Webb v. Murray

CANDY N. WEBB, Plaintiff, v. DON MURRAY, and SELINA JAYNE-DORNAN. Defendants.

Case No. CIV-18-01-SPS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

November 8, 2018

OPINION AND ORDER

This matter comes before the Court on motion for summary judgment by the Defendants Don Murray and Selina Jayne-Dornan. For the reasons set forth below, the Court finds that the Defendants' Motion for Summary Judgment and Brief in Support [Docket No. 30] should be GRANTED as to the Plaintiff's claim for gender discrimination pursuant to 42 U.S.C. § 1983. The Court further finds that the Plaintiff's remaining state law claim for malicious interference with a contractual relationship should be remanded to the District Court of McIntosh County.

PROCEDURAL HISTORY

The Plaintiff filed suit against the Defendants and the City of Eufaula in the District Court of McIntosh County, Case No. CJ-17-46, on June 26, 2017. The Defendants removed the case to this Court on January 3, 2018, asserting federal question jurisdiction pursuant to 28 U.S.C. § 1331 on the basis of the Section 1983 claim against the Defendant Murray. The Plaintiff's petition also set out three state law claims: malicious interference with a contractual relationship and intentional infliction of severe emotional distress against the Defendants Murray and Jayne-Dornan, and breach of contract against the City of Eufaula. Upon motion by the Defendants, the Court dismissed the petition for lack of subject matter jurisdiction but granted the Plaintiff leave to file an amended complaint. See Docket No. 17. On August 8, 2018, the Plaintiff filed her First Amended Complaint raising the same four claims, and Defendants again moved for dismissal. See Docket Nos. 18-19. The Court dismissed the Plaintiff's claim for breach of contract (which disposed of the case in its entirety as to the City of Eufaula) as well as the state court claim for intentional infliction of emotional distress, leaving Plaintiff with her Section 1983 gender discrimination claim against Defendant Murray and her malicious interference claim against both individual Defendants.

LAW APPLICABLE

Summary judgment should be granted if the record shows that "there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party has the burden of showing the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), and the evidence is to be taken in the light most favorable to the non-moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, an adverse party must "properly support an assertion of fact or . . . properly address another party's assertion of fact as required by Rule 56(c)" by "citing to particularparts of materials in the record . . . or . . . showing that the materials cited do not establish the absence or presence of a genuine dispute[.]" Fed. R. Civ. P. 56(c).

FACTUAL BACKGROUND

The relevant undisputed facts¹ in this case reflect that the Plaintiff was hired in September 2013 as a police officer for the City of Eufaula. At the time she was hired, the Plaintiff knew that she would have to take and pass a physical agility test. See Docket No. 30, Ex. 3, p. 3. On May 6, 2014, the Plaintiff took the physical agility test in Ada, Oklahoma, and did not pass, testifying that she injured her knee during this first attempt. See Docket Nos. 30, Ex. 3, p. 5; 40, Ex. 1, p. 1. The claimant testified at her deposition that she took the test again that same day and again did not pass. See Docket No. 30, Ex. 3, pp. 5-6.

The Plaintiff sought medical care for her knee injury the following day, and Physician's Assistant Brandy Tiger wrote a letter on May 7, 2014 stating that the Plaintiff was under medical care and could not return to work for six days, until May 13, 2014. See id., Ex. 4. Ms. Tiger then drafted a letter on May 12, 2014, stating that the Plaintiff could not return to work for "1-2 day(s)" and that she could return to work on May 14, 2014, but that her activity would be restricted to "no climbing, running, kneeling for 2-3 weeks formoderate to severe knee sprain," and that she needed three to four weeks to allow the swelling to improve. See id., Ex. 5. At some point in May 2014, Defendant Murray, as Chief of the Eufaula Police Department, told the Plaintiff that she would have to re-take the physical agility test on June 12, 2014. See Docket No. 30, Ex. 11; No. 40, pp. 3-4, ¶ 8. At this time, Defendant Murray informed the Plaintiff that if she did not pass this test, she would be terminated. See Docket No. 30, Ex. 3, p. 13.

On May 28, 2014, Defendant Murray sent a hand-delivered letter to the Plaintiff stating that, as a result of Ms. Tiger's May 14, 2014 letter, she would be placed on modified duties beginning Thursday, May 29, 2014. See Docket No. 30., Ex. 6. That same day, Dr. Barbara Tuley wrote a letter stating that the Plaintiff needed a temporary medical leave until her next medical visit on June 3, 2014. See id., Ex. 7. On June 3, 2014, Dr. Tuley then drafted a letter stating that the Plaintiff was under medical care and could not return to work until June 10, 2014. The note indicates that there were no activity restrictions upon the Plaintiff's return to work. See id., Ex. 9. On June 10, 2014, Dr. Tuley drafted a final letter, reiterating that the Plaintiff could return to work on June 11, 2014, with no activity restrictions. See id., Ex. 10.

The Plaintiff did not appear for the physical agility test on June 12, 2014, and Defendant Murray informed her via letter that same day that her employment had been terminated as a result. See id., Ex. 11. On June 16, 2014, Defendant Murray had a letter hand delivered to the Plaintiff, informing her that there would be a pre-determination hearing at the office of Mayor Selina Jayne-Dornan, co-Defendant, as to two incidents: (i) her failure to appear for the physical agility test on June 12, 2014, and (ii) conductunbecoming an officer. See id., Ex. 12. Defendant Jayne-Dornan then had a Notice of Recommendation of Termination, dated June 23, 2014, hand delivered to the Plaintiff. In it, she stated that she concurred with Defendant Murray's recommendation for termination of Plaintiff's employment. See id., Ex. 14. The Plaintiff appealed her termination to the City Council, and it was upheld on July 29, 2014. See id., Ex. 15.

The Plaintiff further testified at her deposition that she was unaware of any female police officers for the City of Eufaula who had failed the CLEET requirement but allowed to keep their job, and that she was unaware of any male police officers who had failed the CLEET agility test but had nevertheless retained their positions. See id., Ex. 3, pp. 19-20. Nor was the Plaintiff aware of female or male police officers who had taken temporary medical leave, returned to work, failed to meet the agility requirements, and were treated differently. Id.

ANALYSIS

The Defendants contend that they are entitled to summary judgment on the two remaining claims in this case for gender discrimination and malicious interference with a contractual relationship. The Court agrees with respect to the gender discrimination claim but concludes that the malicious interference with a contract claim should be remanded to the District Court of McIntosh County for disposition.

Section 1983 Claim. As an initial matter, the Court notes that Defendant Murray has asserted a number of arguments related to a gender discrimination claim arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, e. g., that the Plaintiff failed to exhaust her administrative remedies. Such arguments are irrelevant here, as the Plaintiffhas not asserted such a claim but instead a Section 1983 claim for gender discrimination. See Wood v. City of Topeka, Kan., Topeka Housing Authority, 90 F. Supp. 2d 1173, 1187 (D. Kan. 2000) ("[G]ender discrimination [] can violate the Equal Protection Clause of the Fourteenth Amendment and trigger a §1983 cause of action[.]"). See also Brown v. Hartshorne Public School Dist. No. 1, 864 F.2d 680, 683 (10th Cir. 1988) ("Claims under section 1983 and Title VII differ significantly in their statutes of limitations, exhaustion requirements, and available remedies. The most important distinction [] is that a section 1983 plaintiff need not comply with the exhaustion requirements of Title VII."); Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir. 1989) ("If a plaintiff can show a constitutional violation by someone acting under color of state law, then the plaintiff has a cause of action under Section 1983, regardless of Title VII's concurrent application."). The Defendant Murray does, however, assert that the Plaintiff cannot establish a prima facie case of gender discrimination, which is relevant to a Section 1983 claim. As is the case with a Title VII claim, a Section 1983 gender discrimination claim is evaluated under the familiar burden-shifting test set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) where there is no direct evidence of gender discrimination. See Adamson v. Multi Community Diversified Services, Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

The Tenth Circuit discussed the McDonnell Douglas test in English v. Colorado Dept. of Corrections, 248 F.3d 1002 (10th Cir. 2001):

In order to survive summary judgment, a plaintiff relying on McDonnell Douglas bears an initial burden of establishing a prima facie case intended to eliminate the most common nondiscriminatory reasons that might account for the adverse employment action. Once the plaintiff has established a prima facie case, the burden then 'shift[s] to the employer to

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