Myles v. Oklahoma Department of Human Services et al
Filing
109
ORDER granting 87 Motion for Summary Judgment; granting 88 Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 6/28/2016. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HELENE MYLES,
Plaintiff,
v.
STATE OF OKLAHOMA, ex rel.
OKLAHOMA DEPARTMENT
OF HUMAN SERVICES; DEBRA
CLOUR, in her individual capacity
as Area III Director,
Defendants.
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Case No. CIV-13-676-D
ORDER
Helene Myles, an African American woman, brings the present suit against the
Oklahoma Department of Human Services (DHS) and Debra Clour, the Area III
Director for DHS, for adverse employment actions taken against her while she was
employed by DHS. Before the Court are Motions for Summary Judgment by DHS
[Doc. No. 87] and Clour [Doc. No. 88], to which Myles has filed her response in
opposition [Doc. No. 102]. The matter is fully briefed and at issue.
BACKGROUND 1
Myles has worked for DHS since 1980, where she started as a Clerical Trainee
and became a Typist Clerk I. She was promoted to the position of Receptionist A120,
Customer Service Representative II, and Administrative Technician IV (“Admin
Tech”) in the Field Operations Division, where she supervised lower level Admin
Techs in her unit. Myles worked in Oklahoma County Office 55C.
Defendant Debra Clour began working for DHS in 1977, and in 1992, was
made DHS’s Director of Field Operations for Area III. Clour had the responsibility
of supervising nine county offices in Oklahoma and Canadian counties. In 2011, a
new employee complained to Cassandra Fowler (the County Director for the 55C
office) about Myles’ supervision. Fowler learned that other employees had also been
complaining about Myles, and Clour asked Fowler to investigate the complaints. On
May 23, 2011, pursuant to DHS regulations, Fowler temporarily reassigned Myles to
1
The statement of undisputed facts in DHS and Clour’s respective motions are
virtually identical. Myles’ response fails to dispute several purported undisputed facts
based on “lack of information.” Rule 56 places an affirmative duty on the nonmovant
responding to a motion for summary judgment to cite to “particular parts of materials
in the record” to establish that a particular fact cannot be supported or is genuinely
disputed. Fed. R. Civ. P. 56(c)(1). To the extent such information is or was
unavailable to Myles, she had the option of seeking relief under Rule 56(d), which
permits the court to, inter alia, defer consideration of the motion or allow additional
time to take discovery. Id. Miles did not pursue that option and the Court,
accordingly, treats such facts as undisputed.
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another county office. Six days into her reassignment, Myles took leave under the
Family and Medical Leave Act of 1993 (FMLA) for approximately three weeks.
When she returned, Myles was placed on twenty-day suspension with pay. After the
twenty days had passed, Myles was directed to finish the remaining fifty-four days
of her reassignment.
At the time of her reassignment, Myles filed a grievance (No. 11-53) with the
DHS Grievance Manager. In her grievance, Myles complained that the County Office
to which she was reassigned was too far from her home, she had not been given a
chance to defend herself, she was not given time to file a grievance before leaving her
office, and having an escort follow her out the office door “violated [her] rights as a
human being.” On June 15, 2011, Myles filed an appeal with the Oklahoma Merits
Protection Commission (OMPC or Commission), alleging she was discriminated
against when she was reassigned. Both Myles’ grievance and appeal to the OMPC
were denied (the appeal was dismissed as untimely). Myles appealed the denial of her
grievance to the OMPC; the appeal was also dismissed. In the Order of Dismissal, the
Executive Director of OMPC found that DHS followed agency policy and properly
addressed Myles’ grievance.
On August 19, 2011, Myles filed a charge with the EEOC, wherein she
complained that her reassignment and twenty-day suspension were motivated by race
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and gender. The EEOC issued a Dismissal and Notice of Suit Rights, which stated it
was unable to conclude that the information it received established a statutory
violation. During this time, Myles was again reassigned to another position because
she had again taken extended leave and only worked for six days between May 23,
2011 to August 19, 2011. This reassignment was extended to December 6, 2011.
On or about September 30, 2011, Myles filed another grievance, No. 12-28,
with the DHS Grievance Manager. Myles alleged her reassignment, as well as being
escorted by security to be informed of such, constituted ongoing harassment and she
was being penalized for taking sick leave. A state-certified civil rights investigator
from the DHS Human Resources Management Division determined that Myles’
grievance did not state a prima facie case of discrimination or harassment. On
October 10, 2011, the assistant grievance manager assigned Myles’ grievance to a
“Step-Two” decision-maker named Kelley Knapp. Ms. Knapp, however, was out of
the office, so Defendant Clour volunteered to prepare a “Step-Two” decision of
Myles’ grievance.
On November 21, 2011, Clour’s “Step-Two” decision denied Myles’ grievance.
In the decision, Clour informed Myles that her reassignment and suspension were not
disciplinary actions, but permitted steps taken pursuant to DHS regulations. Myles
was notified of the decision the same day. The final Step-Two decision was issued
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two days beyond the time provided by rule, although DHS policy did not state the
consequences for such late action. On January 3, 2012, Clour, based on the
investigation of the complaints of Myles’ employees and pursuant to the Merit Rules
and DHS policy, issued a Notice of Proposed Formal Disciplinary Action Involuntary
Demotion. The notice stated Myles was being demoted for violating the FMLA and
a pattern of mistreating her employees. On January 18, 2012, Myles was demoted
from Admin. Tech IV to Admin. Tech III.
On January 26, 2012, Myles appealed her demotion to the OMPC, but later
voluntarily dismissed the appeal. In April 2012, Myles filed a charge with the EEOC,
which challenged her demotion and alleged she was being retaliated against for filing
a prior EEOC charge. On May 8, 2012, the EEOC, after determining it was unable to
conclude that a statutory violation had occurred, issued a Dismissal and Notice of Suit
Rights. Myles did not file suit within the allotted 90 days.
Prior to the EEOC’s decision, on May 4, 2012, Myles applied and was
interviewed for an Administrative Assistant II position. Myles met the minimum
qualifications for the job and was one of ten candidates interviewed. Clour was the
selecting official. The interview committee consisted of an African-American male,
an Asian male, and an African-American female. Based on each applicants’
interviews and completion of a written exercise, the interview committee ranked
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Myles ninth out of the ten candidates interviewed. The interview committee did not
recommend Myles to Clour for selection. Instead, a Hispanic female was
recommended and selected by Clour, who determined the candidate was the best
qualified applicant.2 The decision was finalized on May 11, 2012.
On June 1, 2012, Myles filed a discrimination complaint with the DHS Office
of Civil Rights, and on June 4, 2012, filed another grievance, No. 12-71. The
complaint and grievance both contested Myles’ non-selection for the Administrative
Assistant II position. On July 24, 2012, the assigned civil rights investigator found
that, by a preponderance of the evidence, there was no sufficient basis to conclude
Myles was discriminated against during the hiring or selection process. The same day,
the “Step-Two” decision maker considering Myles’ grievance denied her claim.
Myles filed an EEOC charge alleging discrimination and retaliation for her
non-selection for the Administrative Assistant II position. As before, the EEOC
determined it was unable to conclude the information before it established a statutory
violation, and it issued a dismissal and notice of right to sue on January 22, 2013.
Myles did not file suit within 90 days of receipt of the notice.
In November 2012, the Child Welfare Services Division of DHS posted
2
The Hispanic applicant ranked first out of the pool of ten candidates for the
position.
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openings for nine newly-created Administrative Assistant II positions. All nine
positions were to be selected from one group of applicants. Interviews were
conducted by a six-person committee, consisting of three Whites and three AfricanAmericans. The selecting official was Calvin Kelley, who became the “Child Welfare
Deputy Director of Region 3 Administrator” after Clour’s retirement and a
department reorganization. Myles applied for all nine vacancies, but was not selected
for any of them. Of the nine individuals who were ultimately selected, four were
White, three were African-American, and two were Hispanic. On April 5, 2013,
Myles filed a new EEOC charge, alleging she was discriminated and retaliated against
when she was not hired for either of the Administrative Assistant II positions for
which she applied. The charge also challenged Myles’ non-selection for the
Administrative Assistant II position she applied for in May 2012.3
Myles does not know whether Clour was allegedly retaliating against her for
one of the EEOC charges she filed, or all four. Myles does not know if Clour or
another DHS employee was aware that she had made a complaint to the EEOC.
Moreover, Myles cannot recall whether anyone had said anything that indicated they
3
The record is devoid of any evidence as to when the EEOC issued its Notice
of Right to Sue regarding Myles’ April charge. Nonetheless, DHS concedes that
Myles’ claim stemming from this denial is timely. See Mot. for Summary Judgment
at 19 [Doc. No. 87].
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were discriminating or retaliating against her.
DHS’s motion contends (1) several of Myles’ claims are barred by the
applicable statute of limitations, (2) to the extent Myles asserts a claim for other
positions for which she was not hired, Myles has failed to exhaust administrative
remedies, (3) DHS has articulated legitimate, nondiscriminatory reasons for not
selecting Myles for promotion to any of the nine Administrative Assistant II
positions, and (4) DHS is entitled to summary judgment on Myles Title VII claims
stemming from her demotion and non-selection. Clour contends summary judgment
is appropriate as to Myles’ claim against her for unlawful retaliation under 42 U.S.C.
§ 1981.4
STANDARD OF DECISION
“Summary judgment is proper if, viewing the evidence in the light most
favorable to the non-moving party, there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Bonidy v. U.S. Postal
Service, 790 F.3d 1121, 1124 (10th Cir. 2015) (citing Peterson v. Martinez, 707 F.3d
1197, 1207 (10th Cir. 2013)). The Court’s function at the summary judgment stage
is not to weigh the evidence and determine the truth of the matter asserted, but to
4
The Court previously granted in part Clour’s Motion to Dismiss [Doc. No. 32],
which dismissed Myles’ race discrimination claims under §§ 1981 and 1983, but
denied the motion as to Myles’ § 1981 retaliation claim [Doc. No. 39].
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determine whether there is a genuine issue for trial. Birch v. Polaris Industries, Inc.,
812 F.3d 1238, 1251 (10th Cir. 2015). An issue is “genuine” if there is sufficient
evidence on each side so that a rational trier of fact could resolve the issue either way.
Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998). An issue of fact
is “material” if under the substantive law it is essential to the proper disposition of the
claim. Id.
Once the moving party has met its burden of demonstrating the absence of a
dispute of material fact warranting summary judgment, the burden shifts to the
nonmoving party to present sufficient evidence in specific, factual form to establish
a genuine factual dispute. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d
887, 891 (10th Cir.1991). The nonmoving party may not rest upon the mere
allegations or denials of its pleadings. Rather, it must go beyond the pleadings and
establish, through admissible evidence, that there is a genuine issue of material fact
that must be resolved by the trier of fact. Salehpoor v. Shahinpoor, 358 F.3d 782, 786
(10th Cir. 2004). Unsupported conclusory allegations do not create an issue of fact.
Finstuen v. Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007).
DISCUSSION
I.
DHS’S MOTION FOR SUMMARY JUDGMENT
The first issue for the Court is whether Myles’ Title VII discrimination and
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retaliation claims relating to her reassignment, suspension, demotion, and nonselection are barred by the applicable statute of limitations. Title VII states that “a
civil action may be brought against the respondent named in the charge” within 90
days after the issuance of a right to sue notice. 42 U.S.C. § 2000e-5(f)(1). The 90-day
period for filing suit generally commences on the date that the complainant actually
receives the EEOC right to sue notice. Biester v. Midwest Health Services, Inc., 77
F.3d 1264, 1267 (10th Cir. 1996); see also Hall v. United Parcel Serv., Inc., 101 F.
App’x 764, 765 (10th Cir. 2004) (unpublished). “These timing requirements are
prerequisites to a civil suit.” Id. (quoting Croy v. Cobe Labs., Inc., 345 F.3d 1199,
1202 (10th Cir. 2003)). The Tenth Circuit presumes that a plaintiff received the notice
within three to five days of the mailing date. Lozano v. Ashcroft, 258 F.3d 1160, 1165
(10th Cir. 2005).
The Court finds that Myles’ Title VII claims stemming from her temporary
reassignment, twenty-day suspension, involuntary demotion, and first application for
the Administrative Assistant II opening are time-barred. Although the first right to
sue is undated, it was received by DHS on January 19, 2012. Applying a generous
presumption, Myles received notice on or about January 24, 2012. Myles’ other right
to sue notices were received May 8, 2012 and January 22, 2013, respectively, in
which she complained of her temporary reassignment, twenty-day suspension,
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involuntary demotion, and non-selection for the first application for the
Administrative Assistant II opening. Myles’ lawsuit was filed July 2, 2013, which
was more than 90 days after receipt of her Right to Sue letter for the aforementioned
claims. Notably, Myles makes no effort in her response to contest DHS’s argument
that the aforementioned claims are barred by the statute of limitations; the Court finds
summary judgment is appropriate on this ground.
The remaining issue for consideration presented in DHS’s motion is whether
Myles has presented sufficient evidence from which a trier of fact could determine
her non-selection for promotion to one of the nine Administrative Assistant II
positions in January 2013 was based on discrimination and/or retaliation. Under the
three-step burden-shifting procedure of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), for a Title VII failure to promote claim Myles must establish that (1) she
was a member of a protected class; (2) she applied for and was qualified for the
position; (3) despite being qualified she was rejected; and (4) after she was rejected,
the position was filled. Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003). If
Myles can establish a prima facie case, the burden shifts to DHS to articulate a
legitimate, nondiscriminatory reason for its employment action. Jones, 349 F.3d at
1266; see also Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).
If DHS makes this showing, Myles must then show that the justification is pretextual.
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Kendrick v. Penske Trans. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000).
There is no dispute that Myles has established a prima facie case. In the same
vein, however, the Court finds DHS has articulated legitimate, non-discriminatory
reasons for its decision. A multiracial interview committee scored Myles substantially
lower than the other selected candidates. In the committee’s judgment, Myles ranked
below her co-applicants in the interview process, particularly in the areas of
knowledge, skills and abilities. Myles’ previous demotion also was a factor. Faced
with these factors, Myles has done little to show such decisions were pretextual.
Although Myles asserts complaints about the interview process and questions the
motives of DHS officials, she has come forth with no evidence, other than her own
subjective belief she was qualified, which indicates the decision was based on
anything other than her qualifications. Such evidence is insufficient to withstand
summary judgment. See Stover v. Martinez, 382 F.3d 1064, 1073 (10th Cir. 2004);
compare Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988)
(concluding that plaintiff’s claim she was as or more qualified than retained employee
was insufficient to avoid summary judgment to employer on plaintiff’s discrimination
claim; “[i]t is the perception of the decision maker which is relevant, not plaintiff’s
perception of herself”).
It is for these same reasons the Court finds summary judgment should be
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granted on Myles’ claims of retaliation. To state a prima facie case of retaliation,
Myles must demonstrate: (1) she engaged in protected opposition to discrimination,
(2) a reasonable employee would have found the challenged action materially
adverse, and (3) that a causal connection existed between the protected activity and
the materially adverse action. Lounds v. Lincare, Inc., 812 F.3d 1208, 1233-34 (10th
Cir. 2015). As above, if DHS provides a legitimate, non-discriminatory justification
for the action, the burden shifts back to Myles to provide evidence showing that the
proffered reason is a pretext intended to conceal an impermissible retaliatory motive.
Id. Even assuming Myles has established her prima facie case of retaliation, her claim
ultimately fails on the element of pretext. Myles has marshaled no significant
evidence to show that DHS’s justification for disciplining and demoting her was
pretextual. An investigation was conducted into Myles’ supervisory conduct, by
which it was determined she should be reassigned. Myles was subsequently penalized
for, in DHS’s view, abusing her leave privileges and mistreatment of employees.
Although Myles again criticizes the disciplinary process, there is no evidence such
investigation and subsequent decisions were propelled by retaliatory motives.
II.
CLOUR’S MOTION FOR SUMMARY JUDGMENT
The aforementioned discussion applies equally to Myles’ claims against Clour
for § 1981 retaliation. Again, even assuming Myles has presented a prima facie case,
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she has not effectively rebutted the legitimate, non-retaliatory reasons for her
demotion. Accordingly, summary judgment shall be granted to Clour on Myles’ claim
against her.
CONCLUSION
Defendants’ Motions for Summary Judgment [Doc. Nos. 87, 88] are
GRANTED as set forth herein. A judgment shall be issued accordingly.
IT IS SO ORDERED this 28th day of June, 2016.
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