Salinas v. Triple F Trucking

Filing 15

ORDER denying 12 Motion to Dismiss Amended Complaint. Plaintiff may proceed Amended Complaint limited to the claims authorized by the 10 Order of March 10, 2017. Signed by Honorable Timothy D. DeGiusti on 7/28/17. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LA DONNA J. SALINAS,
Plaintiff,
vs.
TRIPLE F. TRUCKING,
Defendant.

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Case No. CIV-16-1186-D

ORDER
Before the Court is Defendant’s Motion to Dismiss Amended Complaint [Doc.
No. 12], filed pursuant to Fed. R. Civ. P. 12(b)(6). 1
Defendant first asserts that Plaintiff’s amended pleading does not conform to the
Order of March 10, 2017, which dismissed as untimely the gender discrimination claims
asserted in the Complaint under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq., and Oklahoma’s Anti-Discrimination Act (“OADA”), Okla.
Stat. tit. 25, § 1101 et seq., that were based on an EEOC charge administratively exhausted
in December 2015. 2 The Court authorized Plaintiff to amend her pleading to assert
Title VII and OADA claims of sexual harassment and retaliation that were administratively

1

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Defendant also cites Rule 12(b)(1) but raises no jurisdictional issue.

The Court also dismissed state law claims of breach of an employment contract and
intentional infliction of emotional distress. Plaintiff has abandoned these claims in the Amended
Complaint.

exhausted by a second EEOC charge in August 2016, as to which this suit was timely filed.
See Order 3/10/17 [Doc. No. 10] at 10-11, 13-14.
The Amended Complaint is not a model of clarity. Defendant is understandably
concerned that Plaintiff’s pleading seems to retain the previously dismissed claims alleging
that Defendant terminated her employment based on gender.

However, in light of the

allegation of the Amended Complaint that Plaintiff is asserting claims administratively
exhausted by her second EEOC charge (Am. Compl. [Doc. No. 11], ¶ 2), and Plaintiff’s
arguments in response to the Motion (Pl.’s Resp. Br. [Doc. No. 13] at 5-6), the Court
understands that Plaintiff intends to assert the sexual harassment and retaliation claims
asserted in the second EEOC charge and authorized by the Court’s Order.
Defendant also contends the Amended Complaint contains insufficient factual
allegations to state a plausible claim of sexual harassment. See Def.’s Mot. Dismiss [Doc.
No. 12] at 5-6 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). Although this presents a close question, the Court
disagrees.
Plaintiff claims she was subjected to a hostile work environment. A hostile work
environment that violates Title VII is one involving harassment based on a prohibited
factor, such as gender, that is “sufficiently severe or pervasive to alter the conditions of
[the victim’s] employment and create an abusive working environment.” Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). “Severity and pervasiveness are evaluated
according to the totality of circumstances, Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114
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S. Ct. 367, 126 L. Ed. 2d 295 (1993), considering such factors as the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (internal
quotation omitted). “[T]he critical issue in determining harassment is because of sex is
whether members of one sex are subjected to a disadvantage to which the other sex is not.”
Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007); see Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
Plaintiff alleges that she was the only female truck driver employed by Defendant,
she “was constantly subjected to offensive sexual comments, and a work environment
tainted with sexual innuendoes,” and she informed her supervisor “that she was offended
by the sexual comments and the unabated humiliation that she was being put under at the
workplace.” See Am. Compl. [Doc. No. 11], ¶ 12. Plaintiff also alleges that she was
treated less favorably than male truck drivers with respect to terms and conditions of
employment, including wages, benefits, discipline, and leave time, and these differences
were motivated by sex and gender. Id. ¶¶ 12-13, 15. The Court finds the Amended
Complaint contains minimally sufficient factual allegations to “‘give the defendant fair
notice of what the [sexual harassment] claim is and the grounds upon which it rests’” as
required by Rule 8(a) and Rule 12(b)(6). See Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Twombly, 550 U.S. at 555); see also Smith v. United States, 561 F.3d 1090, 1104
(10th Cir. 2009).
3

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss Amended
Complaint [Doc. No. 12] is DENIED. Plaintiff may proceed on her Amended Complaint
limited to the claims authorized by the Order of March 10, 2017 [Doc. No. 10].
IT IS SO ORDERED this 28th day of July, 2017.

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