Tilghman v. Kirby et al

Filing 160

ORDER granting 147 Motion for Reconsideration ; striking as moot 148 Motion to Strike ; granting 150 Motion for Reconsideration ; denying as moot 159 Motion for Leave to File Response to Plaintiff's Supplemental Brief. Signed by Honorable Timothy D. DeGiusti on 12/9/2015. (jb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MISTY TILGHMAN,
Plaintiff,
vs.
RON KIRBY, individually,
and COMANCHE COUNTY
COMMISSIONERS,
Defendants.

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Case No. CIV-13-73-D

ORDER
On October 20, 2015, the Court directed Plaintiff and Defendant Comanche
County Commissioners to file supplemental briefing addressing the viability, if any,
of Plaintiff’s allegations of retaliation and that she was denied opportunities to apply
for other positions within the County Commissioners’ office [Doc. No. 156]. Upon
review of the parties’ supplemental briefs [Doc. No. 157-158], Defendants’ Motions
for Partial Reconsideration [Doc. Nos. 147 and 150], and the original summary
judgment briefs, the Court agrees with Defendant Commissioners that Plaintiff has
presented insufficient evidence to support a claim of retaliation and her allegations
concerning a failure to post job openings do not constitute a viable cause of action
under the Oklahoma Anti-Discrimination Act (“OADA”).

To state a prima facie case of retaliation, Plaintiff was required to show: (1)
she engaged in protected opposition to discrimination; (2) she suffered an adverse
action that a reasonable employee would have found material; and (3) there is a
causal nexus between her opposition and the employer’s adverse action. Zisumbo v.
Ogden Regional Med. Ctr., 801 F.3d 1185, 1199 (10th Cir. 2015); Johnson v. Weld
County, Colo., 594 F.3d 1202, 1215 (10th Cir. 2010). In this regard:
In approaching the question whether any actions the County took against
[Plaintiff] were materially adverse, [the Court is] obliged to bear in mind
that Title VII [and thus, the OADA] protects individuals not from all
retaliation but only from retaliation that produces an injury or harm that
itself rises to a level of seriousness. . . . To qualify under this standard
. . . a plaintiff must show a reasonable employee would have found the
challenged action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting
a charge of discrimination. . . . . Requiring this level of adversity . . . is
necessary to separate significant from trivial harms, . . . petty slights,
minor annoyances, and simple lack of good manners . . . . Otherwise,
minor and even trivial employment actions that an irritable,
chip-on-the-shoulder employee did not like would form the basis of a
discrimination suit.
Id. at 1216 (citations and internal quotation marks omitted). Viewing the evidence in
the light most favorable to Plaintiff, the Court finds, under the facts presented, a
rational juror could not conclude that Plaintiff suffered actionable retaliation.
The record shows that during her time in the Commissioners’ office, Plaintiff
either missed or was late to work. Plaintiff’s tardiness led to Commissioner Gail

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Turner speaking to her about her job performance and reprimanding her on at least
two occasions. After their last conversation, Plaintiff went to lunch and never
returned, which ultimately led to her taking medical leave. Nothing in the
aforementioned events could have led a reasonable employee in Plaintiff’s position
to believe Turner’s actions were “materially adverse” in that it might have dissuaded
them from making a charge of discrimination. Of particular note, Plaintiff was not
terminated, demoted, or otherwise disciplined for her complaints against Defendant
Ron Kirby. At most, Plaintiff’s complaints are of the “trivial harm” and “minor
annoyance” variety the Tenth Circuit and other courts have deemed immaterial for
stating a case of retaliation. Therefore, summary judgment should be granted in favor
of Defendant on Plaintiff’s claim of retaliation.
As to Plaintiff’s allegation that she was denied other employment opportunities
due to the Commissioners’ failure to post job openings, the Court finds such a claim
is not a cognizable cause of action under the OADA. The OADA prohibits, inter alia,
discrimination in the workplace. 25 OKLA. STAT. § 1302(A). Based on its review of
the record and the parties’ submissions, nothing in the Commissioners’ challenged
conduct, even when viewed favorably to Plaintiff, supports a finding such “failure to
post” was either discriminatory or constituted an adverse, tangible employment action
directed toward Plaintiff. At most, Plaintiff contends the Commissioners violated
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their own internal policies and procedures in failing to post the opening; however,
such conduct does not support a cause of action under the OADA. And, at this late
stage, it is too late for Plaintiff to assert any different claim.
Accordingly, Defendants’ Motions for Partial Reconsideration [Doc. Nos. 147
and 150] are GRANTED; Defendant Commissioners’ Unopposed Motion to Strike
October 7, Deadline [Doc. No. 148] is STRICKEN as moot; Plaintiff’s Motion to
Certify Pursuant to Rule 54(b) is DENIED; and Defendant Commissioners’ Motion
for Leave to File Response to Plaintiff’s Supplemental Brief [Doc. No. 159] is
DENIED as moot. A Judgment shall be entered forthwith.
IT IS SO ORDERED this 9th day of December, 2015.

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