Peters v. Black Tie Valet Parking Services Inc et al
Filing
20
ORDER granting in part and denying in part 13 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 8/26/2013. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ELEONORA PETERS,
)
)
Plaintiff,
)
)
v.
)
)
BLACK TIE VALUE PARKING SERVICE, INC., )
an Oklahoma corporation; JAY SHAW,
)
individually and in his official capacity; and
)
KEITH KERN, individually and in his official
)
capacity,
)
)
Defendants.
)
Case No. CIV-12-809-D
ORDER
Before the Court is the motion [Doc. No. 13] of Defendant Black Tie Value Parking Service,
Inc. (“Black Tie”) to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Black
Tie contends that the allegations in the Amended Complaint fail to state a plausible claim for relief
against it.1 Plaintiff timely responded to the motion.
Background:
Plaintiff, a former employee of Black Tie, asserts claims based on Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e (“Title VII”), alleging that Black Tie subjected her to discrimination
based on her gender during her employment. She also contends that she was subjected to unlawful
retaliation after she complained about the alleged discrimination and after she filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff also
alleges that Black Tie violated the Equal Pay Act, 29 U.S.C. § 206(d), by paying her less than
1
In its January 14, 2013 Order [Doc. No. 11], the Court granted the defendants’ motion to dismiss
the Complaint, but authorized leave to amend as to some of the claims asserted. Plaintiff then filed the
Amended Complaint [Doc. No. 12] in which she lists Black Tie as the only defendant.
similarly situated male employees. In addition, Plaintiff alleges that Black Tie’s conduct violated
the Oklahoma Anti-Discrimination Act (“OADA”), Okla. Stat. tit. 25, §1350A, et seq., as well as
Oklahoma public policy.
Black Tie seeks dismissal, arguing that the Title VII, Equal Pay Act, and OADA causes of
action, identified as Counts I through IV in the Amended Complaint, fail to plead sufficient facts
to state a plausible claim for relief against it. Black Tie also seeks dismissal of Plaintiff’s Burk claim
because the Court dismissed that claim from the Complaint and denied leave to amend to reassert
it.
In her response, Plaintiff argues that she has pled sufficient facts to support her Title VII and
Equal Pay Act claims. However, she seeks leave to dismiss the OADA claim in Count IV,
suggesting that she may later seek leave to reassert it if discovery warrants doing so. With respect
to her Burk claim, she contends that, despite this Court’s previous ruling to the contrary, she can
pursue that claim under the facts alleged. Her arguments in support of the propriety of a Burk claim
were rejected by the Court in the previous Order [Doc. No. 11]. As explained in detail at pages 5
and 6 of that Order, the Oklahoma legislature amended the OADA to provide exclusive remedies
for actions asserting employment discrimination, stating “[a] cause of action for employment-based
discrimination is hereby created and any common law remedies are hereby abolished.” Okla. Stat.
tit. 25, § 1350(A). The remedies abolished include Burk claims. See, e.g., Mazzanti v. City of
Owasso, 2012 WL 2505504, at *1 (N.D. Okla. June 28, 2012) (unpublished opinion). The OADA
amendment was effective on November 1, 2011, several months before Plaintiff received her right
to sue notice from the EEOC and well in advance of the filing of this lawsuit. Plaintiff’s Burk claim
2
has previously been dismissed from this lawsuit, and her assertion of that claim in the Amended
Complaint is unauthorized. Count V is dismissed.
As a result of Plaintiff’s voluntary withdrawal of the OADA claim in Count IV and the
Court’s dismissal of Count V, the Court will address the motion to dismiss the Title VII and Equal
Pay Act claims in Counts I through III.
Standards governing Rule 12(b)(6) motions:
To avoid dismissal pursuant to Rule 12(b)(6), a complaint “must contain enough factual
allegations ‘to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F. 3d 1242, 1247 (10th Cir. 2008). To state
a plausible claim, the Plaintiff has the burden to frame a “complaint with enough factual matter
(taken as true) to suggest” that she is entitled to relief. Robbins, 519 F. 3d at 1247. “Factual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.
S. at 555. Thus, plaintiffs must allege sufficient facts to “nudge[ ] their claims across the line from
conceivable to plausible.” Id. at 570; Robbins, 519 F. 3d at 1247.
The “mere metaphysical possibility that some plaintiff could prove some set of facts in
support of the pleaded claims is insufficient; the complaint must give the court reason to believe that
this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at
Red Hawk, L.L.C. v. Schneider, 493 F. 3d 1174, 1177 (10th Cir. 2007) (emphasis in original).
Although the Court must construe well-pleaded facts as true, not all factual allegations are “entitled
to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[W]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct,” a complaint has
not shown that the plaintiff is entitled to relief. Id. The Court need not accept as true the assertions
3
in a complaint which “amount to nothing more than a ‘formulaic recitation of the elements’” of a
claim. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 554-555). “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.” Id. The complaint need not recite
“detailed factual allegations, but the factual allegations must be enough to raise the right to relief
above the speculative level.” Hall v. Witteman, 584 F.3d 859, 863 (10th Cir.2009) (internal
quotation marks omitted).
Application:
Black Tie argues that dismissal is warranted because the Amended Complaint does not cure
the pleading deficiencies noted in the Order [Doc. No. 11] dismissing the original Complaint. It
contends that most of the paragraphs in the Amended Complaint are essentially the same as those
in the Complaint, with the addition of new allegations reflecting the contentions in her second
Charge of Discrimination filed with the EEOC.2 Black Tie notes that many of her allegations
describe occurrences during her employment, but it contends that she fails to relate these
occurrences to a claim that any adverse event was related to her gender.
The Court agrees that the Amended Complaint includes descriptions of events or actions
which Plaintiff views as constituting negative treatment, but Plaintiff fails to allege that the adverse
treatment was related to her gender or constituted retaliation for her complaint of gender
discrimination. For example, Plaintiff alleges that she reported to her supervisors that other
2
The addition of allegations related to the new charge was permitted by the Court upon Plaintiff’s
request, as she had not received a Notice of Right to Sue as to that charge when the Complaint was filed.
Black Tie argues that the EEOC documents attached to the Amended Complaint reflect that its investigation
showed Black Tie stated Plaintiff was terminated after customers complained about her conduct, and it
contends this also supports dismissal. While this may be raised as an issue in this case, the Court does not
find that it warrants dismissal on Rule 12(b)(6) grounds.
4
employees engaged in drug use while working, and no corrective action was taken. Amended
Complaint at ¶¶ 13-14. There is no factual allegation that this was in any way related to Plaintiff’s
gender, and her report to the supervisors cannot be construed as constituting a complaint of gender
discrimination.
However, the Amended Complaint contains other detailed allegations in support of
Plaintiff’s Title VII and Equal Pay Act claims. She alleges facts to support Black Tie’s purported
refusals to promote Plaintiff while promoting male employees and facts regarding its placement of
Plaintiff in specific job locations which she contends were less favorable than those assigned to male
employees. She specifically alleges that male employees with less seniority were promoted and/or
paid higher salaries than Plaintiff. She also cites specific instances where she was subjected to
inappropriate gender-based comments by male employees, and she contends this created a hostile
work atmosphere. Additionally, she cites several instances in which she complained to her
supervisor about what she perceived as improper gender-based conduct by male employees, and she
alleges that no corrective action was taken.
Although Plaintiff must support her claims with factual contentions, Tombly and Iqbal do
not alter the notice pleading requirements of Fed. R. Civ. P. 8(a). Khalik v. United Air Lines, 671
F.3d 1188, 1191-92 (10th Cir. 2012). Plaintiff need not plead all specific facts in support of a claim.
Id. Instead, she must include sufficient factual allegations to “give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.” Khalik, 671 F.3d at 1191-92 (citing Erickson
v. Pardus, 551 U.S. 89, 93 (2007)). Despite the inclusion of allegations in the Amended Complaint
which appear unrelated to her gender-based claims, Plaintiff has alleged sufficient facts to give
Black Tie fair notice of her Title VII and Equal Pay Act claims and the grounds upon which they
5
rest. The Court finds that there are sufficient factual contentions to state a plausible claim for relief
against Black Tie as to Counts I, II, and III of the Amended Complaint.
The Court also notes that its Order dismissing the Complaint focused primarily on the fact
that Plaintiff improperly asserted some claims against individual co-workers and supervisors, and
liability under Title VII and the Equal Pay Act extends only to the employer. Plaintiff has corrected
those deficiencies by omitting the individual defendants and asserting her claims against Black Tie
as her employer.
Conclusion:
For the foregoing reasons, the motion to dismiss [Doc. No. 13] is granted in part and denied
in part. The motion is granted as to Plaintiff’s OADA and Burk claims in Counts IV and V. The
motion is denied as to Plaintiff’s Title VII discrimination and relation claims, set out in Counts I and
II, and her Equal Pay Act claim in Count III. This action will proceed on the claims in Counts I, II,
and III. Black Tie is directed to file its answer according to the deadlines prescribed by the Federal
Rules of Civil Procedure and the Local Civil Rules of this Court.
IT IS SO ORDERED this 26th day of August, 2013.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?