Kohli v. McGee Eye Surgery Center LLC et al
ORDER granting 8 Motion to Dismiss of Defendant The Group, LLC ; granting 15 Defendant McGee Eye Surgery Center LLCs Motion to Dismiss. Signed by Honorable Robin J. Cauthron on 8/7/17. (lg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
McGEE EYE SURGERY CENTER LLC, )
and THE GROUP, LLC,
MEMORANDUM OPINION AND ORDER
Plaintiff brought the present action asserting claims against Defendants McGee Eye
Surgery LLC (“Surgery Center”) and The Group, LLC (“The Group”) based on race and
national origin in violation of 42 U.S.C. § 2000e, discrimination based on race in violation
of 42 U.S.C. § 1981, discrimination based on gender in violation of 42 U.S.C. § 2000e,
retaliation in violation of 42 U.S.C. § 2000e, and wrongful termination in violation of
Oklahoma public policy. Plaintiff alleges that during the course of her employment, she
was subject to discrimination and now she seeks to recover damages as compensation for
Defendant The Group has filed a Motion to Dismiss relying on Fed. R. Civ. P.
12(b)(1) and Fed. R. Civ. P. 12(b)(6).
The Group’s 12(b)(1) Motion is premised on
Plaintiff’s failure to exhaust her administrative remedies prior to pursuing a Title VII claim
against it. Initially, Defendant The Group notes it is unclear whether or not Plaintiff
intends to pursue her Title VII claims against it, as the allegations in her Complaint identify
The Group as a Defendant to only the § 1981 claim. However, after reviewing the
Complaint, it appears to the Court that Plaintiff intended to include Defendant The Group
within her allegations of Title VII violation. Further, Plaintiff has responded to Defendant
The Group’s Title VII argument in the Motion to Dismiss. Therefore, the Court will
consider the arguments raised in Defendant The Group’s Motion to Dismiss challenging
Plaintiff’s ability to recover on these claims.
1. Jurisdiction over Defendant The Group
Defendant The Group’s first challenge to Plaintiff’s Title VII claims argues the
Court lacks subject matter jurisdiction because Plaintiff failed to exhaust her administrative
remedies prior to bringing these claims. According to Defendant The Group, Plaintiff did
not name it as a respondent when bringing her charge of discrimination before the Equal
Employment Opportunity Commission. In response, Plaintiff does not argue that she
included Defendant The Group as a respondent, but argues that the body of her
discrimination charge includes allegations against Defendant The Group and therefore it
should be clear that she included that entity as a respondent.
In the Tenth Circuit, “[e]xhaustion of administrative remedies is a ‘jurisdictional
prerequisite’ to suit under Title VII.” Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.
1996) (citation omitted).
Filing a charge of discrimination is also a jurisdictional
prerequisite under the Oklahoma Anti-Discrimination Act (“OADA”), 25 Okla. Stat.
§ 1350(B). It is clear from the face of the charge in this matter that Defendant The Group
was not named as a respondent in the EEOC charge. However, the charge did mention
The Group within its body and therefore the Court must determine whether that was
sufficient to put Defendant The Group on notice as to Plaintiff’s claims against it.
The Tenth Circuit set out the factors to be considered in determining whether or not
a defendant who was identified within the body of the charge has a sufficient identity of
interest to satisfy the intention of Title VII that the defendant could be deemed to have had
notice of the charge and had the opportunity to attempt a conciliation. See Romero v.
Union Pacific R.R., 615 F.2d 1303, 1311 (10th Cir. 1980). Those factors are
“1) whether the role of the unnamed party could through reasonable effort by
the complainant be ascertained at the time of the filing of the EEOC
complaint; 2) whether, under the circumstances, the interests of a named [sic]
are so similar as the unnamed party’s that for the purpose of obtaining
voluntary conciliation and compliance it would be unnecessary to include the
unnamed party in the EEOC proceedings; 3) whether its absence from the
EEOC proceedings resulted in actual prejudice to the interests of the
unnamed party; 4) whether the unnamed party has in some way represented
to the complainant that its relationship with the complainant is to be through
the named party.”
Id. at 1312 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)).
Looking at the first factor, it is clear that Plaintiff understood the distinction between
Defendant The Group and Defendant Surgery Center, as in her charge she repeatedly made
allegations acknowledging the separate identities of those two entities. As for the second,
Defendant The Group relies upon allegations in Plaintiff’s Complaint, which acknowledge
a distinction between The Group and Surgery Center, arguing that Plaintiff clearly
understood the two entities were distinct and acted in distinct ways towards Plaintiff. In
weighing this factor, the Court examines whether the interest between the two potential
Defendants are so similar that for the purpose of obtaining a voluntary conciliation
compliance it would be unnecessary to include the unnamed party in the EEOC
proceedings. The Court finds this factor weighs against Plaintiff. As noted above, it is
clear that Plaintiff acknowledges that Defendants Surgery Center and The Group are
It is also clear that she acknowledged her relationship as to each
Defendant is different and that each Defendant played a different role in the alleged
discrimination. Therefore, for purposes of determining whether or not the dispute could
have been resolved through early conciliation or other process, it was incumbent upon
Plaintiff to include The Group as a named respondent.
In examining the third factor, Defendant The Group argues that it was prejudiced
because the EEOC determined that Surgery Center was not Plaintiff’s employer and its
absence from the EEOC proceedings precluded it from relying on that defense as well.
The Court finds this factor at best neutral. Whether or not Defendant The Group would
have been found not to be Plaintiff’s employer in the EEOC process would have had no
bearing on her ability to proceed with her claims in this action. While that fact may or
may not have ultimately provided a defense to Defendant The Group, any such
determination by the EEOC would not have been dispositive or binding on this Court.
Therefore, the Court finds that the third factor is neutral.
As for the fourth factor, there is no evidence provided by either party from which it
could be determined either Defendant The Group or Defendant Surgery Center indicated
to Plaintiff that its relationship was to be through Defendant Surgery Center. Thus, this
factor weighs against Plaintiff. After considering the factors set forth by the Tenth Circuit
in Romero, the Court finds that Plaintiff is not entitled to an exception to the rule and her
failure to name Defendant The Group in her EEOC charge is fatal to her Title VII claims.
Finally, the Court notes that a reading of the allegations set forth in the charge
provides no assistance to Plaintiff in her quest to include Defendant The Group. None of
the allegations leveled against Defendant The Group supports a claim of discriminatory
conduct by that entity.
Thus, there simply was nothing alleged in the charge of
discrimination which would have put Defendant The Group on notice that Plaintiff was
contemplating a Title VII claim against it. As a result, Plaintiff failed to exhaust her
administrative remedies as to this Defendant.
2. Employed by Defendant The Group
The Court also notes that Plaintiff’s Complaint does not at any point allege that she
was an employee of The Group. Her allegations of employment are directed only at
Defendant Surgery Center. To the extent that Plaintiff attempts to bolster the factual
allegations in her Complaint with new factual allegations in her Response to the Motion to
Dismiss, such an attempt to amend a complaint is impermissible. See Car Carriers, Inc.
v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (“it is axiomatic that the complaint
may not be amended by the briefs in opposition to a motion to dismiss”). See also Hayes
v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001) (“a court may not consider allegations
or theories that are inconsistent with those pleaded in the complaint”). Because Plaintiff
has not alleged she was an employee of Defendant The Group, she cannot pursue a Title
VII claim against that entity.
3. Retaliation by Defendant Surgery Center
Plaintiff asserts that Defendant Surgery Center retaliated against her for engaging
in protected activity. Defendant sets forth the following three elements, which a plaintiff
must allege: “(1) she engaged in protected opposition to discrimination; (2) she suffered
an adverse action that a reasonable employee would have found material; and (3) there is
a causal nexus between her opposition and the employer’s adverse action.” Antonio v.
Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006) (citations omitted). Further,
the United States Supreme Court has established that a plaintiff making a retaliation claim
must “establish that his or her protected activity was a but-for cause of the alleged adverse
action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct.
2517, 2534 (2013).
Defendant Surgery Center argues that Plaintiff’s Complaint fails to offer nonconclusory allegations sufficient to establish either the first or the third element.
According to Defendant Surgery Center, none of the allegations in Plaintiff’s Complaint
demonstrates that she ever engaged in protected activity. Indeed, a review of Plaintiff’s
Complaint makes clear that while she certainly made complaints to Defendant Surgery
Center about a number of perceived wrongs, none of those wrongs were unlawful
discrimination. Therefore, those complaints cannot give rise to a claim for retaliation.
“[A]n employee’s complaints regarding unfair treatment, no matter how unconscionable,
cannot be ‘protected opposition to discrimination’ unless the basis for the alleged unfair
treatment is some form of unlawful discrimination.” Dean v. Computer Sci. Corp., 384
Fed. App’x 831, 838 (10th Cir. 2010) (quoting Petersen v. Utah Dep’t of Corr., 301 F.3d
1182, 1188 (10th Cir. 2002)).
As for the third element, Defendant Surgery Center argues there is a lack of factual
assertions demonstrating a causal connection between Plaintiff’s protected opposition and
the employer’s adverse action. Indeed, the allegations in Plaintiff’s Complaint identify
only a single instance of protected activity which occurred in May of 2014. 1 Plaintiff’s
termination was in May of 2015. Because the allegations of protected activity occurred
more than a year before her termination, they cannot provide any inference of a causal
connection as a matter of law. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179
(10th Cir. 1999) (a temporal proximity of three months, standing alone, is too attenuated
to support an inference of causal connection).
Finally, Defendant Surgery Center argues that Plaintiff failed to demonstrate that
the persons responsible for making a decision to end her relationship with Defendant had
any knowledge of her protected activity. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d
1187, 1203 (10th Cir. 2008) (“To establish the requisite causal connection between [her]
protected conduct and termination, [plaintiff] must show that [defendant] was motivated to
As Defendant Surgery Center notes, to call the May 2014 complaint a challenge to
protected activity requires a very broad reading. However, for purposes of resolving the current
Motion, the Court will construe the email as sufficient.
terminate [her] employment by a desire to retaliate for [her] protected activity. As a
prerequisite to this showing, [plaintiff] must first come forward with evidence from which
a reasonable factfinder could conclude that those who decided to fire [her] had knowledge
of [her] protected activity.”) (internal citations omitted).
The Court finds Defendant Surgery Center’s arguments related to Plaintiff’s failure
to plead facts to support a prima facie case of retaliation well supported. Plaintiff’s
Complaint, while lengthy, simply fails to provide well-supported factual allegations
sufficient to demonstrate a prima facie of retaliation. Accordingly, this claim will be
dismissed without prejudice.
4. Inadequate Factual Allegations of Discrimination
Both Defendant The Group and Defendant Surgery Center challenge the adequacy
of Plaintiff’s allegations of discrimination. Both Defendants argue that Plaintiff offers
nothing more than conclusory assertions of wrongdoing.
The Tenth Circuit has set forth the governing standard for examining a Title VII
complaint when facing a Motion to Dismiss pursuant to Rule 12(b)(6).
The [United States Supreme] Court explained two principles
underlying the . . . standard [for deciding a 12(b)(6) motion]: (1) when
legal conclusions are involved in the complaint “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable
to [those] conclusions,” [Ashcroft v.] Iqbal, 129 S.Ct.  at 1949 ,
and (2) “only a complaint that states a plausible claim for relief survives a
motion to dismiss,” id. at 1950. Thus, mere “labels and conclusions” and “a
formulaic recitation of the elements of a cause of action” will not suffice.
[Bell Atl. Corp. v.] Twombly, 550 U.S.  at 555, 127 S.Ct. 1955 .
Accordingly, in examining a complaint under Rule 12(b)(6), we will
disregard conclusory statements and look only to whether the remaining,
factual allegations plausibly suggest the defendant is liable.
Khalik v. United Air Lines, 671 F.3d 1188, 1190-91 (10th Cir. 2012).
Defendants argue that when this standard is applied to Plaintiff’s Complaint, it must
be dismissed, as she has failed to provide any non-conclusory statements which would
support a claim for discriminatory conduct.
Plaintiff’s Complaint indeed offers a number of paragraphs which purport to support
her ongoing concerns related to adverse employment action occurring during her
relationship with Defendants Surgery Center and/or The Group.
examined closely, it is clear that none of these allegations provides any factual basis; rather
they are simply conclusory allegations of Plaintiff’s supposition or belief. Indeed, after
reviewing Plaintiff’s Complaint, the Court finds it fails to allege any claims of
discrimination in a nonconclusory fashion. A few examples of the conclusory nature of
Plaintiff’s allegations are as follows:
47. Dr. Kohli asserts that Defendants’ failure to address the serious
concerns, and the condescending attitude was based, at least in part, on a
negative view of Dr. Kohli’s race, national origin, and gender, and/or in
retaliation for opposing unlawful discrimination practices in the workplace.
Specifically, Defendants [sic] response to Dr. Kohli demonstrate an attitude
that, as an Asian Indian female, Dr. Kohli was subservient and that she should
be willing to serve them unquestioningly. Moreover, Defendants [sic]
dismissive, hostile attitude and failure to take corrective action, fostered an
environment in which complaints of unlawful treatment were strongly
100. Practices such as those described above demonstrate the different and
less favorable treatment Dr. Kohli experienced in comparison to male and/or
non-Asian Indian employees.
104. The employer’s unlawful conduct toward Dr. Kohli was so severe
and/or pervasive that it created a work environment that a reasonable person
would consider intimidating, hostile, and/or abusive.
105. One or more factors motivating the decision to terminate Dr. Kohli,
either separately, together, or in combination with other factors, was Dr.
Kohli’s race, national origin, gender, and retaliation for complaining of
(P’s Compl., Dkt. No. 1.).
Despite the lengthy nature of Plaintiff’s Complaint (32 pages and 136 individual
paragraphs), she fails to provide any fact-based allegations support supporting her claim
that she was subjected to a discriminatory environment based upon her race, national
origin, or gender. Thus, Plaintiff’s claims for violation of Title VII and § 1981, will be
dismissed for failure to state a claim.
5. Time-Barred Claims
According to Defendant Surgery Center, Plaintiff’s Title VII claims which occurred
prior to January 15, 2015, are time-barred and any claims Plaintiff brings pursuant to the
OADA that occurred before May 20, 2015, are time-barred.
To state a valid Title VII claim, Plaintiff must file an administrative charge within
300 days “after the alleged unlawful employment practice occurred.”
§ 2000e-5(e)(1). Any claims brought under the OADA must be filed within 180 days of
the alleged discriminatory act. See 25 Okla. Stat. § 1502(A). Here, Plaintiff alleges she
filed her charge of discrimination on November 16, 2015. 2 According to Defendant,
therefore, any discriminatory act that occurred prior to January 20, 2015, is time-barred
under Title VII, and any act that occurred prior to May 20, 2015, is time-barred under the
OADA. Plaintiff argues that the prior acts are relevant to her discrimination charge and
therefore must be considered as evidence of the environment in which she worked.
While Defendant’s argument accurately states the law in general, it improperly
seeks to impose a time limitation of discrete acts of discrimination into a hostile work
environment claim. As the Supreme Court stated in National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002), “[a] hostile work environment claim is composed of a series
of separate acts that collectively constitute one ‘unlawful employment practice.’” Id. at
117 (quoting 42 U.S.C. § 2000e-5(e)(1)) . The Court went on to state, “[i]t does not
matter, for purposes of the statute, that some of the component acts of the hostile work
environment fall outside the statutory time period. Provided that an act contributing to the
claim occurs within the filing period, the entire time period of the hostile environment may
be considered by a court for the purposes of determining liability.” Id. This Court’s role
then “is to determine whether the acts about which [Plaintiff] complains are part of the
same actionable hostile work environment practice, and if so, whether any act falls within
the statutory time period.” Id. at 120.
Defendant contests this date, arguing the charge was not filed until January 27, 2016;
however, for purposes of this Motion, the Court will accept Plaintiff’s allegation as true.
In examining the allegations in Plaintiff’s Complaint, it is clear that the acts
occurring prior to the dates as argued by Defendant are all related to her hostile work
environment claim. According to Plaintiff, it is the alleged wrongful termination that was
the final act of the hostile work environment. Therefore, to the extent Defendant seeks
dismissal of Plaintiff’s Title VII claims as time-barred, its Motion will be denied.
However, to the extent Plaintiff would seek to prosecute any of the acts occurring prior to
the dates set forth by Defendant as discrete claims, those claim are indeed time-barred and
may not be pursued; they may only be relied upon as acts in furtherance of Plaintiff’s claim
of a hostile work environment.
6. Public Policy Claim
Finally, Defendant Surgery Center attacks Plaintiff’s claim for wrongful termination
against public policy, noting that the OADA provides the exclusive remedy for claims of
discrimination under Oklahoma law and expressly abolishes all other common law claims.
See 25 Okla. Stat. §§ 1101(A), 1350(A). It is unclear from the allegations set forth in
Plaintiff’s Complaint whether she brings her wrongful termination against public policy
claim based upon the termination as a result of alleged discriminatory acts or whether she
simply argues that she was wrongfully terminated in a manner that violated Oklahoma’s
public policy. Under either scenario, her Complaint is insufficient to state a claim for
relief. To the extent she seeks to assert a public policy wrongful termination claim
premised on the alleged discriminatory acts, such a claim is barred, as noted by Defendant
Surgery Center. To the extent she seeks to pursue some other type of public policy claim,
she has failed to identify the public policy which was allegedly violated by her termination.
Thus, Defendant Surgery Center’s Motion to Dismiss this claim will be granted.
For the reasons set forth herein, the Motion to Dismiss of Defendant The Group,
LLC (Dkt. No. 8); and Defendant McGee Eye Surgery Center LLC’s Motion to Dismiss
(Dkt. No. 15) are GRANTED. Plaintiff’s Complaint is DISMISSED without prejudice.
To the extent Plaintiff wishes to amend her Complaint to pursue a claim against either
Defendant, she must file her Amended Complaint within twenty days of the date of this
IT IS SO ORDERED this 7th day of August, 2017.
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