Tilghman v. Kirby et al

Filing 34

ORDER granting in part and denying in part 9 Motion to Dismiss. Amended Complaint due within 21 days. Signed by Honorable Timothy D. DeGiusti on 11/19/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MISTY TILGHMAN, an Individual,
Plaintiff,
vs.
RON KIRBY, as a County Commissioner
and individual, and
the COMANCHE COUNTY
COMMISSIONERS,
Defendants.

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NO. CIV-13-73-D

ORDER
Before the Court is the motion of Defendant Ron Kirby [Doc. No. 9], seeking partial
dismissal of the claims asserted against him in his individual capacity.1 Plaintiff timely responded
to the motion. Defendant sought leave to supplement his motion by submitting, as additional
authority, a recent order filed by the Honorable Tim Leonard in Barker v. Gossen and Comanche
County Facilities Authority, Case No. CIV-13-182-L. The Court granted that request and advised
the parties it would include that decision in its consideration of the parties’ legal authorities.
I. Background:
Plaintiff Misty Tilghman (“Tilghman”), an employee2 of Defendant Comanche County
Commissioners (“Commissioners”), asserts a 42 U.S.C. § 1983 claim for violation of her civil rights
and a 42 U.S.C. § 1985(3) claim alleging a conspiracy to violate her civil rights. She also asserts
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Although Defendant Kirby was initially named as a defendant in both his individual capacity and in his official
capacity as a County Commissioner of Comanche County, Oklahoma, the claims against him in his official capacity were
dismissed without prejudice pursuant to a Stipulation of Dismissal [Doc. No. 29] filed herein on October 23, 2013.

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The Amended Complaint [Doc. No. 4] is unclear with regard to Tilghman’s employment status. Although she
alleges at Paragraph 43 that she is employed and is currently on disability leave, the relief she seeks includes a claim for
back pay, suggesting she is no longer employed. Because her employment status does not impact the parties’ arguments,
the Court need not attempt to determine that status at this time.

a pendent state claim alleging a violation of the Oklahoma Anti-Discrimination Act, Okla. Stat. tit.
25, § 1101, et seq. (“OADA”), and a pendent tort claim based on intentional infliction of emotional
distress, asserted against the County Commissioners and Kirby under the Oklahoma Governmental
Tort Claims Act, Okla. Stat. tit. 51, § 152.1, et seq. (“GTCA”). All claims are based on Tilghman’s
contention that Defendant Ron Kirby (“Kirby”), a former Commissioner of Comanche County3,
subjected her to sexual harassment in the workplace and created a hostile work environment based
on her gender.
Pursuant to Fed. R. Civ. P. 12(b)(6)4, Kirby seeks dismissal of Tilghman’s OADA claim,
§1985(3) conspiracy claim, and intentional infliction of emotional distress claim, arguing the
Amended Complaint fails to allege sufficient facts to state a plausible claim for relief against him
in his individual capacity as to any of these claims. Alternatively, he contends that the allegations
show at least part of the intentional infliction of emotional distress claim is barred by the applicable
limitations period. In her response to the motion, Tilghman expressly states that the OADA claim
is not directed at Kirby. Accordingly, the Court deems the motion moot as to that claim and will
address only the arguments regarding the §1985(3) conspiracy claim and the intentional infliction
of emotional distress claim. II. Standard governing Rule 12(b)(6):
Dismissal under Rule 12(b)(6) for failure to state a claim is proper “if, viewing the
well-pleaded factual allegations in the complaint as true and in the light most favorable to the
non-moving party, the complaint does not contain ‘enough facts to state a claim to relief that is

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According to the parties, Kirby served as an elected County Commissioner from January of 2005 until his
resignation on February 13, 2012. Joint Status Report and Discovery Plan [Doc. No. 32] at p. 2.
4

Kirby’s motion indicates that dismissal is also sought pursuant to Fed.R.Civ.P. 12(b)(1), which authorizes
dismissal for lack of subject matter jurisdiction. However, Kirby’s brief in support of his motion contains no argument
asserting an absence of subject matter jurisdiction.

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plausible on its face.’” MacArthur v. San Juan County, 497 F.3d 1057, 1064 (10th Cir. 2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The question to be decided is “whether the complaint sufficiently alleges facts
supporting all the elements necessary to establish an entitlement to relief under the legal theory
proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (internal quotation marks omitted).
“[I]n ruling on a motion to dismiss, a court should disregard all conclusory statements of law and
consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest
the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).

III. Application:
A. § 1985(3) conspiracy claim:
“The essential elements of a 1985(3) claim are: (1) a conspiracy; (2) to deprive plaintiff of
equal protection or equal privileges and immunities; (3) an act in furtherance of the conspiracy; and
(4) an injury or deprivation resulting therefrom.” D’Addabbo v. United States, 316 F. App’x 722,
727 (10th Cir. 2008) (unpublished) (citing Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.1993)
(citation omitted)). “Section 1985(3) does not ‘apply to all tortious, conspiratorial interferences with
the rights of others,’ but rather, only to conspiracies motivated by ‘some racial, or perhaps otherwise
class-based, invidiously discriminatory animus.’” Id. (quoting Tilton, 6 F.3d at 686). The existence
of a conspiracy is “an essential element of a claim under section 1985(3),” and a plaintiff must allege
facts to show “a meeting of the minds among various defendants to violate his constitutional rights.”

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Callins v. Board of County Comm’rs, 1991 WL 50538, at *4 (10th Cir. 1991) (unpublished) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)). “A conspiracy is characterized by
communication between the parties and an eventual ‘meeting of the minds’ in order to commit an
unlawful act.” Merswin v. Williams Companies, Inc., 2009 WL 1650373, at *6 (N.D. Okla. June
10, 2009) (unpublished) (quoting Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.
1990)).
The plausibility requirements of Twombly are considered especially important when applied
to a conspiracy claim. “The Twombly Court was particularly critical of complaints that ‘mentioned
no specific time, place, or person involved in the alleged conspiracies.’” Robbins v. Oklahoma, 519
F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 565 n. 10). A “conclusory
allegation of agreement at some unidentified point” is not sufficient to state a claim for relief based
on a conspiracy. Twombly, 550 U.S. at 556–57.
The Amended Complaint in this case contains no well-pleaded facts to support a plausible
claim that the defendants engaged in a § 1985(3) conspiracy. Although the Amended Complaint
contains a citation to § 1985(3), it fails to allege any facts to support the existence of a conspiracy,
and instead is directed only at the alleged conduct of Kirby. Tilghman’s response brief suggests
that it is enough to allege that other Commissioners had knowledge of Kirby’s alleged conduct
toward her, that a hostile work environment was “created by Defendants and their agents and
employees,” and that Commissioner Gail Turner retaliated against Tilghman after she filed a GTCA
claim. Response at p. 11. These allegations are clearly inadequate to plead the essential elements
of a § 1985(3) conspiracy. A plaintiff must plead facts amounting to more than “parallel conduct
and a bare assertion of conspiracy .... Without more, parallel conduct does not suggest conspiracy,

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and a conclusory allegation of agreement at some unidentified point does not supply facts adequate
to show illegality.” Twombly, 550 U.S. at 556–57. “The factual allegations must plausibly suggest
agreement, rather than being merely consistent with agreement.” A Society Without A Name v.
Virginia, 655 F.3d 342, 346 (4th Cir.2011) (citing Twombly, 550 U.S. at 557).
The Amended Complaint clearly fails to state a plausible claim for § 1985(3) relief. See
July 18, 2013 Order [Doc. No. 18], Barker v. Gossen, et al., Case No. CIV-13-182-L. The motion
to dismiss must be granted.
B. Intentional infliction of emotional distress:
With respect to the claim alleging intentional infliction of emotional distress, Kirby raises
three arguments in support of dismissal: 1) he cannot be sued for tortious conduct in his individual
capacity under the GTCA; 2) an intentional infliction of emotional distress claim cannot be based
upon the same set of underlying facts supporting a workplace harassment claim; and 3) the statute
of limitations has expired on part of the conduct on which the claim is based.
The Amended Complaint alleges that Tilghman filed a notice with Comanche County of a
tort claim, as required by the GTCA. Amended Complaint at ¶ 18. Although the Amended
Complaint does not identify the tortious conduct described in the notice, Tilghman and Kirby
apparently agree that it was based on Kirby’s alleged acts of sexual harassment toward her when he
held the office of County Commissioner. Kirby argues that, as a County Commissioner, he was an
employee and cannot be liable for conduct within the scope of his employment.
As Kirby argues, the GTCA definition of an employee includes an elected official. Okla.
Stat. tit. 51, § 152(7)(a)(1). He also correctly argues that the GTCA extends immunity for tortious
conduct committed by “employees acting within the scope of their employment.” Id. at § 152.1(A).

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He concludes that, because the alleged conduct on which Tilghman’s claim is based occurred while
he was an employee of Comanche County, she cannot state a claim for relief against him under the
GTCA.
Tilghman responds by arguing that, under the GTCA, “the scope of employment” is defined
as “performance by an employee acting in good faith within the duties” of his position. Okla. Stat.
tit. 51, § 152(12). She argues that Kirby’s sexually harassing conduct, which allegedly caused her
emotional distress, cannot have been taken in good faith and thus could not have been within the
scope of his employment.
Under the GTCA, “any malicious or bad faith act by an employee falls outside the scope of
employment.” Harmon v. Cradduck, 286 P.3d 643, 650 n. 20 (Okla. 2012) (citing Nail v. City of
Henryetta, 911 P.2d 914, 916 (Okla. 1996) (internal citations omitted)). “Acts performed with
reckless disregard for an individual’s rights also lack good faith and are outside the scope of
employment under the provisions of the GTCA.” White v. City of Del City, 270 P.3d 205, 214
(Okla. Civ. App. 2011) (citing Fehring v. State Ins. Fund, 19 P.3d 276, 285 (Okla. 2001)).
“Generally, the determination of whether an employee was acting within the scope of
employment is a question of fact ‘except in cases where only one reasonable conclusion can be
drawn from the facts.’” Bryson v. Oklahoma County, 261 P.3d 627, 632 (Okla. Civ. App. 2011)
(quoting Nail, 911 P.2d at 918).

Accordingly, while this issue may be adjudicated upon

consideration of a summary judgment motion, it cannot properly be determined in a motion to
dismiss. Accordingly, dismissal for failure to state a plausible claim for relief is not warranted on
this basis.
Kirby next argues the intentional infliction of emotional distress claim must be dismissed

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because such claims cannot be based on the same factual contentions that underlie a claim of
workplace harassment. In support of his argument, Kirby cites Daniels v. C.L. Frates & Co., 641
F.Supp.2d 1214 (W.D. Okla. 2009), in which the Court stated, “Oklahoma courts, however, have
routinely held that workplace harassment claims do not rise to the level of outrageous conduct
necessary to support a claim of intentional infliction of emotional distress.” Daniels, 641 F.Supp.
2d at 1218. Kirby appears to interpret this quoted statement as establishing a rule that a workplace
harassment claim cannot, as a matter of law, be factually sufficient to constitute extreme emotional
distress.
The Court disagrees. Daniels did not establish a rule applicable in all cases, but discussed
other decisions addressing facts similar to those presented to it in a motion for summary judgment
on an intentional infliction of emotional distress claim. Id. at 1218. It found the evidence supporting
the claim inadequate to withstand summary judgment. Although intentional infliction of emotional
distress claims seldom succeed in the context of workplace harassment, neither Daniels nor other
decisions hold that a plausible claim for relief cannot be stated as a matter of law. To the extent
Kirby’s motion to dismiss this claim is based on that contention, it is denied. Its denial does not, of
course, preclude Kirby from asserting an appropriate dispositive motion argument on this basis.
Kirby next argues that some of the contentions underlying the intentional infliction of
emotional distress claim are barred by the two-year statute of limitations governing this tort claim.
Tilghman contends that the issue of limitations is not properly asserted in a motion to dismiss.
Alternatively, she contends that the Amended Complaint sufficiently pleads dates showing conduct
within the limitations period, and it is sufficient to show the conduct was ongoing.
Oklahoma’s intentional infliction of emotional distress tort is governed by a two-year statute

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of limitations. Miller v. Miller, 956 P.2d 887, 896 n. 15 (Okla. 1998) (citing Okla. Stat. tit. 12, §
95(3)). Accordingly, a plaintiff may seek relief only for conduct occurring no more than two years
prior to the date on which the lawsuit was filed. This action was filed on January 23, 2013.
Accordingly, conduct occurring more than two years prior to that date is barred by limitations.
Contrary to Tilghman’s argument, a contention that a claim is barred by limitations may
properly be considered in a Rule 12(b)(6) motion. “Although the statute of limitations is an
affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss where the ‘dates given
in the complaint make clear that the right sued upon has been extinguished.’” Solomon v. HSBC
Mortgage Corp., 395 F. App’x 494, 497 (10th Cir. 2010) (unpublished opinion) (quoting Aldrich v.
McCulloch Properties, Inc., 627 F. 2d 1036, 1041 n. 4 (10th Cir. 1980)).
As with other allegations, the Amended Complaint in this case is unclear with regard to the
dates or even the general time period in which the tortious conduct allegedly occurred. The
allegations certainly can be construed, as Kirby suggests, as including conduct occurring more than
two years prior to the filing of this lawsuit. The Amended Complaint states that Tilghman was
employed by the Commissioners on December 23, 2008. It then recites a litany of allegations
regarding Kirby, including some specific occurrences, but does not identify any dates of these
occurrences.

In fact, the only date mentioned involves her sexual harassment claim, as she alleges

that the “last instances of sexual harassment and discrimination occurred the week prior to February
13, 2012.” Amended Complaint at ¶ 17. The Amended Complaint also fails to allege facts to show
when Tilghman began experiencing the emotional distress on which her claim is based. Although
it states that she “sought treatment with a psychologist,” there are no dates identifying the
commencement or duration of the treatment. Amended Complaint at ¶48.

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It appears to the Court that some of the incidents on which this claim is based occurred
outside the limitations period and cannot form the basis for recovery on the tort claim.5
Accordingly, any recovery will be so limited. At this stage of the litigation, the Court cannot
identify with certainty the precise scope of potential recovery, and the motion to dismiss must be
denied in this regard. If discovery establishes evidence warranting the pursuit of this contention,
Kirby may assert the argument in a dispositive motion at the proper time.
While the Court remains concerned about the deficiencies in the Amended Complaint, it
must conclude that dismissal of the intentional infliction of emotional distress claim is not
warranted, and the motion to dismiss that claim is denied.
IV. Leave to amend:
Having granted the motion to dismiss the § 1985(3) claim, the Court must determine whether
Tilghman should be granted leave to again amend to cure the deficiencies as to this claim. She has
expressly requested leave to amend if the Court finds deficiencies in her pleading.
“‘[I]f it is at all possible that the party against whom the dismissal is directed can correct the
defect in the pleading or state a claim for relief, the court should dismiss with leave to amend.’”
Brever v. Rockwell International Corp., 40 F. 3d 1119, 1131 (10th Cir. 1994) (quoting 6 C. Wright
& A. Miller, Federal Practice & Procedure § 1483, at 587 (2d ed. 1990) and United States v.
McGee, 993 F.2d 184, 187 (9th Cir. 1993)). Accordingly, a district court must justify its denial of
leave to amend with reasons such as futility of the amendment or undue delay. See Foman v. Davis,
371 U.S. 178, 182 (1962); Hom v. Squire, 81 F.3d 969, 973 (10th Cir.1996).

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Tilghman argues that she can recover for a continuing pattern of intentional infliction of emotional distress
without regard to the limitations period. She cites no Oklahoma authority for this argument, and relies on decisions from
Idaho, New York, and Illinois. If Tilghman intends to proceed on this theory, she will be required to support it with
relevant authority at the appropriate time.

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Leave to amend is properly denied on futility grounds where it is apparent that the proposed
claim for relief is subject to summary judgment. ‘“A court properly may deny a motion for leave
to amend as futile when the proposed amended complaint would be subject to dismissal for any
reason, including that the amendment would not survive a motion for summary judgment.”’
Compton v. Rent-A-Center, Inc., 350 F. App’x 216, 221 (10th Cir. 2009) (unpublished) (quoting
E.SPIRE Communications, Inc. v. New Mexico Public Regulation Comm’n, 392 F. 3d 1204, 1211
(10th Cir. 2004)).
While the Court has reservations about the viability of Tilghman’s § 1985(3) conspiracy
claim, it cannot state with certainty that the claim will not survive a second motion to dismiss or a
summary judgment motion. Accordingly, if Tilghman has a good faith belief, under the applicable
law, that she can plead facts sufficient to state a plausible claim for relief, she may amend to cure
the noted deficiencies in the Amended Complaint.
V. Conclusion:
For the foregoing reasons, the motion for partial dismissal [Doc. No. 9] is GRANTED in part
and DENIED in part. Plaintiff Tilghman is granted leave to amend the Amended Complaint.
Plaintiff’s Second Amended Complaint shall be filed no later than 21 days from the date of this
Order.
IT IS SO ORDERED this 19th day of November, 2013.

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