Lopez et al v. Quikrete Companies Inc

Filing 72

ORDER granting defendant's 30 motion for judgment on the pleadings; judgment in defendant's favor on plaintiffs' Burk tort and negligent supervision claims will be entered when the case is resolved with respect to plaintiffs' Title VII and OADA national origin discrimination claims. Signed by Honorable Joe Heaton on 10/18/2016. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MANUEL LOPEZ, ET AL.,
Plaintiffs,
vs.
THE QUIKRETE COMPANIES, INC.,
Defendant.

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NO. CIV-15-1040-HE

ORDER
Plaintiffs Manual Lopez and Agustin Arriaga filed this action in state court against
their former employer, The Quikrete Companies, Inc. (“Quikrete”), alleging Quikrete
terminated them because they are Hispanic. In addition to asserting discrimination claims
under Title VII of the Civil Rights Act of 1964 and the Oklahoma Anti-Discrimination Act
(“OADA”), plaintiffs assert Quikrete wrongfully discharged them in violation of Oklahoma
public policy and negligently hired, supervised and trained its management employees.
Quikrete removed the action and has filed a motion for partial judgment on the pleadings
pursuant to Fed.R.Civ.P. 12(c).
“Judgment on the pleadings is appropriate only when the moving party has clearly
established that no material issue of fact remains to be resolved and the party is entitled to
judgment as a matter of law.” Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138,
1141 (10th Cir. 2012) (internal quotation marks omitted). “The court “accept[s] all facts
pleaded by the non-moving party as true and grant[s] all reasonable inferences from the
pleadings in that party's favor.” Id. (internal quotation marks omitted).

In their complaint,1 plaintiffs allege that they are Hispanic, that they worked as truck
drivers for defendant from May through June 2014, and that defendant discriminated against
them by discharging them for incidents involving damage to company equipment. They
assert that white employees were treated better and were not disciplined as harshly or
discharged for the same or similar conduct.
Quikrete seeks judgment on the pleadings on plaintiffs’ public policy or Burk tort
claim and its negligent supervision claim, arguing such types of claims were abolished by the
OADA. Quikrete contends that because both of the state law tort claims seek to recover for
“employment-based discrimination,” they are precluded by § 1350 of the OADA, which
provides that “[a] cause of action of employment-based discrimination is hereby created and
any common law remedies are hereby abolished.” 25 Okla. Stat. §1350(A).
Plaintiffs initially respond that defendant has misunderstood the factual basis for their
public policy tort claim. They assert they “filed their case as an alleged Burk Tort or in the
alternative, an OADA violation.”

Doc. #47, p. 17.

They maintain defendant is

discriminating against them and others based on their legal status and that “Oklahoma has
a clear public policy against promoting illegal activity in employment and in particular
promoting hiring practices which enable illegal aliens to remain in the country by harboring
or employing such aliens.” Doc. #47, p. 18. Plaintiffs contend they “have a cognizable Burk
Tort under Oklahoma law because [that] kind of discrimination is not subsumed within the
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Because the action is now in federal court, the original pleading will be referred to as a
complaint.

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OADA.” Id. at 20.
Regardless of whether plaintiffs could state a claim for discrimination based on
alienage, it was not pleaded in the complaint and it is too late to amend to include it. The
deadline for amended pleadings was December 23, 2015, and discovery was to be completed
by October 1, 2016. As pleaded, plaintiffs’ public policy tort claim for wrongful discharge
– “Plaintiffs were discharged because of their Hispanic race,” Doc. #1-1, p. 4 ¶30, is barred
by the OADA. See 25 Okla. Stat. §1350(A). Plaintiffs’ request to amend in their response
brief is therefore denied and their public policy tort claim will be dismissed.
As for their negligent supervision claim, plaintiffs assert it was not abolished by the
OADA because is a distinct tort from their claim for discriminatory discharge. The two
claims are premised, they assert, on completely different legal theories.
The problem with plaintiffs’ negligent supervision claim is plaintiffs are seeking,
through the claim, to redress employment discrimination. They are not alleging distinct
injuries or a harm apart from that allegedly inflicted by the claimed national origin
discrimination. Therefore the claim, as pleaded, is within the scope of the OADA's ban of
common law remedies and will be dismissed. See Jones v. Needham, 2016 WL 2659618,
at *3 (W.D. Okla. May 6, 2016), appeal filed, No. 16-6156 (10th Cir. June 7, 2016);
McFarlane v. Nexeo Staffing, LLC, 2011 WL 1226105, at *2 (D. Utah Mar. 30, 2011).
The court has concluded the Burk tort plaintiffs pleaded in Count Two of their
complaint was abolished by the OADA and that their request to amend their complaint to add

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a new public policy tort claim is untimely. It has further concluded that plaintiffs’ negligent
training, supervision and retention claim asserted in Count Three likewise falls within the
OADA ban.
Accordingly, defendant’s motion for judgment on the pleadings [Doc. #30] is
GRANTED. Judgment in defendant’s favor on plaintiffs’ Burk tort and negligent
supervision claims will be entered when the case is resolved with respect to plaintiffs’ Title
VII and OADA national origin discrimination claims. See Fed.R.Civ.P. 54(b).
IT IS SO ORDERED.
Dated this 18th day of October, 2016.

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