Cudjoe v. Watermark Villas at Quail North LLC et al
ORDER granting in part and denying in part 19 Motion to Dismiss; granting in part and denying in part 21 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 3/14/2019. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AT QUAIL NORTH, LLC,
COMPANY, and certain
unknown agents, servants,
Case No. CIV-17-1068-D
Before the Court is Defendant Lincoln Property Company’s (“Lincoln”) Motion to
Dismiss [Doc. No. 19] and Memorandum in Support [Doc. No. 20]. Defendant Watermark
Villas at Quail North, LLC, (“Watermark Villas”) adopts and incorporates by reference the
argument and authority set forth in Lincoln’s Memorandum. See Watermark Villas’
Motion to Dismiss [Doc. No. 21]. Plaintiff has responded [Doc. NO. 22] and [Doc. No.
23]. Lincoln has replied [Doc. No. 28]. The matter is fully briefed and at issue.
The facts of the present case are fully set forth in the Court’s Order [Doc. No. 16]
and will only be restated here as they are relevant to the current Motions to Dismiss or
In the background narrative, the Court has assumed the truthfulness of all wellpleaded facts in the Amended Complaint and draws all reasonable inferences therefrom in
the light most favorable to Plaintiff. Western Watersheds Project v. Michael, 869 F.3d
1189, 1194 (10th Cir. 2017).
where they have been amended by Plaintiff’s Amended Complaint. Plaintiff rented an
apartment at The Reserve at Quail North (“The Reserve”) in Oklahoma City, Oklahoma.
After moving into her apartment, Plaintiff noticed a foul odor permeating throughout the
home and complained to Val Eden, the business manager.
Despite attempts by
maintenance personnel to eliminate the smell, it returned and Plaintiff became ill. Plaintiff
was forced to leave the apartment because of the smell and its effects on her health.
Plaintiff repeated her complaint to management.
A few weeks later, Plaintiff visited the main office to inquire about the status of her
apartment. Val Eden and Derrick Paratt, another employee, were present. Eden asked
Plaintiff whether Paratt looked like a man and commented that he “has more damn
boyfriends than we do.” Paratt unzipped his shorts and Eden told him, “don’t show me
your ‘itty.’” Paratt then placed his hand inside his shorts and moved it over his crotch.
Plaintiff objected to Paratt’s conduct and told him his actions could be viewed as sexual
harassment. In response, Paratt stated that “it could be indecent exposure,” and Eden
replied, “just like when he’s sticking out his weenie.” Paratt then turned to Plaintiff and
insisted he “tell [her] something about [his] penis.” On another occasion during which
Plaintiff was checking on her apartment issues, Paratt stated he would not be wearing any
clothes when Eden came to pick him up for work. Paratt commented on another occasion
that he was not attracted to women, although many wanted to have his baby. Plaintiff
alleges this conduct was common in the business office.
Plaintiff subsequently filed the instant action asserting claims for: (1) violations of
the Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq.; (2) negligence, (3) invasion of
private right of occupancy; and, (4) intentional infliction of emotional distress (“IIED”).
On October 13, 2017, Lincoln filed a Motion to Dismiss [Doc. No. 5] on the basis that
Plaintiff had failed to: (1) allege the harassing behavior upon which she based her claim of
violation of the FHA was based on her sex; and, (2) assert sufficient facts to establish she
was the victim of conduct sufficiently outrageous and intolerable to support a claim for
IIED. In the alternative, Lincoln moved to dismiss Plaintiff’s claim for IIED because the
alleged outrageous conduct by Eden and Paratt was committed outside the scope of their
On April 20, 2018, the Court denied Lincoln’s motion to dismiss as to Plaintiff’s
FHA claim and granted its motion as to Plaintiff’s IIED claim but gave Plaintiff leave to
file an Amended Complaint to correct the defects in that claim. Order [Doc. No. 16] at 1011, 13. The Court agreed with Lincoln that Plaintiff had failed to allege a claim for IIED
in which Lincoln would be liable under respondeat superior for the alleged conduct. Id. at
Plaintiff timely filed her Amended Complaint [Doc. No. 18] on May 17, 2018,
realleging all four claims and amending only her IIED claim. Relevant to the instant
motion, Plaintiff contends Defendants violated the FHA by (1) subjecting her to a sexually
hostile environment, (2) interfering with her enjoyment and exercise of rights under the
statute, (3) failing to stop Eden and Paratt’s sexually explicit behavior, and (4) committing
discriminatory practices. See Amended Complaint at 6-8 [Doc. No. 18]. Plaintiff also
contends “Defendants’ extreme and outrageous conduct intentionally or recklessly caused
severe emotional distress.” Id. at 9-11.
Lincoln and Watermark Villas move to dismiss Plaintiff’s claims for violation of
the FHA and for IIED. Defendants again contend that: (1) Plaintiff has failed to allege that
any harassing behavior violative of the FHA was based on her sex; and, (2) Plaintiff has
failed to state a claim for IIED, as the alleged conduct occurred outside the course and
scope of employment and was not subsequently ratified by Defendants.
STANDARED OF DECISION
Federal Rule of Civil Procedure 8(a)(2) provides that a pleading stating a claim for
relief must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” To survive a Rule 12(b) 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.
2d 929 (2007)).2 “Factual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. “A claim has facial plausibility when the
Although Plaintiff’s action was initiated in state court, the Federal Rules of Civil
Procedure and the Supreme Court’s standards in Twombly, Iqbal, and their progeny govern
the sufficiency of her claims. See 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. CIV10-30-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) (“Although the case
has been removed to federal court and federal procedural rules apply, Plaintiff must still
comply with federal pleading requirements.”) (unpublished).
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679; see Robbins v. Oklahoma, 519 F.3d 1242,
1248 (10th Cir. 2008) (Stating that “the degree of specificity necessary to establish
plausibility and fair notice, and therefore the need to include sufficient factual allegations,
depends on context.”) (internal quotation omitted). Therefore, Iqbal and Twombly provide
“no indication the Supreme Court intended a return to the more stringent pre-Rule 8
pleading requirements.” also Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.
2012) (citing Iqbal, 556 U.S. at 678).
The Tenth Circuit has held that the Iqbal/Twombly pleading 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.” Khalik, 671 F.3d at 1191
(quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “Specific facts are
not necessary,” the pleader’s allegations need only provide the “defendant fair notice of
what the … claim is and the grounds upon which it rests.” Id. at 1192 (quoting Erickson v.
Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)) (internal quotations
omitted). “Twombly and Iqbal do not require that the complaint include all facts necessary
to carry the plaintiff’s burden.” Khalik, 671 F.3d at 1192. Further, “the 12 (b)(6) standard
does not require that [a p]laintiff establish a prima facie case.” Id. at 1191. However, “the
elements of each alleged cause of action help to determine whether [the p]laintiff has set
forth a plausible claim.” Id. In ruling on a motion to dismiss a judge must accept all wellpled allegations as true, and “may not dismiss on the ground that it appears unlikely the
allegations can be proven.” Robbins, 519 F.3d at 1247.
Hostile Housing Environment3
The FHA prohibits discrimination in housing on the basis of race, color, religion,
sex, national origin, familial status, and disability. 42 U.S.C. §§ 3601 et seq. Housing and
Urban Development (“HUD”) regulations likewise prohibit “[q]uid pro quo and hostile
environment harassment because of . . . sex.” 24 C.F.R. § 100.600 (a)(2). HUD defines
“hostile environment harassment” as “unwelcome conduct that is sufficiently severe or
pervasive as to interfere with: [t]he availability, sale, rental, or use or enjoyment of a
dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or
enjoyment of services or facilities in connection therewith; or the availability, terms, or
conditions of a residential real estate-related transaction.” 24 C.F.R. § 100.600 (a)(2)
Plaintiff asserts that Defendants’ Motion as it relates to her FHA claim amounts to
an impermissible motion to reconsider the Court’s Order denying their previous motion to
dismiss the FHA claim on the same basis. However, the filing of Plaintiff’s Amended
Complaint “supersedes the original and renders it of no legal effect.” Davis v. TXO Prod.
Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) (internal quotation omitted); see Predator
Int’l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1180-81 (10th Cir. 2015); Mink v.
Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007). The Amended Complaint requires a
responsive pleading and Defendants are at liberty to file a new Rule 12 (b)(6) motion.
Nevertheless, if the operative pleading and the arguments for dismissal are unchanged, the
Court may rely on the grounds underlying its previous disposition, and does so in part here.
“[D]iscrimination may occur either by treating one gender less favorably (disparate
treatment) or by sexual harassment.” Honce v. Vigil, 1 F.3d 1085 (10th Cir. 1993).
“Applied to housing, a claim is actionable when the offensive behavior unreasonably
interferes with use and enjoyment of the premises.” Id. at 1090. “Under the FHA, a person
may be directly liable for ‘[f]ailing to take prompt action to correct and end a
discriminatory housing practice by a third-party, where the person knew or should have
known of the discriminatory conduct and had the power to correct it.’” Metropolitan Fair
Housing Council of Okla., Inc. v. Pelfrey, No. CIV-15-1331-HE, 2017 WL 5495111, at *1
(W.D. Okla. Nov. 13, 2017) (quoting 24 C.F.R. § 100.7(a)(1)(ii)). “A person is vicariously
liable for a discriminatory housing practice by the person’s agent or employee, regardless
of whether the person knew or should have known of the conduct that resulted in a
discriminatory housing practice, consistent with agency law.” See id. (quoting 24 C.F.R. §
In considering FHA claims, the Tenth Circuit looks to Title IIV cases for guidance
on housing discrimination cases. Honce, 1 F.3d. at 1088. Thus, “[a] tenant seeking to state
a hostile housing environment claim must allege: ‘(1) that he or she belongs to a protected
group; (2) that the [tenant] has been subject to unwelcomed sexual harassment, such as
sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that
the harassment must have been based on the sex of the [tenant]; (4) that the harassment
was sufficiently severe or pervasive to alter the terms and conditions of [the tenancy] and
create a discriminatorily abusive [living] environment; and (5) a basis for holding the
[lessor] liable.” See West v. DJ Mortgage, LLC, 164 F. Supp. 3d 1393, 1393 n.1 (N.D. Ga.
2016) (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999))
(paraphrasing in original).
As to Plaintiff’s FHA claim, Defendants raise only one of the arguments made in
the previous motion to dismiss. That is, they contend that Plaintiff fails to allege sufficient
facts to establish Eden and Paratt’s behavior was directed at her because of her sex.
Memorandum at 5-12. However, Defendants’ Motion relies on cases in which the Tenth
Circuit applied the heightened evidentiary standard reserved for summary judgment
motions. Defendants cite Riske v. King Soopers, 366 F.3d 1085, 1092 (10th Cir. 2004) in
which the Tenth Circuit found that the plaintiff’s “submitted evidence . . . falls short” and
Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1263 (10th Cir. 2005) in which the
Tenth Circuit applied the “three evidentiary routes in which an inference of discrimination
because of sex can be drawn” laid out in Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 79–80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Memorandum at 7-8, 8-11
(emphasis added). Such an examination of the record is inappropriate at the Rule 12(b)(6)
“The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence
that the parties might present at trial.” Brokers' Choice of Am., Inc. v. NBC Universal, Inc.,
757 F.3d 1125, 1135 (10th Cir. 2014) (internal quotation omitted). Therefore, the issue at
The only Tenth Circuit case applying the Rule 12 (b)(6) standard cited by
Defendants simply states that the FHA claim was properly dismissed as “it does not allege
that the State Defendants discriminated against her on the basis of race, color, religion, sex,
familial status, or national origin.” White v. Ockey, 241 Fed. Appx. 462, 466 (10th Cir.
2007). There is no discussion of the alleged facts in White or why any alleged facts fall
short. Therefore, White provides no guidance to the Court on this issue.
this stage of the proceedings is not whether Plaintiff has presented sufficient evidence to
succeed on her FHA claim but whether she has sufficiently stated a claim for hostile
environment. Skinner v. Switzer, 562 U.S. 521, 529-30 (2011).
As it did in its previous Order denying Defendant Lincoln’s motion to dismiss the
FHA claim, the Court finds:
Plaintiff has made a minimal showing of hostile housing environment. The
[Amended] Complaint sufficiently sets forth instances of unwelcome sexual
conduct, and its allegations contain sufficient factual content that allows the
Court to draw the reasonable inference that such conduct and comments were
based on Plaintiff’s sex and, coupled with Defendant’s failure to stop it,
altered the terms and conditions of her tenancy as to create an abusive
Order at 9-10. Construing all facts and reasonable inferences in the light most favorable
to Plaintiff, Defendants’ Motions to Dismiss must be denied as to Plaintiff’s FHA claim.
Intentional Infliction of Emotional Distress
Oklahoma recognizes intentional infliction of emotional distress as an independent
Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1558 (10th Cir. 1995) (citing Eddy v.
Brown, 715 P.2d 74, 76). The Tenth Circuit has identified four elements to an IIED claim:
(1) the tortfeasor acted intentionally or recklessly; (2) the tortfeasor's conduct
was extreme and outrageous; (3) the plaintiff actually experienced emotional
distress; and (4) the emotional distress was severe.
Starr, 54 F.3d 1548, 1558 (10th Cir. 1995) (citing Daemi v. Church's Fried Chicken, Inc.,
931 F.2d 1379, 1387 (10th Cir.1991); see Computer Publications, Inc. v. Welton, 2002 OK
50, ¶ 7, 49 P.3d 732, 735. “Liability for this tort does not extend to ‘mere insults,
indignities, threats, or occasional acts that are definitely inconsiderate and unkind.’” Starr,
54 F.3d at 1558 (quoting Eddy v. Brown, 715 P.2d 74, 77 (Okla.1986) (internal quotations
and paraphrasing omitted)). The tortfeasor’s conduct must go “beyond all possible bounds
of decency” or be “utterly intolerable in a civilized community.” Id. (quoting Eddy, 715
P.2d at 77). “Nothing short of ‘[e]xtraordinary transgressions of the bounds of civility’
will give rise to liability for intentional infliction of emotional distress.” Starr, 54 F.3d at
1558 (quoting Merrick v. Northern Natural Gas Co., 911 F.2d 426, 432 (10th Cir.1990)
(emphasis in original). However, the conduct must be considered “in the setting in which
it occurred.” Eddy v. Brown, 715 P.2d 74, 77 (Okla. 1986); Young v. City of Idabel, 721
Fed. Appx. 789, 805 (10th Cir. 2018) (citing Eddy, 715 P.2d at 77).
Defendants move to dismiss Plaintiff’s IIED claim solely on the issue of respondeat
superior. Defendant contends that Paratt and Eden’s alleged conduct “occurred (if at all)
outside of the former employees’ course and scope of employment.” Memorandum at 3,
12.5 “[C]ourts have consistently found that the conduct involved in claims of assault,
battery, and intentional infliction of emotional distress fall outside the scope of an
employee's employment.” Johnson v. Indep. Sch. Dist. No. 3 of Oklahoma Cty., Oklahoma,
CIV-17-1058-M, 2018 WL 1732070, at *4 (W.D. Okla. Apr. 10, 2018); Rodebush By &
Through Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, 867 P.2d 1241, 1245
(“it is not within the scope of an employee's employment to commit an assault upon a third
Defendants also briefly argue that Plaintiff’s claim must fail as she “has not alleged
any new facts to demonstrate that Lincoln ratified the alleged misconduct.” Memorandum
at 13. The Court need not address this contention as Plaintiff affirmatively states that she
is not alleging Lincoln Property is liable “because [Paratt and Eden] remained employed
after their tortious acts” and makes no assertions in her Objection or Amended Complaint
that Defendants ratified Eden and Paratt’s conduct. Instead, Plaintiff limits her argument
to the contention that the alleged offending conduct naturally grew out of Eden and Paratt’s
performance of their employment duties.
person”) (citing Hill v. McQueen, 204 Okl. 394, 230 P.2d 483, 485 (1951)). “[A]n assertion
that an act is accomplished during an employment activity is insufficient to assess liability
against the employer unless the act was done to accomplish the assigned work.” N.H. v.
Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 14, 998 P.2d 592, 599 (citing Mistletoe Exp.
Serv., Inc. v. Culp, 1959 OK 250, 353 P.2d 9, 16).
There are three recognized exceptions to the general rule excluding intentional torts
from the scope of employment:
1) the act is fairly and naturally incident to the employer's business; 2) the
act occurs while the employee is engaged in an act for the employer; or 3)
the assault arises from a natural impulse growing out of or incident to the
attempt to complete the master's business.
N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, ¶ 14, 998 P.2d 592, 598–99. Put
another way, “[a]n employee's act is within the scope of employment if it is incident to
some service being performed for the employer or arises out of an emotional response to
actions being taken for the employer.” Rodebush By & Through Rodebush v. Oklahoma
Nursing Homes, Ltd., 1993 OK 160, 867 P.2d 1241, 1245. “The question whether or not
the act done is so different from the act authorized that it is not within the scope of the
employment is decided by the court if the answer is clearly indicated; otherwise, it is
decided by the jury.” Baker v. Saint Francis Hosp., 2005 OK 36, ¶ 16, 126 P.3d 602, 6067, as corrected (June 1, 2005) (quoting Nail v. City of Henryetta, 1996 OK 12, 911 P.2d
914, 918 n. 12).
Plaintiff contends that Paratt and Eden’s conduct satisfies the exceptions to the
general rule because the conduct occurred “while [they] were attempting to perform their
duties, that is, tend to Plaintiff’s apartment odors” and because “the acts resulted from some
‘impulse of emotions which naturally grew out of or was incident to the attempt to perform
the master’s business.’” Objection at 5 (quoting Rodebush, 867 P.2d at 1245)). Plaintiff
further asserts that the alleged sexual harassment “naturally grew out of or was incident”
to Paratt and Eden’s duties because it was “commonplace activity” in the business office.
Objection at 5. The Court disagrees.
As stated in N.H., “[n]o reasonable person would conclude that  sexual misconduct
was within the scope of employment or in furtherance of ” Lincoln’s business. N.H., 998
P.2d at 599. A history of “commonplace” occurrences does not render this type of alleged
misconduct any more necessary to the performance of apartment management and
maintenance duties or any more likely to naturally result from an impulse of emotion
related thereto. The allegations of the Amended Complaint in this regard do not allow the
Court to draw a reasonable inference that Defendants are liable on the IIED claim.
Because Plaintiff has already amended once, and did not request leave to amend in
his response brief, the Court finds that further amendment would be futile and Plaintiff’s
IIED claim will be dismissed with prejudice.6
“Where a plaintiff does not move for permission to amend the complaint, the
district court commits no error by not granting such leave.” Burnett v. Mortg. Elec.
Registration Sys., Inc., 706 F.3d 1231, 1238 n.4 (10th Cir. 2013) (citing Calderon v. Kansas
Dep't of Soc. & Rehab. Svcs., 181 F.3d 1180, 1185-87 (10th Cir. 1999); Glenn v. First Nat'l
Bank, 868 F.2d 368, 371 (10th Cir. 1989)).
Defendant Lincoln Property Company’s Motion to Dismiss [Doc. No. 19] and
Defendant Watermark Villas’ Motion to Dismiss [Doc. No. 21] are DENIED in part and
GRANTED in part as set forth herein.
IT IS SO ORDERED this 14th day of March 2019.
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