Hall v. Oklahoma Department of Rehabilitation Services
Filing
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ORDER granting in part and denying in part 4 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 2/20/2018. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANDREA J. HALL,
Plaintiff,
v.
OKLAHOMA DEPARTMENT
OF REHABILITATION SERVICES,
Defendant.
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Case No. CIV-17-497-D
ORDER
Before the Court is Defendant Oklahoma Department of Rehabilitation
Services’ (ODRS) Motion to Dismiss [Doc. No. 4]. Plaintiff Andrea Hall (Hall) has
filed her response in opposition [Doc. No. 9] and ODRS has replied [Doc. No. 10].
The matter is fully briefed and at issue.
BACKGROUND
Hall is a forty-six year old African American woman who was employed at
ODRS from 1996 to 2016, when she was terminated while holding the position of
Director of Innovation, an executive level position. She alleges that soon after Noel
Tyler was appointed as Interim Executive Director of ODRS, she was subjected to
“unequal terms and conditions.” Petition, ¶ 21. Among these unequal conditions
were the allegations that Tyler went out of her way to avoid Hall, ignored Hall’s
emails, spoke negatively about Hall, and did not allow Hall to participate in meetings
or favorable assignments. Id. ¶¶ 22-27, 32-33. Hall alleges that Commissioner Linda
Collins expressed her belief that Hall was lazy because of her race. Id. ¶ 36. Hall
further contends that younger, non-African American employees were not subjected
to the same treatment as her. Id. ¶¶ 30, 34. Lastly, Hall alleges she was terminated
for reporting the alleged discrimination and mistreatment. Id. ¶ 46. Hall’s claims
arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and the
Oklahoma Antidiscrimination Act (OADA), 25 OKLA. STAT. §§ 1101 et seq.
ODRS moves to dismiss Hall’s Complaint for failure to state a claim and lack
of subject matter jurisdiction under the Eleventh Amendment of the United States
Constitution and Rules 12(b)(1) and (6), Federal Rules of Civil Procedure. ODRS
contends Hall’s Complaint should be dismissed because: (1) ODRS has sovereign
immunity from her ADEA claims; (2) Hall failed to exhaust her administrative
remedies under Title VII and the OADA; (3) Hall does not plausibly allege a
violation of either Title VII or the OADA; and (4) Hall has not complied with the
notice provisions of the Oklahoma Governmental Tort Claims Act (OGTCA), 51
OKLA. STAT. §§ 151 et seq.
STANDARD OF DECISION
Pursuant to the seminal decisions of Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), to survive a motion to
2
dismiss, a complaint must contain enough allegations of fact, taken as true, “to state
a claim to relief that is plausible on its face.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 570).1 Under this
standard, “the mere metaphysical possibility that some plaintiff could prove some
set of facts in support of the pleaded claims is insufficient; the complaint must give
the court reason to believe that this plaintiff has a reasonable likelihood of mustering
factual support for these claims.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th
Cir. 2008) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177
(10th Cir. 2007) (emphasis in original)).
The “plausibility” standard announced in Twombly and Iqbal is not considered
a “heightened” standard of pleading, but rather a “refined standard,” which the court
of appeals has defined as “refer[ring] to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of conduct, much of it
1
Although Hall’s action was originally brought in state court, see Notice of Removal
[Doc. No. 1], the Federal Rules of Civil Procedure and the Supreme Court’s pleading
standard in Twombly and Iqbal governs the sufficiency of her claims. Fed. R. Civ.
P. 81(c)(1)(“These rules apply to a civil action after it is removed from a state
court.”); McKnight v. Linn Operating, Inc., No. CIV-10-30-R, 2010 WL 9039794,
at *1 (W.D. Okla. Apr. 1, 2010) (“Because the Federal Rules apply after removal,
Rule 12(b)(6) and the attendant standards set by the Supreme Court apply. If,
however, the Court concludes that Plaintiffs’ allegations fail under the Twombly and
Iqbal standard, it may order Plaintiffs to replead their claims if necessary.”); accord
Lynch v. Jackson, 478 F. App’x 631, 616 (11th Cir. 2012) (per curiam); Simmerman
v. Ace Bayou Corp., 304 F.R.D. 516, 518 (E.D. Ky. 2015); Levitt v. Sonardyne, Inc.,
918 F. Supp. 2d 74, 83 (D. Me. 2013).
3
innocent, then the plaintiffs have not nudged their claims across the line from
conceivable to plausible.” Khalik, 671 F.3d at 1191 (citing Kansas Penn Gaming,
LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011)). The Tenth Circuit has noted
that the nature and specificity of the allegations required to state a plausible claim
will vary based on context. Robbins, 519 F.3d at 1248. “Thus, [it has] concluded the
Twombly/Iqbal standard is ‘a middle ground between heightened fact pleading,
which is expressly rejected, and allowing complaints that are no more than labels
and conclusions or a formulaic recitation of the elements of a cause of action, which
the Court stated will not do.’ ” See id. at 1247.
Accordingly, in deciding Twombly and Iqbal, there remains no indication the
Supreme Court “intended a return to the more stringent pre-Rule 8 pleading
requirements.” Khalik, 671 F.3d at 1191 (citing Iqbal, 556 U.S. at 678). It remains
true that “[s]pecific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555);
Khalik, 671 F.3d at 1192 (“Twombly and Iqbal do not require that the complaint
include all facts necessary to carry the plaintiff’s burden.”) (quoting al-Kidd v.
Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009)).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes
one of two forms: a facial attack or a factual attack. Pueblo of Jemez v. United States,
4
790 F.3d 1143, 1148 n. 4 (10th Cir. 2015). A facial attack questions the sufficiency
of the complaint’s allegations. Id. In reviewing a facial attack, a district court must
accept the allegations in the complaint as true. Id. In a factual attack, the moving
party may go beyond allegations contained in the complaint and challenge the facts
upon which subject matter jurisdiction depends. Id. When reviewing a factual attack
on subject matter jurisdiction, a district court may not presume the truthfulness of
the complaint’s factual allegations. Id. Instead, the court has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts. Id. Here, ODRS’s allegations constitute a factual attack because
they challenge the facts upon which Hall bases subject matter jurisdiction over
certain claims.
DISCUSSION
I.
Sovereign Immunity and the ADEA
Because state sovereign immunity is a threshold jurisdictional issue, the Court
addresses it first. Brockman v. Wyoming Dep’t of Family Services, 342 F.3d 1159,
1163 (10th Cir. 2003) (“Because state sovereign immunity is a threshold
jurisdictional issue, we must address it first when it is asserted by a defendant.”)
(citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)).
The Eleventh Amendment bars a suit for money damages in federal court
against a state by its own citizens. Bd. of Trustees of Univ. of Alabama v. Garrett,
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531 U.S. 356, 363 (2001) (“The ultimate guarantee of the Eleventh Amendment is
that nonconsenting States may not be sued by private individuals in federal court.”);
Edelman v. Jordan, 415 U.S. 651, 663–664 (1974). Agencies of the State of
Oklahoma, such as ODRS, are treated as “arms of the state” for the purpose of
sovereign immunity under the Eleventh Amendment. See Colby v. Herrick, 849 F.3d
1273, 1276 (10th Cir. 2017); Lee v. Oklahoma, No. CIV-13-7-HE, 2013 WL
3804855, at *1 (W.D. Okla. July 19, 2013) (noting that “ODRS is part of, or an arm
of, the State of Oklahoma.”) (citation omitted).
The Supreme Court has also recognized a sovereign immunity distinct from
Eleventh Amendment immunity that applies against all suits, whether in state or
federal court. Alden v. Maine, 527 U.S. 706, 713 (1999) (“States’ immunity from
suit is a fundamental aspect of the sovereignty which the States enjoyed before the
ratification of the Constitution[.]”).2 Thus, there are two discrete types of sovereign
immunity: Eleventh Amendment immunity from suit in federal court, and a general
sovereign immunity against all suits. See Lujan v. Regents of Univ. of Calif., 69 F.3d
1511, 1522 (10th Cir. 1995) (“Eleventh Amendment immunity is … separate from
2
Oklahoma has adopted sovereign immunity. See 51 OKLA. STAT. § 152.1
(“Oklahoma does hereby adopt the doctrine of sovereign immunity. The state, its
political subdivisions, and all of their employees acting within the scope of their
employment, whether performing governmental or proprietary functions, shall be
immune from liability for torts. … [I]t is not the intent of the state to waive any rights
under the Eleventh Amendment to the United States Constitution.”).
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sovereign immunity and can exist even where sovereign immunity does not.”)
(citations omitted); accord Harris v. Okla. Office of Juvenile Affairs ex rel. Cent.
Okla. Juvenile Ctr., 519 F. App’x 978, 980 (10th Cir. 2013) (unpublished).
Such immunity, however, is not absolute. For example, Congress may rescind
a state’s sovereign immunity if it “has unequivocally expressed its intent to abrogate
the immunity, and ... has acted pursuant to a valid exercise of power.” Mojsilovic v.
Okla. ex rel. Bd. of Regents for Univ. of Okla., 841 F.3d 1129, 1131 (10th Cir. 2016)
(citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996)). Moreover, a state
may waive its immunity by consenting to suit. Estes v. Wyo. Dep’t of Transp., 302
F.3d 1200, 1203 (10th Cir. 2002). A State will be deemed to have waived its
immunity only where stated by the most express language or by such overwhelming
implication from the applicable text as will leave no room for any other reasonable
construction. Elwell v. Okla. ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303,
1315 (10th Cir. 2012).
The ADEA makes it illegal for employers “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). However, the Supreme
Court has noted that “in the ADEA, Congress did not validly abrogate the States’
sovereign immunity to suits by private individuals. State employees are protected by
7
state age discrimination statutes, and may recover money damages from their state
employers, in almost every State of the Union. Those avenues of relief remain
available today, just as they were before this decision.” Kimel v. Fla. Bd. of Regents,
528 U.S. 62, 91-92 (2000)). Accordingly, the Court looks to whether ODRS has
waived immunity by removing Hall’s action to this Court.
In Estes, supra, the Tenth Circuit was confronted with the question of whether
the mere act of removing federal law claims waives a state’s sovereign immunity in
federal court. There, the plaintiff brought a claim under the Americans with
Disabilities Act (ADA), as well as state law claims, against the Wyoming
Department of Transportation in state court. The defendant removed the case to
federal court, stating it was not waiving any constitutional challenges to the district
court’s jurisdiction.3 The district court concluded Congress validly abrogated the
states’ sovereign immunity for violations of Title I of the ADA, and the defendant
appealed.
Relying in part on precedent from the Supreme Court, notably, Lapides v. Bd.
of Regents of Univ. Sys. of Georgia, 535 U.S. 613 (2002), the Tenth Circuit
concluded Congress did not validly abrogate the states’ sovereign immunity from
suit under Title I of the ADA, but the defendant waived its sovereign immunity for
3
Similarly, in its Notice of Removal, ODRS states it does not waive any right to
assert any defense that could limit the Court’s jurisdiction, including, but not limited
to, sovereign immunity. See Notice of Removal, ¶ 4.
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the ADA claim when it removed the case to federal court. Estes, 302 F.3d at 1206
(“We conclude that [defendant] has waived its sovereign immunity relative to the
ADA claim even if it attempted to remove the present case simply to federal court
to challenge the jurisdiction of the federal forum. ... It is only when a State removes
federal-law claims from state court to federal court that it ‘submits its rights for
judicial determination’ ... and unequivocally invokes the jurisdiction of the federal
courts.”) (citations omitted).
Pursuant to Estes, the Court finds that immunity from suit in federal court is
not at issue here because ODRS’s removal of Hall’s case to this Court effects a
waiver of its Eleventh Amendment immunity. However, Estes is ambiguous as to
whether ODRS waived its sovereign immunity by removing the action. That
question was seemingly answered in Trant v. Oklahoma, 754 F.3d 1158 (10th Cir.
2014), wherein the Tenth Circuit held a state may waive immunity from suit while
retaining immunity from liability for monetary damages. The court cited with
approval circuit court decisions that analyzed state sovereign immunity as consisting
of both immunity from suit in a federal forum, which is waived by voluntary removal
to federal court, and immunity from liability in both state and federal courts, which
is not so waived. Id. at 1172-73. It stated, “[u]nlike effecting a waiver of immunity
from suit through removal, however, ‘the state’s waiver or retention of a separate
immunity from liability is not a matter in which there is an overriding federal interest
9
justifying the application of a federal rule.’ A state does not gain an unfair advantage
asserting in federal court an affirmative defense it would have had in state court.
Accordingly, we recognize that a state may waive its immunity from suit in a federal
forum while retaining its immunity from liability.” Id. at 1173 (emphasis added,
internal citations omitted); accord Bright v. Univ. of Okla. Bd. of Regents, 705 F.
App’x 768, 769 n. 2 (10th Cir. 2017) (unpublished).4
As stated supra, ODRS noted in its removal that it reserved and did not waive
the right to immunity from liability. Notice of Removal, ¶ 4. And, as noted above,
the Supreme Court has ruled the ADEA is unconstitutional as applied to the states
because the statute was not enacted under section 5 of the Fourteenth Amendment,
the only recognized constitutional basis for abrogating states’ sovereign immunity.
Kimel, 528 U.S. at 91-92. Accordingly, the Court finds ODRS’s removal of the
present case did not waive its objection to ADEA liability on the basis of sovereign
4
The Trant court explained that its view was not inconsistent with Estes. Trant, 754
F.3d at 1173 (“Recognizing that a state may waive immunity from suit while
retaining immunity from liability for monetary damages is consistent with our
holding in [Estes]. In Estes, we concluded that Wyoming’s removal of a federal law
claim acted as an unequivocal waiver of immunity from suit in federal court. But our
holding was based on the principle, articulated in Lapides, that the Constitution
cannot permit states to take inconsistent litigating positions by invoking and
challenging federal court jurisdiction.”). This distinction is important since, to the
extent Estes and Trant could have been construed as conflicting opinions, the Court
would be obligated to follow Estes. See Hiller v. Okla. ex rel. Used Motor Vehicle
and Parts Comm’n, 327 F.3d 1247, 1251 (10th Cir. 2003) (noting that to extent two
panel decisions were in conflict, court was obligated to follow earlier decision over
later one.)
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immunity. See Trant, supra; accord Stroud v. McIntosh, 722 F.3d 1294, 1303 (11th
Cir. 2013) (State of Alabama’s removal of ADEA suit to federal court waived
Eleventh Amendment immunity, but not sovereign immunity under state law from
ADEA liability). Defendant’s motion on this issue is granted.
II.
Exhaustion of Administrative Remedies
ODRS next contends Hall failed to exhaust her administrative remedies with
respect to her claims of age discrimination.5 The OADA contains an express
requirement that an employee must timely file an administrative charge of
discrimination with the Attorney General’s Office of Civil Rights Enforcement or
the Equal Employment Opportunity Commission prior to filing suit for
“discrimination based on race, color, religion, sex, national origin, age, disability,
genetic information with respect to the employee, or retaliation.” 25 OKLA. STAT. §
5
Although ODRS references Title VII in this regard, Title VII does not act to
prohibit age discrimination/retaliation; that function is left to the ADEA. Congress
and the Supreme Court thus treat the ADEA and Title VII as two separate and
distinct statutory provisions. See, e.g., Burns v. AAF-McQuay, Inc., 980 F.Supp. 175,
179 (D. W.Va. 1997) (“Title VII and the ADEA … are separate and distinct statutory
schemes with unique remedial doctrines and enforcement provisions applicable to
each.”); Greer v. Bd. of Trustees of Univ. of Distr. of Columbia, 113 F. Supp. 3d
297, 305 (D.D.C. 2015) (“Title VII does not prohibit, or protect against, employment
discrimination on the basis of age (or protect against retaliation for opposing age
discrimination). That protection is found in a wholly separate statute, the [ADEA].”).
As noted supra, the Court finds that ODRS has not waived its objection to ADEA
liability on the basis of sovereign immunity.
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1350(A). The OADA expressly provides that the administrative charge must be filed
within 180 days of the last date of alleged discrimination. Id.
Here, ODRS contends Hall failed to exhaust administrative remedies with
respect to her age discrimination claim because, although Hall checked the box
marked “age” on her EEOC charge, the document does not contain any allegation of
age discrimination. Mot. at 8. A party asserting a claim of discrimination must make
a charge that, at minimum, identifies the parties and generally describes the alleged
unlawful action or practice. Mackley v. TW Telecom Holdings, Inc., 296 F.R.D. 655,
669 (D. Kan. 2014). A plaintiff’s claims are limited to the scope of the administrative
investigation that can reasonably be expected to follow from the discriminatory acts
she alleged in the administrative charge. Id. Therefore,
to exhaust administrative remedies, a charge must contain facts
concerning the discriminatory and retaliatory actions underlying each
claim; this follows from the rule that each discrete incident of alleged
discrimination or retaliation constitutes its own unlawful employment
practice for which administrative remedies must be exhausted. A party
may not complain to the EEOC of only certain instances of
discrimination, and then seek judicial relief for different instances.
Further, an EEOC charge must allege facts in support of the claimant’s
discrimination claim beyond merely checking a box on the EEOC form.
Id. (citations and internal quotations omitted).
Nonetheless, “[a] charge need only ‘describe generally’ the alleged
discrimination in order to ‘give notice of an alleged violation to the charged party.’”
Jones v. Needham, 856 F.3d 1284, 1291 (10th Cir. 2017) (quoting Woodman v.
12
Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997) (internal citations omitted)). Thus, a
court “liberally construe[s] charges filed with the EEOC in determining whether
administrative remedies have been exhausted as to a particular claim.” Jones v.
U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007). Hall’s EEOC charge has the
boxes checked for her allegations of race and age based discrimination and
retaliation, and it states that Tyler went out of her way to avoid meeting with Hall
and refused to speak with her. The charge further alleges Hall was denied the
opportunity to speak at an event, Tyler spoke negatively about her while she was on
leave, and she was asked to appear at a meeting despite the fact she was on leave.
As a result, Hall contends she was terminated. In the Court’s view, these allegations
were sufficient to alert ODRS to the age discrimination allegations and to trigger an
investigation that would look into the nature of Hall’s treatment and why she was
fired. Defendant’s motion on this issue is denied.6
III.
Prima Facie Case of Title VII and OADA Violation
ODRS contends Hall’s Title VII and OADA claims should be dismissed as
she has cited no direct evidence of racial discrimination or retaliation. It then
proceeds to embark on a discussion of the McDonnell Douglas framework that is
6
Since “[t]he OADA is analyzed similarly to Title VII claims,” Jones, 856 F.3d at
1292 (citation omitted), the foregoing analysis applies equally to Hall’s OADA
claims.
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applied to determine whether a plaintiff can establish discrimination or retaliation.
However, the Supreme Court has noted that “[t]he prima facie case under McDonnell
Douglas … is an evidentiary standard, not a pleading requirement.” Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 510 (2002).7 And even in this post-Twombly/Iqbal era,
federal courts have held that at the pleading stage, it is inappropriate to measure a
complaint against a particular formation of the prima facie case for
discrimination/retaliation. Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th
Cir. 2012) (noting Rule 12(b)(6) did not require plaintiff to set forth a prima facie
case of discrimination under Title VII); Littlejohn v. City of New York, 795 F.3d 297,
311 (2d Cir. 2015)(“The facts alleged must give plausible support to the reduced
requirements that arise under McDonnell Douglas in the initial phase of a Title VII
litigation. The facts required by Iqbal to be alleged in the complaint need not give
plausible support to the ultimate question of whether the adverse employment action
was attributable to discrimination. They need only give plausible support to a
minimal inference of discriminatory motivation.”).
To state a plausible claim for relief for Title VII discrimination based on race,
Hall must plead facts which, if proved, establish that (1) she is a member of a
7
Indeed, the Twombly Court noted that Swierkiewicz did not change the law of
pleading, but simply re-emphasized that the use of a heightened pleading standard
for Title VII cases was contrary to the Federal Rules’ structure of liberal pleading
requirements. Twombly, 550 U.S. at 570.
14
protected class, (2) she suffered an adverse employment action, (3) she was qualified
for the position at issue, and (4) she was treated less favorably than others not in the
protected class. Khalik, 671 F.3d at 1192 (citing Sanchez v. Denver Public Schools,
164 F.3d 527, 531 (10th Cir. 1998)); see also Orr v. City of Albuquerque, 417 F.3d
1144, 1149 (10th Cir. 2005)). Reviewing the complaint in its entirety, the Court finds
that Hall has alleged sufficient facts to state a plausible claim for relief on this cause
of action based on her race. The complaint alleges Hall is African-American and,
through hard work and dedication, was ultimately promoted to Director of
Innovation, an executive level position. Nonetheless, Hall alleges she: (1) had
assignments removed from her and assigned to Caucasian employees; (2) was told
she was viewed as “lazy” because of her race; (3) was isolated in her job because of
her race; and (4) did not receive assistance as did other non-African American
employees or any meaningful investigation to cure the discrimination. In the Court’s
view, these allegations adequately give the defendant fair notice of what Hall’s claim
is and the grounds upon which it rests.
To establish a plausible claim under Title VII for retaliation, a plaintiff must
allege: (1) she engaged in protected opposition to discrimination; (2) a reasonable
employee would have found the challenged action materially adverse; and (3) a
causal connection exists between the protected activity and the materially adverse
action. McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006). Hall alleges
15
that she made grievances about racial discrimination to her superiors, was assured
that she had nothing to worry about with her job security, yet was ultimately fired
for her complaints. Viewing the complaint as a whole, the Court believes that Hall
has made a minimal, plausible showing of retaliation. The relevant issue at this stage
is not whether Hall will ultimately prevail on her claims, but whether her complaint
is sufficient to cross the federal court’s threshold. Skinner v. Switzer, 562 U.S. 521,
529-30 (2011). Granting a motion to dismiss remains a harsh remedy, which must
be cautiously studied not only to effectuate the spirit of the liberal rules of pleading,
but also to protect the interests of justice. Dias v. City & Cnty. of Denver, 567 F.3d
1169, 1178 (10th Cir. 2009). Thus, a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely. Id. Defendant’s motion on this issue is denied.
IV.
Oklahoma Governmental Tort Claims Act
Lastly, ODRS contends Hall has failed to exhaust administrative remedies
under the OGTCA regarding her allegations of negligence. Hall admits she has not
complied with the OGTCA, but contends such allegations support her claims under
Title VII and the OADA. Under the OGTCA, a suit against a governmental entity
must be based upon the plaintiff presenting written notice of a claim within one year
of the date the loss occurs, or the claim is forever barred. Pelligrino v. State ex rel.
Cameron Univ. ex rel. Bd. of Regents, 2003 OK 2, ¶ 6, 63 P.3d 535, 537. The
16
complaint does not specifically set forth a cause of action for negligence. Rather,
Hall contends that ODRS failed to properly hire, train, supervise or discipline its
employees, which constituted negligence and gave rise to her claims under the
OADA. See Petition, ¶¶ 83-85.8
Hall states that she does not assert an independent negligence claim, and since
the plaintiff is the “master of the complaint,” the Court does not construe the
complaint as setting forth such a claim. Accordingly, the Court finds the OGTCA
inapplicable to the issues here, and Defendant’s motion is denied on this issue as
well.
CONCLUSION
Defendant’s Motion to Dismiss [Doc. No. 4] is GRANTED IN PART and
DENIED IN PART as set forth herein. Plaintiff’s claims arising under the ADEA
are dismissed for lack of subject matter jurisdiction. Defendant’s motion is denied
in all other respects.
IT IS SO ORDERED this 20th day of February 2018.
8
OADA claims are not “torts” within the meaning of the OGTCA, and are not
subject to its provisions. Bruehl v. Okla. ex rel. Okla. Indigent Defense Sys., No.
CIV-13-1247-HE, 2014 WL 2879744, at *3 (W.D. Okla. June 24, 2014).
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