Alvarez v. Independent School District No I-89 of Oklahoma County Oklahoma et al
Filing
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ORDER granting in part and denying in part 29 DefendantDr. Chris Carams Motion to Dismiss Plaintiffs Amended Complaint. Signed by Honorable Robin J. Cauthron on 9/8/14. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MARY HOPE ALVAREZ,
)
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Plaintiff,
)
)
vs.
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INDEPENDENT SCHOOL DISTRICT
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NO. 89 OF OKLAHOMA COUNTY,
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OKLAHOMA a/k/a OKLAHOMA CITY )
PUBLIC SCHOOLS, MICHELLE
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PONTIKOS, in her official and individual )
capacity as Principal of Roosevelt Middle )
School, DR. CHRIS CARAM, in her
)
official and individual capacity as Director )
of School Turnaround, and TAMIE
)
SANDERS, in her official and individual )
capacity as Principal of U.S. Grant High
)
School,
)
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Defendants.
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Case No. CIV-14-191-C
MEMORANDUM OPINION AND ORDER
I. BACKGROUND
Plaintiff Mary Hope Alvarez, an Hispanic female over the age of forty, is a former
employee of Defendant Independent School District No. 89 of Oklahoma County, Oklahoma,
a/k/a Oklahoma City Public Schools (“OKCPS”). From 2007 through 2012, Plaintiff served
as Assistant Principal at U.S. Grant High School. During the 2011-2012 school year,
Defendant Tamie Sanders, the new principal at U.S. Grant High School, sent letters home
to numerous Hispanic students instructing them not to return to school because of a purported
failure to achieve sufficient credits. Plaintiff disagreed with these instructions and called the
students’ parents to provide them with information about the students’ rights to be educated
until age twenty-one, regardless of the number of credits. Plaintiff alleges that in retaliation
for her actions in contacting the Hispanic students’ parents, Defendant Sanders threatened
to place Plaintiff on a Plan for Improvement, gave Plaintiff a less than satisfactory
performance review, and did not recommend renewal of Plaintiff’s employment contract for
the 2012-2013 school year at U.S. Grant High School. Plaintiff applied for numerous
positions, and ultimately the superintendent of OKCPS appointed Plaintiff as the assistant
principal at Roosevelt Middle School for the 2012-2013 year. After expressing her passion
for outreach to Hispanic parents, Plaintiff met with Defendant Michelle Pontikos, principal
of Roosevelt Middle School, and Defendant Chris Caram, director of school turnaround.
Plaintiff alleges that Defendants Pontikos and Caram told Plaintiff to resign or face an
investigation into allegations that Plaintiff had illegally worked for a consulting group while
serving as an Assistant Principal, among other false accusations. Plaintiff also alleges that
Defendants Pontikos and Caram said Plaintiff would lose her job if an investigation were
conducted, that Plaintiff could not have the weekend to think about the decision, and the
Plaintiff could not request a transfer to a different position. Plaintiff states that she then
resigned under extreme duress.
Plaintiff filed this suit, alleging race, national origin, and age-based discrimination;
retaliation for engaging in conduct protected by Title VII; interference with contract; and
violation of Plaintiff’s First Amendment right to free speech. Defendant Chris Caram filed
this motion pursuant to Fed. R. Civ. P. 12(b)(6), seeking dismissal of Plaintiff’s race and
national origin discrimination claims, First Amendment retaliation claim, and interference
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of contract claim. For reasons more fully set forth herein, the Court now partially grants
Defendant’s Motion to Dismiss (Dkt. No. 29).
II. STANDARD OF REVIEW
The standard for consideration of motions to dismiss brought pursuant to
Fed. R. Civ. P. 12(b)(6) is set forth in the Supreme Court’s decision in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), and the subsequent decision in Ashcroft v. Iqbal, 556 U.S.
662 (2009). The Supreme Court made clear that to survive a motion to dismiss, a complaint
must contain enough allegations of fact which, taken as true, “state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. Plaintiffs must “nudge[] their claims
across the line from conceivable to plausible” to survive a motion to dismiss. Id. When
considering a motion to dismiss, courts look to the complaint and those documents attached
to or referred to in the complaint, accept as true all allegations contained in the complaint,
and draw all reasonable inferences from the pleading in favor of the pleader. Pace v.
Swerdlow, 519 F.3d 1067, 1072-73 (10th Cir. 2008); Alvarado v. KOB-TV, L.L.C., 493 F.3d
1210, 1215 (10th Cir. 2007). A court is not bound to accept as true a plaintiff’s legal
assertions. Iqbal, 556 U.S. at 678.
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III. ANALYSIS
A. § 1981 Claims
Plaintiff alleges that Defendant Caram engaged in race and national origin
discrimination and retaliation in violation of 42 U.S.C. § 1981, which “prohibits race
discrimination in employment.” Richardson v. Gallagher, 553 F. App’x 816, 824 (10th Cir.
2014).
When a plaintiff relies on circumstantial evidence to support a charge of
discrimination or retaliation pursuant to 42 U.S.C. § 1981, courts apply the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to analyze the
plaintiff’s claims. See Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194-95 (10th Cir.
2011).
To establish a prima facie case of race-based discrimination under McDonnell
Douglas, Plaintiff must show “(1) membership in a protected class and (2) an adverse
employment action (3) that took place under circumstances giving rise to an inference of
discrimination.”1 Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012)
(citing EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007)). To establish a prima
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As this Court has previously recognized, the Tenth Circuit generally applies the four-part
test set out in Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220 (10th Cir. 2000), to determine
whether a plaintiff has established a prima facie case of race-based discrimination. Leverette v.
Archer Pressure Pumping, LLC, Case No. CIV-13-163-C, 2014 WL 1338080, at *2 n.3 (W.D. Okla.
Apr. 2, 2014). But “‘when addressing discrimination claims that either do not fall into any of the
traditional categories (e.g., hiring or discharge) or present unusual circumstances,’” the Court uses
the shortened three-prong test from Daniels. Id. (quoting Kendrick, 220 F.3d at 1227 n.6). Because
this case involves adverse actions outside of the traditional categories—such as a threat to
commence an investigation based on false accusations—the three-part test from Daniels is
applicable.
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facie case of retaliation, Plaintiff must show: “(1) ‘she engaged in protected opposition to
discrimination, (2) a reasonable employee would have considered the challenged
employment action materially adverse, and (3) a causal connection existed between the
protected activity and the materially adverse action.’” Id. at 638 (quoting Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008)). Both claims require
Plaintiff to show an adverse employment action. Although Plaintiff does not have to fully
“establish a prima facie case in her complaint, the elements of each alleged cause of action
help to determine whether Plaintiff has set forth a plausible claim” under the pleading
standards articulated in Twombly and Iqbal. Khalik v. United Air Lines, 671 F.3d 1188,
1192 (10th Cir. 2012).
The Defendant asserts dismissal is appropriate because Plaintiff has failed to allege
facts showing she suffered an adverse employment action. The Tenth Circuit liberally
defines “adverse employment action.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178
(10th Cir. 1999). Establishing whether the challenged action is an “adverse employment
action” requires a case-by-case approach and is not limited to only monetary losses in the
form of wages or benefits. Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004). The
Tenth Circuit has held that “[a]n adverse employment action is a ‘significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’” Daniels,
701 F.3d at 635 (quoting Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007)) (emphasis
removed). Defendant Caram contends that because Plaintiff voluntarily resigned in lieu of
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facing an investigation, the termination of Plaintiff’s employment did not constitute an
adverse employment action. See Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135 (10th
Cir. 2004) (“We have previously held that even requiring an employee to choose between
resignation and termination is not necessarily a constructive discharge, unless the employee’s
decision is, for some reason, involuntary.”). Plaintiff argues that her resignation was not
voluntary and states that she resigned during the meeting with Defendant while under
extreme duress.
When considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court
must accept as true the facts pled by Plaintiff. Alvarado, 493 F.3d at 1216 (citing David v.
City & Cnty. of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996)). It is inappropriate to decide
issues of fact—such as whether Plaintiff’s resignation was objectively voluntary—at the
dismissal stage, before the parties present evidence and when the Court confines itself to
analyzing the pleadings. Plaintiff’s Complaint must merely contain “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Plaintiff has
satisfied this standard. The Court must therefore deny Defendant’s motion to dismiss
Plaintiff’s § 1981 claims.
B. First Amendment Retaliation
Plaintiff asserts that Defendant violated her First Amendment rights by retaliating
against her for speaking to parents of Hispanic students at U.S. Grant High School and for
speaking to Defendant Pontikos about ideas for outreach to Hispanic parents. A five-step
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inquiry known as the “Garcetti/Pickering”2 analysis generally governs freedom of speech
retaliation claims for public employees. Brammer-Hoelter v. Twin Peaks Charter Acad., 492
F.3d 1192, 1202 (10th Cir. 2007). First, the Court determines whether the employee’s speech
was made as a private citizen or “‘pursuant to [his] official duties.’” Id. (quoting Garcetti,
547 U.S. at 421). If the Court finds that the employee spoke as a private citizen, it moves to
the second step of the Garcetti/Pickering analysis and asks “whether the subject of the speech
is a matter of public concern.” Id. The Court proceeds to the third step—a balancing
inquiry—only if the employee’s speech was a matter of public concern. Id. at 1203. If “the
employee’s interest in commenting on the issue outweighs the interest of the state as
employer,” the employee must demonstrate that his speech was a substantial or motivating
factor in an adverse employment action.
Id.
Finally, if the employee succeeds in
establishing that the protected speech was such a motivating factor, the employer may show
that it would have taken the same adverse action against the employee, even in the absence
of the employee’s speech. Id. The first three steps involve questions of law, and the trier of
fact generally resolves the last two. Id.
Defendant argues dismissal is appropriate because Plaintiff has not shown that she
spoke as a private citizen, rather than pursuant to official duties. However, the Court’s Order
on August 7, 2014, held that the First Amendment protects Plaintiff’s communications with
2
See Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Educ., 391 U.S. 563
(1968).
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parents of Hispanic students at U.S. Grant High School regarding the ability of those students
to continue their education because Plaintiff spoke as a private citizen. (Dkt. No. 31, at 10.)
Defendant also argues that dismissal is appropriate because Plaintiff has not shown
that Defendant Caram had knowledge of Plaintiff’s speech at the time of the adverse
employment action. The fourth prong of the Garcetti/Pickering analysis requires Plaintiff
to prove that the protected speech was a motivating factor in the adverse employment action.
Brammer-Hoelter, 492 F.3d at 1203. Inherent in this requirement is some showing that
Defendant knew of the speech at the time of the adverse employment action. See Rohrbough
v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 750 (10th Cir. 2010). Plaintiff has pleaded
facts sufficient to make Defendant’s knowledge a question of fact. When deciding on a
motion to dismiss, the court must “resolve all factual disputes in favor of plaintiff.” Intercon,
Inc. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000). Thus, dismissal
at this stage is inappropriate. Viewing the facts in the light most favorable to Plaintiff,
Plaintiff has made a plausible claim that she spoke as a private citizen, on a matter of public
concern, and Defendants retaliated against her for that protected speech.3 Plaintiff’s factual
allegations are sufficient to survive dismissal.
C. Interference with Contract
Finally, Plaintiff pleads a claim for interference with contract. However, Plaintiff
acknowledges in her Response to Defendant’s Motion (Dkt. No. 33), that because
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Defendants also reassert that Plaintiff has failed to plead an adverse employment action.
The Court addressed and rejected that argument. See supra III(A).
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“Defendants have stipulated that the actions taken by Defendant Caram against
Plaintiff . . . were within the scope of her employment,” Plaintiff must concede this claim.
(Pl.’s Resp., Dkt. No. 33, at 13.) Therefore, the Court will dismiss Plaintiff’s claim for
interference with contract.
IV. CONCLUSION
Accordingly, the Court hereby GRANTS IN PART and DENIES IN PART Defendant
Dr. Chris Caram’s Motion to Dismiss Plaintiff’s Amended Complaint (Dkt. No. 29).
IT IS SO ORDERED this 8th day of September, 2014.
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