Khave v. Oklahoma Department of Health et al

Filing 25

ORDER granting in part and denying in part 22 Motion to Dismiss for Lack of Jurisdiction. Signed by Honorable Lee R. West on 6/17/13. (kw, )

IN THE UNITED STATES DISTRICT COURT FOR

FILED

JUN 1 7 ZOD

THE WESTERN DISTRICT OF OKLAHOMA
MARIA B. KHAVE,
Plaintiff,
vs.
OKLAHOMA STATE DEPARTMENT
OF HEALTH et aI. ,
Defendants.

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ROBERT D. DENNI5, CLERK
U . DIST.~ WESTERN DlST. OF OKLA.
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BY ~
DEPUTY

No. CIV-13-155-W

ORDER
This matter comes before the Court on the Second Motion to Dismiss Plaintiff's
Complaint filed by defendants Oklahoma State Department of Health ("ODH"), Patricia
Cantrell, Shelly R. Munguia and Sarah Waters pursuant to Rule 12(b)(6), F.R.Civ.P.
Plaintiff Maria B. Khave, proceeding pro se, has responded in opposition, and based upon
the record, the Court makes its determination .
In evaluating the sufficiency of the allegations in Khave's first amended complaint,
the Court has looked to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), wherein the
United States Supreme Court set forth the standards that this Court must use in
determining whether dismissal, as the defendants have requested, is warranted under Rule
12(b)(6). In Twombly, the Supreme Court held that to withstand a motion to dismiss, a
complaint need not contain "heightened fact pleading of specifics," 550 U.S. at 570, or
"detailed factual allegations," id. at 555 (citations omitted), but that it must contain "enough
facts to state a claim to relief that is plausible on its face." Id. at 570.
The United States Court of Appeals for the Tenth Circuit has stated that Twombly
imposes a "burden ... on the plaintiff to frame a 'complaint with enough factual matter

(taken as true) to suggest' that ... she is entitled to relief." Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10 th Cir. 2008)(quoting Twombly, 550 U.S. at 556).

Accordingly, "[t]he

allegations [in the first amended complaint] must be enough that, if assumed to be true,
[Khave] ... plausibly (not just speculatively) has a claim for relief [against the defendants]."

19..

(footnote omitted).
The Court's task at this stage is to determine whether "there are well-pleaded factual

allegations," Ashcroft v. Igbal, 556 U.S. 662, 679 (2009),1 in the challenged pleading, and
if so, the "[C]ourt should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.

II

Id.

A claim has facial plausibility when the plaintiff pleads factual content
that allows the [C]ourt to draw the reasonable inference that the defendant
is liable for the misconduct alleged. The plausibility standard is not akin to
a "probability requirement," but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Where a complaint pleads facts that are
"merely consistent with" a defendant's liability, it "stops short of the line
between possibility and plausibility of 'entitlement to relief.'"
Id. at 678 (citations omitted).
A complaint "'must contain either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some viable legal theory.'"
Bryson v. Gonzales, 534 F.3d 1282, 1286 (10 th Cir. 2008)(quotation and further citation
omitted). While "[t]he nature and specificity of the allegations required to state a plausible
1Although the defendants have cited Rule 12(b)(6) in their motion, they have erroneously
argued that dismissal is warranted because Khave "has not shown any evidence," Doc. 22 at 4,
and they have mistakenly urged the Court to "conduct an examination of the evidence to determine
whether a racially discriminatory purpose was a motivating factor." Id. at 6 (footnote omitted).
As the Court explained in its earlier Order, see Doc. 16 at 1 n.1, "'[t]he [C]ourt's function on
a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but
to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief
may be granted.'" Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993)(quotation omitted)
(emphasis deleted).

2

claim will vary based on context," Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215

(1oth

Cir. 2011 )(citations omitted), neither "'naked assertion[s)' devoid of 'further

factual enhancement,'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557), nor
"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
allegations, ... suffice." Id. (citation omitted). "[T]he Twombly/Iqbal standard recognizes
a plaintiff should have at least some relevant information to make the claims plausible on
their face," Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10 th Cir. 2012), and "it
demands more than ... unadorned, the-defendant-unlawfully-harmed-me accusation[s]."
Iqbal, 556 U.S. at 678 (citation omitted).
In making its determination, the Court is mindful that "[a] pro se litigant's pleadings
are to be construed liberally and held to a less stringent standard than formal pleadings
drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)(citations
omitted). However, the Court need not "assume the role of advocate for the pro se
litigant," id., or "relieve the plaintiff of the burden of alleging sufficient facts on which a
recognized legal claim could be based." Id. Even in those situations that involve pro se
pleadings, "conclusory allegations without supporting factual averments are insufficient to
state a claim," id. (citations omitted), under Rule 12(b)(6).
In her first amended complaint, Khave, an African-American disabled veteran, who
at the time the events occurred giving rise to this lawsuit, was 52 years old, has alleged
that she was discriminated against during a job interview on March 28, 2012. She has
complained that ODH denied her the position of Administrative Assistant II in the
Emergency Medical Services ("EMS") Division, even though she was well qualified. Khave

3

has further alleged that ODH instead hired a young, non-veteran Caucasian individual, who
has less medical education and experience. See Doc. 17 at 2.
In her amended pleading, Khave has stated
(1) that she has a Bachelor of Science degree in Healthcare Administration and had
been employed with ODH from 2009 to 2010 as an Administrative Assistant II in the Vital
Statistics Division; and
(2) that when she left in April 2010, she had "a good appraisal record." Id.
Khave has further asserted
(1) that she passed the merit exams 2 for the position of Administrative Assistant II
in the EMS Division, see Doc. 17 at 2, and that her name was put on a list of eligible
candidates, from which applicants were selected for interviews;
(2) that immediately prior to the commencement of her interview, she was given
forms that inquired about her age and race; and
(3) that she was thereafter interviewed by three Caucasian individuals, one of whom
was defendant Waters, and asked standardized questions.
In an email dated April 2, 2012, and authored by defendant Munguia, who is
identified in the record as an ODH Human Resources management specialist, see Doc.
1-1 at 4, Khave was advised: "Although you have an impressive background, we will be
pursuing candidates whose qualifications are a closer fit for the position ." Doc. 17 at 3.

2The Human Capital Management division of the Office of Management and Enterprise
Services, formerly known as the Office of Personnel Management, see 74 O.S. § 840-1.6A,
administers the Merit System of Personnel Administration. Agencies, positions and employees that
are subject to the Merit System are classified, and the procedures for the selection of personnel
to Merit System positions, the conditions of employment and the procedures for removal are
governed by the Merit System of Personnel Administration Rules.

4

Upon inquiry as to the meaning of Munguia's phrase "closer fit," see id., Khave was told
by Munguia in an email dated April 4, 2012, that Khave "didn't score high enough on the
interview base[d] on [her] .. responses to be moved to the second round of interviews."

JQ.
Khave has alleged that ODH had "the position reposted," id. at 1, "until [ODH] .. .
found what [it] . .. deemed as someone with 'qualifications closer fit,' which was a
Caucasian or white individual," id. at 2, "who had less ... medical education,3less medical
experiences, and was a non-veteran and younger in age." lQ. Khave has alleged that the
EMS Division had "its own secret test scoring method to eliminate individuals," id. at 3, and
that "EMS [Division] testing is bias[ed]," id., and "use[d] .... as a tool for racism." lQ.
Khave has sought relief under Title VII of the Civil Rights Act of 1964 ("Title VII"),
as amended, 42 U.S.C. § 2000e et seq.,the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. § 621 et seq ., the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of2008, Pub. L. No.
110-325, 122 Stat. 3553, title 42, sections 1981 and 19834 of the United States Code and
state law. In the instant motion, the individual defendants have challenged Khave's section
1981 and section 1983 claims, wherein she has complained about race discrimination and

3Khave has alleged that the individual ODH hired has no "academic knowledge other than
perhaps a high school diploma," Doc. 17 at 4, and that the individual arguably possesses "[n]o
higher academic training certificates or college transcripts .. . ." Id.
4While arguably "a right created solely under Title VII cannot serve as the basis for an
independent remedy under [s]ection 1983, lest Congress' prescribed remedies under Title VII be
undermined," Starrett v. Wadley, 876 F.2d 808, 813 (1oth Cir. 1989)(citations omitted), such rule
is not applicable if the plaintiffs section 1983 claim is predicated upon a violation of a constitutional
right, such as a violation of the equal protection clause of the fourteenth amendment to the United
States Constitution grounded on class-based discrimination.

5

the denial of her right to equal protection guaranteed by the fourteenth amendment to the

United States Constitution, and her claim under state law grounded on her status as a
veteran.
In examining the sufficiency of Khave's allegations against the individual
defendants, the Court, as stated, has employed the standards set out in Twombly and
Iqbal to determine whether Khave has "nudged [her] . . . claims across the line from
conceivable to plausible[.]" Twombly, 550 U.S. at 570. The Court has also considered the
fair notice requirement of Rule 8(a)(2), F.R.Civ.P.; in this connection, it is important "that
the [first amended] complaint make clear exactly who is alleged to have done what to
whom, to provide each individual with fair notice as to the basis of the claims against . ..
her, as distinguished from collective allegations against the [defendants as a group]."
Robbins, 519 F.3d at 1250 (citation omitted)(emphasis in original). That is to say, Rule
8(a)(2)'s adequate and fair notice requirement imposes on Khave a duty "to isolate the
allegedly [discriminatory] ... acts of each defendant[.]" Robbins, 519 F.3d at 1250.
Otherwise, the defendants have no way of knowing "how they might be individually liable,"
id., for the alleged discriminatory conduct.
In determining whether Khave has alleged sufficient facts to support her claim of
race discrimination under section 1981 5 and her claim under section 19836 for class-based

5Section 1981 (a) guarantees that "[a]II persons ... shall have the same right . .. to make
. .. contracts . . . as is enjoyed by white citizens[.]" 42 U.S.C. § 1981(a).
6Section 1983 imposes liability for conduct carried out under the color of state law which
deprives a plaintiff of "rights, privileges, or immunities secured by the Constitution and laws [of the
United States]." 42 U.S.C. § 1983. To prevail on a claim for damages under this section, a plaintiff
must establish that a defendant acted under color of state law and subjected, or caused to be
subjected, the plaintiff to the deprivation of a constitutional or statutory right. "In the public
employment context, the [United States] Supreme Court has noted 'state employment is generally

6

discrimination and deprivation of equal protection, the Court is mindful that Rule 12(b)(6)
"does not require that ... [Khave] establish a prima facie case in her [first amended]
complaint .. .." Khalik, 671 F.3d at 1192. However, because the essential"elements of
each alleged cause of action help to determine whether [Khave] . . . has set forth a
plausible claim," id. (citation omitted), against a defendant, the Court has considered what
elements Khave must ultimately establish.
"'In racial discrimination suits, the elements of a plaintiff's case are the same
whether that case is brought under [section]1981 or [section] 1983 .... '" Carney v. City
and County of Denver, 534 F.3d 1269, 1273 (10 th Cir. 2008)(quoting Baca v. Sklar, 398
F.3d 1210, 1218 n.3 (10 th Cir. 2005)). Khave must show (1) that she was a member of a
protected class, (2) that she suffered an adverse employment action and (3) that her
nonselection occurred "under circumstances giving rise to an inference of discrimination."
Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10 th Cir. 2004)(citation omitted).
Khave must show that the defendant then under consideration not only
"'intentionally discriminated against

her on the basis of race,'" Juarez v. ACS

Government Solutions Group. Inc., 314. F.3d 1243, 1245 (10 th Cir. 2003)(quotation
omitted),7 but also was personally involved in the discrimination.

U, Allen

v. Denver

sufficient to render the defendant a state actor.'" Jojola v. Chavez, 55 F.3d 488, 493 (10th Cir.
1995)(quoting Lugarv. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982)).
7Sections 1981 and 1983 neither "'make unexplained differences in treatment per se illegal
nor .. . make inconsistent or irrational employment practices illegal. [Rather, these sections] ...
prohibit[] only intentional discrimination based upon an employee's protected class characteristics."
Salguero, 366 F.3d at 1178 (quoting Equal Employment Opportunity Commission v. Flasher, 986
F.2d 1312,1319 (10 th Cir. 1992))(emphasis deleted).

7

Public School Board, 928 F.2d 978, 983 (10 th Cir. 1991), overruled on other grounds,
Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220 (10th Cir. 2000). An
individual defendant is personally involved only ifthere is "some affirmative link to causally
connect the [defendant] ... with the discrimination action. Id. (citation omitted).
As to defendant Munguia, Khave has alleged that she is liable because "she allowed
or participated in the reposting of the position," Doc. 17 at 3, for which Khave had
interviewed, "until a white employee was selected," id., and that because she caused or
"allowed the reposting looking for someone 'better fit,' which [was] ... a Caucasian
individual with less education, less medical experience, and non-veteran status." lQ.
As to defendant Cantrell, DOH's deputy general counsel, Khave has asserted that
"Cantrell being the Legal Counselor, failed to protect [her employment rights] ... under .
. . [s]ection[s] 1981 and 1983 ... ," id., because Cantrell "failed to properly investigate the
issue internally, and to deal with a Civil Rights Title VII violation in a fair and
non-discriminatory and professional hiring process." Id.
Khave has alleged that the remaining individual defendant, Waters, who, as stated,
was one of the three interviewers, violated sections 1981 and 1983 when she denied
Khave "a job position [for which Khave'] ... was well qualified, because of [Khave's] ...
race ... , and reposted the position, without notifying ... [Khave]." Id.
To prevail on her federal law claims, Khave must set forth sufficient factual
allegations that suggest or give rise to the inference that each defendant acted with
discriminatory intent, and in this connection, a pleading is not sufficient "if it tenders 'naked
assertion[s]' devoid of factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557).

8

Liberally construing Khave's allegations as the Court is required to do and drawing
all reasonable inferences therefrom in her favor, the Court finds that Khave has shown
"more than a sheer possibility that ... [Waters and Munguia] ha[ve] acted unlawfully," id.
(citation omitted), in connection with Khave's nonselection. Khave has averred that she
is an African-American and that despite being qualified as an Administrative Assistant II
as evidenced by her prior employment with ODH, Waters and Munguia, based upon
unexplained subjective criteria, decided to repost the position for which Khave had
interviewed and seek additional applicants.

Khave has further contended that they

continued to seek and interview applicants until they hired a Caucasian individual who was
less academically qualified and who had less medical experience. Assuming the veracity
of these well-pleaded factual allegations, which give Waters and Munguia fair notice of the
basis of Khave's race discrimination claim and her claim that she was denied equal
protection, the Court finds such allegations plausibly8 suggest disparate treatment by these
two individuals based upon race and thus, give rise to an entitlement to relief.

l i , Igbal,

556 U.S. at 678 (claim has facial plausibility when plaintiff pleads factual content that
allows court to draw reasonable inference that defendant is liable for the misconduct
alleged). Khave has sufficiently set forth factual circumstances from which discriminatory
motives on the part of, and purposeful discrimination by, Waters and Munguia may be

Sin requiring "plausible grounds" in a complaint, the United States Supreme Court is "not
impos[ing] a probability requirement at the pleading stage[.]" Twombly, 550 U.S. at 556. Rather,
the standard articulated by the Supreme Court "simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of [the elements of a plaintiffs cause of action] ..
.." Id . (footnote omitted). As the Supreme Court has noted, "a well-pleaded complaint may
proceed even if ... actual proof of those facts is improbable, and' ... recovery ... [may be] remote
and unlikely.'" Id. (citation omitted).

9

inferred; accordingly, Khave's allegations that she was the victim of race discrimination and
was deprived of her right to equal protection "raise a right to relief above the speculative
level," Twombly, 550 U.S. at 555 (citation omitted), and survive these defendants' request
for dismissal.
The Court's findings as to Waters and Munguia are in accord with Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002), wherein the United States Supreme Court "held that
'a complaint in an employment discrimination lawsuit [need] not contain specific facts
establishing a prima facie case of discrimination ....'" Twombly, 550 U.S. at 569 (quoting
Swierkiewicz, 534 U.S. at 508).9 Khave is not required to "allege 'specific facts' beyond

91n analyzing Khave's claims of employment discrimination under sections 1981 and 1983,
which are grounded solely on circumstantial evidence, the Court has considered the three-part
framework developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), M,., Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004), to "help
. . . determine whether [Khave] ... has set forth a plausible claim." Khalik, 671 F.3d at 1192
(citations omitted). "McDonnell Douglas and subsequent decisions have 'established an allocation
of the burden of production and an order for the presentation of proof in . .. discriminatory­
treatment cases.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000)
(quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993».
Under this framework, Khave must first establish a prima facie case of discrimination by
showing (1) that she belongs to a protected class; (2) that she applied and was qualified for the
position for which she interviewed; (3) that despite being qualified, she was not selected; and (4)
that a person less qualified and/or not in a protected class was hired. ti, Reeves, 530 U.S. at
142. Khave has met her burden of production as to Waters and Munguia, and these defendants
must therefore articulate a legitimate, nondiscriminatory reason for Khave's nonselection . ti,
Salguero, 355 F.3d at 1175. Waters and Munguia have contended that "an internal applicant,"
Doc. 22 at 7, was hired and that the decision to do so was in accord with "the intent of the
[Oklahoma] Legislature that . . . preference [be given] to . . . a promote-from-within policy when the
merit, ability and capability of incumbent employee applicants is relatively equal to that of outside
applicants .. . ." 74 O.S. § 840-4.16(1). Assuming the defendants have proffered a legitimate,
nondiscriminatory reason for the adverse employment decision and thus, met their burden of
persuasion , Khave must then establish that the proffered reason was a pretext for discrimination.
ti, Salguero, 366 F.3d at 1175.
However, because Khave's allegations against Waters and Munguia suffice under Twombly
and Iqbal and because, as stated, Rule 12(b)(6) "does not require that [a] [p]laintiff establish a
prima facie case in her complaint[,)" Khalik, 671 F.3d at 1192, the Court has not further considered
the McDonnell Douglas framework in connection with Khave's claims against Waters and Munquia.
10

those necessary to state ... [her] claim and the grounds showing entitlement to relief. 12.
at 570 (citing Swierkiewicz, 534 U.S. at 508)(emphasis added). She is only required to
plead "enough facts to state a claim to relief that is plausible on its face[,]" id ., and the
Court finds Khave has "nudged ... [her] claim[ that these defendants' decision to hire a
Caucasian , who is less qualified academically and who possesses less medical
experience, was motivated by consideration of Khave's race] across the line from
conceivable to plausible ...." Id .
The Court has also considered the sufficiency of Khave's allegations against
defendant Cantrell. Again, it is not necessary for Khave to plead facts supporting each
element of her claims for relief, provided that whatever facts she has pled allow the Court
to plausibly infer liability. In reviewing the allegations against Cantrell in the first amended
complaint, the Court finds that Khave has not made the necessary showing.
Khave's allegations that Cantrell, after the fact, failed to protect her by failing to
investigate are insufficient to permit the Court to draw the reasonable inference that
Cantrell either intentionally discriminated against Khave because of her race or was
personally involved in Khave's nonselection for the position of Administrative Assistant II.
Moreover, conclusory allegations, if any, that Cantrell might have had knowledge of
Khave's nonselection and ODH's selection of an allegedly less qualified, less experienced
applicant likewise do not suffice absent Cantrell's personal involvement in the
discrimination itself. Accordingly, the Court finds that Cantrell is entitled to dismissal of
Khave's claims seeking relief under sections 1981 and 1983.
As stated, Khave has also sought relief under state law. She has alleged that she
is "an Absolute 10-pt. Honorably discharged veteran," Doc. 17 at 1, having served thirteen
11

(13) years as a United States Air Force medical technician, see Doc. 14 at 2,115, and that
ODH and the three individual defendants ignored certain state merit rules when it denied
her employment. The Human Capital Management division of the Office of Management
and Enterprise Services, formerly known as the Office of Personnel Management, see 74
O.S. § 840-1.6A, administers the Merit System of Personnel Administration in accordance
with, among other things, the Merit System of Personnel Administration Rules.

In

particular, Title 530, Chapter 10, Subchapter 9, Part 13, pertains to, and governs, the
selection for employment of eligible persons for cornpetitive appointment and commands
that "certain preferences be allowed for veterans honorably discharged from the Armed
Forces of the United States." 530:10-9-130. 10

10The applicable rules provide:
In establishing employment lists of eligible persons for competitive ... appointment,
certain preferences shall be allowed for veterans honorably discharged from the
Armed Forces of the United States ....
(1) Five points shall be added to the final grade of any person who
has passed the examination and has submitted proof of having
status as a[ ] ... veteran ....
(2) Ten points shall be added to the final grade of any veteran who
has passed the examination and has submitted proof of having a
service-connected disability as certified by the Veterans
Administration or Agency of the Defense Department within six (6)
months of date of application ....
(3) In addition to the 10 points preference provided in (2) of this
subsection, such eligible veterans who are in receipt Of benefits
payable at the rate of 30% or more because of the
service-connected disability, shall be considered Absolute
Preference Veterans. Their names shall be placed at the top of the
register, ranked in order of their examination scores. Absolute
Preference Veterans shall not be denied employment and passed
over for others without showing cause ....
530: 10-9-130 (emphasis deleted).

These rules further provide:
(a) An Appointing Authority who finds it necessary to pass over an Absolute

12

Khave has although these rules forbid ODH and its employees from denying an
"Absolute Veteran," see 530:10-9-130(3), a position for which that individual interviewed
unless written approval is obtained, see 530:10-9-131 (a), the defendants "ignored this rule
and denied [her] ... employment without cause." Doc. 17 at 2. The defendants have
responded that "[w]hile veteran hiring is preferred , nowhere is it guaranteed ." Doc. 22 at

6.
The defendants have further asserted that "an internal applicant," Doc. 22 at 7, was
hired and that the selection of this individual was in accord with "the intent of the
[Oklahoma] Legislature that ... preference [be given] to ... a promote-from-within policy
when the merit, ability and capability of incumbent employee applicants is relatively equal
to that of outside applicants ...." 74 O.S. § 840-4.16(1).

Preference Veteran for cause must receive written approval from the Administrator
before taking such action. Any Appointing Authority who, without prior approval,
passes an Absolute Preference Veteran for cause on any certificate returned to the
Office of Personnel shall be required to hire the preferenced applicant, if such pass
for cause is subsequently rejected by the Administrator. No offer of initial
employment may be made to any applicant ranked below such veterans in the
absence of this approval; such offers and any subsequent initial appointments shall
be void . . . .
(b) Nothing in this Section prohibits or limits passing an Absolute Preference
Veteran to hire another Absolute Preference Veteran within the hiring rule, or hiring
any other eligible through means other than an initial apPOintment.
(c) A request to pass over or disqualify an Absolute Preference Veteran shall
include a detailed written explanation and justification provided by the AppOinting
Authority documenting why the Appointing Authority believes:
(1) the applicant cannot be reasonably expected to satisfactorily
perform at the requ ired level of the position .. . ; or
(2) it is necessary to disqualify the applicant because of 1 or more
of the causes for disqualification listed in 530:10-9-9 ... .
530:10-9-131 (emphasis deleted).
13

Issues regarding the defendants' decision to hire "an internal applicant" and the
qualifications of this applicant present questions of fact that cannot be determined under
Rule 12(b)(6). Accordingly, the defendants are not entitled to dismissal of this claim for
relief at this stage of the proceedings. 11
Based upon the foregoing, the Court
(1) GRANTS the defendants' Second Motion to Dismiss Plaintiff's Complaint [Doc.
22] filed on May 22, 2013, but only to the extent that Khave's section 1981 and section
1983 claims against Cantrell are DISMISSED;,12
(2) DENIES said motion in all other respects;
(3) DIRECTS all defendants to answer within fourteen (14) days the remaining
claims in Khave's first amended complaint; and
(4) DIRECTS the Clerk of the Court to mail or electronically transmit a copy of this
Order to each pro se and represented party in this matter and to show proof of the same
on the docket.
ENTERED this

11M

day of June, 2013.

LE

R. WEST
ITED STATES DISTRICT JUDGE

111n their Motion to Dismiss, the individual defendants did not address whether a rule
violation is actionable in this Court either as a claim over which this Court has original jurisdiction
or as a claim over which this Court has supplemental jurisdiction or whether "a federal civil rights
lawsuit is . . . the properforum to pursue violations of [these] . .. rules." Bowman v. Anderson, 166
F.3d 346 *4 n.1 (10th Cir. 1998)(cited pursuant to Tenth Cir. R. 32.1). Accordingly, the Court has
not considered these issues or whether ODH, as opposed to the individual defendants, is the
appropriate defendant in connection with this claim for relief. The Court finds only that at this stage
of the proceeding, Khave may pursue her claim under state law.
12Because Khave has had the opportunity to amend her allegations as to defendant
Cantrell, see Doc. 16, the Court finds that dismissal should be and is hereby with prejudice.
14