Hunter v. Council on Firefighter Training et al
ORDER denying 24 Defendant COFT Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 6/20/17. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
COUNCIL ON FIREFIGHTER
TRAINING, ex rel. STATE
OF OKLAHOMA, OK STATE
FIRE MARSHALL, MIKE BOWER, )
and RICHARD KELLY,
Defendants Council On Firefighter Training (“COFT” or “the Council”), Mike
Bower, and Richard Kelly have filed a Motion to Dismiss Plaintiff’s Second Amended
Complaint, seeking dismissal of her claims pursuant to Federal Rule of Civil Procedure
12(b)(6) (Doc. No. 27). Plaintiff responded in opposition to the Motion and Defendants
filed a Reply brief in support of their position. Accordingly, the Motion is ripe for
consideration. Having considered Plaintiff’s Second Amended Complaint and the
Defendants’ challenges thereto, the Court finds as follows.
The standards governing a Rule 12(b)(6) motion are as follows. The Court accepts
as true the factual allegations in the petition and draws reasonable inferences in favor of
plaintiff. Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir.2008). The court is not obliged to
accept as true a legal conclusion couched as a factual allegation. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
The complaint must contain enough allegations of fact “to state a claim to relief that is
plausible on its face.” Twombly, 550 U .S. at 570. “Plausibility” refers to whether the facts
alleged in the complaint are so general or so innocent that the plaintiffs “‘have not nudged
their claims across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519
F.3d 1242, 1247 (10th Cir.2008) (quoting Twombly, 550 U.S. at 570). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “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.” Id. (quoting Twombly, 550 U.S. at 556). If, after drawing upon the Court's
“judicial experience and common sense,” it decides that “the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, [then] the complaint
has alleged—but it has not ‘show [n]’—‘that the pleader is entitled to relief.’” Id. at 679
(quoting Fed.R.Civ.P. 8(a)(2)).
The Second Amended Complaint alleges that Plaintiff was terminated from her
employment at the Council on April 29, 2015, as a result of discrimination on the basis of
her gender, race, age, and in retaliation for her complaints about discrimination and sexual
harassment, as well as her allegations of financial malfeasance by then Director of the
Council, Jon Hansen. She seeks to recover on claims arising under federal and state law.
Defendants seek dismissal of each of her claims.1
Plaintiff added the Oklahoma State Fire Marshal as a Defendant in the Second Amended Complaint. The record
does not reflect that she has served process on the Marshal.
Included in the Second Amended Complaint are claims of race and gender
discrimination and a claim of sexual harassment, all of which arise under Title VII of the
Civil Rights Act of 1964. Plaintiff also alleges discrimination on the basis of her age in
violation of the Age Discrimination in Employment Act (“ADEA”). Both Title VII and the
ADEA apply only to “employers,” defined, in part, by a threshold number of employees.
Plaintiff concedes that the Council never had fifteen employees, as required for Title VII
coverage, or the twenty-employee count required for ADEA coverage. She argues,
however, that COFT can be considered part of the larger entity, the State of Oklahoma, or
more specifically the Oklahoma State Fire Marshal’s Office, which will increase the
number of employees above the necessary threshold for either statute.
In Owens v. Rush, 636 F.2d 283 (10th Cir. 1980), the Tenth Circuit considered
whether the Sheriff was an agent of the County and thus an employer for Title VII purposes.
(b) The term “employer” means a person engaged in an industry affecting commerce who
has fifteen or more employees for each working day in each of twenty or more calendar
weeks in the current or preceding calendar year, and any agent of such a person. . . . 42
U.S.C. § 2000e(b).2 The court concluded that the Sheriff was an agent of the county, elected
to act on behalf of the County in enforcing the law. Id. at 286. The court concluded the
Sheriff “is an agent of the County whether or not he would be considered an agent of the
Board of County Commissioners under traditional agency principles.” Id. “Whatever the
reason for excluding employers with fewer than fifteen employees from Title VII coverage,
An “employee” is “any individual employed by an employer.” 42 U.S.C. § 2000e(f).
it should not be construed to exempt a political subdivision with many employees from
Title VII proscription on the grounds that the immediate employing agent has fewer than
fifteen employees.” Id. More recently, the Tenth Circuit noted in Cink v. Grant County,
Oklahoma, 635 Fed.Appx. 470 (10th Cir. 2015), “’Congress has directed federal courts to
interpret [these statutes] based on agency principles,’ and for that we must ‘rely on the
general common law of agency, rather than on the law of any particular State.’” Id. at 47576 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754, 118 S.Ct. 2257, 141
L.Ed.2d 633 (1998) 754–55, 118 S.Ct. 2257 (internal quotation marks omitted)
(characterizing “[t]he resulting federal rule[s]” as “statutory interpretation pursuant to
congressional direction”). See also Piper v. Junction City Housing Authority, 1995 WL
88232 (D.Kan. Feb. 1, 1995).
Under a theory of common-law agency, the Court asks whether Plaintiff has alleged
facts to support the conclusion that COFT had the actual or apparent authority to act on
behalf of the State of Oklahoma and whether it was subject to the State’s control. See PHL
Variable Ins Co. v. Sheldon Hathaway Family Ins. Trust ex rel. Hathaway, 819 F.3d 1283,
1289 (10th Cir. 2016)(addressing common law agency). Plaintiff has sufficiently pled facts
to support each of these elements. COFT was created by the Oklahoma legislature and
according to an audit performed by the State the Council is primarily funded by monies
allocated to the State Fire Marshal and passed to COFT. See Okla. Stat. tit. 74 § 325.1. The
responsibilities of the Council are set by statute and the Council must provide an annual
report or recommendation regarding fire and emergency training services to the Governor,
Speaker of the House and President Pre Tempore of the Senate annually. Id. The Court
finds these facts sufficient to plead an agency relationship between the Council and the
State for purposes of the Council meeting the numerosity requirements of Title VII and the
Defendants further contend with regard to Plaintiff’s age discrimination claim that
she fails to sufficiently plead discrimination on the basis of age. The Court disagrees.
Plaintiff alleges that she was 53 at the time of her termination, and thus a member of the
protected class. She further alleges that despite performing her job well and receiving
positive reviews, raises, and promotions, that she was terminated by Executive Director
Hansen. She asserts that following her termination two younger women took over her job
duties. Although the final element of an ADEA claim is often expressed as a younger
person replacing the plaintiff, and plaintiff here does not allege that she was truly replaced
but rather her job duties were transferred to younger employees, she alleges that at least
one of these women had negative performance reviews.3 The termination of a qualified
employee in a protected class raises an inference of discrimination because it is illogical to
fire otherwise qualified employees. Perry v. Woodward, 199 F.3d 1126, 1140 (10th
Cir.1999). Accordingly, the Court finds Plaintiff has sufficiently pled a claim for
discrimination under the ADEA.
Defendants also seek dismissal of Plaintiff’s Title VII gender and race
discrimination claims. A prima facie case of gender discrimination in a Title VII case
generally requires a plaintiff to show “that she is a member of a protected class, she suffered
Plaintiff notes that her claims are pled in the alternative, and thus the inherent factual inconsistencies in her
pleading do not mandate dismissal of any particular claim.
an adverse employment action, and the challenged action occurred under circumstances
giving rise to an inference of discrimination.” Bennett v. Windstream Commc'n, Inc., 792
F.3d 1261, 1266 (10th Cir. 2015) (citing E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800
(10th Cir. 2007)). “While the elements of a prima facie case ‘are neither rigid nor
mechanistic, their purpose is the establishment of an initial inference of unlawful
discrimination warranting a presumption of liability in plaintiff's favor.’” Bennett, 792 F.3d
at 1266 (citing Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th
Cir. 2008)). Often this inference is the result of facts showing that the employer treated
similarly situated persons differently, which is the path Plaintiff attempts to travel. Plaintiff
alleges that Jon Hansen, Executive Director of COFT, was not terminated for having
secondary employment and that he was not disciplined for sexually harassing behavior or
alleged financial malfeasance. Tenth Circuit authority forecloses Plaintiff’s reliance on her
supervisor as a basis for finding that a similarly situated person was treated differently. See
Didier v. Abbott Laboratories, 614 Fed.Appx. 366, 375 (10th Cir. 2015)(citing Jones v.
Denver Post Corp, 203 F.3d 748, 752-53 (10th Cir. 2000)(“Canino was one of Jones’s
supervisors and therefore cannot be deemed similarly situated in a disciplinary matter. . .
.”). As such, and because this is the only factual allegation from which gender
discrimination can be gleaned, the Court finds that Defendant COFT is entitled to dismissal
of Plaintiff’s Title VII gender discrimination claim.
Defendant also seeks dismissal of Plaintiff’s claim for race discrimination in
violation of Title VII. The Court finds Plaintiff sufficiently alleges a claim for racial
discrimination, having set forth that she is Japanese American, was terminated, and that a
Caucasian employee with inadequate job performance, Shanna Miller, was not terminated
for personal use of COFT equipment. The Court finds Plaintiff’s allegations sufficient at
the pleading stage to state a claim for racial discrimination. As such, the Court denies
Defendants’ motion to dismiss with regard to Plaintiff’s racial discrimination claim.4
Defendant COFT contends Plaintiff has failed to state a claim for retaliation in
violation of Title VII; the Court disagrees. ‘To state a prima facie case of retaliation, [a
plaintiff] must show that: (1) she engaged in a protected activity; (2) [the employer] took
an action that a reasonable employee would have found materially adverse; and (3) there
exists a causal connection between the protected activity and the adverse action.’” Carney,
v. City and County of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008)(quoting Metzler v. Fed.
Home Loan Bank, 464 F.3d 1164, 1171 (10th Cir. 2006) (footnote omitted)). The first
element of a retaliation claim is satisfied by showing the plaintiff “engaged in protected
opposition to discrimination.” Kendrick, 220 F.3d at 1234; Roberts v. Roadway Exp., Inc.,
149 F.3d 1098, 1103 (10th Cir. 1998). Protected conduct encompasses opposition based on
a reasonable, good faith belief that the underlying conduct constituted discrimination. See
Defendants also seek dismissal of Plaintiff’s 42 U.S.C. § 1981 claim for racial discrimination and her claims under
the OADA. The allegations in the Second Amended Complaint are insufficient to establish that either Defendant Kelly
or Defendant Bower played a role in Plaintiff’s termination. She repeatedly alleges that Defendant Hansen terminated
her employment, which is consistent with the terms of her offer of employment specifying his ability to terminate her.
The only allegations regarding Kelly and Bower are conclusory. With regard to COFT, however, 42 U.S.C. § 1981
tracks her racial discrimination claim, and therefore is not subject to dismissal. Mormon v. Campbell Cty. Mem'l Hosp.,
632 Fed.Appx. 927, 933 n.5 (10th Cir. 2015) (stating that “the elements of a plaintiff's case are the same, based on the
disparate treatment elements outlined in McDonnell Douglas, whether that case is brought under §§ 1981 or 1983 or
Title VII”) (quoting Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991)). Similarly, Plaintiff’s OADA
claims, although not independently pled with factual detail, incorporate by reference the prior allegations, specifically
those the Court found sufficient above to state claims of racial and age discrimination because those claims are
coextensive. See, e.g., Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1269 (10th Cir. 2015). Accordingly,
the motion to dismiss is granted with regard to Plaintiff’s OADA gender discrimination claim and denied with regard
to her claims of race and age discrimination under the OADA.
Crumpacker v. Kansas Dep't of Human Serv., 338 F.3d 1163, 1171 (10th Cir. 2003); see
also Love v. RE/MAX of America, Inc., 738 F.2d 383, 385 (10th Cir. 1984). Plaintiff alleges
she filed an EEOC charge in April 2015 and that she made complaints in a letter to the
Council members regarding Jon Hansen’s allegedly harassing behavior toward co-worker
Alicia Hayward. To qualify as protected conduct, “the employee must convey to the
employer his or her concern that the employer has engaged in a practice made unlawful by
[Title VII or § 1981].” See Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th
Cir. 2008); see Peterson v. Utah Dep't of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002).
Plaintiff alleges that she both complained about Executive Director Hansen’s alleged
sexual harassment and made Board members aware that she intended to file an EEOC
charge. She alleges that Defendant Kelly offered that COFT would file a charge with the
EEOC on her behalf even though it lacked the authority to do so.5 Shortly thereafter,
Plaintiff was terminated by Defendant Hansen. The Court finds these allegations sufficient
to state a claim for retaliation in violation of Title VII for opposing sexual harassment.
Defendant COFT seeks dismissal of Plaintiff’s sexual harassment claim. The Court
finds Plaintiff has sufficiently alleged a claim for hostile work environment harassment.
Harassment that does not result in a tangible employment action may be actionable if it is
The Court notes that many of Plaintiff’s complaints about Director Hansen involve alleged financial malfeasance
and her belief that he was treating Alicia Hayward favorably because he was interested in or actually involved with
Ms. Hayward during her tenure at the Council. Plaintiff repeats, in various places throughout the Second Amended
Complaint, that she discovered through a public records search that co-worker Shana Miller had previously been
charged with Obtaining Cash or Merchandise by Bogus Check/False Pretenses and made this information known to
Jon Hansen. Plaintiff complains that despite Jon Hansen having this knowledge, he nevertheless allowed Ms. Miller
to handle COFT funds. This allegation is wholly unrelated to sexual harassment. She alleges, however, that she
witnessed unwanted sexual advances by Mr. Hansen toward Ms. Hayward. As concluded subsequently herein, the
Court finds that Plaintiff has sufficiently alleged a claim for a hostile work environment premised in part on these
so “severe or pervasive” that it creates an abusive working environment. See Morris v. City
of Colo. Springs, 666 F.3d 654, 663 (10th Cir. 2012). Plaintiff’s specific allegations of
sexual harassment are that on February 14, 2015, Mr. Hansen purchased gift cards for the
female employees of COFT, chastised her for not thanking him properly, and blocked her
from exiting the elevator, requiring that she ride up to the sixth floor before returning to
the her work space on the second floor. She alleges that on one occasion Mr. Hansen
slapped her bottom when she walked into a building. She further complains she was
propositioned by Director Hansen during her tenure at the Council and subjected to sexual
remarks and innuendo. Although Plaintiff could have detailed her allegations more
thoroughly, the Court finds that Plaintiff has sufficiently alleged that Hansen’s conduct
created a hostile work environment. This is true in part because the allegations are not
limited to statements or actions toward Plaintiff. Rather she makes allegations that Alicia
Hayward, a co-worker, was subjected to unwanted sexual advances from Hansen.
“Evidence of a general work atmosphere therefore─ as well as evidence of specific hostility
directed toward the plaintiff─ is an important factor in evaluating the claims.” Hicks v.
Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987). Defendants’ Motion to Dismiss is denied
with regard to Plaintiff’s sexual harassment claim.
Defendant COFT seeks dismissal of Plaintiff’s claim of “negligent hiring, training
and supervision” as well as a separately pled claim of negligence. In addressing Plaintiff’s
initial attempt at pleading this case, the Court concluded Ms. Hunter had sufficiently stated
a claim for Defendant’s alleged negligence. The allegations in both claims are nearly
identical and again relate to the alleged sexual harassment in the workplace. Plaintiff
alleges she formally complained about the sexual harassment by Jon Hansen. She also
alleges that Defendant Mike Bower, a member of the Council, told her “when a position
for COFT came open, we thought John would be a good fit if he didn’t chase skirt. Jon
goes a lot of places and does a lot of things he should not be doing.” Second Amended
Complaint ¶ 58. She further alleges Bower was aware of prior allegations of sexual
harassment against Hansen but that he was hired by the Council nonetheless. Id.
An employer may be held liable in Oklahoma for negligent hiring, supervision, or
retention of an employee. See Excue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir.2006)
(applying Oklahoma law); N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600
(Okla.1999). Liability attaches, “if—at the critical time of the tortious incident—the
employer had reason to believe that the person would create an undue risk of harm to
others. Employers are held liable for their prior knowledge of the servant's propensity to
commit the very harm for which damages are sought.” Presbyterian Church (U.S.A.), 998
P.2d at 600. The Court concludes that Plaintiff has sufficiently, albeit barely, alleged facts
to state a plausible claim for negligent hiring and failure to supervise with regard to sexual
harassment. Although Plaintiff presents details regarding only two incidents in which she
was allegedly the direct recipient of harassment, she alleges that she observed Mr. Hansen’s
inappropriate sexual behavior toward Alicia Hayward and that Alicia Hayward complained
to Plaintiff about the harassment. She alleges that the Council members were aware of Mr.
Hansen’s propensity for sexual harassment prior to his selection as Executive Director, and
further that they hired him nevertheless and failed to supervise him to ensure he did not
engage in harassing behavior. Defendants’ motion is denied with regard to Plaintiff’s
negligent hiring and supervision claims, although the Court construes the two claims pled
a single claim, limited to negligence with regard to sexual harassment.
Defendants seek dismissal of Plaintiff’s 42 U.S.C. § 1983 claim, which is pled
against Richard Kelly and Mike Bower. She alleges the Defendants were “acting under
color and authority of state law with the authority endowed upon them as members of the
Board of Directors for the Council on Firefighter Training.” Petition, ¶ 92. She further
asserts the individual Defendants violated her First Amendment rights and her rights under
the due process clause.6
Without regard to whether Plaintiff has sufficiently pled that either Defendant was
acting under color of state law for purposes of 42 U.S.C. § 1983, Plaintiff has failed to state
a claim against either Defendant, in part because she does not allege that either was
responsible for her termination. Plaintiff alleges she was terminated by Jon Hansen on
April 29, 2015. Second Amended Complaint, ¶¶ 27, 69, 91, 127. Although she alleges that
she complained to the individual Defendants regarding Jon Hansen’s behavior, there are
no non-conclusory allegations that either had a hand in her termination. Plaintiff merely
alleges, “Kelly and Bower had input in their roles as agents of COFT in the decision to
terminate Hunter.” Second Amended Complaint ¶ 204. Given that her Offer of
Employment specifies that she was subject to termination by the Executive Director and
the absence of non-conclusory allegations, the Court finds that Plaintiff has failed to state
a § 1983 claim against the individual defendants.
Defendants’ arguments do not challenge Plaintiff’s First Amendment claims directly. Defendants misinterpret the
Court’s prior Order as holding that liability under the Whistleblower Act would preclude § 1983 liability for a First
Furthermore, with regard to her claim under the Fourteenth Amendment's Due
Process Clause, Plaintiff had a protected property interest in her COFT job only if she had
a “legitimate claim of entitlement to” the job grounded in an “independent source such as
state law.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
State law may take the form of “state statutes, local ordinances, established rules, or
mutually explicit understandings.” Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th
Cir. 1994) (quotation omitted). Plaintiff concedes in her Second Amended Complaint that
she was not considered a “state employee,” citing to her offer of employment. The offer
stated that “[i]t is understood that I am not a State employee and that I will be an at-will
employee, which means the Director of the Council on Firefighter Training can terminate
employment at any time for any reason.” Doc. No. 21-4. Plaintiff has failed to plead facts
to indicate that she had a reasonable expectation of continued employment given her
allegations and the documents she attached to her Second Amended Complaint. As such,
the Court concludes Plaintiff does not allege any facts from which the Court can infer that
she had a property right in her continued employment that was protected by the due process
Plaintiff’s final claims are entitled “Whistleblower’s Claim/Public Policy” and
“Violation of Oklahoma Public Policy.” Plaintiff does not clearly identify which
Defendants she seeks to hold liable under either theory nor is the distinction between the
two claims readily apparent. To the extent Plaintiff is attempting to pursue a public policy
discharge claim claims pursuant to Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989), against
either individual Defendant, such claims fail as a matter of law. There is no authority for
assessing liability under Burk against an individual supervisor or co-worker, which the
undersigned concludes would include Bower and Kelly. See Ford v. Chickasaw Regional
Library System, 2017 WL 384698, *3 (W.D.Okla. Jan. 26, 2017)(citing Eapen v.
McMillan, 196 P3d 995, 998 (Ok.Civ.App. 2008)). As such, the Court finds Bower and
Kelly are entitled to dismissal of Plaintiff’s public policy claims.
Because the Oklahoma Merit Protection Commission concluded COFT was not a
state agency and Plaintiff not a state employee, she was not entitled to protection under the
Oklahoma Whistleblower Protection Act.7 Accordingly, the Court interprets her
whistleblower claim as a Burk tort against COFT.
“Oklahoma law recognizes a public policy exception to the otherwise
virtually unfettered ability of an employer to terminate an at-will employee.”
Bastible v. Weyerhaeuser Co., 437 F.3d 999, 1007 (10th Cir. 2006). A tort
remedy is available “where an employee is discharged for refusing to act in
violation of an established and well-defined public policy or for performing
an act consistent with a clear and compelling public policy.” Burk, 770 P.2d
at 29. But this “unique tort” applies “to only a narrow class of cases and must
be tightly circumscribed.” Clinton v. State ex rel. Logan Cty. Election Bd.,
29 P.3d 543, 545 (Okla. 2001), overruling on other grounds recognized by
Shirazi v. Childtime Learning Ctr., Inc., 204 P.3d 75, 78 n.13 (Okla. 2009);
see also Burk, 770 P.2d at 28–29.
Walker v. Balco, Inc., 660 F. App'x 681, 684 (10th Cir. 2016). The public policy to support
a Burk tort must be articulated in “a specific Oklahoma court decision, state legislative or
constitutional provision, or a provision in the federal constitution that prescribe a norm of
conduct for the state.” Darrow v. Integris Health, Inc., 176 P.2d 1204, 1212 (Okla. 2008).
The Court’s prior conclusion that Plaintiff pled sufficient facts to allege that COFT is an agent of the state under
traditional notions of agency law does not dictate the outcome of this claim. Rather, the Merit Protection
Commission is given jurisdiction to determine whether Plaintiff was a state employee and COFT is a state agency
under Oklahoma law, entitling Plaintiff to protection under the Oklahoma Whistleblower Act. An entity can be an
agent for some purposes and not others.
Plaintiff contends that her termination was in part the result of her reporting of fiscal
mismanagement of Council money by the Executive Director of COFT, Jon Hansen.
To state a Burk claim, a plaintiff must allege (1) discharge (2) of an at-will employee
(3) for a reason that violates an Oklahoma public policy goal (4) found in Oklahoma's
constitutional, statutory, or decisional law or in a federal constitutional provision and (5)
no adequate statutory remedy to protect the Oklahoma policy goal. Vasek v. Bd. of Cty.
Comm'rs, 2008 OK 35, ¶ 14, 186 P.3d 928, 932 (Okla. 2008) (emphasis added).
The fundamental problem in all public policy cases is defining what is a
specific, well-established, clear and compelling public policy. In whistleblower cases, the answer to this question determines the subjects about which
a whistle-blower may or may not legitimately complain. The nature of this
problem was aptly described by the Connecticut Supreme Court when it said
“[t]he issue then becomes the familiar common law problem of deciding
where and how to draw the line between claims that genuinely involve the
mandates of public policy that are actionable and ordinary disputes between
employee and employer that are not.” Sheets v. Teddy's Frosted Foods, 179
Conn. 471, 427 A.2d 385, 387–88 (1980).
Barker v. State Ins. Fund, 2001 OK 94, ¶ 17, 40 P.3d 463, 468–69, as corrected (Nov. 7,
2001). The Court finds that Plaintiff has sufficiently stated a Burk claim with regard to her
allegations that she brought Jon Hansen’s fiscal wrongdoings to his attention and to the
attention of the Board and was shortly thereafter terminated. Although the Merit Protection
Commission concluded Plaintiff was not entitled to the protection of the Whistleblower
Act, the Court declines to conclude as a matter of law that she not entitled to the protection
of Article 2, § 22 of the State Constitution, which protects her right to free speech.
Furthermore, the issues Plaintiff raised were issues of public concern, the proper use of
state funds. As noted above, COFT was funded with money from the Oklahoma State Fire
Marshal, funds appropriated to the Marshal from the State. Plaintiff’s allegation that she
complained about Mr. Hansen’s misuse of these public funds for private purposes falls
within the confines of Vannerson v. Board of Regents of the University of Oklahoma, 784
P.2d 1053 (Okla. 1989). Id. at 1055 (if plaintiff “was in fact discharged for going over his
supervisor’s head in complaint of illegal disposition of state property then public policy is
invoked”). Furthermore, the Merit Protection Commission’s conclusion that Plaintiff was
not a state employee precludes a statutory remedy under the Whistleblower Act. As such,
there is no adequate state remedy. Although Plaintiff attempted to plead two separate public
policy claims, the Court construes her allegations as stating but a single claim. The
allegations in her final cause of action appear to echo her claims under Title VII and the
OADA and acknowledge the existence of a statutory claim under the OADA. As such,
Plaintiff has no public policy claim premised on these same allegations.
For the reasons set forth herein, the motion to dismiss by Defendant COFT is
DENIED with regard to Plaintiff’s claim for age discrimination under the ADEA, her
claims of race discrimination and retaliation under Title VII, her hostile work environment
claim, her 42 U.S.C. § 1981 claim and her OADA claims that track the aforementioned
federal claims. The motion is further denied with regard to Plaintiff’s negligence claim
against Defendant COFT and her public policy discharge claim as it relates to her
contention that she was terminated for bringing Jon Hansen’s fiscal malfeasance to light.
The motion is GRANTED with regard to her gender discrimination claim under Title VII
and the OADA; and Defendants Bower and Kelly are entitled to dismissal of Plaintiff’s 42
U.S.C. § 1981 and 1983 and Burk claims. Such claims are dismissed with prejudice.
IT IS SO ORDERED this 20th day of June 2017.
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