DeBose v. Wal-Mart Associates Inc et al

Filing 13

ORDER granting in part and denying in part 5 defendant's Motion to Dismiss Claims (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 5/19/2016. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JACQUELINE DEBOSE,

)
)
Plaintiff,
)
)
vs.
)
)
WAL-MART ASSOCIATES, INC.,
)
d/b/a SAM’S CLUB a/k/a WAL-MART
)
STORES, INC. a/k/a SAM’S EAST, INC., )
)
Defendant.
)

Case No. CIV-16-254-M

ORDER
Before the Court is defendant’s Motion to Dismiss Claims, filed April 13, 2016. On May
4, 2016, plaintiff filed her response, and on May 11, 2016, defendant filed its reply.
I.

Introduction
Plaintiff is a former hourly associate of Sam’s Club who was terminated on September 7,

2015. On March 16, 2016, plaintiff filed the instant action, alleging the following claims: (1) racial
discrimination, harassment, and retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil
Rights Act (“Title VII”), (2) gender discrimination and retaliation in violation of Title VII, (3) age
discrimination in violation of the Age Discrimination in Employment Act, (4) disability
discrimination in violation of the Americans with Disability Act of 1990 (“ADA”), as amended by
the ADA Amendments Act of 2008, (5) interference with and retaliation for plaintiff’s use or
attempted use of medical leave in violation of the Family and Medical Leave Act (“FMLA”), and
(6) workers’ compensation retaliation in violation of the Oklahoma Administrative Workers’
Compensation Act. Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendant
moves this Court to dismiss the following claims for relief: (1) workers’ compensation retaliation,

(2) racially hostile work environment, (3) retaliation for engaging in protected opposition to race
and/or gender discrimination, (4) disability discrimination, and (5) violations of the FMLA.
II.

Standard for Dismissal
Regarding the standard for determining whether to dismiss a claim pursuant to Federal Rule

of Civil Procedure 12(b)(1), the United States Supreme Court has held that the party asserting
jurisdiction bears the burden of proving that the court has subject matter jurisdiction over her claims.
See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Rule 12(b)(1) motions generally take one or two forms. First, a
moving party may make a facial attack on the complaint’s allegations
as to the existence of subject matter jurisdiction. In reviewing a
facial attack, the district court must accept the allegations in the
complaint as true. Second, a party may go beyond allegations
contained in the complaint and challenge the facts upon which
subject matter jurisdiction is based. . . . In reviewing a factual attack,
a court has wide discretion to allow affidavits, other documents, and
a limited evidentiary hearing to resolve disputed jurisdictional facts.
In the course of a factual attack under Rule 12(b)(1), a court’s
reference to evidence outside the pleadings does not convert the
motion into a Rule 56 motion.
Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (internal quotations and
citations omitted).
Regarding the standard for determining whether to dismiss a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6), the United States Supreme Court has held:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that

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are merely consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.”
Id. at 679 (internal quotations and citations omitted). Additionally, “[a] pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does
a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. at
678 (internal quotations and citations omitted). A court “must determine whether the complaint
sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief
under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (internal
quotations and citation omitted). Finally, “[a] court reviewing the sufficiency of a complaint
presumes all of plaintiff’s factual allegations are true and construes them in the light most favorable
to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
III.

Discussion
A.

Workers’ compensation retaliation claim

Defendant asserts that this Court lacks subject matter jurisdiction over plaintiff’s workers’
compensation retaliation claim because this claim should have been filed, if at all, before the
Oklahoma Workers’ Compensation Commission, which has “exclusive jurisdiction” to hear and
decide such claims. In 2013, the Oklahoma legislature passed the Administrative Workers’
Compensation Act (the “AWCA”). See Okla. Stat. tit. 85A, § 1. The AWCA created the Oklahoma
Workers’ Compensation Commission and vested the Commission with exclusive jurisdiction over

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retaliation claims under the AWCA. See Okla. Stat. tit. 85A, § 19(A); Okla. Stat. tit. 85A, § 7(B).1
Because the Oklahoma Workers’ Compensation Commission has exclusive jurisdiction over
retaliation claims under the AWCA, the Court finds that it does not have jurisdiction over plaintiff’s
workers’ compensation retaliation claim.
However, in her response, plaintiff asserts that investing exclusive jurisdiction in the
Oklahoma Workers’ Compensation Commission deprives her of her right to a jury trial – a right
Article 2, Section 19 of the Oklahoma Constitution guarantees to plaintiff. The Oklahoma Court of
Civil Appeals, however, has found a prior version of the Workers’ Compensation Act constitutional
and specifically found “that Okla. Const. art. 2, § 19, which provides that right to trial by jury shall
remain inviolate, does not prevent the Legislature from abrogating the common-law right of action
for injury to employee and substituting the Workers’ Compensation Court system of compensation
determination without jury trial.” Bailes v. Home of Hope, 977 P.2d 1145, 1148 (Okla. Civ. App.
1999). The Court finds no reason to believe that the Oklahoma courts would reach a different result
regarding the AWCA.
Plaintiff also asserts that she should be permitted to proceed with her retaliation claim as a
Burk tort claim. No Burk tort claim, however, is asserted in plaintiff’s Complaint. Additionally, the
Court finds that it is likely that any Burk tort claim would also be subject to dismissal because a state
statutory remedy exists that would be sufficient to protect any alleged public policy goal.

1

The AWCA applies to those claims for injuries occurring after the effective date of February
1, 2014. See Okla. Stat. tit. 85A, § 3(B). In her Complaint, plaintiff alleges she suffered an on-thejob injury in or around the Fall of 2014. See Complaint at ¶ 23. Thus, the AWCA would apply in
this case.
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Accordingly, the Court finds that plaintiff’s workers’ compensation retaliation claim should
be dismissed.
B.

Racially hostile work environment claim

In order to establish a prima facie case for a racially hostile work environment, a plaintiff
must show: (1) she is a member of a protected group; (2) she was subjected to unwelcome
harassment; (3) the harassment was based on her race; and (4) due to the harassment’s severity or
pervasiveness, the harassment altered a term, condition, or privilege of the plaintiff’s employment
and created an abusive working environment. See Harsco Corp. v. Renner, 475 F.3d 1179, 1186
(10th Cir. 2007). Defendant asserts that plaintiff’s Complaint fails to allege that under the totality
of the circumstances, the harassment was pervasive or severe enough to alter the terms, conditions,
or privilege of employment and the harassment was racial or stemmed from racial animus.
Specifically, defendant contends that the comments set forth in plaintiff’s Complaint neither
demonstrate racial enmity nor hostility nor do they bear the hallmarks of a racially hostile work
environment, such as a racial slur or opprobrious act that would rise to the level of pervasive or
severe harassment such as would alter the terms, conditions, or privilege of employment.
In her Complaint, plaintiff alleges the following in relation to her racially hostile work
environment claim:
12.
Throughout the time Plaintiff reported to Miracle (in or
around early-2015 until on or about September 7, 2015), Miracle
repeatedly (on nearly a daily basis) made offensive and unwelcome
race-based comments and remarks. By way of example, Miracle
frequently commented that a lot of Black men date White women.
And, on at least one occasion, when Technician Jeff (Last Name
Unknown), who is Caucasian, stated he did not understand why
Black individuals would vote for President Obama just because
President Obama is Black, Miracle agreed.

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*
*
*
31.
Moreover, Plaintiff is entitled to relief under federal law for
racial harassment, as looking at the totality of the circumstances,
Plaintiff was subject to harassment which was pervasive or severe
enough to alter the terms, conditions or privileges of her employment,
and the harassment was racial or stemmed from racial animus.
Complaint at ¶¶ 12, 31.
Having carefully reviewed plaintiff’s Complaint, and presuming all of plaintiff’s factual
allegations are true and construing them in the light most favorable to plaintiff, the Court finds
plaintiff has not set forth sufficient factual allegations to state a plausible racially hostile work
environment claim. Specifically, the Court finds that while plaintiff generally alleges that Miracle
repeatedly, and on nearly a daily basis, made offensive and unwelcome race-based comments and
remarks, none of the specific examples set forth in paragraph 12 of the Complaint, alone or in
combination, even if assumed true, would constitute severe or pervasive harassment. Additionally,
the Court finds that any other allegations regarding plaintiff’s racially hostile work environment
claim are simply conclusory allegations. Accordingly, the Court finds that plaintiff’s racially hostile
work environment claim should be dismissed. However, the Court finds that plaintiff should be
granted leave to file an amended complaint to correct the above deficiencies.
C.

Retaliation for engaging in protected opposition to race and/or gender discrimination
claim

In order to state a claim for retaliation under Title VII, a plaintiff must show: (1) that she
engaged in protected opposition to discrimination, (2) that 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. See Somoza v. Univ. of Denver, 513 F.3d 1206,
1212 (10th Cir. 2008). Defendant asserts that plaintiff’s Complaint fails to set forth sufficient

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factual allegations that, even if accepted as true, would demonstrate plaintiff engaged in protected
opposition to racial or gender discrimination. Defendant further asserts that plaintiff’s Complaint
is devoid of any allegations that would suggest the service manager believed or perceived plaintiff
as opposing a discriminatory behavior. Finally, defendant asserts that the Complaint is devoid of
any allegations connecting plaintiff’s alleged remarks to Mr. Miracle to the decision to terminate
plaintiff.
Having carefully reviewed plaintiff’s Complaint, and presuming all of plaintiff’s factual
allegations are true and construing them in the light most favorable to plaintiff, the Court finds
plaintiff has set forth sufficient factual allegations to state a claim for retaliation for engaging in
protected opposition to race and/or gender discrimination. Specifically, the Court finds that plaintiff
has alleged that she complained to her supervisor, Mr. Miracle, that she felt she was being treated
unfavorably because of her race, as well as her gender. See Complaint at ¶ 13. Additionally,
plaintiff alleges that the day after she complained she was fired – a sufficient factual allegation to
plausibly show a materially adverse action and the requisite causal connection. Accordingly, the
Court finds that plaintiff’s claim for retaliation for engaging in protected opposition to race and/or
gender discrimination should not be dismissed.
D.

Disability discrimination claim

To state a disability discrimination claim, a plaintiff must show: (1) she is a disabled person
within the meaning of the statute; (2) she is qualified to perform the essential functions of her
position; and (3) she was discriminated against because of her disability. See Mauerhan v. Wagner
Corp., 649 F.3d 1180, 1185 (10th Cir. 2011). Defendant asserts that plaintiff’s Complaint fails to

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allege any specific facts to demonstrate an actual disability and fails to allege any causal connection
between her alleged disability and her termination.
In her Complaint, plaintiff alleges the following in relation to her disability discrimination
claim:
23.
Of further significance, in or around the Fall 2014, Plaintiff
suffered an on-the-job injury, pulling a muscle in her chest, which
substantially limited her ability to perform one or more major life
activities, including but not limited to lifting, pushing and pulling.
Her condition further impacts one or more of her internal bodily
processes, including but not limited to her muscular system.
24.
Plaintiff was required to seek continued medical treatment for
said injury. And, Tiffany (Last Name Unknown), who worked as the
Club Manager at the time, commented that Plaintiff cost the company
thousands of dollars as a result of said injury.
25.
Plaintiff initially reported the work-related injury on or about
the date the injury occurred (in or around the Fall 2014), but after
Miracle began his employment, Plaintiff also told him of her injury,
as well as her consequent limitations and of her need for continuing
medical treatment.
26.
In fact, on or about July 28, 2015, Plaintiff was required to
seek medical treatment for the injury to her chest. And, though,
Plaintiff made her need for continuing medical treatment known,
Plaintiff was not informed of her right to FMLA leave. And, Plaintiff
was terminated shortly after making Miracle aware of her need for
continued medical treatment.
Complaint at ¶¶ 23-26.
Having carefully reviewed plaintiff’s Complaint, and presuming all of plaintiff’s factual
allegations are true and construing them in the light most favorable to plaintiff, the Court finds
plaintiff has set forth sufficient factual allegations to state a claim for disability discrimination.
Specifically, the Court finds that plaintiff has set forth sufficient factual allegations to demonstrate
an actual disability. Additionally, the Court finds plaintiff has set forth sufficient factual allegations
to show a causal connection between her alleged disability and her termination. Plaintiff alleges that

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she was required to seek medical treatment for her condition on or about July 28, 2015, and less than
two months later, on or about September 7, 2015, she was terminated and defendant did not follow
its progressive disciplinary policy.

Accordingly, the Court finds that plaintiff’s disability

discrimination claim should not be dismissed.
E.

FMLA claim

Plaintiff alleges both an interference theory of recovery and a retaliation theory of recovery
in relation to her FMLA claim. To state a claim for interference with FMLA rights, a plaintiff must
show: (1) she was entitled to FMLA leave; (2) some adverse action by the employer interfered with
her right to take FMLA leave; and (3) the employer’s action was related to the exercise or attempted
exercise of her FMLA rights. See Jones v. Denver Pub. Schs., 427 F.3d 1315, 1319 (10th Cir. 2005).
To state a claim for retaliation for using FMLA rights, a plaintiff must show: (1) she engaged in
activity protected under the act; (2) she subsequently suffered adverse action by the employer; and
(3) a causal connection existed between the employee’s activity and the adverse action. See
Richmond v. ONEOK, Inc., 120 F.3d 205, 208-09 (10th Cir. 1997).
Having carefully reviewed plaintiff’s Complaint, and presuming all of plaintiff’s factual
allegations are true and construing them in the light most favorable to plaintiff, the Court finds
plaintiff has not set forth sufficient factual allegations to state a FMLA claim. Specifically, the
Court finds plaintiff primarily sets forth conclusory allegations in relation to her FMLA claim and
has not set forth sufficient facts to allow the Court to draw the reasonable inference that defendant
is liable for violating plaintiff’s FMLA rights. Accordingly, the Court finds that plaintiff’s FMLA
claim should be dismissed. However, the Court finds that plaintiff should be granted leave to file
an amended complaint to correct the above deficiencies.

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IV.

Conclusion
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART

defendant’s Motion to Dismiss Claims [docket no. 5] as follows:
(A)

The Court GRANTS the motion to dismiss as to plaintiff’s workers’ compensation
retaliation claim, racially hostile work environment claim, and FMLA claim;

(B)

The Court DENIES the motion to dismiss as to plaintiff’s race and gender retaliation
claims and disability discrimination claim; and

(C)

The Court GRANTS plaintiff leave to file an amended complaint to correct the
deficiencies noted above in relation to her racially hostile work environment claim
and FMLA claim. Said amended complaint shall be filed within ten (10) days of the
date of this Order.

IT IS SO ORDERED this 19th day of May, 2016.

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