Moss et al v. Board of County Commissioners of Canadian County et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RONDA MOSS, et al., 	)
)
Plaintiffs, 	)
)
v. 	) 	Case No. CIV-22-127-SLP
)
CANADIAN COUNTY ex rel. THE BOARD 	)
OF COUNTY COMMISSIONERS, et al., 	)
)
Defendants. 	)
O R D E R
Before the Court are four related motions to dismiss Plaintiffs’ Third Amended
Complaint (TAC). First, Defendant Judge Bobby Hughey filed a Motion to Dismiss and
Brief in Support [Doc. No. 76], to which Plaintiffs responded [Doc. No. 91], and Judge
Hughey replied [Doc. No. 99]. Second, Defendant Daniel Kern filed a Motion to Dismiss
and Brief in Support [Doc. No. 77], to which Plaintiffs responded [Doc. No. 84], and
Defendant Kern replied [Doc. No. 94]. Third, Defendant Board of County Commissioners
of Canadian County (the “Board”) filed a Motion to Dismiss and Brief in Support [Doc.
No. 74], to which Plaintiffs responded [Doc. No. 83], and the Board replied [Doc. No. 98].
Finally, Defendants NaCole Majors, Cedric Mills, and Melanie Johnson filed a Motion to
Dismiss and Brief in Support [Doc. No. 75], to which Plaintiffs responded, [Doc. No. 85],
and those Defendants replied [Doc. No. 97]. The motions are at issue.
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I. 	Background1
Plaintiffs Ronda Moss, Melissa McClain, Erin Barton, Cassie Goodfellow, Donna
Wehmuller, Paul Hardaway, and Robert Fletcher are seven former employees of Canadian
County who worked at the Gary E. Miller Canadian County Children’s Justice Center
(CCCJC) in El Reno, Oklahoma. TAC [Doc. No. 72] ¶ 1. Each Plaintiff was over the age
of forty during the relevant period, and Plaintiffs Moss, McClain, Barton, Wehmuller, and
Goodfellow are women. Id. ¶¶ 2-8.
Defendant Canadian County is a political subdivision of the State of Oklahoma
managed through its Board of County Commissioners (the Board). 	Id. ¶ 9. 	Defendant
Judge Bobby Hughey is alleged to be the final policymaker at the CCCJC. 	Id. ¶ 276.
Defendant Daniel Kern served as Facility Director from March 2019 until his termination
in approximately November 2019. 	Id. ¶ 11. 	Defendant NaCole Majors was the Human
Resources Director for Canadian County. Id. ¶ 12. Defendant Melanie Johnson was hired
as permanent Facility Director in July 2020 and remained in that position through the filing
of the TAC. Id. ¶¶ 13, 46. Defendant Cedric Mills was the Assistant Facility Director for
the CCCJC and, after Kern’s termination, served as acting Facility Director until Johnson’s
hire. 	Id. ¶¶ 14, 45. 	Each individual defendant is sued in their individual and/or official
capacities. Id. ¶ 15.
1 The Court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s]
them in the light most favorable to [Plaintiff].” Safe Streets All. v. Hickenlooper, 859 F.3d 865,
878 (10th Cir. 2017) (quoting S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014)). The Court
includes only those facts relevant to the Motions to Dismiss.
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Plaintiffs allege that the CCCJC has a documented history of sexual discrimination
and hostile work environment harassment predating the events at issue. Id. ¶¶ 24-25. In
spring 2018, Moss was appointed Interim Facility Director. Id. ¶ 49. After Mills was hired
into a newly created Co-Assistant Facility Director position in April 2018, Judge Hughey
allegedly told Moss that she and Mills would have to “audition” for the Facility Director
position. Id. ¶¶ 50, 52. In spring 2019, Hughey hired Kern as Facility Director instead. Id.
¶¶ 53, 58-59. Around the same time, the Board, Majors, and Judge Hughey made efforts
to conceal Kern’s prior employment at the Walnut Grove Correctional Facility, a juvenile
facility shut down in part for staff sexual misconduct and inmate abuse. Id. ¶¶ 27-32.
During his eight-month tenure, Plaintiffs allege Kern routinely made sexually
charged and inappropriate remarks, including about women employees’ age, physical
appearance, and sexuality. Id. ¶¶ 34-36. Kern also created unposted positions for younger
women, 	denying 	Plaintiffs 	the 	opportunity 	to 	apply; 	made 	sexually 	inappropriate
comments about children in the CCCJC’s care, including sexualized remarks about a
thirteen-year-old girl; and subjected Plaintiffs to a pervasive hostile work environment. Id.
¶¶ 34-37, 60-63, 76-77, 83-84, 99-100, 120-124, 130-132. 	Plaintiffs made formal
complaints about Kern’s conduct to Judge Hughey and the Board, which were not properly
investigated or remediated. 	Id. ¶¶ 38, 57, 134. 	In the fall of 2019, Plaintiffs Moss,
Wehmuller, and Hardaway reported Kern’s conduct and the Board’s failure to act to
County Commissioner Marc Hader and to Channel 9 media, and Moss gave a News 9
interview detailing Kern’s misconduct and the County’s failure to act on information
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reported by her and McClain. Id. ¶¶ 41, 125, 135. Shortly thereafter, Kern was terminated
in November 2019. Id. ¶ 42.
Plaintiffs allege that after reporting Kern’s conduct to Judge Hughey and the Board
and speaking with the press, they were subjected to ongoing retaliation that ultimately
resulted in adverse actions taken against them, including the termination or constructive
discharge of each Plaintiff. Id. ¶ 43. The alleged retaliation included, among other things:
Kern falsely accusing Moss of involvement with drugs entering the facility and directing
employees not to contact her following her termination in October 2019, id. ¶¶ 68-73; Kern
stripping McClain of access to employee personnel files after she contacted the EEOC, id.
¶¶ 87, 89; Mills assigning Barton an unreasonable workload designed to generate poor
evaluations and controlling her hiring to prevent staffing assistance, id. ¶ 106; Johnson and
Majors posting Barton’s position while she was on FMLA leave, id. ¶ 108; Mills placing
Hardaway in positions designed to cause him to fail, id. ¶ 137; Johnson and Judge Hughey
blocking Hardaway from interviewing for the Principal position, id. ¶ 140; and Wehmuller
being subjected to disparate timekeeping treatment, loss of privileges, obstruction of job
duties, and drug testing, id. ¶ 126. 	Plaintiffs McClain and Barton were constructively
discharged in 2021 after being offered only kitchen positions upon return from FMLA
leave. 	Id. ¶¶ 95-96, 110-111. 	Wehmuller resigned in May 2021 and Hardaway was
constructively discharged when his Dean of Students contract was not renewed. Id. ¶¶ 127,
141. 	Goodfellow was terminated on January 8, 2021, allegedly because Defendants
believed she was gathering information on behalf of the other Plaintiffs in anticipation of
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litigation. Id. ¶¶ 112, 118. Fletcher was terminated on October 1, 2020, after commenting
on the discriminatory treatment of another employee. Id. ¶ 154.
Plaintiffs allege that they filed various EEOC charges and received Notices of
Rights to Sue, and provided notice of their state tort claims to Canadian County pursuant
to the Oklahoma Governmental Tort Claims Act. Id. ¶¶ 16-20. Plaintiffs assert claims for
sex 	discrimination 	and 	hostile 	work 	environment 	under 	Title 	VII 	(Count 	I); 	age
discrimination under the ADEA (Count II); religious discrimination under Title VII (Count
III); disability discrimination under the ADA (Count IV) and OADA (Count V); retaliation
under Title VII (Count VI), the ADA (Count VII), the OADA (Count VIII), and the FMLA
(Count IX); violation of the Equal Pay Act (Count X); Monell liability under 42 U.S.C. §
1983 (Count XI); and Burk tort (Count XII) — all against the Board. Plaintiffs also assert
First Amendment retaliation under 42 U.S.C. § 1983 against Defendants Hughey, Kern,
Majors, Mills, and Johnson (the Individual Defendants) in their individual and/or official
capacities (Count XIII); and violation of Article II, § 22 of the Oklahoma Constitution
against those same defendants (Count XIV). Id. ¶¶ 156-318.
II. 	Pleading Standard
“To survive a motion to dismiss [under Rule 12(b)(6)], 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 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008). “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
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alleged.” 	Iqbal, 556 U.S. at 678. 	“Pleadings that do not allow for at least a reasonable
inference of the legally relevant facts are insufficient.” Burnett v. Mortg. Elec. Registration
Sys., Inc., 706 F.3d 1231, 1236 (10th Cir. 2013) (internal quotation marks and citation
omitted). And a complaint must contain more than “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
Further, regarding § 1983 claims, there is a “need for careful attention to particulars,
especially in lawsuits involving multiple defendants.” 	Pahls v. Thomas, 718 F.3d 1210,
1225 (10th Cir. 2013); see also Robbins, 519 F.3d at 1250 (explaining that when plaintiff
brings § 1983 claims against multiple defendants, “it is particularly important . . . that the
complaint make clear exactly who is alleged to have done what to whom”).
III. 	Analysis2
A. Service by Plaintiff Fletcher
Defendants move to dismiss all claims asserted by Plaintiff Fletcher on the ground
that Fletcher failed to timely serve Defendants and that his claims were therefore deemed
dismissed under Oklahoma law. 	See e.g., [Doc. No. 74] at 31; [Doc. No. 75] at 27.
Although Fletcher contests this request, the material facts are not in dispute.
Fletcher filed his initial petition in the District Court of Canadian County along with
the other Plaintiffs. 	[Doc. No. 1-3]. 	Under Oklahoma law, a plaintiff must serve
2 Defendants urge the Court to dismiss the Third Amended Complaint in its entirety based on
noncompliance with Rule 8(a)(2) of the Federal Rules of Civil Procedure. [Doc. No. 74] at 9; [Doc.
No. 75] at 9. Specifically, Defendants take issue with the length and volume of the Third Amended
Complaint. While the allegations are voluminous, they do not rise to noncompliance with Rule 8.
The number of parties, nature of claims, and procedural history to date necessarily requires a large
filing, and the Court declines to dismiss based on Rule 8.
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defendants within 180 days of filing. See Okla. Stat. tit. 12, § 2004(I). Fletcher concedes
that he failed to effect service within that period and contends his “claims were deemed
dismissed on June 18, 2021, unless he can show good cause why it was not served.” [Doc.
No. 85] at 23. He further concedes he does not have good cause. Id.
When Plaintiffs filed their First Amended Complaint on July 12, 2021, Fletcher was
not included. FAC [Doc. No. 1-8]. Plaintiffs subsequently moved to amend to add Plaintiff
Hardaway, but that motion did not seek leave to add Fletcher, and the order granting the
motion did not authorize his addition. [Doc. Nos. 1-18, 1-19]. Despite never seeking or
obtaining leave of court, Fletcher was improperly included as a plaintiff in the Second
Amended Complaint, which was filed in state court on January 26, 2022.3 SAC [Doc. No.
1-23]. He likewise was included in the Third Amended Complaint. TAC [Doc. No. 72].
Defendants removed the action to this Court on February 14, 2022, and raised the service
defect in their first motion to dismiss filed March 7, 2022. 	[Doc. No. 14] at 27. 	In the
subsequent years, Fletcher has not attempted to correct or address the deficiency, and his
Response briefs do not address his unauthorized re-entry into the action. 	See [Doc. Nos.
83, 85].
Instead, he contends that he subsequently revived his claims under Oklahoma’s
savings statute, which allows a plaintiff whose action fails for reasons other than on the
merits to commence “a new action” within one year of the failure. Okla. Stat. tit. 12, § 100.
3 “A motion to intervene under Rule 24 of the Federal Rules of Civil Procedure is the proper avenue
by which a non-party should seek to join a pending proceeding.” See Serrano v. New Mexico, No.
17-CV-01156-RB-SCY, 2018 WL 2723781, at *2 (D.N.M. June 6, 2018); see also Fed. R. Civ. P.
24. Further, amendments require leave of Court. Fed. R. Civ. P. 15(a)(2).
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According to Fletcher, he satisfied this requirement when he was included as a plaintiff in
the Second Amended Complaint filed in this action. 	[Doc. No. 85] at 23. 	However, he
provides no authority to support this theory and while he acknowledges that some of his
claims would be time-barred, id., he offers no clarification as to which claims, seemingly
wanting the Court to dig through the voluminous pleadings and conduct his research for
him. The Court declines to do so. And again, he wholly sidesteps the issue of not obtaining
leave of Court to be included in the Second Amended Complaint and cites no legal
authority to support this proposition. On the current record, the Court is not persuaded.
These fatal defects aside, his claims are independently subject to dismissal for
failure to comply with Rule 4(m) following removal. Under 28 U.S.C. § 1448 and binding
Tenth Circuit precedent, removal triggered a new 90-day service period expiring May 15,
2022. 	Wallace v. Microsoft Corp., 596 F.3d 703, 707 (10th Cir. 2010). Fletcher did not
serve Defendants within that window and wholly ignores this argument as well. Putnam
v. Morris, 833 F.2d 903, 905 (10th Cir. 1987). 	Further, he has been on notice of this
deficiency for years since Defendants raised it in their first motion to dismiss and yet, he
has not sought an extension or other relief from the Court.
A permissive extension is unwarranted. Under Espinoza v. United States, 52 F.3d
838, 841–42 (10th Cir. 1995), the relevant factors—including Fletcher’s complete failure
to attempt service after explicit notice, the absence of any complexity or evasion justifying
the delay, and the prejudice to Defendants from further delay in long-running litigation—
all weigh against an extension. Further, even where the statute of limitations would bar
Plaintiff’s refiled claims, that fact does not make dismissal inappropriate. See Despain v.
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Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1439 (10th Cir. 1994) (“The fact that
the statute of limitations has run, however, does not demonstrate good cause and does not
make dismissal under Rule 4[(m)] inappropriate.”). As the Tenth Circuit has observed, it
is the plaintiff’s “responsibility to monitor the progress of service and to take reasonable
steps to assure that [defendants are] timely served.” May v. Oklahoma Dep’t of Corr., 215
F.3d 1337 (10th Cir. 2000). 	Accordingly, Plaintiff Fletcher’s claims are DISMISSED
WITHOUT PREJUDICE for failure to timely serve Defendants. See Fed. R. Civ. P. 4(m);
12(b)(5).4
B. State Constitution Claim
All Plaintiffs except Goodfellow assert a claim for violation of Article II, § 22 of
the Oklahoma Constitution against Defendants Hughey, Kern, Majors, Mills, and Johnson.
Plaintiffs allege that the Individual Defendants violated their state constitutional rights of
free speech. TAC ¶¶ 315–318. Defendants argue that this claim must be dismissed because
Article II, § 22 does not provide a private right of action. See [Doc. No. 75] at 25; [Doc.
No. 77] at 31. 	Indeed, the Tenth Circuit affirmed dismissal of a standalone § 22 claim,
holding that its language “does not include a remedies provision or a standard of care,
which points away from any private right of action.” See Tufaro v. Oklahoma ex rel. Bd.
of Regents of Univ. of Oklahoma, 107 F.4th 1121, 1134 (10th Cir. 2024). The Tufaro Court
4 Because the Court dismisses Plaintiff Fletcher’s claims for failure to timely effect service, the
Court does not consider Defendants’ Rule 12(b)(6) arguments regarding Fletcher’s claims asserted
in Counts I, III, XI, XII, XIII, and XIV. Thus, for clarity and efficiency, any reference hereafter
to “Plaintiffs” in the context of claims analysis refers to the remaining Plaintiffs Moss, McClain,
Barton, Wehmuller, and Hardaway for purposes of the remaining Order.
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further cautioned against recognizing new private causes of action based on separation of
powers and other concerns. 	Id. 	Plaintiffs do not cite or distinguish Tufaro, nor do they
provide any basis “to overcome the strong cautionary language against recognizing new
private causes of action.” Id. Accordingly, Count XIV is dismissed without prejudice.
C. First Amendment Retaliation
All Plaintiffs except Goodfellow assert a § 1983 claim for First Amendment
Retaliation against the Individual Defendants (Count XIII). Plaintiffs McClain and Barton
assert the same claim against the Board under a theory of municipal liability (Count XII).
All Defendants move to dismiss the claim pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Notably, the Third Amended Complaint is not entirely clear as to
whether the claims against the Individual Defendants are asserted against them in their
official capacities. 	See TAC ¶ 15 (naming Individual Defendants in their “individual
and/or official capacities”). Nevertheless, the Individual Defendants move for dismissal.
1. 	Official Capacity Claims
It is well-established that “an official-capacity suit is . . . to be treated as a suit
against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). 	Further, “[a] suit
brought against a county’s board of county commissioners is the way Oklahoma law
contemplates suing the county.” Snow v. Bd. of Cnty. Comm’rs of the Cnty. of McClain,
No. CIV-14-911-HE, 2014 WL 7335319, at *2 (W.D. Okla. Dec. 19, 2014) (citing Okla.
Stat. tit. 19, § 4). 	And “in the § 1983 context, a suit against the board of county
commissioners or some other county official in their official capacity is, in substance, a
suit against the county.” Id. (citing Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010)).
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Defendants Majors, Mills, and Johnson move for dismissal of the official capacity
claims, and Plaintiffs did not respond to this argument in their brief. See generally [Doc.
No. 85]. 	Dismissal is warranted on that basis alone. 5 As to Defendant Kern, he did not
specifically move for dismissal of the official capacity claim, but the Court nevertheless
finds dismissal is proper because the official capacity claims against Defendant Kern (and
Majors, Mills, and Johnson) are duplicative and redundant of the § 1983 claim against the
Board. See Theron v. Canadian Cnty. ex rel. Bd. of Cnty. Comm’rs, No. CIV-23-1176-G,
2024 WL 4314899, at *2 (W.D. Okla. Sept. 26, 2024) (dismissing official capacity § 1983
claim against same defendants as redundant of claims against the Board); Duran v. City &
Cnty. of Denver, No. 10-CV-01569-REB-KMT, 2012 WL 4476652, at *4 (D. Colo. Sept.
28, 2012) (dismissing duplicative official capacity claims sua sponte).
Defendant Judge Hughey also moves to dismiss all official capacity claims against
him on two grounds. 	First, he argues that to the extent the official capacity is that of a
county actor, the claims are duplicative of the claims asserted against the Board. [Doc. No.
76] at 17. Second, he argues that to the extent the official capacity is that of a state actor,
the claim fails because a § 1983 claim may only be brought against a person, and neither
states nor state officials sued in their official capacities are “persons” within the meaning
5 Where a party fails to address a discrete argument raised in a motion to dismiss, the Court may
treat the omitted issue or theory as abandoned. See C1.G ex rel. C.G. v. Siegfried, 38 F.4th 1270,
1282 (10th Cir. 2022) (affirming district court’s conclusion that plaintiff abandoned facial
constitutional claim ”by not addressing it in his response to [d]efendants’ motion to dismiss”); see
also Lee v. Ne. Illinois Reg’l Commuter R.R. Corp., 912 F.3d 1049, 1053–54 (7th Cir.
2019) (explaining that a complaint “can be subject to dismissal if a plaintiff does not provide
argument in support of the legal adequacy of the complaint,” such as “when a party fails to develop
arguments related to a discrete issue or when a litigant effectively abandons the litigation by not
responding to alleged deficiencies in a motion to dismiss”).
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of § 1983. 	Id. 	Plaintiffs respond that the state-versus-county-actor question requires
discovery and that retaining Judge Hughey in his official capacity is not duplicative
because the state and juvenile bureau are entities distinct from the County. 	Neither
argument is persuasive.
As to the state-actor claims, Judge Goodwin considered the same arguments
asserted against this same defendant in a related case and held that the plaintiffs could not
pursue a § 1983 claim against Defendant Judge Hughey as a state official because “neither
a 	State 	nor 	its 	officials 	acting 	in 	their 	official 	capacities 	are 	‘persons’ 	under §
1983.” Theron, 2024 WL 4314899, at *2 (citing Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989)). The Court agrees. Oklahoma district judges are arms of the state
entitled to Eleventh Amendment immunity from official-capacity damages claims. 	See
Arndt v. Hatfield, No. CV-20-181-R, 2020 WL 4905549, at *4 (W.D. Okla. Aug. 20, 2020)
(dismissing official-capacity damages claims against Defendant Judge Hughey specifically
on the basis of Eleventh Amendment immunity). Any claims against Judge Hughey in an
official capacity as a state actor are dismissed.
As to the county-actor claims, Judge Hughey argues that these claims are duplicative
and redundant to the identical claims asserted against the Board. 	The Court agrees. 	See
Stuart v. Jackson, 24 F. App’x 943, 956 (10th Cir. 2001) (“[A] section 1983 suit against a
municipality and a suit against a municipal official acting in his or her official capacity are
the same.” (citation omitted)); see also Theron, 2024 WL 4314899, at *2 (dismissing
official-capacity claims against Defendant Judge Hughey on this basis).
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Although Plaintiffs engage in a lengthy argument that Judge Hughey’s role and the
circumstances here are “unique,” Plaintiffs’ cited authorities do not compel a different
result. For example, in Martinez v. Sellers, the Court dismissed claims against a Board as
duplicative of claims against a sheriff, declining to dismiss only one count where the Board,
not the sheriff, was a signatory to the Law Enforcement Agreement at issue, creating a
claim uniquely attributable to the Board. Martinez v. Deputy Skyler Sellers, No. CIV-23-
102-RAW-GLJ, 2024 WL 3569181, at *2 (E.D. Okla. July 29, 2024). 	No comparable
circumstances exist here. 	Plaintiffs’ remaining authorities address which county entity
qualifies as the employer or final policymaker of a juvenile bureau employee. 6 Notably,
these 	decisions 	all 	address 	motions 	to 	dismiss 	brought 	by 	a 	Board 	of 	County
Commissioners disputing its own employment status.7 	Here, the Board does not dispute
employer liability or argue that the claims against it are duplicative of those asserted against
Defendant Judge Hughey in his official capacity.
Further distinguishing these cases, Plaintiffs make clear that they do not assert there
are multiple employers. [Doc. No. 91] at 19. Rather, they argue that “the employer is not
6 Dixon v. Bd. of Cnty. Comm’rs of the Cnty. of Oklahoma, No. CIV-15-196-R, 2016 WL 5017332
(W.D. Okla. Sept. 19, 2016); Bale v. Bd. of Cnty. Comm’rs, No. 15-CV-0577-CVE-PJC, 2016 WL
3461292 (N.D. Okla. June 21, 2016), and McClellan v. Bd. of Cnty. Comm’rs of Tulsa Cnty., No.
07-CV-36-TCK-FHM, 2010 WL 4636328 (N.D. Okla. Nov. 5, 2010).
7 As noted by one court: “McClellan is consistent with the rulings of other federal district courts
located in Oklahoma where a county board of commissioners asserted that it should not be held
liable as the joint employer of a former employee of a juvenile bureau, and courts have rejected
arguments that a board of county commissioners cannot be treated as the employer of a juvenile
bureau’s former employee as a matter of law.” Bale, 2016 WL 3461292, at *3 (citing Dixon v.
Bd. of Cnty. Comm’rs of Cnty. of Oklahoma, No. CIV-15-196-R, 2015 WL 5839364, at *3 (W.D.
Okla. Oct. 7, 2015); Reynolds v. Bd. of Cnty. Comm’rs of the Cnty. of Oklahoma, No. CIV-14-
0250-HE, 2014 WL 6455508, at *2 (W.D. Okla. Nov. 13, 2014)).
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who is in control” and that “for all intents and purposes, Judge Hughey is the CCCJC/CJB.”
Id. at 20. 	They further assert that “Judge Hughey . . . is effectively the Director of the
CJB.” 	For these reasons, say Plaintiffs, the Court should decline to dismiss the official
capacity claim until discovery can disentangle the relationships. Even if the Court were to
take Plaintiffs’ conclusory statements about Judge Hughey’s role as true, Plaintiffs do not
sufficiently explain why the claims against Judge Hughey are not duplicative of those
against the undisputed employer—the Board. See Reynolds v. Bd. of Cnty. Comm’rs of the
Cnty. of Oklahoma, No. CIV-14-0250-HE, 2014 WL 6455508, at *2 (W.D. Okla. Nov. 13,
2014) (“While the director of the juvenile bureau or judge of the juvenile division, see
Okla. Stat. tit. 10A, § 2-4-102, rather than the county commissioners, may have the power
to determine the pertinent policy for the county in these circumstances, that does not mean
that the county cannot be held accountable for their actions.”). 	Moreover, Plaintiffs set
forth no binding authority that a juvenile bureau has capacity to be sued in its own name,
and district courts analyzing the issue appear to be split. 	Compare McClellan v. Bd. of
Cnty. Comm’rs of Tulsa Cnty., 261 F.R.D. 595, 603 (N.D. Okla. 2009) (“As an issue of
first impression, the Court holds that juvenile bureaus created by Oklahoma law have
capacity to sue and be sued for purposes of Federal Rule of Civil Procedure 17(b)(3).”)
with Reynolds, 2014 WL 6455508, at *1 (“The Board has not, though, been sued in this
case because of any particular act the commissioners took or failed to take, but because the
Juvenile Bureau is a county entity or agency that lacks the capacity to be sued in its own
name.”).
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Plaintiffs notably do not cite to Reynolds anywhere in their brief. 	[Doc. No. 91].
And even if they had, Plaintiffs offer no authority to suggest that the District Judge would
be the properly named party rather than the juvenile board. Cf. Bale, 2016 WL 3461292,
at *2 (dismissing judicial district as a party despite plaintiff’s claim that its chief judge
exercised administrative oversight of the juvenile bureau). 	The official capacity claims
against Defendant Judge Hughey are dismissed without prejudice.
2. 	Individual Capacity Claims
A § 1983 defendant sued in an individual capacity may be subject to personal
liability and/or supervisory liability. 	Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir.
2011). 	Personal liability requires personal involvement in the alleged constitutional
violation. Id. Supervisory liability requires an “affirmative link” between the supervisor
and the constitutional violation; specifically, that the defendant promulgated, created,
implemented, or possessed responsibility for the continued operation of a policy that
caused the constitutional harm, and acted with the state of mind required to establish the
alleged constitutional deprivation. 	George ex rel. Bradshaw v. Beaver Cnty., 32 F.4th
1246, 1255 (10th Cir. 2022); Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).
i. 	Assembly, Association, and Religion
All Plaintiffs except Plaintiff Goodfellow assert a claim for First Amendment
retaliation against the Individual Defendants stemming from one or more of their “First
Amendment rights of speech, assembly, association, and religion.” TAC ¶¶ 296, 298, 301,
304, 307, 310. 	Accordingly, the Individual Defendants moved to dismiss each of these
discrete theories. 	See e.g., [Doc. No. 75] at 15-23. 	In Response, Plaintiffs defend this
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claim as a free-speech retaliation claim, arguing that their speech was not made pursuant
to official duties, that their speech involved matters of public concern, and that such speech
prompted adverse action. 	See [Doc. No. 84] at 7–15; [Doc. No. 91] at 21–27; [Doc. No.
85] at 9–13. 	Plaintiffs did not meaningfully respond to Defendants’ arguments as to the
distinct theories of assembly, association, and religion/free exercise, nor did they identify
authority showing those theories are plausibly stated against each individual defendant.
Similarly, they did not address these theories in response to Defendants’ arguments for
qualified immunity, resulting in a failure to meet their burden to overcome the qualified
immunity defense.8
Accordingly, to the extent Count XIII rests on theories of assembly, association, or
religion/free exercise distinct from Plaintiffs’ free-speech retaliation theory, the Court
concludes those theories have been abandoned by Plaintiffs’ failure to respond to
Defendants’ dismissal arguments. 	C1.G ex rel. C.G. v. Siegfried, 38 F.4th 1270, 1282 (10th
Cir. 2022). 	Because Plaintiff Barton does not assert a free-speech retaliation theory, her
claim in Count XIII is dismissed without prejudice. 	The Court therefore confines its
remaining analysis of Count XIII to whether the Third Amended Complaint plausibly states
a First Amendment free-speech retaliation claim by Plaintiffs Moss, McClain, Wehmuller,
and Hardaway.
8 “When a § 1983 defendant raises qualified immunity, as the employees did in their motion for
judgment on the pleadings, the burden shifts to the plaintiff to establish both prongs of the
defense.” Hunt v. Montano, 39 F.4th 1270, 1284 (10th Cir. 2022) (citing Cox v. Glanz, 800 F.3d
1231, 1245 (10th Cir. 2015)).
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ii. 	Free Speech
The parties dispute which framework is appropriate for analyzing Plaintiffs’ free
speech retaliation claims. 	The Tenth Circuit applies one of two tests depending on the
relationship between the plaintiff and the defendant. The Garcetti/Pickering test (urged by
Defendant Kern) is used for protected speech retaliation claims in the public employee
context and applies five elements: “(1) whether the speech was made pursuant to an
employee’s official duties; (2) whether the speech was on a matter of public concern; (3)
whether the government’s interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether the
protected speech was a motivating factor in the adverse employment action; and (5)
whether the defendant would have reached the same employment decision in the absence
of the protected conduct.” Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (citing
Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Educ., 391 U.S. 563
(1968)).9 “The first three elements are issues of law for the court to decide, while the last
two are factual issues typically decided by the jury.” Trant, 754 F.3d at 1165. Further, the
Tenth Circuit has explained that analyzing the third element, often called Pickering
9 Defendants Majors, Mills, and Johnson argue that the Worrell test, which is applicable to claims
against non-employers, applies to the claims against them as they were not Plaintiffs’ “employer.”
See Trant, 754 F.3d at 1169 (applying the Garcetti/Pickering test to the claim against a board
defendant and the Worrell test to claims against individual defendants); see also Muhammad v.
Hall, 674 F. App’x 810, 812 (10th Cir. 2017). However, the Tenth Circuit has recently applied
the Garcetti/Pickering 	test to claims against individuals holding supervisory roles. 	See
Pfannenstiel v. Kansas, No. 23-3145, 2024 WL 3534142, at *10 (10th Cir. July 25, 2024).
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balancing, “is usually inappropriate—if not impossible—at the motion to dismiss stage.”
Brown v. City of Tulsa, 124 F.4th 1251, 1269 (10th Cir. 2025).
The Worrell test (urged by Defendants Majors, Mills, Johnson, and Hughey) applies
when the claim is asserted against a defendant who is not the plaintiff’s employer and there
is no contractual relationship between them. Worrell v. Henry, 219 F.3d 1197, 1212 (10th
Cir. 2000). Under the Worrell test, a plaintiff must show: (1) that the plaintiff was engaged
in constitutionally protected activity; (2) that the defendant’s actions caused the plaintiff to
suffer an injury that would chill a person of ordinary firmness from continuing to engage
in that activity; and (3) that the defendant’s adverse action was substantially motivated as
a response to the plaintiff’s exercise of constitutionally protected conduct. Id. While the
motivation factor is framed slightly differently between the two tests, the Tenth Circuit has
confirmed “there is no meaningful difference in the quantum of motivation required to
prove causation in the two frameworks.” Hedquist v. Beamer, 763 F. App’x 705, 712 (10th
Cir. 2019).
Plaintiffs’ briefing is inconsistent on the applicable framework. 	In response to
Defendant Kern’s motion, Plaintiffs appear to apply the Garcetti/Pickering test (but do not
directly cite it or its elements), organizing their argument around official duties, public
concern, and adverse employment actions. See [Doc. No. 84]. In response to the motion
filed by Defendants Majors, Mills, and Johnson, however, Plaintiffs cite neither Pickering
nor Worrell and instead appear to rely on a supervisory liability framework applicable to
some § 1983 claims. See [Doc. No. 85]. Plaintiffs appear to draw that framework from a
footnote in a related case analyzing similar claims against some of the same Individual
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Defendants. 	Theron, 2024 WL 4314899, at *3. 	However, the Theron court merely
explained it used Garcetti/Pickering because the factual allegations in the complaint
reflected that the defendants had supervisory authority over the plaintiffs.
Indeed, the Tenth Circuit has explained that in determining which framework
applies to a particular defendant, “‘the relevant inquiry” is ‘the extent to which [the
defendant] had authority over [the plaintiff’s] employment situation.’” Hedquist, 763 F.
App’x at 712 (quoting Leverington v. City of Colorado Springs, 643 F.3d 719, 730 n.8
(10th Cir. 2011)). Unlike in Theron, the TAC here does not contain sufficient allegations
for the Court to determine the level of supervisory authority that each Individual Defendant
had over each Plaintiff.10 Accordingly, for purposes of this Motion, the Court applies the
Worrell test.11
Protected Speech. 	Plaintiffs Moss, McClain, Wehmuller, and Hardaway allege
they engaged in protected speech by making complaints to the media and/or internally
about sexual harassment by Kern and the environment at CCCJC. See TAC ¶¶ 61, 64-66
(Moss reported Kern’s pattern of sexually inappropriate remarks directed at women
employees, including Moss, to Hughey on September 26, 2019, and to Commissioner
Anderson on October 9, 2019); ¶¶ 76-77, 81, 86 (McClain reported Kern’s pattern of
10 Confusing matters further, the Court presumes that the level of supervisory authority by one
defendant over one plaintiff could ostensibly change over a given time period if, for example,
certain parties are promoted or demoted. The TAC does not attribute dates to each alleged adverse
action or event of retaliation.
11 This decision does not prevent the parties from re-urging the Garcetti/Pickering test at summary
judgment after appropriate factual development as to this issue of authority.
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sexually inappropriate remarks directed at women employees, including McClain, to
Hughey, 	and 	separately 	contacted 	the 	EEOC 	on 	October 	15, 	2019); 	¶¶ 	120, 	125
(Wehmuller observed Kern engaging in sexually offensive conduct including remarks
concerning children enrolled at CCCJC, and joined Moss and McClain in drafting
complaints to Hughey, reported the conduct to County Commissioner Hader, and spoke
with the news); ¶¶ 130-133, 135 (Hardaway witnessed Kern making sexualized comments
about a 13-year-old girl in CCCJC’s care, submitted a written statement to Hughey, and
disclosed the conduct to the media in October 2019).
Reporting sexual harassment and misconduct affecting co-workers and children in
a public institution’s care, rather than merely addressing only personal grievances, to
supervisors and outside parties including the media constitutes protected speech on a matter
of public concern. 	See Duda v. Elder, 7 F.4th 899, 919 (10th Cir. 2021) (holding Wulf
clearly established that speech is protected where it “concerned a ‘broader public purpose’
about misconduct within the department rather than ‘personal grievances,’” was made to a
local reporter, and “concerned a wide range of alleged misconduct . . . including sexual
harassment”); Wulf v. City of Wichita, 883 F.2d 842, 857–60 (10th Cir. 1989) (affirming
First Amendment protection for public employee’s report of sexual harassment of a co-
worker and other institutional misconduct to outside authorities, finding “[a]llegations of
sexual harassment have been found to involve matters of public concern”); Lane v. Franks,
573 U.S. 228, 241 (2014) (Speech involves matters of public concern when it “is a subject
of legitimate news interest.”); but see Woodward v. City of Worland, 977 F.2d 1392, 1403–
04 (10th Cir. 1992) (drawing the distinction between unprotected speech addressed solely
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to the plaintiff’s personal harassment and protected speech that “had a broader public
purpose” concerning misconduct affecting others). 	Thus, as to allegations that Plaintiffs
made reports about sexual harassment and misconduct affecting co-workers and children,
Plaintiffs have plausibly pleaded they engaged in protected speech.12
The Court notes that not all of the alleged speech in the TAC would be deemed
“protected speech” for purposes of a free speech retaliation claim. For example, Plaintiff
McClain alleges she “contacted the EEOC regarding filing a charge against the Board,
Judge Hughey, Kern, and others.” 	TAC ¶¶ 87–89. 	However, these allegations cannot
sustain a free speech retaliation claim because filing an EEOC charge does not constitute
speech on a matter of public concern unless the charge raises systemic discrimination
extending beyond the individual filer, much less only contacting the EEOC.13 See Grabow
v. Indep. Sch. Dist. No. I-008, 86 F.3d 1166, at *4 (10th Cir. 1996) (“Plaintiff cannot
establish a First Amendment claim for retaliation based on filing an EEOC charge.”);
David v. City & Cnty. of Denver, 101 F.3d 1344, 1356 (10th Cir. 1996); Salemi v. Colorado
Pub. Employees’ Ret. Ass’n, 747 F. App’x 675, 699 (10th Cir. 2018). 	The TAC alleges
only that McClain “contacted the EEOC” without any allegation regarding the nature or
content of the communication (i.e. whether she was complaining of a personal grievance
12 Even if the Court were to apply the Garcetti/Pickering test, the first two elements appear to be
satisfied for the same reasons. See Lane v. Franks, 573 U.S. 228, 241 (2014) (Speech involves
matters of public concern when it “is a subject of legitimate news interest.”); Trant v. Oklahoma,
754 F.3d 1158, 1165 (10th Cir. 2014) (“Statements revealing official impropriety usually involve
matters of public concern.”); Thomas v. City of Blanchard, 548 F.3d 1317, 1325 (10th Cir. 2008)
(reporting wrongdoing to an external source ceased to be speech merely pursuant to official duties
and “became the speech of a concerned citizen”).
13 McClain did not file her first EEOC charge until March 2020. See [Doc. No. 72-1; 72-5].
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or conduct affecting others). See TAC ¶ 86. Thus, this specific instance was not protected
speech for purposes of a First Amendment retaliation claim.
Adverse Action and Motivation. 	Defendants Majors, Mills, and Johnson argue
that Plaintiffs have not alleged adverse employment actions or retaliatory motive by these
defendants. 	[Doc. No. 75] at 18–19. 	In their Response, Plaintiffs only offer speculation
(without pointing to any pleaded allegations) as to these Defendants’ motives. See [Doc.
No. 85] at 7 (“Whether it was done at the direction of Hughey, Mills, or out of her own
spiteful behavior, Johnson carried out the mission to rid the center of all employees who
complained about Kern or Hughey.”); id. (“Mills resented Moss and never missed an
opportunity to harass or intimidate her . . . When Mills was unable to successfully get rid
of Moss through his harassment and intimidation, he joined forces with Kern to set Moss
up to be fired.”); id. at 8 (“Either the Board completely failed to supervise and train their
HR Manager or Majors too chose to carry out the mission of Hughey, Kern, Mills, and
Johnson by engaging in a pattern of retaliatory behavior.”).14
The speculative nature of these statements does not satisfy the pleading standards
for alleging a retaliatory motive for taking adverse action. See McNellis v. Douglas Cnty.
Sch. Dist., 116 F.4th 1122, 1141–42 (10th Cir. 2024) (“While we do not mandate the
pleading of any specific facts in particular, a plaintiff must include enough context and
detail to link the allegedly adverse employment action to a discriminatory or retaliatory
14 Notably, the Tenth Circuit has not recognized a “reverse cat’s paw” theory where an allegedly
retaliating superior acts through a subordinate. Muhammad, 674 F. App’x at 813 (“This court has
not yet decided whether a subordinate employee can be liable for First Amendment retaliation
when he or she merely acts at the direction of a superior who desires to retaliate.”).
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motive with something besides sheer speculation.” (internal quotations and citations
omitted)); Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir. 2005). 	Further, the Court
may only consider allegations pleaded in the four corners of the complaint and not
allegations made for the first time in a response to a motion to dismiss. Brown v. City of
Tulsa, 124 F.4th 1251, 1270 (10th Cir. 2025). The TAC fails to plausibly link that each of
these three Defendants took specific adverse action against each of Plaintiffs Moss,
McClain, Wehmuller, and Hardaway because they engaged in protected speech.15
Defendant Kern argues the claims against him should be dismissed because
Plaintiffs do not assert that Kern took any adverse employment action against them in
response to their speech. 	[Doc. No. 77] at 25–29. 	Upon review of the TAC, the Court
finds that Plaintiff Moss plausibly alleges facts that support an inference that Defendant
Kern retaliated against her for her complaints regarding his conduct. She pleads that within
two months of complaining to Defendant Judge Hughey and Commissioner Anderson, she
had been terminated and banned from the premises. See Dixon v. Bd. of Cnty. Comm’rs of
the Cnty. of Oklahoma, No. CIV-15-196-R, 2016 WL 5017332, at *3 (W.D. Okla. Sept.
19, 2016) (“[T]he director of the juvenile bureau has the authority to hire and fire
15 Additionally, many of the adverse actions Plaintiffs point to in their briefing are duplicative and
non-specific as to each plaintiff. 	For example, Plaintiffs’ Response argues that all three of
Defendants Majors, Mills, and Johnson terminated Goodfellow because she served as a witness in
EEOC proceedings. Setting aside that Goodfellow does not bring a First Amendment claim, it is
simply nonsensical to assume that each of these defendants were equally responsible for the final
decision to terminate Goodfellow. Thus, the allegations are collective and do not satisfy standards
for pleading a § 1983 claim. Pahls, 718 F.3d at 1225.
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counselors and other employees and manages the day-to-day affairs of the bureau.”).
Moss’s free-speech retaliation claim against Kern survives.
As to Plaintiff McClain, her most specific allegation against Kern alleges that he
stripped her of personnel file access days after she “contacted the EEOC regarding filing a
charge against the Board, Judge Hughey, Kern, and others.” TAC ¶¶ 87–89. As previously
discussed, these allegations as currently stated do not constitute protected speech. 	See
supra. The remaining specific adverse actions attributable to Kern regarding McClain do
not appear causally connected to McClain engaging in protected speech. See TAC ¶¶ 78,
90. Therefore, McClain has not stated a First Amendment retaliation claim against Kern.
Plaintiffs Wehmuller and Hardaway’s free speech retaliation claim against Kern
likewise fails because the TAC attributes the alleged adverse actions collectively to
multiple defendants without specifying which defendant took which action. TAC ¶¶ 308,
311; see Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Just. Ctr., 492 F.3d
1158, 1163 (10th Cir. 2007) (“[A] complaint must explain what each defendant did to
him or 	her; when 	the 	defendant 	did 	it; how 	the 	defendant's 	action 	harmed 	him or
her; and, what specific legal right the plaintiff believes the defendant violated.”); Robbins,
519 F.3d at 1250. Accordingly, Wehmuller and Hardaway’s free speech retaliation claims
against Defendant Kern are dismissed.
The same pleading defects exist as to Defendant Judge Hughey. 	While there are
numerous allegations that reference Defendant Judge Hughey, most of them vaguely
reference “retaliatory conduct” by multiple Individual Defendants without specifying the
particular actions or who the action is attributable to. 	See id. 	Plaintiff Hardaway does
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allege a somewhat specific allegation that Judge Hughey “ultimately approved” a decision
by Defendant Johnson to not allow him to interview for a principal position in 2021 in
retaliation for him speaking to the media in October 2019.16 TAC ¶¶ 135–140. However,
this allegation standing alone is too conclusory to support a reasonable inference that cause
can be attributed to Defendant Judge Hughey or that such decision was in retaliation for
Hardaway’s protected speech.
Similarly, Plaintiffs’ bare allegation that Defendant Judge Hughey is the “final
policymaker” does not allow a reasonable inference that he was personally involved in any
termination or adverse employment decisions against Plaintiffs for exercising their free
speech rights. TAC ¶ 276; see Schneider v. City of Grand Junction Police Dep’t, 717 F.3d
760, 767–68 (10th Cir. 2013). 	“Rather, these factual assertions plausibly show that
Defendant Judge Hughey provided higher-level oversight of the CCCJC, including
supervision of the CCCJC Director[.].” 	Theron v. Canadian Cnty. ex rel. Bd. of Cnty.
Comm’rs, No. CIV-23-1176-G, 2024 WL 4332800, at *3 (W.D. Okla. Sept. 26, 2024).
Accordingly, Plaintiffs have failed to state a claim against Defendant Judge Hughey.
In summary, only Plaintiff Moss has plausibly stated a free speech retaliation claim
against Defendant Kern. Plaintiffs McClain, Wehmuller, Hardaway, and Barton failed to
16 As to Defendant Johnson, even construing the allegations in the light most favorable to Plaintiffs,
there is no allegation as to why Defendant Johnson—an individual newly hired at CCCJC—would
be motivated to “continue” retaliatory conduct against any of the plaintiffs for reports made months
or years earlier about her predecessor. 	See Maestas v. Segura, 416 F.3d 1182, 1189 (10th Cir.
2005) (citations omitted) (“Adverse action in close proximity to protected speech may warrant an
inference of retaliatory motive . . . [b]ut temporal proximity is insufficient, without more, to
establish such speech as a substantial motivating factor in an adverse employment decision.”).
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sufficiently plead a § 1983 claim against Defendants Majors, Mills, Johnson, Kern, and
Hughey and therefore, these defendants are also entitled to qualified immunity as to these
plaintiffs. Montoya v. Vigil, 898 F.3d 1056, 1064 (10th Cir. 2018). As to Plaintiff Moss’s
surviving claim against Defendant Kern, the right was clearly established at the relevant
time, and Kern is not entitled to qualified immunity at this stage.17 See supra; McFall v.
Bednar, 	407 	F.3d 	1081, 	1087 	(10th 	Cir. 	2005) (“[The 	defendant] 	violated 	clearly
established law, and thus is not entitled to qualified immunity, if he terminated [the
plaintiff] for exercising her free speech rights.”); Wulf, 883 F.2d at 857–60.
3. 	Municipal Liability
Plaintiffs McClain, Barton, and Fletcher assert a claim for First Amendment
retaliation against the Board under a municipal liability theory pursuant to Monell v.
Department of Social Services, 436 U.S. 658 (1978). 	However, the absence of a
constitutional violation of these Plaintiffs by the Individual Defendants precludes a finding
of liability against the Board. 	See Muskrat v. Deer Creek Pub. Schs., 715 F.3d 775, 788
(10th Cir. 2013); Fenn v. City of Truth or Consequences, 983 F.3d 1143, 1150 (10th Cir.
2020). Although the Court found above that Plaintiff Moss has sufficiently alleged a First
17 This finding “does not foreclose Defendants from reasserting their entitlement to qualified
immunity on a motion for summary judg[]ment should [Plaintiffs’] allegations in the complaint
prove to be unfounded.” Seamons v. Snow, 84 F.3d 1226, 1238 (10th Cir. 1996). Moreover, the
Tenth Circuit has cautioned against applying qualified immunity at the motion to dismiss for a
First Amendment retaliation claim in the public employment context. Brown v. City of Tulsa, 124
F.4th 1251, 1269 (10th Cir. 2025) (“Practically speaking, the plaintiff will not know what interest
the government will assert, how it will assert it, or what disruption the government claims the
speech caused, making it impossible for the plaintiff to (1) allege facts sufficient to show that the
defendant ‘plausibly violated their constitutional rights,’ and (2) identify a materially similar case
where the employee prevailed to demonstrate that their First Amendment right was clearly
established.”).
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Amendment retaliation claim against Defendant Kern, Moss does not assert a municipal
liability claim against the Board. 	See TAC ¶¶ 274–281. 	Accordingly, Count XI is
dismissed without prejudice.
D. Title VII
Title VII prohibits an employer from discriminating against an individual with
respect to “compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
To state a plausible discrimination claim, a plaintiff need not establish a prima facie case
under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), but the elements of that
burden-shifting framework are helpful in assessing plausibility. 	See Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 510–12 (2002); Khalik v. United Air Lines, 671 F.3d 1188,
1192–93 (10th Cir. 2012). 	Those elements include (1) membership in a protected class,
(2) an adverse employment action, and (3) circumstances giving rise to an inference of
discrimination. See Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 & n.1
(10th Cir. 2015).
1. 	Gender Discrimination
In Count I, Plaintiffs Moss, McClain, Barton, Wehmuller, and Goodfellow allege
they were discriminated against and received disparate treatment on the basis of sex/gender
in violation of Title VII. The first element is undisputed by the parties: all five plaintiffs
are women. The dispositive questions are whether the Third Amended Complaint plausibly
alleges adverse employment actions and, critically, whether it plausibly connects those
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actions to sex-based discrimination rather than to the numerous other causes the Third
Amended Complaint itself identifies.
Plaintiff Moss pleads a plausible disparate treatment claim. 	The Third Amended
Complaint alleges that Moss, who had served as Interim Facility Director and was Co-
Assistant Facility Director, was passed over for promotion to Facility Director in favor of
Defendant Kern, a male whom she alleges was less qualified. 	TAC ¶¶ 49, 159–160.
Accordingly, Moss alleges that this constitutes disparate treatment on the basis of sex in
violation of Title VII. The Board’s response—that Kern had experience as a deputy warden
at a juvenile correctional facility—goes to the merits of the claim, not its plausibility. At
this stage, the Court accepts the allegation of relative qualifications as true. Whether Kern
was in fact better qualified is a factual dispute not resolvable on a motion to dismiss.
Moss’s gender discrimination claim is therefore sufficient to survive dismissal.
The remaining four plaintiffs urge a disparate treatment claim based on a sex
stereotyping theory derived from Bostock v. Clayton Cnty., Georgia, 590 U.S. 644 (2020),
and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), arguing that Kern’s practice of
favoring younger, more conventionally attractive women constitutes sex discrimination.18
[Doc. No. 83] at 15–16. The Court is not persuaded. Price Waterhouse protects employees
18 Plaintiffs’ Response cites to Paragraphs 34–38 of the Third Amended Complaint to demonstrate
they sufficiently plead this theory. [Doc. No. 83] at 15. However, standing alone and as it relates
to a disparate treatment theory, these paragraphs are vague and conclusory. 	For example,
Paragraph 35 states only that “Kern favored and gave special treatment to younger women, and
often made crude comments regarding . . . women over the age of 40, including some of the
Plaintiffs.” TAC ¶ 35. The allegations do not specify which Plaintiffs this refers to, nor do they
demonstrate that Kern took adverse employment action against any Plaintiff because of her
perceived attractiveness.
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penalized for failing to conform to gender role expectations. Bostock extended that logic
to sexual orientation and transgender status. 	The unifying principle of both decisions is
that a Title VII violation occurs when “changing the employee’s sex would have yielded a
different choice by the employer.” 	Bostock, 590 U.S. at 659–660. Plaintiffs’ allegations
are more appropriately characterized as describing discrimination within a single sex based
on age and appearance. 	There is no allegation that a similarly situated older or less
attractive male employee would have been treated better. 	Without that comparative
foundation, the theory describes appearance-based and age-based favoritism, neither of
which Title VII reaches. See Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d
276, 290 (2d Cir. 1998) (“[T]his Court has upheld the dismissal of a Title VII complaint
for failure to state a claim where a female employee alleged gender discrimination on the
basis that the promotions she sought were given to more attractive women, but did not
allege that men were not also subject to attractiveness criteria in determining promotions
and did not allege that she had ever been in competition with a male.”).
Plaintiffs cite to Dothard v. Rawlinson, 433 U.S. 321 (1977), and Smith v. Avanti,
249 F. Supp. 3d 1194 (D. Colo. 2017), in support of their theory that an employer violates
Title VII if preferential treatment is given to more attractive employees. However, these
cases are inapposite. Dothard is a disparate impact case, not a sex stereotyping or disparate
treatment case, in which the Supreme Court invalidated facially neutral height and weight
requirements that statistically excluded over forty percent of the national female population
from employment. 	See Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006)
(distinguishing disparate impact claims, which challenge employment practices “fair in
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30
form, but discriminatory in operation,” from disparate treatment claims requiring a
showing that an employer treated individuals less favorably because of a protected
characteristic). Smith is a Fair Housing Act decision applying Colorado state law, not Title
VII, and its sex stereotyping analysis addressed discrimination against a transgender
individual and a same-sex couple based on norms concerning gender identity and sexual
orientation. See Smith, 249 F. Supp. 3d at 1200–01.
Thus, there are insufficient allegations from which a reasonable fact finder could
plausibly infer that “but for” the Plaintiffs’ gender, they would not have faced the alleged
adverse actions. 	“Simply saying ‘I was discriminated against’ does not give rise to an
inference of discrimination.” 	Keenan-Coniglio v. Cumbres & Toltec Scenic Operating
Comm’n, 769 F. Supp. 3d 1216, 1236 (D.N.M. 2025). 	To the extent Plaintiffs McClain,
Barton, Wehmuller, and Goodfellow assert Count I on a disparate treatment theory, that
claim is dismissed without prejudice.
2. 	Hostile Work Environment
Count I also asserts a hostile work environment theory based on sex by Plaintiffs
Moss, McClain, Barton, Wehmuller, and Goodfellow. A plaintiff can state “a claim of sex
discrimination based on a hostile work environment” if she can “show (1) that she was
discriminated against because of her sex; and (2) that the discrimination was sufficiently
severe or pervasive such that it altered the terms or conditions of her employment and
created an abusive working environment.” Morris v. City of Colorado Springs, 666 F.3d
654, 663 (10th Cir. 2012) (citation omitted). 	A plaintiff must “plead sufficient facts to
show that the work environment ‘is permeated with discriminatory intimidation, ridicule,
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and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” 	Brown v. LaFerry’s LP Gas
Co., 708 F. App’x 518, 520 (10th Cir. 2017) (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993)). 	Additionally, a “plaintiff must allege facts showing that the work
environment is both subjectively and objectively hostile or abusive under this standard.”
Id. (internal quotations and citation omitted). “To meet the objective portion of this test,
the alleged harassment must be of the character that it would be deemed hostile by a
reasonable employee under the same or similar circumstances.” Id. Courts “consider the
totality of the circumstances in determining whether a work environment is hostile or
abusive, including ‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’” Id. (quoting Harris, 510
U.S. at 23). However, “the Tenth Circuit has cautioned that, given the fact-intensive nature
of the inquiry, ‘[t]he severity and pervasiveness evaluation is particularly unsuited [even]
for summary judgment.’” Ballage v. Hope & Home, No. 21-CV-01320-PAB-KMT, 2022
WL 3716519, at *7 (D. Colo. Aug. 29, 2022), report and recommendation adopted, No.
21-CV-01320-PAB-MDB, 	2022 	WL 	4290471 	(D. 	Colo. 	Sept. 	16, 	2022) 	(quoting
Sanderson v. Wyom. Hwy. Patrol, 976 F.3d 1164, 1177 (10th Cir. 2020)).
The Court is mindful that Title VII does not establish a general civility code for the
workplace. Morris v. City of Colorado Springs, 666 F.3d 654, 663 (10th Cir. 2012) (citing
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). 	General vulgarity,
profanity, and boorish conduct, even when extreme, are not actionable under Title VII
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unless the plaintiff was subjected to such conduct because of her sex. 	Id. (citing Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998)). The Court therefore considers only those
allegations that plausibly reflect sex-based targeting rather than general misconduct that
happened to occur in a mixed-sex workplace.
The TAC alleges that Defendant Kern regularly engaged in consistent crude or
vulgar commentary about women. See e.g., TAC ¶¶ 34–38. The allegations describe his
conduct toward female employees as “routine” and “regular” over his approximately eight-
month tenure from March to November 2019, including remarks about women employees’
physical appearance, the tightness of their clothing, and their sexuality. 	The allegations
also describe instances of Kern discussing his fantasies about having sex with female
employees, ratings of their sexual prowess based on appearance, and crude comments
directed specifically at women employees over the age of forty. 	TAC ¶¶ 34-37. 	This
conduct is facially sex-based.
Plaintiffs 	Moss, 	McClain, 	Barton, 	and 	Wehmuller 	further 	describe 	specific
instances of crude and inappropriate comments or behavior directed at each of them. As
to Moss, the TAC alleges Kern regularly made sexually charged remarks specifically
targeting women employees, including Moss, regarding their appearance and sexuality.
TAC ¶ 61. 	As to McClain, the TAC alleges Kern regularly included sexually charged
remarks about women’s appearance and sexuality in his conversations with her specifically
(¶¶ 76-77), and that Hughey made inappropriate comments about another employee’s
breasts directly to McClain (¶ 79). 	As to Barton, the TAC alleges Kern asked whether a
female employee “looks hot,” speculated she was “a mail-order bride,” and told Barton he
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wanted to get that employee “away from her husband” (¶ 100), and separately discussed
which CCCJC employees he would have sex with directly to Barton (¶ 175) and how his
genitals are positioned when using the bathroom (¶¶ 99, 175). As to Wehmuller, the TAC
alleges Kern “consistently” discussed vulgar and uncomfortable topics with her, including
“intimately describ[ing] his penis and testicles” to her. 	TAC ¶¶ 121, 171. 	Although the
Court acknowledges that the TAC contains at least two specific allegations that Kern made
vulgar comments to men, (¶¶ 36, 132), the Court is not satisfied at this stage that this
compels a conclusion that his “consistent” sexually-charged comments to Plaintiffs were
not made to them “because of their sex.” Plaintiff Goodfellow, however, does not allege
any specific instances of harassment directed towards or about her, and on that basis the
Court finds that Goodfellow has failed to state a claim for hostile work environment.
As to whether the conduct altered the terms or conditions of each plaintiff’s
employment and created an abusive working environment, the Board’s argument on this
element is underdeveloped, consisting of a single conclusory sentence in the motion and
no meaningful development in the reply. [Doc. No. 74] at 14. As a general practice, the
Court “will not consider issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation.” United States v. Wooten, 377 F.3d 1134, 1145
(10th Cir. 2004) (internal quotations and citation omitted). 	Thus, the Court declines
consider the Board’s argument as to this element.19
19 But see Powell v. McDonough, No. 20-CV-1223 MV/KK, 2023 WL 2743529, at *4 (D.N.M.
Mar. 31, 2023) (“The Court would be perpetuating a legal fiction regarding the reality of women
in the workplace if it failed to recognize that comments like these indeed affect the terms,
conditions, and/or privileges of an individual’s employment.”).
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Viewing the allegations in their totality and in the light most favorable to Plaintiffs,
the Court finds that Plaintiffs Moss, McClain, Barton, and Wehmuller have alleged
sufficient facts to support a finding or inference of a hostile work environment based on
sexual harassment.20 	Ballage, 2022 WL 3716519, at *7 (denying a motion to dismiss
where plaintiff alleged “multiple incidents of gender-specific, sexually charged conduct
involving the same male supervisor, which made Plaintiff uncomfortable, and of which
Defendant’s ‘upper management’ was ‘thoroughly aware’”); Doe v. Hutchinson, 728 F.
App’x 	829, 	833–34 	(10th 	Cir. 	2018) (finding 	allegations 	plausibly 	suggested 	a
pervasively hostile work environment, where the complaint alleged multiple instances
of sexually explicit, gender-based comments made by a male teacher to the plaintiff and to
other female students). Count I’s hostile work environment claim/theory is dismissed only
as to Plaintiff Goodfellow.
3. 	Religious Discrimination
Plaintiff McClain alleges the Board violated Title VII by discriminating against her
as a Christian when she was not permitted to hold bible study on work premises during
unpaid lunch breaks and was not provided a reasonable accommodation. 	The parties
appear to agree that under a failure-to-accommodate theory, a plaintiff must show: “(1) the
employee has a bona fide religious belief that conflicts with a job requirement, (2) the
20 The Board makes a brief argument that it had insufficient notice of the conduct creating the
hostile work environment and that it responded appropriately once it did receive notice. [Doc. No.
74] at 14. This argument more appropriately goes to employer liability rather than to the elements
of the underlying claim. Whether the Board adequately received notice and whether its response
was proper presents factual issues better reserved for a later stage of the litigation.
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employee informed the employer of this conflict; and (3) the employer fired the employee
for failing to comply with the job requirement.” Tabura v. Kellogg USA, 880 F.3d 544,
549 (10th Cir. 2018). “While the 12(b)(6) standard does not require that Plaintiff establish
a prima facie case in [his] complaint, the elements of each alleged cause of action help to
determine whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d at 1192.
The Court also notes that the “exact elements for a prima facie case vary by
situation, and courts have employed various formulations through the years.” 	Gunkel v.
OU Med. Inc., No. CIV-23-497-PRW, 2024 WL 787895, at *3 (W.D. Okla. Feb. 26, 2024).
“A more specific prima facie case formulation has sometimes been employed in religious
accommodation cases” and requires “a showing that (1) [the employee] had a bona fide
religious belief that conflicted with an employment requirement; and (2) [the employee’s]
need for an accommodation was a motivating factor in the employer’s decision to take an
adverse employment action against [him].” Id. (internal quotations and citation omitted).
The Board also cites to this standard. [Doc. No. 74] at 15.
In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court explained a
“failure to accommodate” claim is not a separate claim from a disparate treatment claim
but rather, a theory on which a disparate treatment claim may be based upon. 	575 U.S.
768, 773 (2015). 	The Supreme Court concluded that “the rule for disparate-treatment
claims based on a failure to accommodate a religious practice is straightforward: An
employer may not make an applicant’s religious practice, confirmed or otherwise, a factor
in employment decisions.” 	Id. 	It further explained that Title VII prohibits actions taken
with a discriminatory motive. Id.
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With this context in mind, and under any of the above discussed recitation of
elements, the Court finds that Plaintiff McClain has failed to state a claim for religious
discrimination. The TAC affirmatively alleges a non-religious motive for the challenged
conduct. 	TAC ¶ 81 (“Under the direction of Judge Hughey, and in retaliation for the
complaints that McClain, along with others, had made about Defendant Kern to Defendant
Hughey, Defendants Kern and Majors informed McClain that her bible study was not
permitted.”). McClain argues that the TAC can simultaneously support both a retaliation
theory and a religious discrimination theory. That may be true in theory, but it is not true
here. 	The Court accepts well-pled factual allegations as true, and this allegation’s
characterization of the prohibition as retaliatory forecloses any inference of religious
motive. While a plaintiff may plead alternative legal theories, she may not simultaneously
allege a specific non-religious motive for an action and maintain that the same action was
motivated by religion. The TAC alleges no facts from which the Court could reasonably
infer that religion was a factor in any adverse employment action at all.
Further, the TAC identifies no conflict between a bona fide religious belief and an
employment requirement. 	See Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149,
1155 (10th Cir. 2000). 	The accommodation framework typically addresses situations in
which performing a job requires something a religion forbids, or a religion requires
something a job forbids such as employees whose faith requires Sabbath observance,
mandatory prayer at scheduled times, or religious dress in violation of workplace rules.
See Snyder v. Arconic Corp., No. 3:22-CV-0027-SHL-SBJ, 2023 WL 6370785, at *5 (S.D.
Iowa Aug. 31, 2023), aff’d, No. 23-3188, 2024 WL 3813173 (8th Cir. Aug. 14, 2024). No
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such conflict is alleged here. 21 	Plaintiff McClain’s religious discrimination claim is
dismissed without prejudice.
E. Age Discrimination under the ADEA
Plaintiffs McClain and Wehmuller allege the Board is liable for violation of the Age
Discrimination 	in 	Employment 	Act 	(“ADEA”), 	29 	U.S.C. 	§§ 	621 	et 	seq.
The ADEA makes it “unlawful for an employer to . . . discharge any individual . . . because
of such individual’s age.” 	29 U.S.C. § 623(a)(1). 	Although Plaintiffs do not need to
establish a prima facie case in the complaint, the Court considers the elements to help
determine whether Plaintiffs’ ADEA claim is plausible. Frappied v. Affinity Gaming Black
Hawk, LLC, 966 F.3d 1038, 1054 (10th Cir. 2020). Generally, to establish a prima facie
case of age discrimination, a plaintiff must prove that “1) she is a member of the class
protected by the ADEA; 2) she suffered an adverse employment action; 3) she was
qualified for the position at issue; and 4) she was treated less favorably than others not in
the protected class.” Jones v. Oklahoma City Pub. Schs., 617 F.3d 1273, 1279 (10th Cir.
2010) (alteration and internal quotation marks omitted); see also Hare v. Denver Merch.
Mart, Inc., 255 F. App’x 298, 301–02 (10th Cir. 2007). 	“To state a plausible claim, the
plaintiff must also allege that his age was a but-for cause of his termination.” 	Cline v.
21 Plaintiff cites to a non-binding district court decision for the proposition that there is no
requirement that a religious belief or practice must directly conflict with a job requirement. [Doc.
No. 83] at 21 (citing Equal Emp. Opportunity Comm’n v. JBS USA, LLC, 339 F. Supp. 3d 1135,
1177 (D. Colo. 2018)). Not only is that characterization antithetical to what that case holds, but
the Tenth Circuit has issued several opinions reciting that familiar elemental framework that
includes that the “bona fide religious belief [] conflicts with an employment requirement.” See
e.g., Tabura v. Kellogg USA, 880 F.3d 544, 549 (10th Cir. 2018); Thomas v. Nat’l Ass’n of Letter
Carriers, 225 F.3d 1149, 1155 (10th Cir. 2000).
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Clinical Perfusion Sys., Inc., 92 F.4th 926, 934 (10th Cir. 2024) (citing Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167 (2009)).
The Board challenges only the but-for causation requirement. [Doc. No. 74] at 22.
However, in making the argument, the Board misapplies the standard for but-for causation.
The Tenth Circuit has explained that while a plaintiff must allege that age was a but-for
cause of an adverse employment action, “[t]his causal standard, however, does not require
plaintiffs to show that age was the sole motivating factor in the employment decision.”
Cline, 92 F.4th at 934 (internal quotations and citation omitted). 	“Instead, an employer
may be held liable under the ADEA if other factors contributed to its taking an adverse
action, as long as ‘age was the factor that made a difference.” Id.
Here, the Board’s own Motion forecloses dismissal because the Board specifically
states: the Plaintiffs “allege other women were given the positions because of their age and
because of Kern’s opinion of the physical appearances of the women who were hired.”
[Doc. No. 74] at 22 (emphasis in original) (citing TAC ¶¶ 189, 194). 	While it is true that
the Third Amended Complaint does not specifically allege that “age was the factor that
made a difference,” the Court finds that a reasonable inference can be drawn from the
allegations that age was the factor that made the difference in Defendant Kern’s decisions.
See e.g., TAC ¶¶ 35, 83–85, 123–24, 188-89, 193-94. 	Specifically, Plaintiffs allege that
Defendant Kern “favored and gave special treatment to younger women, and often made
crude comments regarding CCCJC employees that were women over the age of 40,
including some of the Plaintiffs.” 	They further allege they were more qualified than the
younger employees Kern selected for positions. Taken together and drawing all reasonable
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inferences in Plaintiffs’ favor, these allegations—a pattern of age-based targeting, selection
of younger less qualified employees over more qualified older ones, and an express age-
based motive—are sufficient to support a plausible inference that age was a but-for cause
of the adverse employment decisions at the pleading stage. See Cline, 92 F.4th at 935–36.
Plaintiff McClain and Wehmuller’s ADEA claims (Count II) survive dismissal.
F. Equal Pay Act
Plaintiff Moss alleges the Board violated the Equal Pay Act (EPA), 29 U.S.C. § 206
in Count X. She alleges she was “paid less than Defendant Mills, a man, even though they
held the same job title and performed substantially similar work.” TAC ¶ 270. To state a
claim for an EPA violation, Moss must allege that “(1) she was performing work which
was substantially equal to that of the male employees considering the skills, duties,
supervision, effort and responsibilities of the jobs; (2) the conditions where the work was
performed were basically the same; (3) the male employees were paid more under such
circumstances.” Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1364 (10th Cir. 1997)
(quoting Tidwell v. Fort Howard Corp., 989 F.2d 406, 409 (10th Cir. 1993)). 	The equal
work requirement is not construed broadly—the jobs compared must be substantially equal
in terms of both effort and responsibility. Id. at 1364–65.
The Board argues that Moss has 	not adequately alleged substantially equal
responsibility. The Court disagrees. Moss alleges that she and Defendant Mills held the
same position of Co-Assistant Facility Director, that Moss trained Mills for that position,
and that Mills was paid more than Moss even though they performed substantially similar
work. 	TAC ¶¶ 50–51, 270–71. 	These allegations provide sufficient support for the
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responsibility component of the EPA test at the pleading stage. 	Whether the evidence
ultimately supports that the positions were substantially equal in responsibility is a factual
question not resolvable on a motion to dismiss.
The Board further argues that Moss’s allegation is made in bad faith because the
previous complaint alleged equal pay and the TAC now alleges unequal pay. However, an
amended complaint supersedes previous pleadings and becomes the operative pleading in
the case. 	Mohammed v. Holder, 2009 WL 529549, at *3 (D. Colo. Mar. 2, 2009)
(amended complaint supersedes original complaint for purposes of consideration of motion
to dismiss for failure to state a claim). 	“The amended complaint must stand or fall on its
own.” 	TV Commc’ns Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022,
1025 (10th Cir. 1992). The Court must accept the TAC’s allegations as true at this stage.
Twombly, 550 U.S. at 555. 	While the inconsistency between pleadings on this point is
noted and may bear on credibility at a later stage of the litigation, the Court declines to
dismiss the claim on this basis. The Board’s Motion to Dismiss is denied as to Count X.
G. Disability Discrimination Under ADA and OADA
Plaintiffs McClain and Barton assert claims for discrimination against the Board
under the ADA (Count IV) and OADA (Count V). 	The ADA prohibits discrimination
“against a qualified individual on the basis of disability in regard to . . . the . . . discharge
of employees.” 42 U.S.C. § 12112(a). 	Similarly, the OADA prohibits employment
discrimination on the basis of disability. See Okla. Stat. tit. 25, § 1302. The parties agree
that the essential elements of a prima facie case of disability discrimination are the same
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under the ADA and OADA. See Board Mot. [Doc. No. 74] at 21, Pl. Resp. [Doc. No. 83]
at 28; see also Cline v. Clinical Perfusion Sys., Inc., 92 F.4th 926, 931 (10th Cir. 2024).
To state a claim under the ADA, Plaintiffs must allege (1) she is disabled within the
meaning of the ADA, (2) she is qualified to perform the essential functions of the job with
or without accommodation, and (3) she suffered an adverse employment action because of
her disability. Lopez v. Compa Indus., Inc., No. 24-2041, 2024 WL 3518015, at *2 (10th
Cir. July 24, 2024) (citing Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 989–90
(10th Cir. 2021)). The Board moves to dismiss on the first element alone. [Doc. No. 74]
at 18–20.
Both 	Plaintiffs 	proceed 	under 	the 	first 	definitional 	prong 	of 	“disability”—a
“physical or mental impairment that substantially limits one or more major life activities.”
42 U.S.C. § 12102(1)(A); [Doc. No. 83] at 26. Thus, to satisfy the first test for disability,
“a plaintiff must (1) have a recognized impairment, (2) identify one or more appropriate
major life activities, and (3) show the impairment substantially limits one or more of those
activities.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011).
Whether a plaintiff has a recognized impairment and identifies one or more major life
activities are questions of law for the court, and the question of whether an impairment
substantially limits a major life activity is generally a question of fact for the jury. Id.
McClain 	alleges 	two 	bases 	for 	disability: 	high-risk 	pregnancy 	and 	anxiety.
Although she characterizes her pregnancy as “high risk,” her allegations identify no
complications from the pregnancy or other impairments that could constitute a disability
under the ADA. See Stewart v. Kendall, No. CIV-20-650-D, 2022 WL 49190, at *6 (W.D.
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Okla. Jan. 5, 2022) (“[P]regnancy, by itself, is not a disability under the ADA.”) (gathering
cases). Accordingly, McClain’s disability discrimination claim on the basis of pregnancy
fails.
As to anxiety, it appears the parties agree that generalized anxiety disorder is a
recognized impairment. 	See Mayfield v. Target Corp., No. 5:18-CV-04036-HLT, 2019
WL 5576938, at *3 (D. Kan. Oct. 29, 2019) (citing U.S. EEOC, EEOC Enforcement
Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (2008)
(listing anxiety disorders as a mental impairment under the ADA)). Defendant, however,
argues that McClain does not adequately plead that her anxiety substantially limited a
major life activity. 	The Court agrees. 	Although McClain alleges that her anxiety
“substantially 	impacted 	working 	and 	other 	major 	life 	conditions,” 	TAC 	¶ 92, 	this
allegation, without more, is conclusory. McClain does not allege facts to support how her
work was impacted by her anxiety or “that she was substantially limited in performing a
class of jobs or broad range of jobs in various classes as compared to most people with
comparable training, skills, and abilities.” 	Allen v. SouthCrest Hosp., 455 F. App’x 827,
835 (10th Cir. 2011). Thus, she does not plead “enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S. at 570; See also Dancause v. Mount Morris
Cent. Sch. Dist., 590 F. App’x 27, 29 (2d Cir. 2014) (affirming dismissal of ADA claim
because the plaintiff failed to allege “facts from which a court could plausibly infer” that
her impairment substantially limited certain major life activities); Iqbal, 556 U.S. at
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678 (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice [to state a claim].”). 22
As to Plaintiff Barton, she alleges that she was disabled because she was at high risk
to contract COVID-19 and had high blood pressure. Even assuming, without deciding, that
these were impairments for purposes of the ADA, the only limitation Barton alleges is
inability to drive a vehicle. TAC ¶ 211. The Tenth Circuit has expressly held that driving
is not a major life activity under the ADA. Kellogg v. Energy Safety Servs. Inc., 544 F.3d
1121, 1126 (10th Cir. 2008).
Thus, both Plaintiffs McClain and Barton failed to allege that they are disabled
within the meaning of the ADA, and their ADA and OADA claims (Counts IV and V) are
dismissed without prejudice.
H. Retaliation Claims Under Title VII, FMLA, ADA, and OADA
Plaintiffs assert several claims of retaliation against the Board: Title VII retaliation
(Count VI); ADA retaliation (Count VII); OADA retaliation (Count VIII); and FMLA
retaliation (Count IX).23 Title VII, the ADA, and the FMLA all prohibit employers from
discriminating against employees for opposing actions prohibited by the statutes. See 42
22 Plaintiffs rely on Theron et al. v. Canadian County ex rel. Board of County Commissioners, No.
CIV-23-1176-G, 2024 WL 4332796 (W.D. Okla. Sept. 26, 2024), in which the court found similar
ADA allegations sufficient at the pleading stage. Theron is distinguishable. The plaintiff in that
case alleged multiple diagnosed medical conditions that specifically impacted both working and
the circulatory system—a named major bodily function expressly recognized under 29 C.F.R. §
1630.2(i)(1)(ii). McClain identifies no specific major life activity or bodily function beyond the
conclusory characterization in Paragraph 92 and offers no factual allegations to support the
conclusory statement that her ability to work was substantially impacted by her anxiety.
23 Count VI is asserted by all Plaintiffs. Counts VII, VIII, and IX are asserted by Plaintiffs McClain
and Barton.
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U.S.C. §§ 2000e-3(a), 12203(a); 29 U.S.C. § 2615(a)(2). To establish a prima facie case
of retaliation under these statutes, a plaintiff must show: (1) she engaged in a protected
activity; (2) she suffered an adverse employment action during or after her protected
activity, which a reasonable employee would have found materially adverse; and (3) there
was a causal connection between the protected activity and the adverse action. See Lincoln
v. BNSF Ry. Co., 900 F.3d 1166, 1209 (10th Cir. 2018) (ADA claim); Tabor v. Hilti, Inc.,
703 F.3d 1206, 1216 (10th Cir. 2013) (Title VII claim); Metzler v. Fed. Home Loan Bank
of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006) (FMLA claim). An adverse action is one
that would dissuade a reasonable employee from engaging in the protected activity. Lara
v. Unified Sch. Dist. #501, No. 06-4145-RDR, 2008 WL 11378842, at *6 (D. Kan. Aug.
13, 2008), aff’d sub nom. Lara v. Unified Sch. Dist. #501, 350 F. App’x 280 (10th Cir.
2009). 	Further, the third element requires a plaintiff to show “bad intent or ‘retaliatory
motive’ on the part of the employer.” Campbell v. Gambro Healthcare, Inc., 478 F.3d
1282, 1287 (10th Cir. 2007) (citation omitted). While a plaintiff need not establish a prima
facie case at the pleading stage, the elements of the claim guide the plausibility analysis.
Khalik, 671 F.3d at 1192.
1. 	OADA Retaliation
Plaintiffs McClain and Barton assert a claim for OADA retaliation against the
Board. 	However, the Oklahoma Supreme Court has held that “[t]he OADA does not
‘provide any remedy to compensate an employee who suffers retaliation at the hands of an
employer.’” Davis v. Mercy Rehab. Hosp., No. CIV-19-561-D, 2019 WL 13113533, at *4
(W.D. Okla. Nov. 20, 2019) (quoting Edwards v. Andrews, 382 P.3d 1045, 1047 (Okla.
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2016)). 	As a result, numerous courts have held that an “OADA retaliation claim is not
cognizable.” Theron v. Canadian Cnty. ex rel. Bd. of Cnty. Comm’rs, No. CIV-23-1176-
G, 2024 WL 4332796, at *6 (W.D. Okla. Sept. 26, 2024) (gathering cases); see also Lewis
v. Tyson Foods, Inc., No. CIV-22-918-J, 2023 WL 12250122, at *5 (W.D. Okla. Feb. 2,
2023). Accordingly, Count VIII is dismissed.
2. 	ADA Retaliation and FMLA Retaliation24
Plaintiffs McClain and Barton’s ADA and FMLA Retaliation claims stem from the
same general factual allegations so the Court analyzes them together. 	Specifically, they
allege that they both took FMLA leave and upon their return, their positions were “taken
away” and they were offered positions “in the kitchen.” TAC ¶¶ 248–251, 258–266. The
Board moves to dismiss Counts VII and IX on the grounds that Plaintiffs have not
adequately plead that the adverse action was causally connected to their taking leave,
pointing specifically to Plaintiffs’ own allegation that the kitchen offer was “continued
retaliation” for reporting Kern—not retaliation for exercising FMLA or ADA rights. [Doc.
No. 74] at 24. The Board further argues that the allegations are conclusory. In response,
Plaintiffs point to the same allegations and argue that there is sufficient factual support to
infer a causal connection. The Court is not persuaded.
The allegations related to causal connection merely state a “causal connection exists
between Plaintiff’s protected activity and adverse action.” TAC ¶¶ 262, 266; see also id.
24 Although the Court holds Plaintiffs’ underlying ADA disability discrimination claim fails,
Plaintiffs’ ADA retaliation claim is not automatically foreclosed. 	See Heiman v. United Parcel
Serv., Inc., 12 F. App’x 656, 664 (10th Cir. 2001).
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¶¶ 249, 251. 	There is no additional factual development or support related to causation
other than the seemingly contradictory allegation that the kitchen offer was a result of
ongoing retaliation for reporting misconduct. 	Such threadbare recitals do not suffice.
Iqbal, 556 U.S. at 678 (“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.”). Accordingly, even in the light most favorable to Plaintiffs,
the Court finds Plaintiffs McClain and Barton have failed to state claims for ADA and
FMLA retaliation and Counts VII and IX are dismissed.
3. 	Title VII Retaliation
All 	Plaintiffs 	allege 	a 	claim 	for 	Title 	VII 	retaliation 	against 	the 	Board.
A prima facie case of retaliation requires an employee to show: “(1) that [she] engaged in
protected opposition to discrimination, (2) that a reasonable employee would have found
the challenged action materially adverse, and (3) that a causal connection existed between
the protected activity and the materially adverse action.” Somoza v. Univ. of Denver, 513
F.3d 1206, 1212 (10th Cir. 2008).
“Title VII provides two separate ways in which an employee can engage in protected
activity for the purpose of a retaliation claim.” 	New v. Bd. of Cnty. Comm’rs for Tulsa
Cnty., 434 F. Supp. 3d 1219, 1225 (N.D. Okla. 2020). Under the “participation clause,” an
employer may not retaliate against an employee “‘because [the employee] has . . .
participated in any manner in an investigation, proceeding, or hearing under’ Title
VII.” Vaughn v. Epworth Villa, 537 F.3d 1147, 1151 (10th Cir. 2008). The participation
clause protects an employee in providing information as part of a formal investigation by
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the EEOC and it does not apply to participation in an internal investigation by the
employer. 	E.E.O.C. 	v. 	Rite 	Way 	Serv., 	Inc., 	819 	F.3d 	235, 	239 	n.2 	(5th 	Cir.
2016); Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 48–49 (2d Cir. 2012); Hatmaker
v. Mem’l Med. Ctr., 619 F.3d 741, 747 (7th Cir. 2010). The “opposition clause” protects
an employee who has opposed any practice that is made unlawful under Title VII. Vaughn,
537 F.3d at 1151. A plaintiff is not required to show that she reported an actual violation
of Title VII, but protected activity occurs when a plaintiff shows a “‘reasonable good-faith
belief that’ she was opposing discrimination.” Fassbender v. Correct Care Solutions, LLC,
890 F.3d 875, 891 (10th Cir. 2018) (quoting Hertz v. Luzenac Am., Inc., 370 F.3d 1014,
1015–16 (10th Cir. 2004)). 	Thus, “[p]rotected activities under Title VII can range from
filing formal charges to voicing informal complaints to superiors.” Sanderson v. Wyoming
Highway Patrol, 976 F.3d 1164, 1171 n.2 (10th Cir. 2020) (internal quotations and citation
omitted).
As to the first element, the Board argues that the complaints made by Plaintiffs Moss
and Hardaway do not constitute protected activity. However, these Plaintiffs allege they
complained to Defendant Judge Hughey about the environment at CCCJC and misconduct
of Defendant Kern prior to receiving adverse employment action. TAC ¶¶ 81, 86–90, 128-
141. The Board provides no authority to explain why this conduct would not be a protected
activity. 	See [Doc. No. 74] at 16–18; see also Fassbender, 890 F.3d at 891 (reporting
sexual harassment is a “protected activity” if the reporter reasonably believes she is
reporting discrimination). 	Resolving all reasonable inferences in Plaintiffs’ favor, the
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Court finds that these Plaintiffs have plausibly alleged they participated in a protected
activity. Sanderson, 976 F.3d at 1171.
The Board does not challenge the second element but does argue that Plaintiffs have
not plausibly alleged causation under the third element. 	The Board notes that Plaintiffs
McClain, Wehmuller, and Barton allege they were constructively discharged almost two
years after complaining about Defendant Kern, and Plaintiff Goodfellow was terminated
more than a year after complaining about Defendant Kern. 	Aside from making these
observations, the Board provides no argument or authority to support its apparent
implication that this gap in temporal proximity alone precludes an inference of causation.
[Doc. No. 74] at 17; but see O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th
Cir. 2001) (additional circumstantial evidence may satisfy causation despite a temporal
gap). 	But even so, the Court notes that the Board’s framing of the claim as limited to a
single act of complaining about Kern followed by a single act of constructive discharge or
termination materially mischaracterizes the TAC which pleads ongoing retaliatory conduct
by multiple defendants. Viewing the TAC in the light most favorable to Plaintiffs, there
are sufficient allegations to reasonably infer that the adverse actions stemmed from
Plaintiffs engaging in a protected activity. The Board’s Motion to Dismiss is denied as to
Count VI.
I. 	Burk Tort
All 	Plaintiffs 	asserted 	a 	claim 	against 	the 	Board 	for 	retaliatory 	termination
under Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989). The Board moved to dismiss this
claim on multiple grounds. 	[Doc. No. 74] at 29–31. 	Plaintiffs did not respond to these
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arguments or address this claim whatsoever. Accordingly, the claim is deemed abandoned
and Count XII is dismissed without prejudice. Siegfried, 38 F.4th at 1282.
IV. 	Conclusion
IT IS THEREFORE ORDERED that Defendant Judge Bobby Hughey’s Motion to
Dismiss and Brief in Support [Doc. No. 76] is GRANTED. All claims against Defendant
Judge Hughey in his official and individual capacities are DISMISSED WITHOUT
PREJUDICE for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
IT IS FURTHER ORDERED that Defendant Daniel Kern’s Motion to Dismiss and
Brief in Support [Doc. No. 77] is GRANTED IN PART and DENIED IN PART. 	The
motion is DENIED as to Plaintiff Moss’s First Amendment free speech retaliation claim
against Defendant Kern in his individual capacity (Count XIII). 	All remaining claims
against 	Defendant 	Kern 	in 	his 	official 	and 	individual 	capacities 	are 	DISMISSED
WITHOUT PREJUDICE for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that Defendant Board of County Commissioners of
Canadian County’s Motion to Dismiss and Brief in Support [Doc. No. 74] is GRANTED
IN PART and DENIED IN PART. The motion is DENIED as to: (1) Plaintiff Moss’s Title
VII sex discrimination claims for disparate treatment and hostile work environment
(Count I); (2) Plaintiffs McClain, Barton, and Wehmuller’s Title VII hostile work
environment claims (Count I); (3) Plaintiffs McClain and Wehmuller’s ADEA age
discrimination claims (Count II); (4) Plaintiffs Moss, McClain, Barton, Goodfellow,
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Wehmuller, and Hardaway’s Title VII retaliation claims (Count VI); and (5) Plaintiff
Moss’s Equal Pay Act claim (Count X). 	The remaining claims against the Board are
DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that Defendants NaCole Majors, Cedric Mills, and
Melanie Johnson’s Motion to Dismiss and Brief in Support [Doc. No. 75] is GRANTED.
All claims against Defendants Majors, Mills, and Johnson in their official and individual
capacities are DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
IT 	IS 	FURTHER 	ORDERED 	that 	Plaintiff 	Robert 	Fletcher’s 	claims 	are
DISMISSED WITHOUT PREJUDICE as to all Defendants for failure to timely effect
service pursuant to Rules 4(m) and 12(b)(5) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, as a result of the foregoing, the following claims
remain:
• 	As against Defendant Board:
o 	Plaintiff Moss’s Title VII disparate treatment claim (Count I);
o 	Plaintiffs Moss, McClain, Barton, and Wehmuller’s Title VII hostile work
environment claims (Count I);
o 	Plaintiffs McClain and Wehmuller’s ADEA claims (Count II);
o 	Plaintiffs Moss, McClain, Wehmuller, Barton, Goodfellow, and Hardaway’s
Title VII retaliation claims (Count VI);
o 	and Plaintiff Moss’s Equal Pay Act claim (Count X).
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• 	As against Defendant Kern in his individual capacity: Plaintiff Moss’s First
Amendment free speech retaliation claim (Count XIII).
IT IS SO ORDERED this 25 th day of March, 2026.
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