Date: 05-19-2023

Case Style:

Kimberly Wheeler v. The Board of County Commissioners of LeFlore County

Case Number: 22-CV-115

Judge: Ronald A. White

Court: United States District Court for the Eastern District of Oklahoma (Muskogee County)

Plaintiff's Attorney:

Defendant's Attorney: Alison Levine, Jordan L. Miller, Machael Carr, Wellon B. Pose

Description: Muskogee, Oklahoma civil rights lawyer represented Plaintiff who sued Defendant on
(1) Title VII; (2) the Equal Pay Act; (3) the First Amendment; (4) the Age Discrimination in Employment Act (“ADEA”); (5) the Americans with Disabilities Act (“ADA”) and ADA Amendments Act (“ADAAA”); (6) the Family and Medical Leave Act (“FMLA”); (7) the Fair Labor Standards Act (“FLSA”); (8) for unpaid wages under Oklahoma law (40 O.S. §165.3); (9) breach of contract; (10) a Burk tort; (11) interference with an employment relationship, and (12) interference with a
prospective economic advantage.

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Defendant LeFlore County Board of County Commissioners filed a motion to dismiss (#24). This case having been referred to Magistrate Judge Jackson (#34), he issued a Report and Recommendation (#36). He recommended partial dismissal of the Title VII claims, dismissal of the First Amendment claim, dismisal of the ADEA claim, dismissal of the ADA claim, partial dismissal of the FMLA claim, and dismissal of the Burk claim, Plaintiff having filed a timely objection, the court must conduct a de novo review of the issues specifically raised by the objection, and may accept, modify, or reject the recommended disposition. See 28 U.S.C. §636(b)(1); Rule 72(b)(3) F.R.Cv.P.[2] Defendants have not filed a response to the objection.

* * *

The Report and Recommendation also found that plaintiff's allegation that the Commissioners had a “stated intent” to misuse the grant funds is simply conclusory. (#36 at 47). The amended complaint alleges that at a Board meeting, with plaintiff in attendance, Commissioners “commented they wanted to use the grant money for roads, to remodel the courthouse and for other non-COVID-related items.” (#22 at ¶62). The undersigned finds this to be a factual allegation rather than a conclusory one and that it is sufficient. This necessarily requires adopting plaintiff's definition of “misuse” but at this stage the court is required to construe the allegations in the light most favorable to plaintiff.

Finally, the Magistrate Judge also states: plaintiff's “allegation that the Commissioners were ‘dismissive' does not allege a nexus between her advice, even if it could be construed as engaging in a protected action, any actual or intended misuse of the grant funds, and her termination.” (#36 at 47). In the view of the undersigned, the
“tiebreaker” here is that plaintiff was allegedly discharged on the very day it was announced the County had received the CARES Act grant. The extreme temporal proximity permits an inference that the Commissioners sought to remove a possible impediment (i.e., the plaintiff) to their latitude in disbursing the funds. A close question is presented, but the undersigned declines to adopt the recommendation of dismissal as to plaintiff's Burk claim.

It is the order of the court that the Report and Recommendation (#36) is adopted in part and declined in part. The motion to dismiss (#24) of defendant Board of County Commissioners of LeFlore County is granted in part and denied in part.

As against defendant Board, plaintiff's Title VII claim (Count I) is dismissed as to hostile work environment and retaliation but survives as to gender/sex discrimination and wage discrimination. Plaintiff's First Amendment claim (Count III) is dismissed. Plaintiff's claim under the Age Discrimination in Employment Act (Count IV) is dismissed. Plaintiff's claim under the Americans with Disabilities Act (Count V) is dismissed. Plaintiff's claim under the Family and Medical Leave Act (Count VI) is dismissed as to interference by termination and retaliation, but survives as to interference including failure to notify and discouragement.

In all other respects, the motion to dismiss is denied.
Wheeler v. The Bd. of Cnty. Comm'rs of the Cnty. of LeFlore (E.D. Okla. 2023)

Outcome: Motion dismissed denied.

Plaintiff's Experts:

Defendant's Experts:

Comments: