Pendergraft v. Bd. of Regents of Okla. Colls.

MARK A. PENDERGRAFT, Plaintiff, v. BOARD OF REGENTS OF OKLAHOMA COLLEGES,DAVID MISAK, in his individual capacity; and TODD THURMAN, in his individual capacity. Defendants.

Case No. CV-18-793-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

August 13, 2019

ORDER

Before the Court is Defendants' Partial Motion to Dismiss [Doc. No. 22]. Plaintiff, appearing pro se, has responded [Doc. No. 31] and Defendants have replied [Doc. No. 32]. The matter is fully briefed and at issue.

BACKGROUND

Plaintiff applied for a position as an assistant softball coach at Southwestern Oklahoma State University ("SWOSU"). On August 8, 2016, Plaintiff was informed by SWOSU Head Softball Coach, Kim Maher, that Todd Thurman, Athletic Director, had approved hiring him for the position. During that conversation Plaintiff was formally offered an employment contract and Plaintiff accepted.

The SWOSU Human Resource Department contacted Plaintiff to schedule an appointment for him to sign his employment contract. On August 9, 2016, Plaintiff signed the employment contract but was not provided a copy.

The employment contract provided that Plaintiff would be paid an annual salary of $5600.00 to be paid in two payments of $2,800.00 and that as a Graduate Assistant Plaintiff would be eligible for a tuition waiver each semester. August 15, 2016, was Plaintiff's first day on the job.

On August 19, 2016, Plaintiff was informed by Mr. Thurman that SWOSU donors wanted to hire a female assistant softball coach. Plaintiff was asked to sign a new employment contract to allow SWOSU to hire the female assistant coach and was informed that his compensation package would be transferred to her. Plaintiff was told he should work for SWOSU for free and when a position in the baseball program became available he would be informed first. Plaintiff refused and was informed that if he did not agree to the new employment contract, he would be fired.

Plaintiff immediately went to discuss the matter with David Misak, Director of the SWOSU Human Resource Department. Mr. Misak informed Plaintiff that the university would be more comfortable with a female assistant softball coach and that unless a future position opened up in the baseball program, Plaintiff's employment was terminated. Plaintiff informed Mr. Misak that the staff handbook stated that he was entitled to a hearing, requested to speak with the EEOC Director, and requested documentation of his termination.

Plaintiff did not receive a hearing and was not provided with EEOC compliance information or documentation related to his termination. Subsequent to his termination, SWOSU employed the female assistant coach at a salary twice the amount Plaintiff was to be paid.

On October 26, 2018, Plaintiff filed his Amended Complaint against the Board of Regents of Oklahoma Colleges ("BROC"), David Misak, in his individual and official capacity, and Todd Thurman, in his individual and official capacity. The Amended Complaint asserts the following claims against all Defendants in their individual and official capacities: (Count I) violation of the Equal Pay Act of 1963; (Count II) discrimination based on sex in violation of Title VII; (Count III) tortious interference with business relations; (Count IV) breach of contract; (Count V) tortious interference with prospective economic advantage; and, (Count VI) conspiracy to wrongfully and unlawfully terminate Plaintiff.

Defendants move to dismiss Count I (against the individual Defendants), and Counts II, III, V, and VI of the Amended Complaint.¹

STANDARD OF REVIEW

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.

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)). "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 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 that 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 well pled 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.

DISCUSSION

In this case, Defendants make a factual challenge under Rule 12(b)(1) because they attack the facts upon which Plaintiff asserts subject matter jurisdiction, and in support thereof submit evidence outside the pleadings. Defendants also move for dismissal under Rule 12(b)(6) asserting Plaintiff has failed to: (1) state any claim for which relief can be granted against individual Defendants in their official capacities; (2) state a claim for which relief can be granted against individual Defendants for violation of the Equal Pay Act; (3) exhaust administrative remedies prior to bringing his Title VII suit; (4) state a claim for which relief can be granted as to conspiracy; and, (5) comply with Oklahoma's Governmental Tort Claims Act ("GTCA"). Defendants also contend that: (1) BROC cannot be held liable for intentional torts of its employees under the GTCA; and, (2) all actions taken by Misak and Thurman were in the course and scope of their employment and therefore Plaintiff has no claims against individual Defendants in their individual capacity.

I. Counts I and II Against Individual Defendants

Plaintiff concedes that his Equal Pay Act and Title VII claims (Counts I and II) can only be brought against Defendant BROC. Response at 14, 15. Accordingly, Defendants' Counts I and II with regard to Defendants Misak and Thurman are dismissed with prejudice.

II. Title VII Gender Discrimination Claim (Count II) Against Defendant BROC

Defendants assert that Plaintiff's claims for violation of Title VII, 42 U.S.C. § 2000e, should be dismissed for lack of jurisdiction or for failure to state a claim as Plaintiff has failed to allege he has exhausted all necessary administrative remedies. Motion at 7. Specifically, Defendants point to Plaintiff's failure to allege he filed a charge with the EEOC as required by the filing provisions of Title VII, 42 U.S.C.A. § 2000e-5(e)(1). In response, Plaintiff concedes that he failed to allege he filed a charge with the EEOC but states that this was due to Defendants' failure to provide necessary information. Response at 15 - 16. Instead, Plaintiff states he alleged an "attempt" to file a charge and asserts this is sufficient. Response at 15.

A. Subject Matter Jurisdiction

Prior to the Tenth Circuit's decision in Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018), failure to exhaust administrative remedies was a jurisdictional prerequisite to filing suit. In Lincoln, the Tenth Circuit reversed long-standing precedent by holding that "a plaintiff's failure to file an EEOC charge regarding a discrete employment...