Hall v. Okla. Dep't of Rehab. Servs.

ANDREA J. HALL, Plaintiff, v. OKLAHOMA DEPARTMENT OF REHABILITATION SERVICES, Defendant.

Case No. CIV-17-497-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

February 20, 2018

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 todismiss, 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 itinnocent, 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,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,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 fromsovereign 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 bystate 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...