Rosales v. University of Oklahoma Board of Regents

Filing 21

ORDER granting 17 Motion to Dismiss. Plaintiff is hereby granted leave to amend and he may file a second amended complaint not later than December 14, 2015, as more fully set out. Signed by Honorable David L. Russell on 12/7/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
EDUARDO ROSALES,
Plaintiff,
v.
THE UNIVERSITY OF
OKLAHOMA,
Defendant.

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CIV-15-560-R

ORDER
In accordance with the Court's Order dated August 7, 2015, Plaintiff has filed an
Amended Complaint, to which Defendant has filed a Motion to Dismiss (Doc. No. 17).
Plaintiff has responded in opposition to the motion. Having considered the parties'
submissions, the Court finds as follows.
In his Amended Complaint, Plaintiff alleges claims against the University for
violation of the Oklahoma Anti-discrimination Act ("OADA") based on his alleged disability,
and for violation of Title VII, for alleged discrimination on the basis of Plaintiff's national
origin and race. Plaintiff contends he was terminated following an on-the-job injury because
of his alleged disability. He also contends that non-minority employees who suffered on-thejob injuries or sought worker's compensation were not terminated from their employment.
Defendant first asserts that Plaintiff's OADA claim is barred by law because Plaintiff
did not file a charge of discrimination with regard to his disability claim. Oklahoma Stat. tit.
25 § 1350(b) provides:

In order to have standing in a court of law to allege discrimination arising from
an employment-related matter, in a cause of action for discrimination based on
race . . . [or] national origin . . . an aggrieved party must, within one hundred
eighty (180) days from the last date of alleged discrimination, file a charge of
discrimination in employment with the Attorney General's Office of Civil
Rights Enforcement or the Equal Employment Opportunity Commission
alleging the basis of discrimination believed to have been perpetrated on the
aggrieved party.
As such, it is incumbent on Plaintiff to establish that he exhausted his claim for disability
discrimination. The Court need not consider at this juncture if exhaustion is jurisdictional
with regard to claims under the OADA, because it is apparent that at a minimum, exhaustion
is a jurisdictional prerequisite to suit.1 Rule 9(c) of the Federal Rules of Civil Procedure
provides, “[i]n pleading conditions precedent, it suffices to allege generally that all
conditions precedent have occurred or been performed. But when denying that a condition
precedent has occurred or been performed, a party must do so with particularity.”
Fed.R.Civ.P. 9(c). Plaintiff has failed to allege, in any respect, with regard to either his claim

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The legal landscape of exhaustion with regard to federal law employment claims has shifted in
recent months. The day after Defendant filed the final brief in this case, the United States Court of Appeals
for the Tenth Circuit issued a decision in Arabalo v. City of Denver, --- Fed.Appx. ---, 2015 WL 5235740
(Sept. 9, 2015), noting its decision in Gad v. Kansas State Univ., 787 F.3d 1032 (10th Cir. 2015). In Gad, the
Court concluded that "a party's failure to verify submissions to the EEOC did not defeat the court's subjectmatter jurisdiction." Gad, 787 F.3d at 1035-36. The court noted its prior suggestion that "recent Supreme
Court cases may have limited jurisdictional requirements to those set forth in 42 U.S.C. § 2000e-5(f)(3), the
subsection vesting jurisdiction of Title VII actions in the federal court." Id. at *7. The court thereafter
declined to decide whether exhaustion is jurisdictional, because it is, at a minimum, a condition precedent.
The practical impact of this decision is that the Court's review on a Rule 12(b)(6) motion is limited to the
allegations set forth in the amended complaint, while a jurisdictional challenge under Rule 12(b)(1) would
permit the Court to consider the submissions of EEOC charges made by the parties and attached to the motion
and response. See Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir.2001). The exception
that permits the Court to consider documents referenced in a complaint on a Rule 12(b)(6) motion, without
conversion, is not relevant because, as set forth in the body of this Order, Plaintiff made no reference to
exhaustion or to seeking relief from the EEOC. Finally, although the Court could convert the motion to
dismiss to a motion for summary judgment, it declines to do so.

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for disability discrimination or his claim of national origin discrimination, that he exhausted
the claims by filing a charge with the EEOC. As such, Defendant is entitled to dismissal of
both claims.
Additionally, Plaintiff's allegations with regard to national origin discrimination are
insufficient to avoid dismissal. To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
a complaint must present factual allegations, assumed to be true, that "raise a right to relief
above the speculative level" and must contain "enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plaintiff alleges in his Amended Complaint that he is a citizen of Guatemala, and of
Hispanic descent. He was an employee of the Defendant University of Oklahoma, working
as a maintenance laborer in the transportation and hauling department after his March 12,
2013 hiring. His job involved the loading and transport of office furniture and sporting
equipment to various locations on campus. Plaintiff alleges he suffered an on-the-job injury
on January 2, 2014, and as a result received medical treatment and was placed on temporary
total disability, during which period he was terminated. As relevant to his claim of national
origin discrimination, Plaintiff contends he was the only maintenance laborer/technician of
Hispanic descent in his department. He alleges "[u]pon information and belief" that minority
employees were targeted for discrimination if they filed claims for workers' compensation.
Amended Complaint, ¶ 15. He asserts that "non-minority employees in that department are
not terminated when they got hurt on the job. It is believed as a well known fact that the
supervisor in Plaintiff's department played favoritism with the non-minority employees."
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Amended Complaint, ¶ 15. Plaintiff's allegations are entirely conclusory. He does not
identify the supervisor who allegedly discriminates against minorities nor does he allege who
the similarly situated non-Hispanic employees were, or when and how they were injured
on-the-job so as to sufficiently alleged how he was treated differently than them. See Khalik
v. United Airlines, 671 F.3d 1188, 1194 (10th Cir. 2012). Plaintiff's national origin
discrimination claim is not plausible under the Twombly/Iqbal standard.
Although the Court previously granted Plaintiff leave to amend, the Court finds that
a second, and final, attempt at amendment should be granted, as requested by Plaintiff in his
response to the motion to dismiss. As such, Plaintiff is hereby granted leave to amend and
he may file a second amended complaint not later than December 14, 2015. Defendant's
Motion to Dismiss (Doc. No. 17) is hereby GRANTED.
IT IS SO ORDERED this 7th day of December, 2015.

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