Hughey v. Trinity Containers Llc et al

MOTION to Dismiss for Failure to State a Claim and Brief in Support

N.D. Okla.July 27, 2016

DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA 1) TERESA HUGHEY, ) ) Plaintiff, ) ) v. ) Case No. 16-cv-499-TCK-FHM ) 1) TRINITY CONTAINERS LLC; and ) 2) MARTY MOATS ) ) Defendants. ) DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS AND BRIEF IN SUPPORT Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants Trinity Contains, LLC (“Trinity”) and Marty Moats (“Moats”) (collectively (“Defendants”), respectfully move the Court to dismiss this action for failure of Plaintiff to state a claim upon which relief may be granted. In support of this Motion, Defendants submit this Brief in Support. I. INTRODUCTION Plaintiff, a former employee of Trinity, brought the instant suit against Trinity on January 4, 2016, alleging termination in violation of Oklahoma’s public policy. On July 5, 2016, Plaintiff amended her Complaint1 to add Defendant Marty Moats, Plaintiff’s former supervisor, and allege four (4) total claims: (1) termination in violation of Oklahoma public policy; (2) defamation; (3) fraudulent inducement; and (4) intentional infliction of emotional distress. As this brief will demonstrate, all of Plaintiff’s claims fail as a matter of law and should be dismissed. Plaintiff’s claim for termination in violation of Oklahoma’s public policy fails 1 Plaintiff initiated this litigation by filing her Petition in the District Court in and for Tulsa County, State of Oklahoma on January 4, 2016. Plaintiff filed her First Amended Petition on July 5, 2016 and Defendants removed this litigation to this Court. Consequently, Defendants will refer to Plaintiff’s First Amended Petition as Plaintiff’s Amended Complaint. Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 1 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 2 because Plaintiff has not and cannot set forth an Oklahoma public policy goal that is clearly articulated in existing Oklahoma law - constitutional, statutory, or jurisprudential - which is required to support such a claim. Plaintiff’s defamation claims premised upon Trinity’s response to Plaintiff’s claim for unemployment benefits fails because communications made during proceedings through the Oklahoma Employment Security Commission (“OESC”) are privileged and cannot, as a matter of law, serve as the basis for a defamation claim (or intentional infliction of emotional distress claim). Plaintiff’s fraudulent inducement claim fails as against Moats because fraudulent inducement in hiring, as alleged by Plaintiff, is limited to employers - not individuals. In any event, Plaintiff’s fraudulent inducement claim fails against all Defendants because Plaintiff has failed to plead all of the elements constituting fraud with the particularity required by Fed.R.Civ.P. 9(b). Finally, Plaintiff’s intentional infliction of emotional distress claim fails as a matter of law because Plaintiff has not and cannot allege facts sufficient to sustain any element of an intentional infliction of emotional distress claim - particularly facts showing extreme and outrageous conduct on the part of Trinity or Moats. II. ARGUMENTS AND AUTHORITIES A. STANDARDS FOR DISMISSAL A motion to dismiss under Rule 12(b)(6) challenges whether the allegations are sufficient to state claims for relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. See Fed. R. Civ. P. 12(b)(6); Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Khalik v. United Airlines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 2 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 3 Twombly, 550 U.S. at 570). The pleading standard in Rule 8(a) of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), (citing 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.” Id. (citing Twombly, 550 U.S. at 556)(emphasis added). “Mere possibility of misconduct” is not enough to show entitlement to relief under Rule 8 and is certainly not enough to “nudge[] [plaintiff’s] claims of invidious discrimination ‘across the line from conceivable to plausible.’” Iqbal, 556 U.S. at 679-80. “[T]he tenet that a Court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. Thus, to avoid dismissal at the pleading stage, a complaint must contain well-pleaded factual allegations that plausibly give rise to an entitlement to relief. See Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. The Twombly and Iqbal decisions prescribe a two-step process for analyzing the sufficiency of a complaint. First, the Court should identify the allegations in the complaint that are not entitled to the assumption of truth. In particular, the Court must disregard “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Twombly, 550 U.S. at 555, 557; Iqbal, 556 U.S. at 678-80. Second, the Court must consider the remaining factual allegations in the petition to determine if they plausibly suggest an entitlement to relief. Facts that are merely consistent with a defendant’s liability “stop[] short of the line between possibility and Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 3 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 4 plausibility of entitlement to relief.” Twombly, 550 U.S. at 557; Iqbal, 556 U.S. at 678. Rather, “factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (emphasis added). Only then do they fulfill the requirement of Federal Rule of Civil Procedure 8(a)(2) that the petition provide the defendant with “fair notice of what the . . . claim is and the grounds upon which it rests.” Id. Under the Iqbal/Twombly standards, Plaintiff has not adequately pled any of her claims. As detailed below, Plaintiff’s allegations of unlawful conduct are simply “labels and conclusions” and “formulaic recitation[s] of the elements of the cause[s] of action.” See Twombly, 550 U.S. at 555, 557; Iqbal, 556 U.S. at 678-80. For each of her claims, Plaintiff either fails to offer any facts to support one or more of the necessary elements, or she simply alleges the ultimate factual conclusion without any supporting factual content that would render her conclusion plausible. She certainly does not provide any factual allegations that “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555. Because Plaintiff has failed to allege sufficient facts in support of her claims for relief, the Court must dismiss her Amended Complaint. B. PLAINTIFF’S PUBLIC POLICY TORT CLAIM SHOULD BE DISMISSED. Plaintiff’s first cause of action alleges that Trinity terminated her employment in violation of Oklahoma public policy. Specifically, Plaintiff alleges that she was terminated in retaliation for alerting customers to the lack of inspections on the wind towers produced by Trinity and for her efforts to “rectify the serious misrepresentations and high-risk lack of inspections.” [Amended Complaint, ¶9] Plaintiff further claims that the lack of inspections “presented a serious and significant safety issue to the public at large” and that she was Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 4 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 5 terminated in violation of “clear public policy of the state of Oklahoma.” [Amended Complaint, ¶¶9-10] Plaintiff does not identify the precise Oklahoma public policy that she relies upon. Plaintiff’s allegations are insufficient, as a matter of law, to state a public policy tort claim as articulated in Burk v. K-Mart, 770 P.2d 24 (Okla. 1989) (“Burk tort”). The Burk tort is a judicially-created, limited exception to the employment at-will doctrine. See Wilburn v. Mid-South Health Dev’t, Inc., 343 F.3d 1274, 1277 (10th Cir. 2003). The limited public policy exception to the employment at-will doctrine “must be tightly circumscribed” and is only available “where an employee is discharged for refusing to act in violation of a clear, established public policy or for performing an act consistent with a clear and compelling public policy. See id. Thus, to prevail on a claim of wrongful discharge in violation of Oklahoma public policy, a plaintiff must first identify an Oklahoma policy goal that is well established, clear and compelling, and articulated in existing constitutional, statutory or jurisprudential law. See Clinton v. State, 29 P.3d 543, 545 (Okla. 2001); Burk, 770 P.2d at 29 (courts must “screen cases on motions to dismiss for failure to state a claim or for summary judgment if the discharged employee cannot allege a clear expression of public policy.”). The determination of public policy is a question of law to be resolved by the court. See McCrady v. Oklahoma Dep’t of Pub. Safety, 122 P.3d 473, 475 (Okla. 2005). Here, Plaintiff’s Burk tort is subject to dismissal because she has failed to articulate any Oklahoma public policy in her Amended Complaint. Plaintiff’s omission is not surprising in light of the fact that there is no well-established, clear and compelling public policy articulated in Oklahoma law protecting an employee who allegedly reports a lack of quality inspections on wind turbines. Even if Plaintiff could identify an Oklahoma statute governing inspections on wind turbines, to be sufficient to support a Burk tort, that statute “must have explicitly stated in its provisions an intent to affect the employment relationship.” Martin v. Weyerhaeuser Co., 616 F.Supp.2d 1210 (E.D. Okla. 2007) (holding specific statutes identified by the plaintiff in support of his Burk tort claim were Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 5 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 6 insufficient to state a Burk tort claim because those statutes did not express any type of public policy to affect an employer’s relationship to its employee or could be read to intend to prevent the termination of an employee); see also Kisselburg v. AR Allen Group, Inc., No. CIV-05-0715-F, 2005 WL 2897431 (W.D. Okla. Nov. 1, 2005)(“To support a Burk tort, not only must this clear mandate of public policy be articulated in Oklahoma constitutional, statutory, regulatory, or decisional law, the asserted public policy must support the plaintiff's specific whistleblowing activity…That is to say, the public policy must govern the plaintiff's situation or encourage the type of reporting which allegedly occurred). Plaintiff has not and cannot make the requisite showing to support her Burk tort claim. Accordingly, Plaintiff’s claim for wrongful termination in violation of Oklahoma public policy should be dismissed. See e.g. Mazzanti v. City of Owasso, No. 12-CV-022-GKF-PJC, 2012 WL 2505504 (N.D. Okla. June 28, 2012) (dismissing the plaintiff’s Burk tort claim under Fed.R.Civ.P. 12(b)(6) for failure to identify a clear and compelling public policy); Gooden v. Omni Air Transport L.L.C., No. 06-CV-618-GKF-FHM, 2008 WL 686882 (N.D. Okla. Mar. 10, 2008) (same). C. PLAINTIFF’S DEFAMATION CLAIM SHOULD BE DISMISSED. Count Two of Plaintiff’s Amended Complaint alleges defamation. Specifically, Plaintiff alleges that her reputation was damaged as a result of Trinity’s misrepresentations about Plaintiff during the hearing on unemployment benefits. [Amended Complaint, ¶12] This claim, however, fails as a matter of law because communications made during a hearing before the Oklahoma Employment Security Commission (“OESC”) proceeding are absolutely privileged and bar claims for defamation. See Lindsey v. Brinker Intern Payroll Co. LP, No. CIV-11-0396-HE, 2011 WL 2493047 (W.D. Okla. June 22, 2011). In Lindsey, the plaintiff claimed that the defendant made slanderous statements during the OESC process. The court found that the statements were privileged and stated: Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 6 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 7 Oklahoma recognizes that parties to a suit are immune from defamation or similar liability for communications made during, or preliminary to, judicial proceedings as long as the communication is in some way relevant to the proceeding. Further, the privilege extends to communications made in connection with administrative proceedings which are quasi-judicial in nature. Id. at *4 (citing Kirschstein v. Haynes, 788 P.2d 941 (Okla. 1990). Because defamation claims based on alleged statements made during OESC hearings are barred, Plaintiff’s defamation claim must be dismissed. D. PLAINTIFF’S FRAUDULENT INDUCEMENT CLAIM SHOULD BE DISMISSED. Plaintiff alleges that “Defendants actively recruited Plaintiff to work at their facility…under the false premise that she would have a job with less stress, less hours, and better pay.” [Amended Complaint, ¶14] In other words, Plaintiff alleges that Trinity and presumably Mr. Moats (though not mentioned by name) fraudulently induced Plaintiff to leave her prior employer to work for Trinity. As an initial matter, Oklahoma has recognized an at-will employee’s right to bring an action against a former employer for fraudulent misrepresentation during the hiring process. See Stehm v. Nordam Group, Inc., 170 P.3d 546 (Okla. Ct. App. 2007). In recognizing this tort for the first time, the Court did so based on its finding that an employer has a duty to assure the information disclosed to a prospective employee during the pre-hiring/recruitment process is not false or misleading. See id. at 549. In contrast, Oklahoma courts have not held that an individual has a corresponding duty. Indeed, there are no cases in which an individual was held liable for fraudulent misrepresentation in the hiring process. For these reasons, any fraudulent inducement claim brought against individual Defendant Moats should be dismissed. In any event, Plaintiff’s fraudulent inducement should be dismissed against both Defendants for failure to state a claim. In order to state an action for fraudulent Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 7 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 8 misrepresentation and/or concealment in hiring, Oklahoma requires the plaintiff to show “(1) the employer misrepresented or concealed a material fact during the hiring process, (2) the employer had knowledge of the falsity of the fact or lacked reasonable grounds for believing it to be true, (3) the employer intended to induce the employee’s reliance, (4) the employee justifiably relied upon the misrepresentation, and (5) damages resulted.” Stehm, 170 P.3d at 549. Further, Plaintiff must plead fraud with particularity. See Fed.R.Civ.P. 9(b). This means that “a complaint must ‘set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.’” Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir.1997) (quoting Lawrence Nat’l Bank v. Edmonds (In re Edmonds ), 924 F.2d 176, 180 (10th Cir.1991)). Here, Plaintiff’s Amended Complaint lacks the requisite particularity to plead a fraud claim. Plaintiff generically claims that “Defendants” recruited her under the “false premise that she would have a job with less stress, less hours, and better pay.” [Amended Complaint, ¶14] Plaintiff fails to provide any specific information as to the precise “false representation” made, let alone when it was made, where it was made or the individual alleged to have made the “false representation.” Further, the Amended Complaint contains no factual allegation that the unidentified individuals knew the alleged “false representation” was, in fact, false. In short, Plaintiff’s Amended Complaint is insufficient to state a claim for fraudulent inducement in the hiring process and must be dismissed. See Baker v. Velocity Express Inc., No. CIV-08-417-M, 2008 WL 4319978 (W.D. Okla. Sept. 16, 2008) (dismissing fraudulent inducement claim where plaintiff failed to plead the fraud with particularity). Even if Plaintiff could state the elements of a fraud claim, she has waived any claim for fraud in her hiring by remaining employed from September 2013 until her termination in January Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 8 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 9 2015 - nearly 17 months - and hoping to be promoted to an “auditor” position. [Amended Complaint, ¶¶5 and 8] In Colagrossi v. UBS Securities, LLC, 2015 IL App. (1st) 133694-U, 2015 WL 5042899 (Ill. App. Ct. Aug. 21 2015), the court affirmed the dismissal of the plaintiff’s fraudulent inducement claim because the plaintiff continued to work for the employer for six (6) months after learning of the alleged fraud and affirmed his employment by changing the terms of his employment. In analyzing the issue, the court stated: When a person has been misled by fraud or misrepresentation, he must disaffirm or abandon the transaction with all reasonable diligence as soon as he learns the truth. By failing to do so, a person waives relief from the misrepresentations. The purpose of the waiver rule has been described as follows: [o]ne is not permitted to lie back and speculate as to whether avoidance or affirmance will ultimately prove more profitable. Id. at *12 (internal citations omitted). Here, Plaintiff’s own allegations establish a waiver. Plaintiff remained employed for nearly a year and half and, according to her Amended Complaint, hoped to be promoted to an “auditor” position. [Amended Complaint, ¶¶5 and 8] These are hardly facts that establish that Plaintiff’s employment with Trinity was “intolerable.” [Amended Complaint, ¶14] Because Plaintiff has waived any fraudulent inducement claim, Count Three: Fraudulent inducement Causing Detrimental Reliance and Damages should be dismissed with prejudice. E. PLAINTIFF’S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM SHOULD BE DISMISSED. Plaintiff's “facts” regarding her claim for alleged intentional infliction of emotional distress (“IIED”) are wholly deficient, as a matter of law, to state a cause of action for IIED. To survive a motion to dismiss and state a claim for IIED under Oklahoma law, a plaintiff must allege facts demonstrating: (1) the defendant acted intentionally or recklessly; Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 9 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 10 (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s conduct caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. See Hernoe v. Lone Star Indus., No. 12-CV-0167-CVE-TLW, 2012 WL 1991241, at *4 (N.D. Okla. May 31, 2012) (quoting Schovanec v. Archdiocese of Oklahoma City, 188 P.3d 158, 175 (Okla. 2008)). It is well settled that Oklahoma courts follow the narrow standards laid out in the Restatement Second of Torts §46 and will strictly demand a showing as to each of the foregoing requirements for an IIED claim. See id. Here, Plaintiff's Amended Complaint fails to allege facts sufficient to sustain any of the elements of an IIED claim, but in particular Plaintiff’s Amended Complaint fails to allege facts supporting extreme and outrageous conduct on the part of Trinity and Moats or that Plaintiff suffered severe emotional distress. 1. The Conduct Alleged Does Not Rise to the Level of Extreme and Outrageous Conduct Necessary for an IIED Claim. Plaintiff has failed to allege the necessary facts of extreme and outrageous conduct by Defendants to state an IIED claim. In Oklahoma, the trial court assumes a “gatekeeper role’” to make the initial determination of whether the defendant’s conduct was sufficiently extreme and outrageous to meet the Restatement §46 standards. See Robbins Motorsports, LLC v. Nat’l Fire & Marine Ins. Co., No. CIV-10-245-JHP, 2011 WL 2174911, at *3 (E.D. Okla. June 3, 2011) (granting Rule 12(b)(6) motion to dismiss IIED claim and recognizing that under Oklahoma law the trial court “must assume a ‘gatekeeper role” to ensure the Restatement § 46 standards have been met); Fifer v. City of Tulsa, No. 12-CV-0408-CVE-FHM, 2012 WL 4758127 (N.D. Okla. Oct. 5, 2012) (same). Courts in the Tenth Circuit, applying Oklahoma law, have held that the conduct alleged must have been “beyond all bounds of decency in the setting in which it occurred” and “utterly intolerable in a civilized community.” See, e.g., Hamby v. Associated Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 10 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 11 Ctrs. for Therapy, 230 Fed. Appx. 772, 788 (10th Cir 2007) (affirming dismissal of IIED). Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, “Outrageous!” Breeden v. League Services Corp., 575 P.2d 1374, 1376 (Okla. 1978) (quoting Restatement (Second) of Torts §46 cmt. d (1965)); Robbins, 2011 WL 2174911, at *3 (granting motion to dismiss under Rule 12(b)(6) on IIED claim and holding that “merely claiming outrageous conduct is insufficient”). Significantly, in the context of employment discrimination, Oklahoma “appellate courts have consistently found that employment related facts…do not meet the [Restatement] §46 criteria.” Hernoe, 2012 WL 1991241, at *4 (quoting Gabler v. Holder & Smith, Inc., 11 P.3d 1269, 1280 (Okla. Civ. App. 2000) (“general allegations of workplace discrimination do not state a plausible claim of intentional infliction with emotional distress”). The only factual allegation in Plaintiff’s Amended Complaint relating to her IIED claim is that Defendants allegedly made misrepresentations about Plaintiff during the unemployment benefit hearing. However, as noted above, the Oklahoma Supreme Court has definitively recognized that communications made preliminary to or during judicial or quasi-judicial proceedings (like unemployment hearings) are absolutely privileged and that the privilege bars claims for defamation, as well as claims for intentional infliction of emotional distress, based on the same factual allegations. See Kirschstein v. Haynes, 788 P.2d 941 (Okla. 1990) (superseded by statute on other grounds). Consequently, Plaintiff’s single factual allegation in support of her IIED claim cannot, as a matter of law, provide a basis for her IIED claim. The remaining “support” for Plaintiff's IIED claim consists of conclusory allegations mirroring the elements of an IIED claim. For example, Plaintiff claims that Trinity and Moats treated her in a way that was “intolerable in a civilized community.” [Amended Complaint, ¶15] Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 11 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 12 Plaintiff further claims that Defendants “mistreated” her and treated her “unfairly.” [Id.] In Janzen v. Watonga Hosp. Trust Auth., No. CIV-11-70-D, 2011 WL 5415329 *9 (W.D. Okla. Nov. 8, 2011), the court held that plaintiff’s complaint setting forth similar allegations failed to satisfy Twombly’s pleading requirements for an IIED claim because it presented only conclusory allegations that merely recited the elements of a cause of action. The complaint in Janzen stated that the “conduct of [d]efendants was extreme and outrageous and done with the intention of causing or with reckless disregard of causing [p]laintiff severe emotional distress and that she in fact suffered such distress.” See id. at *8. The court observed that when claiming IIED, a plaintiff must plead facts to show that the defendant’s conduct was beyond all possible bounds of decency in the setting in which it occurred, or utterly intolerable in a civilized community. See id. In denying the plaintiff leave to amend, the court noted that “Oklahoma has repeatedly rejected claims of IIED in the employment setting.” Id. at *9-10. As in Janzen, Plaintiff's Amended Complaint in the instant case fails to satisfy Twombly’s pleading requirements because it presents only conclusory allegations which merely recite that the unidentified actions of Trinity and Moats were “intolerable” and “unfair.” Because Plaintiff’s Amended Complaint does not offer any facts sufficient to support a showing that Defendants engaged in extreme or outrageous conduct, Plaintiff's claim for IIED should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Furthermore, Plaintiff's IIED claim should be dismissed with prejudice because, generally speaking, allegations of discriminatory treatment - far worse than “unfair” treatment - in the employment setting are rarely viewed as extreme and outrageous under Oklahoma law. See e.g. Gabler v. Holder & Smith, Inc., 11 P.3d 1269 (Okla. Civ. App. 2000) (noting that workplace harassment rarely rises to the level of extreme and outrageous conduct); Mirzaie v. Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 12 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 13 Smith Cogeneration, Inc., 962 P.2d 678 (Okla. Civ. App. 1998) (employer’s conduct was not extreme and outrageous when, inter alia, the plaintiff’s manager made derogatory sexual remarks about the plaintiff, woke plaintiff up in the middle of the night to do unnecessary work, and terminated him two hours before his wedding); Zahorsky v. Community Nat'l Bank of Alva, 883 P.2d 198 (Okla. Civ. App. 1994) (employer not liable for intentional infliction of emotional distress when an employee forced the plaintiff to have sex with him and employer failed to fire the employee, even though the employer allegedly knew about the conduct). Accordingly, Plaintiff’s IIED claim fails as a matter of law and should be dismissed with prejudice. See e.g. Wheeler v. Spirit Aerosystems, Inc., Case No. 13-CV-421-CVE-TLW (granting Defendant’s 12(b)(6) motion on plaintiff’s IIED claim because her allegations were not sufficient to state a claim for intentional infliction of emotional distress); Johnson v. ORS Nasco, LLC, Case No. 13- CV-777-JED-PJC (the type of conduct alleged here in an employment setting will rarely be viewed as extreme and outrageous); Bingaman v. Spirit Aerosystems, Inc., Case No. 14-CV-677- GKF-PJC (dismissing the plaintiff’s IIED claim on a 12(b)(6) motion because plaintiff’s allegations could not support an inference that defendant engaged in extreme and outrageous conduct).2 2. Plaintiff Fails to Allege Facts to Establish Severe Emotional Distress. Additionally, this Court should dismiss Plaintiff’s IIED claim because Plaintiff’s Amended Complaint fails to allege any facts to support that Plaintiff actually suffered severe emotional distress. Plaintiff's Amended Complaint merely offers conclusory statements of severe emotional distress, which do not suffice. See Twombly, 550 U.S. at 570. Indeed, Plaintiff alleges only that she suffered “severe distress” and the emotional distress was “unbearable and severe.” 2 See orders collectively attached hereto as Exhibit “1”. Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 13 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 14 Plaintiff fails to set forth any facts regarding her mental or emotional states, much less distress which “is so severe that no reasonable [wo]man could be expected to endure it.” See Robbins, 2011 WL 2174911, at *3 (granting Rule 12(b)(6) motion to dismiss IIED claim where plaintiff “does not set forth any facts regarding his mental or emotional state, much less distress which is so severe that no reasonable man could be expected to endure it.”). Accordingly, Plaintiff’s IIED claim should be dismissed for the additional reason that Plaintiff has failed to allege facts to support that she has suffered severe emotional distress to meet the high standard for stating a claim of IIED. III. CONCLUSION For the foregoing reasons, Defendants respectfully request this Court to dismiss Plaintiff’s claims pursuant to Fed.R.Civ.P. 12(b)(6). Respectfully submitted, s/ Stephanie Johnson Manning EVA W. TURNER Texas Bar No. 24051485 eva.turner@ogletreedeakins.com STEPHANIE JOHNSON MANNING Oklahoma Bar No. 18741 Texas Bar No. 24099422 stephanie.manning@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Preston Commons West 8117 Preston Road, Suite 500 Dallas, TX 75225 214.987.3800 214.987.3927 (Fax) ATTORNEYS FOR DEFENDANTS Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 14 of 15 DEFENDANT TRINITY CONTAINERS LLC’S AND MARTY MOATS’ MOTION TO DISMISS Page 15 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of July, 2016, I filed the foregoing with the Clerk of the Court using the ECF filing system, which will send notification of such filing to the following: Clark W. Crapster Charles D. Neal Hans Otto Lehr Benjamin Oxford s/ Stephanie Johnson Manning Stephanie Johnson Manning 25534943.1 Case 4:16-cv-00499-TCK-FHM Document 6 Filed in USDC ND/OK on 07/27/16 Page 15 of 15 Ces3r301-4:5a-3a9OBAZITIELFV-E11111ANNAnnuatftrit12-a Filed in USDC ND/OK on E(7/01/13 Page 12fat134 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA DARYL WHEELER, Plaintiff, v. Case No. 13-CV-0421-CVE-TLW SPIRIT AEROSYSTEMS, INC., Defendant. OPINION AND ORDER Now before the Court is Defendant's Partial Motion to Dismiss Plaintiffs Claim for Gender and Age Discrimination with Regard to Training and Plaintiff's Claim for Intentional Infliction of Emotional Distress and Brief in Support Thereof (Dkt. # 11). Defendant Spirit Aerosystems, Inc. (Spirit) seeks to partially dismiss plaintiff's age and gender discrimination claims to the extent that she seeks relief under theories of failure to train, failure to accommodate, and the denial of benefits (first and second claims for relief), because plaintiff failed to exhaust her administrative remedies for such claims. Spirit also argues that plaintiff has failed to state a claim of intentional infliction of emotional distress (third claim for relief). I. Daryl Wheeler is a female over the age of 40, and she has been employed by Spirit since 1984. In 2009, Wheeler was assigned to the sanding department and she was required to sand airplane wings and 737 slabs for her entire shift. Dkt. # 2-2, at 3. Wheeler developed carpel tunnel syndrome and had surgery for this condition, and she claims that the carpel tunnel syndrome was caused by her work. Id. When plaintiff returned to work after her surgery, she was again assigned to the sanding depaL tirient and she filed a grievance against her supervisor. Id. at 4. Plaintiff was EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 1 of 23 CGasel4:ialc-00974:2111618'-IERILNVDditaimarctrit12-0. Filed in USDC ND/OK on Eq/01/13 Page 2.b.131.B4 transferred to the night shift, and she was assigned to a different department under a new supervisor. Id. Wheeler claims that her new supervisor, Jack Goodnight, approached the human resources department after learning of Wheeler's grievance, and he allegedly asked that Wheeler not be assigned to the day shift. Id. Wheeler alleges that two younger male employees were allowed to transfer to the day shift. Id. Wheeler claims that Goodnight treated her more harshly than her male co-workers. Wheeler had hip replacement surgery in 2010 and took time off work to recover from her surgery, and she claims that Goodnight assigned her the most physically challenging jobs in the department upon her return to work. Id. She alleges that a younger male co-worker had surgery and that he was given less physically demanding assignments when he returned to work. Id. Wheeler subsequently requested and received a transfer to the day shift, and her new supervisor was Billy Dees. Id. Wheeler alleges that Goodnight spoke to Dees before Wheeler was transferred, and he allegedly told Dees not to allow Wheeler to perform less physically demanding work, such as operating the crane. Id. Wheeler also alleges that Dees refused to answer her questions. Id. Wheeler claims that her co- workers ridiculed her because she walked with a limp, and Goodnight called Wheeler a "bitch" when speaking to other employees. Id. at 5. Wheeler claims that, in December 2012, she came to work and found her locker wired shut, and a few days later someone glued the lock on her locker shut so that she was forced to cut the lock open. Id. In January 2013, Wheeler returned to work after a holiday break and found that someone had punched a hole in her locker. Id. Based on the allegations of the petition, it appears that Wheeler is still employed by Spirit. 2 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 2 of 23 CGas(441:5-14E-00321:24}161WILINIVvVDOntruErrEtrEt12-C1 Filed in USDC NDIOK on MUM Page bLB4 Wheeler filed a charge of discrimination with the Equal Employment Opportunity Commission, and the EEOC attached to the charge a written statement prepared by Wheeler. Dkt. # 11-1. In the statement, Wheeler claimed that she was being treated differently than male employees because of her gender, and she also believed that Spirit was discriminating against her on the basis of her age. She alleged that her supervisors treated her poorly and that she received less favorable work assignments than her male co-workers. Id. One of her supervisors allegedly told another employee that Wheeler was a "bitch." Id. She claims that she was transferred to the sanding department where she was required to sand airplane wings, and this caused her to reinjure one of her arms. Id. Wheeler requested a transfer to another department, but she claims that her former supervisors asked the human resources department to deny Wheeler's request. Id. Wheeler was subsequently transferred to another department, but she claims that she was previously injured while working in that department and she believes that she is "being set up to fail." Id. Wheeler claims that male co-workers have harassed her by repeatedly damaging her locker and making fun of her. Id. In the EEOC charge, Wheeler did not allege that she requested any type of accommodation and she did not assert a claim based on disability discrimination. The EEOC issued a right to sue letter to Wheeler and she filed this case in Tulsa County District Court alleging claims of gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U. S .C. § 621 et seq., and a claim of intentional infliction of emotional distress under Oklahoma law. Dkt. # 2-2, at 2-8. Wheeler's Title VII and ADEA claims are based on alleged "disparate treatment compared to similarly situated . . . coworkers with regard to job 3 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 3 of 23 Cesed141:SaJo1 /4008EMALIV-11-0MANDOnumittrit2-0. Filed in USDC ND/OK on 110/01/13 Page 45b1134 assignments, training, benefits, and accommodation . . . ." Id. at 5, 6. Spirit removed the case to federal court on the basis of federal question jurisdiction. II. The exhaustion of administrative remedies is a jurisdictional prerequisite under Title VII, and Spirit's motion to dismiss should be treated as a Fed. R. Civ. P. 12(b)(1) motion to the extent that the Spirit asserts that plaintiff failed to allege certain claims in her EEOC charge. See Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1317 (10th Cir. 2005); Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997). When considering a motion to dismiss under Rule 12(b)(1), the Court must determine whether the defendant is facially attacking the complaint or challenging the jurisdictional facts alleged by the plaintiff. In Holt v. United States, 46 F.3d 1000 (10th Cir. 1995), the Tenth Circuit stated: Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject mattejurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. . . In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion. Id. at 1002-03. Spirit relies on evidence outside the pleadings, specifically plaintiff's EEOC charge, and the Court will construe the motion as a factual attack on the jurisdictional facts alleged by plaintiff. When ruling on a factual attack on subject matter jurisdiction, a court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts" without converting the motion into a motion for summary judgment. Stuart v. 4 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 4 of 23 Casse44:5a-10-001321:24}ERIE-LIZANDEinenEmEtr2120. Filed in USDC ND/OK on IDGI/01/13 Page ath131134 Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (quoting Holt, 46 F.3d at 1003); see also Davis ex rel. Davis v. United States, 343 F.3d 1282, 1295-96 (10th Cir. 2003) (district court had authority to review evidence outside the pleadings on issue of exhaustion of administrative remedies without converting defendant's motion to dismiss into a motion for summary judgment). Spirit seeks dismissal ofplaintiff s claim for intentional infliction of emotional distress based on failure to state a claim upon which relief can be granted. In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough "facts to state a claim to relief that is plausible on its face"and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. (citations omitted). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 562. Although decided within an antitrust context, Twombly "expounded the pleading standard for all civil actions." Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee County Bd. Of County Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). 5 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 5 of 23 CEsse4:45.a.e008A2111EN41-11LANDElanueittritEC1 Filed in USDC NDIOK on IIT/01/13 Page 6.bb1E4 "[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991). III. A. Defendant argues that plaintiff failed to exhaust her administrative remedies as to employment discrimination claims based on defendant's alleged failure to provide training, benefits, or an accommodation. Dkt, # 11, at 2-4. Plaintiff concedes that she did not exhaust any claim for failure to train or denial of benefits, but she claims that her EEOC charge gave defendant adequate notice that she intended to allege a claim "regarding job assignment" and this is reasonably related to her allegation she was denied an accommodation, Dkt. # 15, at 1. It is clearly established that a plaintiff alleging claims under Title VII or the ADEA must exhaust her administrative remedies before filing suit. Shikles, 426 F.3d at 1317. "A plaintiff's claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC." Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (quoting MacKenzie v. City and County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)). A plaintiff must exhaust her administrative remedies as to each discrete act of discrimination before filing suit. Apsley v. Boeing, Co., 691 F.3d 1184, 1210 (10th Cir. 2012). Courts should liberally construe the allegations of an EEOC charge when determining if a plaintiff has exhausted her administrative remedies for claims arising under Title VII and the ADEA. Jones, 502 F.3d at 1186; MacKenzie, 414 F.3d at 1274; Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1195 (10th Cir. 2004). 6 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 6 of 23 CGasetlial-,0-0092:2111ECF9TE-1111A/VDthumentrft20. Filed in USDC ND/OK on OG1/01/13 Page Ibb1134 Plaintiff argues that her EEOC charge gives defendant adequate notice that she intended to assert employment discrimination claims "regarding accommodations," because these allegations are "reasonably related" to the claims alleged in the EEOC charge. Dkt. # 15, at 4. However, "accommodation" is a term of art used in the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), and it is not clear that failure to accommodate is even a viable theory under Title VII or the ADEA.' See 42 U. S.C. § 12111(9) (defining "reasonable accommodation" under the ADA). Even if failure to accommodate is a viable theory under Title VII or the ADEA, plaintiff's EEOC charge does not contain any allegations suggesting that she requested and was denied an accommodation. Plaintiff's federal employment discrimination claims concern harassment in the form of discriminatory transfers or denials of transfers, and defendant has not argued that the plaintiff failed to exhaust claims related to job transfers. Discrimination against an employee in terms of a transfer or the denial of a transfer would constitute discrete acts of discrimination distinct from an alleged failure to accommodate, and plaintiff must fully exhaust her administrative remedies for each type of claim. Plaintiff is not precluded from proceeding under Title VII or the ADEA for claims arising out of transfers or the denial of transfers, but she failed to exhaust her administrative remedies for any alleged failure to provide reasonable accommodations. Thus, the Court lacks subject matter jurisdiction over plaintiff's Title VII and the ADEA claims to the extent those claims are based on the denial of training, benefits, or an accommodation. Title VII does permit an employee to request a religious accommodation in some circumstances, but that type of accommodation is not at issue in this case. See Shrum v. City of Coweta, Oklahoma, 449 F.3d 1132 (10th Cir. 2006). 7 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 7 of 23 Catsel-41:5-009a2-111ECPW-ERINIVWDEinenEnttrit12-0. Flied in USDC ND/OK on IDCl/01/13 Page 3.9)b1.134 B. Defendant argues that plaintiff's intentional infliction of emotional distress claim should be dismissed under Rule 12(b)(6), because the petition fails to allege facts supporting an inference that defendant's conduct was extreme or outrageous or that she suffered severe emotional distress. Dkt. 4 11, at 4. Plaintiff responds that was she was repeatedly harassed and subjected to physical violence, that defendant's supervisors ratified this conduct, and that she has adequately alleged that defendant engaged in extreme and outrageous conduct. Oklahoma courts have recognized a cause of action for intentional infliction of emotional distress, also known as the tort of outrage. See Gaylord Entertainment Co. v. Thompson, 958 P.2d 128, 149 (Okla. 1998). The action is governed by the narrow standards laid out in the Restatement Second of Torts, § 46. Id. In Breeden v. League Services Corp., 575 P.2d 1374 (Okla. 1978), the Oklahoma Supreme Court explained: Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Id. at 1376. To state a claim, a plaintiff must allege that "(1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's conduct caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe." Schovanec v. Archdiocese of Oklahoma City, 188 P.3d 158, 175 (Okla. 2008) (quoting Computer Publications, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002)). Under Oklahoma law, the trial court must assume a "gatekeeper role" and make an initial determination that the defendant's conduct 8 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 8 of 23 Cdasd-41:5&-}e30082t2aGIV-11-LIVIANDdloatmeirerfin-C1 Filed in USDC ND/OK on EG/01/13 Page qab124 "may be reasonably regarded as sufficiently extreme and outrageous to meet the Restatement § 46 standards." Trentadue v. United States, 397 F.3d 840, 856 n.7 (10th Cir. 2005) (applying Oklahoma law). If reasonable persons could reach differing conclusions in the assessment of the disputed facts, the Court should submit the claim to the jury to determine whether the defendant's conduct could result in liability. Id. The Court is to make a similar threshold determination with regard to the fourth prong, the presence of severe emotional distress. Id. In cases arising out ofthe workplace, Oklahoma appellate courts have found that a defendant engaged in extreme and outrageous conduct only when that defendant intentionally and persistently engaged in a course of conduct that harmed the plaintiff. See Computer Publications, 49 P.3d at 736 (claim should have been submitted to a jury when plaintiff presented evidence that harassment lasted more than two years and caused plaintiff to quit her job, move, and repeatedly change phone numbers); Miner v. Mid-America Door Co., 68 P.3d 212 (Okla. Civ. App. 2002) {employer's alleged failure to reassign the plaintiff after learning of workplace harassment, even if unreasonable, was not extreme and outrageous); Gabler v. Holder & Smith, Inc., 11 P.3d 1269 (Okla. Civ. App. 2000) (noting that workplace harassment rarely rises to the level of extreme and outrageous conduct); Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678 {Okla. Civ. App. 1998) (employer's conduct was not extreme and outrageous when, inter alia, the plaintiff's manager made derogatory sexual remarks about the plaintiff, woke plaintiff up in the middle of the night to do unnecessary work, and terminated him two hours before his wedding); Zahorslcy v. Community Nat'l Bank of Alva, 883 P.2d 198 (Okla. Civ. App. 1994) (employer not liable for intentional infliction of emotional distress when an employee forced the plaintiff to have sex with him and employer failed to fire the employee, even though the employer allegedly knew about the conduct). 9 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 9 of 23 GlesEe441E3erN0ECKTIMPETION MourripetitilaffiliteditinULIRECNNITIWcamIVELILIE6 11ELabfia4 ":1;ov Plaintiff alleges that she was harassed because of her age, gender, and disability and that she was treated less favorably in terms of work assignments that younger male co-workers. Dkt. # 15, at 5. In her response to defendant's motion, plaintiff alleges that she was the victim of "physical violence," because her locker was glued and wired shut and the locker was "mutilated" by male co- workers. Id. She also claims that her supervisors ratified this conduct by refusing to take disciplinary action against the employees who harassed her. Id. Plaintiff's allegations are not sufficient to state a claim for intentional infliction of emotional distress. The alleged "physical violence" was directed at a locker, not the plaintiff, and she makes no allegation that she personally suffered any physical harm. Plaintiff alleges that Goodnight told male co-workers that plaintiff was a "bitch," but she does not allege that she present when the remark was made or that Goodnight used such language more than one time. Dkt. # 2-2, at 5. Plaintiff's remaining allegations concerning the denial of transfers or the assignment of demanding physical labor following plaintiff's surgery, even if based on an improper motives, are the types of allegations that courts have routinely found insufficient to support an inference that defendant's conduct was extreme and outrageous in the workplace setting. See Doyle v. Nordam Group, Inc., 2010 WL 5141247 (N.D. Okla. Dec. 13, 2010) (denial of promotion, even if based on improper motives, did not rise to the level of extreme and outrageous conduct). The Court also notes that plaintiff has made only a general allegation of severe emotional distress, and this conclusory allegation of severe emotional distress does not comply with Twombly. Youngblood v. TCIM Servs., Inc., 2011 WL 3111958 (N.D. Okla. July 26, 2011), The Court finds that plaintiff's intentional infliction of emotional distress claim should be dismissed. 10 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 10 of 23 aasse44113osiv0NWIJEWEITINV MouureetitL2CLIAlit1iinaMMNNIKIEWcamlflITIMILE6 Raigell7a6fla4 IT IS THEREFORE ORDERED that Defendant's Partial Motion to Dismiss Plaintiff's Claim for Gender and Age Discrimination with Regard to Training and Plaintiff's Claim for Intentional Infliction of Emotional Distress and Brief in Support Thereof (Dkt. # 11) is granted: plaintiff's age and gender discrimination claims (first and second claims for relief) are partially dismissed to the extent that she alleges discrimination based on the denial of training, benefits, and accommodation; plaintiff's claim of intentional infliction of emotional distress (third claim for relief) is dismissed. DATED this 1st day of October, 2013. CLAIRE EAGAN UNITED STATES DISTRICT JUDGE I.1 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 11 of 23 CaSatlz810-606677Ji1-4,1FEWABCDdikazuorttrit114 Filed in USDC ND/OK on 09/6M/15 Page 23:11:4134 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA LYNETRIA MARCHELL JOHNSON, Plaintiff, v. Case No. 13-CV-777-JED-PJC ORS NASCO, LLC, Defendant. ORDER The Court has for its consideration defendant's Motion to Dismiss plaintiff's Fifth Claim for Relief and Brief in Support (Doc. 10). Defendant, ORS Nasco, LLC ("ORS"), asks that the Court dismiss plaintiff's claim for intentional infliction of emotional distress ("IIED") for failure to state a claim. Plaintiff Lynetria Johnson, who is African-American, brings claims based upon alleged racial discrimination that she experienced while working for ORS. Johnson alleges as the basis for her discrimination and IIED claims that she was "consistently undermined by her supervisors" as to her management of subordinates. (Doc. 2-2 at 5). She further alleges that she was treated worse than Caucasian employees, called "stupid" and "lazy", and laughed at when she reported the misconduct. (Id. at 6). Johnson alleges that she was told not to associate with other African-American employees and that certain supervisors joked about her looking like "Kizzy", a fictitious character played by Cicely Tyson from the movie Roots. (Id.). She alleges that she was terminated because of race and in retaliation for reporting discriminatory behavior. ORS seeks dismissal of Johnson's IIED claim on the basis that the conduct alleged is not sufficiently outrageous to support an IIED claim and she has not alleged facts demonstrating that she suffered severe emotional distress. Plaintiff argues that the conduct is sufficiently extreme to EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 12 of 23 CaSastlz516/-6.00077ailfEELINCDOmmontr11114 Filed in USDC ND/OK on 09/0M/1d Page 2.61D13434 establish a claim, but acknowledges that she needs to file an amended complaint adding allegations as to the severe emotional distress she has allegedly suffered. In considering dismissal under Rule 12(b)(6), this Court must determine whether the plaintiff stated a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require "a short and plain statement of the claim to show that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 555 (2007). The standard does "not require a heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face," and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555-56, 570 (citations omitted). For the purpose of making the dismissal determination, this Court must accept all the well-pleaded factual allegations of the complaint as true, even if doubtful, and must construe the allegations in the light most favorable to the claimant. See Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007). In Oklahoma, a claim for IIED is governed by the narrow standards laid out in the Restatement Second of Torts, § 46. See Gaylord Entertainment Co, v. Thompson, 958 P.2d 128, 149 (Okla. 1998). In Breeden v. League Services Corp., 575 P.2d 1374 (Okla. 1978), the Oklahoma Supreme Court explained: Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous?' The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. 2 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 13 of 23 CaSestka10.61300773RFEICLIABCDdiburdentrili114 Filed in USDC ND/OK on 09/0M/13 Page 21b434 Id. at 1376. To state a claim, a plaintiff must allege that "(1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's conduct caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe." Schovanec v. Archdiocese of Oklahoma City, 188 P.3d 158, 175 (Okla. 2008) (quoting Computer Publications, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002)). Under Oklahoma law, the trial court must assume a "gatekeeper role" and make an initial determination that the defendant's conduct "may be reasonably regarded as sufficiently extreme and outrageous to meet the Restatement § 46 standards." Trentadue v. United States, 397 F.3d 840, 856 n.7 (10th Cir. 2005) (applying Oklahoma law). If reasonable persons could reach differing conclusions in the assessment of the disputed facts, the Court should submit the claim to the jury to determine whether the defendant's conduct could result in liability. Id. Having reviewed the entirety of plaintiff's allegations and construed them in the light most favorable to her, the Court concludes that she has failed to state a claim for LIED. Indeed, the type of conduct alleged here in an employment setting will rarely be viewed as extreme and outrageous. See, e.g., Gabler v. Holder & Smith, Inc., 11 P.3d 1269 (Okla. Civ. App. 2000) (noting that workplace harassment rarely rises to the level of extreme and outrageous conduct); Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678 (Okla. Civ. App. 1998) (employer's conduct was not extreme and outrageous when, inter alia, the plaintiffs manager made derogatory sexual remarks about the plaintiff, woke plaintiff up in the middle of the night to do unnecessary work, and terminated him two hours before his wedding); Zahorsky v. Community Nat'l Bank of Alva, 883 P.2d 198 (Okla. Civ. App. 1994) (employer not liable for intentional infliction of emotional distress when an employee forced the plaintiff to have sex with him and employer failed to fire the employee, even though the employer allegedly knew about the conduct). Johnson's 3 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 14 of 23 CaSasb1BIESKODBORFASEICIANCDcEtoneueinEtr9l114 Filed in USDC ND/OK on 09/ED/16 Page g6Dbf-134 allegations simply do not rise to the level necessary to constitute extreme or outrageous conduct and her TIED claim is therefore subject to dismissal. Plaintiff's request to amend to add allegations regarding the emotional distress suffered is futile as it could not cure this defect. IT IS THEREFORE ORDERED that defendant's Motion to Dismiss plaintiff's Fifth Claim for Relief and Brief in Support (Doc. 10) is granted. Plaintiffs claim for intentional infliction of emotional distress is hereby dismissed. The parties shall submit a joint status report within 21 days of the date of this Order. SO ORDERED this 30th day of September, 2014. JOHN DELL UNIT ATES DISTRICT JUDGE 4 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 15 of 23 CaestlE1.60,6104307,NPKFLIA.00DOaanlantili112 Filed in USDC NDIOK on 02/011/15 Page 27otti134 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA MICHAEL BINGAMAN, Plaintiff, v. Case No. 14-CV-677-GKF-PJC SPIRIT AEROSYSTEMS, INC., a foreign for- profit business corporation, Defendant. ORDER Before the court is the defendant's Motion to Dismiss: (1) plaintiff's claim of age discrimination with regard to training and benefits, for lack of subject matter jurisdiction; and (2) plaintiff's claim for intentional infliction of emotional distress, for failure to state a claim upon which relief can be granted. [Dkt. #8]. For the reasons set forth below, the motion is granted. I. Background Plaintiff Michael Bingaman ("Bingaman") filed his Petition in Tulsa County District Court on October 14, 2014. [Dkt. #2-2]. Bingaman, who is over 55 years old, alleges that Spirit Aerosystems, Inc. ("Spirit") hired him as a first level manager in January 2005. [Id., p. 2, ¶ 10]. Bingaman further alleges he was assigned to a new second level manager, Butch Morris, in July 2012, and that Morris constantly criticized him and treated Bingaman's younger coworkers better than him. [Id., ¶ 11]. Bingaman claims he was terminated within a month of Morris being made his supervisor, after complaining to Human Resources about age discrimination and after he was required to train his 23-year-old replacement. [Id., pp. 2-3, r 12, 14]. He asserts he was given no prior written discipline, and was not given an opportunity to be placed on a performance improvement plan prior to his termination. [Id.] Nor was he allowed to transfer or EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 16 of 23 Co2astlbadt€000126373143KIIINJCDOactientr111113 Filed in USDC ND/OK on 02/011/15 Page 28)61334 be moved to a different shift, though younger coworkers were allowed to do so. [Id., p. 3, IN 12- 13]. Bingaman also alleges that after he complained of discriminatory treatment to Human Resources, he was told he had a "target on his back" and was terminated shortly thereafter. [Id., 14]. Based on these allegations, Bingaman claims he was "treated differently and terminated based upon his age and retaliated against for complaining about age discrimination." [Id, ¶ 15]. Bingaman filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") raising claims of discrimination based on age and retaliation. [Id., p. 1, ¶ 4]. After receiving a Notice of Right to Sue, he filed his Petition, in which he raised three claims for relief. [Id, pp. 1-2, 4] 4]. In his first claim for relief, Bingaman alleges Spirit violated the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. (the "AEDA") through disparate treatment compared to its treatment of his co-workers under the age of forty "with regard to job assignments, training, discipline, benefits, and termination." rid, p. 3-4, rrI 19-221 In his second claim for relief, Bingaman alleges Spirit violated section 623(d) of the AEDA when it terminated him for engaging in the protected activity of complaining about age discrimination. [Id., ¶ 24]. Finally, Bingaman's third claim for relief raises a claim of intentional infliction of emotional distress. [Id, p. 5, 'IN 25-27]. Spirit removed the action to this court. [Dkt. #2]. It then filed the instant motion. [Dkt. #8]. Discussion Spirit first claims Bingaman failed to include a claim for age discrimination with regard to training and benefits in his Charge of Discrimination and is therefore precluded from asserting such claims in this case. [Id., p. 2]. As such, it argues this portion of Bingaman's first claim for relief must be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 2 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 17 of 23 CaSeat 105.1.0ve5432G7J1413KFLW1CDdituawarbtr11 l3 Filed in USDC ND/OK on 02/021/15 Page 39O1334 12(b)(1). [Id., p. 7]. Spirit also argues Bingaman's allegations are deficient to state a cause of action under Oklahoma law for intentional infliction of emotional distress. [Id., p. 4]. Spirit therefore argues Bingaman's third cause of action should be dismissed under Fed. R. Civ. P. 12(b)(6). [Id, p. 7]. A. Bingaman's claim of discrimination with regard to training and benefits As a jurisdictional prerequisite to bringing suit under the AEDA, a plaintiff must exhaust available administrative remedies. Shikles v, Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (internal citations omitted). Where a defendant brings a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff must carry the burden of establishing the court's subject matter jurisdiction by a preponderance of the evidence. Southway v. Central Bank of Nigeria, 328 F.3d 1267, 1274 (10th Cir. 2003). To exhaust administrative remedies, an AEDA plaintiff must file a charge of discrimination with the EEOC prior to filing suit in federal court. 42 U.S.C. § 2000e-5(b). The subsequent suit may include only allegations of discrimination "reasonably related" to the allegations listed in the administrative charge. Aramburu v. Boeing Co., 112 F.3d 1398, 1409 (10th Cir. 1997). To determine whether allegations of discrimination are "reasonably related" to those of the administrative charge, the court must consider "the scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge. In other words, the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim." Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (emphasis in original). The court nevertheless "liberally construe[s] charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim." Id. This more lenient pleading standard contemplates 3 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 18 of 23 CaestlibIGUEG0026173i=1PKFLAA0CDcaucuernCILLIZ Filed in USDC ND/OK on 02/023/15 Page 301)1334 the fact that administrative charges of unlawful employment practices are regularly filled out by employees who do not have the benefit of counsel. Mitchell v. City & Cnty, of Denver, 112 F. App'x. 662, 667 (10th Cir. 2004) (citing Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quotation omitted)). In his Charge of Discrimination, Bingaman marked two boxes noting that the circumstances of alleged discrimination included discrimination on the basis of age and retaliation, [Dkt. #10-1, p. 3]. He attached an affidavit to the Charge providing further details, including his claim that he was terminated without prior warning approximately one month after Morris began supervising him in retaliation for his complaints of age discrimination. [Dkt. #10-1, p. 4]. The affidavit also includes Bingaman's assertion that he was denied day shift hours in favor of his younger coworkers with less seniority. [Id.]. The only allegation in the affidavit that touches upon training in any way concerns his claim that he was replaced by a younger male in his twenties whom he trained before his termination. [id]. In his response to Spirit's partial motion to dismiss, Bingaman admits he has not specifically alleged claims based on his training by Spirit in his Charge of Discrimination, and agrees such claims should be dismissed. [Dkt. #11, p. 1 n.1]. He also argues, however, that his description of how he was denied day-shift hours constituted "a denial of benefits owed to a senior employee for the Defendant." [Id., p. 5]. He further argues his formal charge of discrimination would have been sufficient to elicit review of his employment records, including information pertaining to his benefits, and therefore claims his Charge sufficiently describes the events and circumstances surrounding his age discrimination claim. [Id.]. The court disagrees with both arguments. The term "benefits" in the employment context plainly refers to rights such as medical insurance and retirement plans arising from a formal 4 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 19 of 23 CaSast 1514,16DEIGGZYMPKIIMCDclbuotomeritill3 Filed in USDC ND/OK on 02/031/15 Page 31.o6f334 employee benefits plan, not to job assignments. Notwithstanding his assertions to the contrary, this distinction is not lost on Bingaman, who claims in his Petition to have experienced disparate treatment with regard to "job assignments" as well as "benefits." [Dkt. #2-2, p. 3, ¶ 19]. Nor can the court accept Bingaman's suggestion that the scope of an investigation that could reasonably be expected to follow from the allegations in his Charge of Discrimination would have included inquiries into the possibility of discrimination related to his employment benefits. A charge of discrimination, as noted above, "must contain facts concerning the discriminatory and retaliatory actions underlying each claim." Jones, 502 F.3d at 1186. The chance that the EEOC might discover evidence of discrimination with regard to Bingaman's employee benefits as it investigated the circumstances of his termination does not satisfy this requirement. The court therefore finds it lacks jurisdiction to consider Bingaman's age discrimination claim to the extent it regards training and benefits.' This portion of his first cause of action must therefore be dismissed pursuant to Fed. R. 12(b)(1). B. Bingaman's claim of intentional infliction of emotional distress A complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Jabal, 556 U.S. 662, 678 (2009) (holding that 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"). A complaint that offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual However, Bingaman's allegation that he was denied day shift hours in favor of younger coworkers, which he raised in his Charge of Discrimination, remains as part of his claim that he experienced disparate treatment with regard to job assignments. 5 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 20 of 23 Ca3ast MagivanC267/1-113KFMCDcBtoomn*r11112 Filed in USDC ND/OK on 02/011115 Page 316834 enhancement." lqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). "Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (citations omitted). In Breeden v. League Services Corp., 575 P.2d 1374, 1376 (Okla. 1978), and as acknowledged in Miller v. Miller, 956 P.2d 887, 900 (Okla. 1998), the Oklahoma Supreme Court adopted the standards of section 46 of the Restatement of Torts (Second) (1997) for claims of intentional infliction of emotional distress. Under this standard, an action for intentional infliction of emotional distress "will lie only where there is extreme and outrageous conduct coupled with severe emotional distress." Miller, 956 P.2d at 900. The conduct, in fact, must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (quoting Restatement (Second), § 46, cmt. d). The emotional distress the plaintiff experiences, meanwhile, must be of such a character that "no reasonable person could be expected to endure it." Restatement (Second), § 46, ant. j. Under Oklahoma law, the trial court must assume a "gatekeeper role" and make an initial determination that defendant's alleged conduct "may reasonably be regarded as sufficiently extreme and outrageous to meet the Restatement § 46 standards." Trentadue v. United States, 397 F.3d 840, 856 n. 7 (10th Cir. 2005) (applying Oklahoma law). If reasonable persons could reach differing conclusions in the assessment of the disputed facts, the court should submit the claim to a jury to determine whether the defendant's conduct could result in liability. Id But this should not be taken to understate the difficulty of stating a claim for intentional infliction of emotional distress in the context of an employment discrimination case. "Workplace 6 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 21 of 23 Casit ItildfdiGGYN7J1-1PKFL-WICDdacionentaill3 Filed in USDC NDIOK on 02/031/15 Page 33D61334 discrimination or harassment," in fact, "rarely rises to the level of extreme and outrageous conduct." Barham v. K Mart Corp., No. 10-CV-0401-CVE-PJC, 2010 WL 3650684, at *6 (N.D. Okla. Sept. 14, 2010); see also Gabler v, Holder & Smith, Inc., 11 P.3d 1269, 1280 (Okla. Civ. App. 2000) ("[Oklahoma] appellate courts have consistently found employment related facts . . do not meet the § 46 criteria."). By way of example, Oklahoma courts have found an employer's alleged conduct was not extreme and outrageous when: • a supervisor and foreman ridiculed the plaintiff in the workplace (Eddy v. Brown, 715 P.2d 74 (Okla. 1986)); • an employer failed to discipline an officer who forced an employee to have sex with him (Zahorsky v. Cmty. Nat. Bank of Alva, 883 P.2d 198 (Okla. Civ. App. 1994)); • a supervisor made lewd remarks about the plaintiff and embarrassed her by discussing her faults with coworkers (Anderson v. Oklahoma Temporary Services, Inc., 925 P.2d 574 (Okla. 1996)); • the plaintiff's manager made derogatory sexual remarks about the plaintiff, woke plaintiff up in the middle of the night to do unnecessary work, and terminated him two hours before his wedding (Mirzaie v. Smith Cogeneration, Inc., 962 P.2d 678 (Okla. Civ. App. 2000)); and • a female plaintiff applying for an employment position was told to pose for a picture-a requirement to which male applicants were not subject-and the photograph was compared to nude photographs obtained from an individual with whom the plaintiff had a romantic relationship (Chance v. City of Tulsa, No. 14-CV-0449-CVE-TLW, 2014 WL 5600657, at *5 (N.D. Okla. Nov. 3, 2014)). 7 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 22 of 23 Caast115121,030132137J1=1PKR=ROCDclaumainerit1113 Filed in USDC ND/OK on 02/0A/15 Page 34361334 In this case, Bingaman points to five specific allegations in an effort to demonstrate Spirit's allegedly extreme and outrageous conduct: He was subject to "pervasive and severe age discrimination" during his employment; 2. He was forced to train his own younger replacement; 3. He was "subjected to criticism and harsh scrutiny by his manager"; 4. He was told he had a "target on his back" after reporting discriminatory treatment to Human Resources; and 5. He was ultimately terminated from his employment. [Dkt. #11, p. 6]. The court finds that plaintiff's allegations could not support an inference that defendant engaged in extreme and outrageous conduct, and plaintiff's intentional infliction of emotional distress claim should be dismissed without allowing plaintiff leave to amend. III. Conclusion For the foregoing reasons, Spirit's Motion to Dismiss [Dkt. #8] is granted. ENTERED this 4th day of February, 2015. GRE FRIZZELL, Cf1TEF JUDGE UNITED STATES DISTRICT COURT 8 EXHIBIT 1 Case 4:16-cv-00499-TCK-FHM Document 6-1 Filed in USDC ND/OK on 07/27/16 Page 23 of 23