Rosales v. University of Oklahoma Board of Regents

Filing 28

ORDER granting in part and denying in part 23 Defendant's Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 1/29/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
EDIBERTO O. ROSALES,
Plaintiff,
v.
THE BOARD OF REGENTS OF
THE UNIVERSITY OF
OKLAHOMA,
Defendant.

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Case No. CIV-15-560-R

ORDER
Before the Court is Defendant’s motion to dismiss Plaintiff’s Second Amended
Complaint. Doc. No. 23. In support of this motion, Defendant argues that Plaintiff has
not exhausted his administrative remedies for his disability claim because the only
Charge of Discrimination for disability discrimination was made against the University of
Central Oklahoma. Additionally, Defendant argues that Plaintiff’s OADA disability
discrimination claim and his Title VII claims for race and national origin discrimination
in connection with Plaintiff’s termination fail to allege sufficient facts to satisfy the
requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2008). Plaintiff
opposed Defendant’s motion, asserting that the EEOC filled out the January 30, 2015
Charge of Discrimination erroneously naming the University of Central Oklahoma due to
Plaintiff’s limitations in the English language and his necessity of relying on a translator
at the EEOC to fill out and verify the EEOC forms. However, Plaintiff does not allege
these facts in his Second Amended Complaint. When a party fails to name the Defendant

in an EEOC charge, action upon that charge can only proceed where “there is a clear
identity of interest between the unnamed defendant and the party charged in the
administrative charge.” Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1185 (10th Cir.
1999)(quoting Johnson v. Palma, 931 F.2d 203, 209 (2d Cri. 1991)). An examination of
the factors determining whether a clear identity of interests exists between the University
of Oklahoma and the University of Central Oklahoma see id. At 185 n. 9, reveals that
there is no clear identity of interests between those two entities. Thus, Plaintiff’s OADA
claim for disability discrimination must be dismissed for failure to exhaust administrative
remedies. See Shakelford v. Oklahoma Department of Correction ex rel. State, 182 P.3d
167 (Okla. 2008)(failure to exhaust administrative remedies is a jurisdictional bar to suit).
However, in any event, Plaintiff has failed to allege sufficient facts to state a plausible
claim for relief. Twombly, supra. This is so because Plaintiff has failed to allege facts
showing that he was qualified, at the time of his termination, with or without reasonable
accommodation, to perform the essential functions of his job and to allege that his
employment was terminated because of his disability. Moreover, he has failed to allege
that his lower back and knee injury substantially limited him in a major life activity. See
e.g.,McCully v. American Airlines, Inc., 695 F.Supp.2d 1225, 1246-67 (N.D. Okla.
2010)(the protections of the OADA are co-extensive with those under federal law so a
plaintiff’s OADA claim fails if a federal discrimination claim would fail). Plaintiff’s
OADA claim must be dismissed for this additional reason.
Plaintiff’s second cause of action, alleging race and national origin discrimination,
meets a different fate. Upon review of Plaintiff’s factual allegations, including those that
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non-Hispanic employees who were injured on the job were not terminated while Plaintiff,
Hispanic, Latin American and Guatemalan was terminated after he suffered an on-the-job
injury, are sufficient to create an inference of racial and national origin discrimination.
Plaintiff’s factual allegations are sufficient to “nudge his claims across the line from
conceivable to plausible” Twombly, 550 U.S. at 570, so as to withstand Defendant’s
motion to dismiss.
In accordance with the foregoing, Defendant’s motion to dismiss Plaintiff’s
Second Amended Complaint is GRANTED in part and DENIED in part. It is granted as
to Plaintiff’s OADA claim for failure to exhaust administrative remedies and failure to
state a claim for which relief can be granted and it is denied as to Plaintiff’s race and
national origin discrimination claims.

Plaintiff’s OADA claim for disability

discrimination is dismissed.
IT IS SO ORDERED this 29th day of January, 2016.

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