at p. 2.

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In light of Plaintiff's admission, and despite her contentions that dismissal would be
inappropriate, Plaintiff has failed to allege the necessary facts to support a retaliation claim,
and it does not appear that she can amend her complaint to allege such a claim. Pleading that
she was "retaliated against . . . for engaging in protected activity" is nothing more than the
pleading of conclusory allegations, which is insufficient.
Plaintiff's reliance on Love v. RE/MAX of Am., Inc., 738 F.2d 383, 385 (10th Cir.
1984), is misplaced. Therein, the plaintiff accused her employer of violating federal law by
paying similarly-situated male employees higher salaries. Shortly thereafter, while holding
a copy of a memorandum plaintiff had written regarding the Equal Pay Act, plaintiff was
terminated. There was no argument that the plaintiff had not complained about alleged
discrimination, rather, she had erroneously, but in good faith, complained. "Every circuit that
has considered the issues, however, has concluded that opposition activity is protected when
it is based on a mistaken but good faith belief that Title VII has been violated." Id. at 385
(citations omitted). Here, there is no allegation that Plaintiff ever complained to Defendants
about the alleged discrimination, and she admits she was fired before she could engage in any
protected activity. Because such activity is a required element of a claim for retaliation,
Defendants' motion to dismiss is GRANTED. The Court rejects Plaintiff's contention that
dismissal is premature because no discovery has been conducted, because Plaintiff should
be well aware of whether she engaged in protected activity sufficient to plead her claim.
Again, she admits she did not, and her allegations simply do not give rise to a claim for
retaliation.
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IT IS SO ORDERED this 17th day of October, 2012.

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