Earles v. Cleveland et al

Filing 19

ORDER granting 6 defendants' Joint Motion to Dismiss. Specifically, the Court dismisses plaintiff's state-law claims against defendants in their official capacities as untimely with prejudice to refiling, dismisses all other claims against defendants without prejudice to refiling and the Court will permit plaintiff to amend any claim that is not dismissed with prejudice to refiling (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 10/16/2018. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANDREA EARLES
Plaintiff,
v.
ROD CLEVELAND, individually and in
his Official capacity as a member of the
Board of County Commissioners for
Cleveland County;
DARY STACY, individually and in his
Official Capacity as a member of the
Board of County Commissioners for
Cleveland County;
STEPHAN KORANDA, individually
and in his Official Capacity as the
Executive Director of the Cleveland
County Fair Board;
HARLEN FIPPS, individually and in
his Official Capacity as a member of
the Cleveland County Fair Board; and
JIMMY YOUNG, individually and in his
Official Capacity as a member of the
Cleveland County Fair Board,
Defendants.

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Case No. CIV-17-1186-M

ORDER
Before the Court is the defendants’ Joint Motion to Dismiss, filed November 13, 2017. On
December 9, 2017, plaintiff filed her response, and defendants filed their reply on December 21,
2017. Upon review of the parties’ submissions, the Court makes its determination.
I.

Introduction
Plaintiff originally filed this action in the District Court of Oklahoma County on November

1, 2017—alleging, inter alia, employment discrimination on the part of defendants. Defendants in
this case include various Cleveland County officials sued in both their individual and official

capacities. Defendants thereafter removed this case to this Court, and have now moved to dismiss
plaintiff’s complaint as factually deficient. Plaintiff contends that her allegations are sufficient, yet
simultaneously moves for leave to amend, to the extent any part of defendants’ motion is granted.
II.

Dismissal Standard
Regarding the standard for determining whether to dismiss a claim pursuant to Rule

12(b)(6) for failure to state a claim upon which relief may be granted, the United States Supreme
Court has held:
To survive a 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. 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. 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. Where
a complaint pleads facts that are merely consistent with a defendant’s liability, it
stops short of the line between possibility and plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). Further,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.”
Id. at 679 (internal quotations and citations omitted). Additionally, “[a] pleading that offers labels
and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does
a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. at
678 (internal quotations and citations omitted). Finally, “[a] court reviewing the sufficiency of a
complaint presumes all of plaintiff’s factual allegations are true and construes them in the light
most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

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III.

Discussion
a. Official Capacity State-law Claims
Defendants first seek dismissal of plaintiff’s official capacity state-law claims because

plaintiff failed to comply with the Oklahoma Governmental Tort Claims Act (GTCA). As a
preliminary matter, however, plaintiff disputes the applicability of the GTCA to her state-law
claims.
The GTCA provides, in pertinent part:
A. The state or a political subdivision shall be liable for loss resulting from its torts
or the torts of its employees acting within the scope of their employment subject to
the limitations and exceptions specified in this act and only where the state or
political subdivision, if a private person or entity, would be liable for money
damages under the law of this state. The state or a political subdivision shall not
be liable under the provisions of this act for any act or omission of an employee
acting outside the scope of his employment.
B. The liability of the state or political subdivision under this act shall be exclusive
and in place of all other liability of the state, a political subdivision or employee at
common law or otherwise.
Okla. Stat. tit. 51, § 153. Further, the GTCA defines “tort” as follows:
a legal wrong, independent of contract, involving violation of a duty imposed by
general law, statute, the Constitution of the State of Oklahoma, or otherwise,
resulting in a loss to any person, association or corporation as the proximate result
of an act or omission of a political subdivision or the state or an employee acting
within the scope of employment.
Okla. Stat. tit. 51, § 152(14).
In this case, plaintiff asserts various state-law claims against defendants “individually” and
in their “official capacit[ies].” Further, despite conceding that naming a defendant in his or her
official capacity is the same as suing the entity itself, plaintiff contends that the GTCA does not
apply to her claims because she seeks to hold the individuals liable for their intentional conduct.
Having carefully reviewed plaintiff’s complaint and the submissions of both parties, the Court
finds that the GTCA applies to plaintiff’s state-law claims against defendants in their official

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capacities. As a result, for her claims to survive, plaintiff must show that she complied with the
pre-suit requisites of the GTCA.
Defendants assert that plaintiff waited too long to file her tort claim, and that her state-law
claims are now jurisdictionally barred under the GTCA. The GTCA requires plaintiff to give
defendant notice of her claim within one year of the date of injury, and then further requires her to
file suit within 180 days after defendant denies the claim. Okla. Stat. tit. 51 § 156(B), 157(A)-(B).
Moreover, the Oklahoma Supreme Court has instructed that this particular requirement
should be strictly enforced:
We determined in Cruse v. Atoka County Board of Commissioners that the
Legislature consented to judicial enforcement of tort claims in the manner narrowly
structured by the procedural requirements of §§ 156 and 157. Cruse determined
that: 1) compliance with the written notice of claim and denial of claim provisions
in §§ 156 and 157 are prerequisites to the state's consent to be sued and to the
exercise of judicial power to remedy the alleged tortious wrong by the government;
2) judicial power is invoked by the timely filing of the governmental tort claims
action pursuant to § 157; and, 3) expiration of the 180–day time period in § 157(B)
operates to bar judicial enforcement of the claim against the government to which
the Legislature waived sovereign immunity.
Shanbour v. Hollingsworth, 918 P.2d 73, 75 (Okla. 1996) In Shanbour, the court dismissed
plaintiff’s tort claim as untimely, despite falling outside of the 180-day deadline by only 2 days.
Id.
Having carefully reviewed plaintiff’s complaint and the submissions of both parties, the
Court finds that plaintiff’s claims under the GTCA are untimely. Defendants assert that plaintiff
waited five days too long after defendants denied her claim and that she did not file suit within this
180-day window. Plaintiff disagrees with defendants’ calculation of the 180-day filing period, but
not with the facts underlying defendants’ argument.1 The Court, however, agrees with defendants’

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Plaintiff does not dispute that she served the notice of the tort claim on the county clerk on Friday,
May 1, 2015. Yet, she contends that notice of the tort claim was not provided to the Board of
County Commissioners until the following Monday—rendering her ultimate filing of this suit
timely. Oklahoma law, however, requires notice to be filed with “the office of the clerk of the
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calculation of the period, and finds that plaintiff’s state-law claims against defendants in their
official capacities should be dismissed with prejudice as untimely.
b. Individual Capacity State-law Claims
1. State-law Discrimination Claim
Plaintiff seeks to hold defendants, in their individual capacities, liable under the Oklahoma
Anti-Discrimination Act (“OADA”). Yet that statute only permits actions to be filed against
employers—not individual employees. See, e.g., Okla. Stat. tit. 25 § 1301 (definition of
“employer”); Okla. Stat. 25 §§ 1302-1350 (repeatedly referring to “employer” describing
discriminatory practices). See also Fulton v. People Lease Corp., 241 P.3d 255, 261 (Okla. Civ.
App. 2010) (“We conclude the Legislature did not intend to make individual employees personally
liable for discrimination actions brought under the OADA. . ..”). Accordingly, the Court finds that
plaintiff’s OADA claim against defendants in their individual capacities must be dismissed.
2. Intentional Infliction of Emotional Distress Claim
To make out a prima facie case for intentional infliction of emotional distress (IIED),
plaintiff must allege facts that show: (1) the defendants acted intentionally or recklessly; (2) the
defendants’ conduct was extreme and outrageous; (3) the defendants’ conduct caused the plaintiff
emotional distress; and (4) the resulting emotional distress was severe. Computer Publ’ns, Inc. v.
Welton, 49 P.3d 732, 735 (Okla. 2002). The second element of this tort requires proof that the
defendant's conduct was so outrageous in character and so extreme in degree as to go beyond all
possible bounds of decency, and that such conduct is regarded as atrocious and utterly intolerable
in a civilized community. Kraszewski v. Baptist Med. Ctr. of Okla., Inc., 916 P.2d 241, 248 (Okla.
1996).

governing body” or with the “county clerk of the board of county commissioners.” Okla. Stat. tit.
51 § 156(D); Okla. Stat. tit. 19 § 5.
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Having carefully reviewed plaintiff’s complaint and the submissions of both parties, the
Court finds that plaintiff’s IIED claim is factually deficient. Plaintiff here alleges that certain
defendants spread “false and fictitious rumors” about her, retaliated against her, harassed her, and
threated her—without offering any details about these allegations. The Court finds that plaintiff
only offers naked assertions devoid of the appropriate factual enhancement, and that her IIED
claim against defendants in their individual capacities must be dismissed accordingly.
3. Conspiracy
Plaintiff alleges a civil conspiracy claim under state law against defendants in their
individual capacities. “A civil conspiracy consists of a combination of two or more persons to do
an unlawful act, or to do a lawful act by unlawful means.” Edwards v. Urice, 220 P.3d 1145, 1152
(Okla. Civ. App. 2009). Civil conspiracy itself does not create liability—it only enlarges the pool
of potential defendants from whom a plaintiff may recover. Brock v. Thompson, 948 P.2d 279, 297
(Okla. 1997). Having reviewed plaintiff’s complaint and the submissions of both parties, the Court
finds that plaintiff has failed to allege sufficient facts to state a conspiracy claim. Plaintiff only
alleges that certain defendants conspired to deprive her of the benefits of her employment
agreement. Yet she does not allege how defendants did this, nor does she specify any unlawful
activity or means used in this conspiracy. Thus, the Court finds that plaintiff’s conspiracy claim
should be dismissed.
4. Tortious Interference Claims
Plaintiff seeks to hold certain defendants liable for tortious interference with her
employment contract. To state a claim for relief, Oklahoma law requires a plaintiff to allege that
one who was not a party to the contract interfered with “that contract by convincing one of the
parties to breach its terms.” Ray v. American Nat. Bank & Trust Co. of Sapulpa, 894 P.2d 1056,
1060 (Okla. 1994). Having reviewed plaintiff’s complaint and the submissions of both parties, the
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Court finds that plaintiff’s allegations regarding her tortious interference claims are factually
deficient. Specifically, plaintiff does not allege that any defendant convinced any party to breach
its contract with plaintiff. Plaintiff only alleges that defendants failed to put a matter on the
Cleveland County Fair Board’s agenda. The Court finds that this is factually insufficient, and that
plaintiff’s tortious interference claims against defendants in their individual capacities must be
dismissed.
c. § 1983 Claims
Defendants contend that plaintiff’s § 1983 claims should be dismissed because they are not
specific enough. In § 1983 cases, defendants often include the government agency and a number
of government actors sued in their individual capacities. See Robbins v. Oklahoma, 519 F.3d 1242
(10th Cir. 2008). Therefore, it is particularly important in these cases that the complaint make clear
exactly who is alleged to have done what to whom, to provide each individual with fair notice
regarding the basis of the claims against him or her—as distinguished from collective allegations
against the state. See Twombly, 550 U.S. at 565-566 n. 10.
Having carefully reviewed plaintiff’s complaint and the submissions of both parties, the
Court finds that plaintiff’s § 1983 claims fail to meet this standard. In her claims, plaintiff
repeatedly says “defendants” violated her rights without specifying which defendant did what.
Moreover, plaintiff’s complaint is not always clear which defendant is being named under each
claim. Accordingly, the Court finds that plaintiff’s § 1983 claims should be dismissed.
d. Declaratory Relief
Plaintiff seeks declaratory relief under Oklahoma law. Specifically, she seeks a
determination that she is still an employee of the Cleveland County Fair Board because she was
never properly terminated. Plaintiff seeks relief under Okla. Stat. tit. 12 § 1651—which provides
that “courts may, in cases of actual controversy, determine rights, status, or other legal relations. .
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..” Notably, however, courts may “refuse to make a determination where the judgment, if rendered,
would not terminate the proceeding.” Id.
Having carefully reviewed plaintiff’s complaint and the submissions of both parties, the
Court finds that any relief granted to plaintiff would not terminate the proceeding and would only
spur further litigation. Specifically, any relief granted to plaintiff would then present further
grounds upon which plaintiff could sue to recover from defendants, and defendants would
undoubtedly assert defenses. The Court finds that plaintiff’s other claims for wrongful termination
and tortious behavior suffice to further plaintiff’s interests, to the extent she believes she was
improperly terminated.
e. Injunctive Relief
Plaintiff also seeks injunctive relief. Yet it is not clear what plaintiff asks this Court to
enjoin defendants from doing. For instance, plaintiff seeks to enjoin defendants from harassing or
interfering with plaintiff’s good name, but she also acknowledges that she was terminated from
her employment back in 2014. Accordingly, the Court finds that plaintiff has failed to state a claim
for injunctive relief which relief may be granted—this claim should be dismissed.
f. Leave to Amend
Finally, plaintiff has requested leave to amend, to the extent this Court grants any part of
defendants’ motion. Federal Rule of Civil Procedure 15(a)(2) provides, in pertinent part, that “a
party may amend its pleading only with the opposing party’s written consent or the court’s leave.
The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Whether
to grant leave to amend is within the trial court’s discretion. Woolsey v. Marion Labs., Inc., 934
F.2d 1452, 1462 (10th Cir. 1991). “Refusing leave to amend is generally only justified upon a
showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure
to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S.
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West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). In this case, the Court will permit plaintiff to
amend any claim that is not dismissed with prejudice to refiling.
IV.

Conclusion
For the reasons set forth above, the Court GRANTS defendants’ Joint Motion to Dismiss

[docket no. 6]. Specifically, the Court DISMISSES plaintiff’s state-law claims against defendants
in their official capacities as untimely with prejudice to refiling. The Court DISMISSES all other
claims against defendants without prejudice to refiling.
IT IS SO ORDERED this 16th day of October, 2018

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