Spears v. Okmulgee County Criminal Justice Trust Authority et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
RONALD SPEARS, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. 23-CV-65-JFH-GLJ
)
OKMULGEE COUNTY 	)
CRIMINAL JUSTICE TRUST 	)
AUTHORITY, and OKMULGEE 	)
COUNTY BOARD OF 	)
COMMISSIONERS, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
This matter comes before the Court on Motion by Defendants Okmulgee County
Criminal 	Justice 	Trust 	Authority 	(“OCCJA”) 	and 	Okmulgee 	County 	Board 	of
Commissioners to Dismiss Plaintiff’s Second Amended Complaint and Brief in Support
(“Motion to Dismiss”). See Docket No. 30. On April 25, 2023, the Court referred this case
to the undersigned Magistrate Judge for all further proceedings in accordance with
jurisdiction pursuant to 28 U.S.C. § 636 [Docket No. 14]. For the reasons set forth below,
the undersigned Magistrate Judge finds that Defendants’ Motion to Dismiss Plaintiff’s
Second Amended Complaint and Brief in Support [Docket No. 30] should be DENIED IN
PART and GRANTED IN PART.
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BACKGROUND
On July 7, 2022, Plaintiff filed his petition in Okmulgee County District Court,
Oklahoma, asserting claims arising under the Americans with Disabilities Act of 1990
(“ADA”), the Oklahoma Anti-Discrimination Act and wrongful discharge. See Docket No.
2-2. 	On July 26, 2023, Plaintiff filed a Second Amended Petition, in which he alleges
claims for violation of the ADA, Title VII, 42 U.S.C. § 1983, and the Oklahoma Anti-
Discrimination Act. See Docket No. 25. On July 27, 2023, Defendants filed the Motion
to Dismiss. See Docket No. 30.
Plaintiff alleges he was employed with the OCCJA and the Board for thirteen years.
See Docket No. 25, ¶ 15. 	In 2016, Plaintiff was diagnosed with cancer. 	Id., ¶ 17.
Defendants were aware he was actively participating in cancer treatment after his
diagnosis, including receiving three medical treatments per month that required time off
from work and/or an alteration of his work schedule. Id., ¶¶ 18-19. In particular, Plaintiff
alleges that his cancer treatments caused him to experience pain, lethargy and nausea, but
he was nonetheless able to perform his job functions with certain accommodations. Id., ¶
21. 	At some point when Sam McCoy was OCCJA Director, Plaintiff requested and
received an unspecified accommodation for his cancer treatments. 	Id., ¶¶ 20, 25 & 43.
After Shannon Clark replaced McCoy as OCCJA Director, Clark instituted a blanket policy
prohibiting employees from taking time off work to address health care issues or to work
from home. Id., ¶¶ 23-24. Despite being aware of Plaintiff’s cancer treatment, Clark and
Defendants refused to engage in a dialogue with Plaintiff regarding his medical treatment
or any potential accommodation and did not allow the accommodation Plaintiff required.
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Id., ¶ 24. Plaintiff was qualified for his positions at OCCJA and, prior to his termination,
was consistently promoted and was never disciplined. 	Id., ¶ 22. 	On July 23, 2020, the
OCCJA and Board retired to a closed session and, acting together in concert, decided to
terminate Plaintiff without giving a reason. Id., ¶¶ 25 & 31. Plaintiff alleges both that he
was never given a reason for his termination and that his termination was based on his
previous requested accommodation, which conflicted with Defendants’ newly instituted
policy prohibiting such accommodation. Id., ¶¶ 25 & 32.
ANALYSIS
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-557, 570 (2007). 	Detailed factual allegations are not required, but the statement of
the claim under Rule 8(a)(2) must be “more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555 (2007)).
See generally Fed. R. Civ. P. 8(a)(2) (complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief[.]”). “While the 12(b)(6) standard
does not require that Plaintiff establish a prima facie case in h[is] complaint, the elements
of each alleged cause of action help to determine whether Plaintiff has set forth a plausible
claim.” 	Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). 	Thus, the
appropriate inquiry is “whether the complaint sufficiently alleges facts supporting all the
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elements necessary to establish an entitlement to relief under the legal theory proposed.”
Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007) (quoting Forest Guardians v.
Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)). 	“A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement[.]” Iqbal, 556 U.S. at 678.
I. 	Americans with Disabilities Act
Plaintiff asserts claims under Title I of the Americans with Disabilities Act. Plaintiff
generally alleges that “Defendants discriminated against the Plaintiff when they refused to
allow for an accommodation for his known disability and terminated his employment due
to his need for accommodation in connection with his cancer treatment.” See Docket No.
25, ¶ 37. 	Although the Second Amended Complaint does not clearly delineate his ADA
claims, or any of his other claims,1 Defendants’ Motion to Dismiss addresses three distinct
1 It is well established that Rule 8 “sets out a minimum standard for the sufficiency of complaints”
in order “to give fair notice of the claim[s] being asserted” and the grounds upon which they rest,
“so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an
adequate defense.” Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977) (citations omitted); see
also Twombly, 550 U.S. at 555 (explaining that the requirements of Rule 8 are meant “to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests” (alteration in
original) (internal quotation marks and citation omitted)). Plaintiff’s Second Amended Complaint
plainly fails to follow the letter and the spirit of Rule 8(a) by simply listing all his claims under a
single heading and makes no attempt to delineate between claims in any way. 	Although the
undersigned Magistrate Judge proceeds on the substance, counsel is cautioned that, “as a structural
matter, the [] Complaint is deficient because it purports to assert multiple claims for relief within
each ‘Claim for Relief.’ . . . This format . . . is improper under Rule 8 of the Federal Rules of Civil
Procedure.” Park v. TD Ameritrade Tr. Co., 2010 WL 4608225, at *2 (D. Colo. Nov. 5, 2010).
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claims under the ADA. 	Therefore, the undersigned Magistrate Judge will address each
ADA claim in turn.
A. 	Failure to Accommodate
Plaintiff alleges Defendants failed to accommodate his disability by changing their
leave policy in such a way that did not continue to accommodate his need for leave for his
multiple cancer treatments and recovery from such treatments each month, and Defendants
did not engage in any meaningful dialogue regarding his need for an accommodation.
The ADA prohibits a covered employer from “discriminat[ing] against a qualified
individual on the basis of disability in regard to . . . discharge of employees . . . [or] other
terms, conditions, and privileges of employment.” 	42 U.S.C. § 12112(a). 	Actionable
discrimination under the ADA takes many forms, one of which is when an employer fails
to provide a disabled employee a reasonable accommodation. 	See id. § 12112(b)(5)(A);
see also EEOC v. C.R. England, Inc., 644 F.3d 1028, 1048 (10th Cir. 2011) (“The [ADA]
. . . establishes a cause of action for disabled employees whose employers fail to reasonably
accommodate them.” (Quoting Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261
(10th Cir. 2001)) (internal quotation marks omitted)). 	A plaintiff may establish a prima
facie failure to accommodate claim by alleging “that ‘(1) [he] is disabled; (2) [he] is
otherwise qualified; and (3) [he] requested a plausibly reasonable accommodation.’”
Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1204 (10th Cir. 2018) (alterations in original)
(quoting Punt v. Kelly Servs., 862 F.3d 1040, 1050 (10th Cir. 2017)); see also Bartee v.
Michelin N. Am., Inc., 374 F.3d 906, 912 n.4 (10th Cir. 2004).
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Defendants argue at length that Plaintiff cannot state a failure to accommodate claim
because he does not allege that he requested an accommodation after the new OCCJA
Director took over and changed the leave policy. See e.g., Docket No. 30, pp. 8-9 (Plaintiff
“does not allege he ever made any specific and direct request for ADA accommodation
after the leave policy changed,” “he did not request any such accommodation after the
policy change took effect” and no allegation that “Plaintiff ever made any request for
accommodations after the policy change” (emphasis original)). 	Similarly, Defendants
argue that Clark, the new OCCJA Director, was not personally aware of Plaintiff’s
disability, need for an accommodation or prior accommodation. 	Id. at p. 10. 	Left
unaddressed, however, is whether an ADA failure to accommodate claim can be based on
a 	policy 	change 	that 	effectively 	rescinds 	or 	withdrawals 	a 	previously 	granted
accommodation.
Although it does not appear the Tenth Circuit has addressed the issue specifically,
other courts have found that withdrawing a previously granted accommodation may
support an ADA failure to accommodate claim. For example, in Isbell v. John Crane, Inc.,
30 F.Supp.3d 725, 735-36 (N.D. Ill. 2014), the court granted summary judgment where the
employer’s sudden change in start-time policy without considering the plaintiff’s known
disability and prior accommodation constituted an unreasonable failure to continue to
accommodate that disability. 	In Crane, the employer made an accommodation for the
plaintiff to come into work at 10:00 instead of 8:30 and such accommodation continued for
2 ½ years. Id. at 730. After a change in management and even though it was not shown
that the new manager was aware of plaintiff’s accommodation, a new policy was
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implemented requiring a uniform start time for all employees, including plaintiff. Id. The
Isbell court noted that:
[n]o real reason has been proffered by [the employer] as to why a new
management broom, who (not incidentally) had no prior knowledge of
[plaintiff’s] special arrangement or of the needs that had prompted it, should
be entitled to start by subjecting her to a one-size-fits-all timing sweep.
Indeed, as already indicated in the preceding paragraph, such uniformity of
treatment is precisely what the underlying purpose of the ADA rejects.
. . . Because [the employer] had already made a reasonable accommodation
a few years earlier when it permitted [plaintiff] to start her work day at 10
a.m., the question becomes instead whether it was reasonable for [the
employer] to withdraw that existing accommodation. Without evidence that
[plaintiff’s] later timetable was placing an undue burden on [the employer],
the answer to that question is plainly “no.” 	Even if the record contained a
material suggestion that her later start time was making it difficult for her to
meet [the employer’s] reasonable expectations—and it would be an undue
stretch 	to 	draw 	such 	an 	inference 	from 	the 	record—[the 	employer’s]
obligation under the ADA was to work with [plaintiff] to adjust the existing
accommodation in an attempt to correct those problems, not simply to alter
the accommodation to her detriment.
Id. at 734. See also Kassa v. Synovus Financial Corp., 800 Fed.Appx. 804, 810 (11th Cir.
2020) (testimony that former supervisor allowed plaintiff to take frequent breaks but the
new 	supervisor 	refused 	such 	accommodation, 	was 	enough 	to 	get 	the 	refusal 	of
accommodation claim to trial); Bilinsky v. American Airlines, Inc., 928 F.3d 565, 573 (7th
Cir. 2019) (“[a]bsent some change in circumstances, an employer may not rescind an
accommodation simply because it is inconvenient or burdensome – the statute requires the
employer to make reasonable sacrifices to keep disabled persons in the work force”); Seidel
v. New Caney Independent Sch. Dist., 2015 WL 6549895, *4 (S.D. Tex. Sept. 18, 2015)
(denying motion to dismiss where it is alleged that defendant withdrew an existing
accommodation, which may give rise to ADA liability) (citing Isbell, 30 F.Supp.3d at 734);
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and Brown v. Smith, 21 F.Supp.3d 974, 982 (S.D. Indiana 2014) (employer’s obligation
under the ADA was to work with employee to adjust the existing accommodation in an
attempt 	to 	correct 	problems, 	not 	withdraw 	the 	accommodation 	completely 	to 	the
employee’s detriment) (citing Isbell, 30 F.Supp.3d at 734).
The undersigned Magistrate Judge agrees with the reasoning in Isbell and related
authorities concluding that a policy change, even if facially neutral, that has the effect of
withdrawing a previously granted accommodation may be the basis for an ADA failure to
accommodate claim. Plaintiff alleges, albeit in very general terms, that when McCoy was
OCCJA Director, he requested and received an unspecified accommodation for his cancer
treatments. See Docket No. 25, ¶¶ 20, 25 & 43. Moreover, Plaintiff alleges that after Clark
replaced McCoy as OCCJA Director, Clark instituted a blanket policy prohibiting
employees from taking time off work to address health care issues or to work from home.
Id., ¶¶ 23-24. 	Thus, accepting these allegations as true at this stage of the proceeding,
Plaintiff plausibly alleges that Defendants implemented a policy that had the effect of
unilaterally withdrawing Plaintiff’s pre-existing reasonable accommodation.
Moreover, 	Plaintiff 	alleges 	that 	after 	the 	policy 	change 	was 	implemented,
Defendants did not engage in any dialogue with Plaintiff regarding his medical treatment
or any potential accommodation and did not allow the accommodation Plaintiff previously
received. 	Id., ¶ 24. 	Defendants argue they were not required to engage with Plaintiff
because he never renewed the request for an accommodation after the policy change.
While it is true that the interactive process is usually triggered by a request for an
accommodation, C.R. England, 644 F.3d at 1049 (“before an employer’s duty to provide
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reasonable accommodations—or even to participate in the ‘interactive process’—is
triggered under the ADA, the employee must make an adequate request, thereby putting
the employer on notice”), Plaintiff had already requested and received an accommodation.
Thus, Defendants were plainly on notice of the need for such accommodation and were
obligated 	to 	engage 	in 	the 	interactive 	process 	regarding 	issues 	with 	Plaintiff’s
accommodation caused by its new policy. 	See Campbell v. Wal-Mart Stores, Inc., 272
F.Supp.2d 1276, 1289 (N.D. Okla. 2003) (“[w]hile the onus is generally on the employee
to initiate the interactive process and request a reasonable accommodation, some courts
have held that ‘if an employee’s disability and the need to accommodate it are obvious, an
employee is not required to expressly request reasonable accommodation’”) quoting Norris
v. Allied–Sysco Food Serv., 948 F.Supp. 1418, 1436 (N.D. Cal. 1996), aff’d 191 F.3d 1043
(9th Cir. 1999)); U. S. v. City and County of Denver, 49 F.Supp.2d 1233, 1240-41 (D. Colo.
1999) (“if an employee requests accommodation or an employer knows of a disability of a
qualified individual, the employer has the obligation to participate in the interactive process
of determining an accommodation”). 	Based on Defendants’ knowledge of Plaintiff’s
disability due to his prior request for and receipt of an accommodation, the disability was
obvious to Defendants and they were aware of his need for a continuing accommodation
such that they may have been obligated to engage in the interactive process related to the
policy change and any affects such policy change would have on Plaintiff’s existing
accommodation.
Defendants also argue that Clark was not personally aware of Plaintiff’s cancer
treatment and his prior accommodation. Setting aside that Clark’s knowledge is disputed
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by the parties and such a fact dispute is not properly resolved at this stage of the proceeding,
see e.g., Docket No. 25, ¶ 26, Defendants do not offer any authority that Defendants’ prior
knowledge of both Plaintiff’s disability and reasonable accommodation should apply only
if the new Director was also personally aware of such facts. In this case, Plaintiff asserts
his claims against the OCCJA and the Board, not Clark individually. As Director, Clark
was acting in his official capacity on behalf of the OCCJA when he implemented the new
leave policy, so such a policy change is not absolved of its downstream effects on Plaintiff
simply because the Director was unaware of those effects. Indeed, Isbell made the point
that 	the 	new 	manager’s 	lack 	of 	knowledge 	of 	the 	underlying 	disability 	or 	prior
accommodation did not change the outcome. 	Isbell, 30 F.Supp.3d at 734. Thus, there is
no basis for Defendants avoiding the ADA failure to accommodate claim simply because
the OCCJA’s new Director may have been unaware of an existing accommodation by
Defendants and the continuing need for such an accommodation.
Plaintiff alleges that he both requested and received an accommodation for his
disability. By unilaterally changing its leave policy, Defendants effectively withdrew such
accommodation. 	Additionally, Plaintiff’s disability and need for accommodation were
known to or obvious to Defendants because of the prior request for and receipt of an
accommodation sufficient to give rise to an obligation to engage in the interactive process
with Plaintiff after the policy change. Therefore, Plaintiff plausibly alleges an ADA failure
to accommodate claim.
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B. 	Disability Discrimination
Plaintiff alleges Defendants discriminated against him when they “terminated his
employment due to his need for accommodation in connection with his cancer treatment.”
See Docket No. 25, ¶ 37. A prima facie case for discriminatory employment termination
requires that Plaintiff prove that: (1) he is “disabled” within the meaning of the ADA; (2)
he is qualified, with or without reasonable accommodation, to perform the essential
functions of the job held or desired; and (3) he was discriminated against based on his
disability. See Butler v. City of Prairie Village, 172 F.3d 736, 748 (10th Cir. 1999); Doyal
v. Oklahoma Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000).
Defendants challenge only the third element, which requires Plaintiff to allege some
affirmative evidence that his disability was a determining factor in the Defendants’
decision. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1322 (10th Cir. 1997 (citing Ennis v.
National Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995)). Such a burden
is “‘not onerous,’” but it is also “not empty or perfunctory.” Id. (quoting Ennis, 53 F.3d at
59). Thus, “Plaintiff must show that he was terminated because of [his] disability, or that
[Defendants] terminated [him] ‘under circumstances which give rise to an inference that
the termination was based on [his] disability.’” Butler, 172 F.3d at 749 (quoting Morgan,
108 F.3d at 1323).
Rather than allege any facts detailing the discriminatory circumstances of his
termination, Plaintiff alleges only that Defendants were aware of Plaintiff’s cancer
treatment and that Defendants terminated him on July 23, 2020, without providing any
reason. See Docket No. 25, ¶¶ 26, 31-32. “[M]ere awareness of disability, without more,
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is not sufficient to show that disability was a ‘determining factor’ in the employer’s adverse
action.” 	Angell v. Fairmount Fire Protection Dist., 907 F.Supp.2d 1242, 1252 (D. Colo.
2012) (quoting Ainsworth v. Indep. Sch. Dist. No. 3 of Tulsa Cnty., 232 Fed.Appx. 765,
771 (10th Cir. 2007). 	Thus, Defendants’ knowledge of his disability does not meet
Plaintiff’s burden of alleging he was terminated because of his disability or that he was
terminated under circumstances giving rise to an inference of discriminatory animus.
Plaintiff also makes the conclusory assertion that “Defendants terminated Plaintiff
because Plaintiff’s previously requested accommodations which had been approved under
a prior administration were no longer in line with the newly instituted blanket policy of the
new Director. . . .” 	Id., ¶ 25. 	While a court must accept all well-pled allegations of the
complaint as true, even if doubtful in fact, and must construe the allegations in the light
most favorable to the claimant, Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C.,
493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d
1227, 1231 (10th Cir. 2002), it need not accept as true those allegations that are conclusory
in nature. 	Erikson v. Pawnee County Bd. of County Comm’rs, 263 F.3d 1151, 1154-55
(10th Cir. 2001). 	“[C]onclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” 	Hall v. Bellmon, 935 F.2d
1006, 1109-10 (10th Cir. 1991); see also Iqbal, 556 U.S. at 678 (“naked assertion[s] devoid
of further factual enhancement” are insufficient to state a claim). Plaintiff offers nothing
more that the bald assertion that he was terminated because of his past request for and
receipt of an accommodation. 	Plaintiff offers no factual allegations supporting this
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assertion. Such a conclusory allegation is not to be accepted as true and, therefore, Plaintiff
does not plausibly state a claim.
Lastly, Plaintiff does not allege a temporal proximity of his request for and receipt
of an accommodation with his termination. 	Although Plaintiff does not allege when he
first received an accommodation, he alleges he was diagnosed with cancer in 2016. 	See
Docket No. 25, ¶ 17. 	Moreover, even if the accommodation is considered ongoing for
purposes of proximity, Plaintiff does not allege a temporal proximity with Clark becoming
the new Director, the implementation of the new leave policy and his termination. See e.g.,
Docket No. 25, ¶¶ 23-24. 	Plaintiff alleges only that at some unspecified time Clark
replaced McCoy as Director, that at some other unspecified time Clark instituted the new
policy and that he was terminated on July 23, 2020. 	Id., ¶¶ 23-24 & 31. 	Plaintiff never
alleges 	that 	he 	spoke 	with 	Clark 	about 	his 	past 	accommodation 	or 	need 	for 	an
accommodation under Clark’s new policy, or that his termination occurred closely after the
policy change. While temporal proximity may support an inference that the disability was
a determining factor in the termination, the adverse action must be very closely connected
to the protected activity. 	See Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir.
2004) (“unless an adverse action is very closely connected in time to the protected activity,
a plaintiff must rely on additional evidence beyond mere temporal proximity to establish
causation. . . [A] three-month period, standing alone, is insufficient”); Ainsworth, 232 Fed.
Appx. At 772, n. 4 (holding that, standing alone, even very close temporal proximity cannot
“operate as a proxy for [Plaintiff’s] evidentiary requirement” and is insufficient to carry a
plaintiff’s “burden on the third prong of his prima facie case”). 	Thus, even if temporal
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proximity, standing alone, could support an inference of discrimination, Plaintiff does not
allege any facts showing any temporal proximity upon which a plausible inference can be
based. 	Moreover, Plaintiff alleges no other facts demonstrating any causal connection
between Plaintiff’s previous accommodation and his termination.
Therefore, Plaintiff does not allege facts supporting a plausible ADA disability
discrimination claim.
C. 	Retaliation
Plaintiff also seems to assert a claim for ADA retaliation based on his termination
after seeking and receiving an accommodation. To allege a prima facie case of retaliation,
Plaintiff must allege he (1) engaged in protected activity; (2) suffered a material adverse
action; and (3) a causal connection exists between the protected activity and the adverse
action. See Herrmann v. Salt Lake City Corp., 21 F.4th 666, 678 (10th Cir. 2021) (citing
Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1186-87 (10th Cir. 2016)).
Defendants first argue Plaintiff did not engage in a protected activity because he
never requested an accommodation after Clark took over or after the new policy was
implemented. 	For the same reasons set out above regarding Plaintiff’s failure to
accommodate claim, the undersigned Magistrate Judge finds that Plaintiff’s previous
request for and receipt of an accommodation likely constitutes engagement in a protected
activity. 	Plaintiff alleges he was receiving an accommodation at the time of the policy
change.
Defendants also argue Plaintiff does not allege any facts in support of the third
element, a causal connection between a protected activity and his termination. As with his
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disability 	discrimination 	claim, 	Plaintiff 	does 	not 	allege 	any 	nonconclusory 	facts
demonstrating 	a 	causal 	connection 	between 	his 	request 	for 	and 	receipt 	of 	an
accommodation and his termination. 	The closer Plaintiff’s termination occurred to the
protected activity, the more likely it will support a showing of causation. Compare Ramirez
v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994) (one and one-half
month period between protected activity and adverse action may, by itself, establish
causation), with Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three-
month period, standing alone, is insufficient to establish causation). A retaliatory motive
may be inferred when an adverse action closely follows protected activity. Chavez v. City
of Arvada, 88 F.3d 861, 866 (10th Cir. 1996). 	Unless the termination is very closely
connected in time to the protected activity, however, Plaintiff must rely on additional
evidence beyond temporal proximity to establish causation. Conner v. Schnuck Markets,
Inc., 121 F.3d 1390, 1395 (10th Cir. 1997). 	Again, Plaintiff fails to allege any facts
showing a temporal proximity between his accommodation, or even Clark’s newly
implemented policy, and his termination. 	Therefore, Plaintiff fails to plausibly plead an
ADA retaliation claim.
II. 	Disability Discrimination under 42 U.S.C. § 1983
Plaintiff alleges that Defendants violated his equal protection rights under the
Fourteenth Amendment to the United States Constitution by using his disability as the basis
for his termination and that Defendants “engaged in a deliberate course of intentional
discrimination.” See Docket Nos. 25, ¶ 48 and 31, p. 4. As set forth below, Plaintiff fails
to plausibly allege facts supporting such a claim in his Second Amended Complaint.
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The equal protection clause in the Fourteenth Amendment declares that “[n]o State
shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV. 	The equal protection rule generally provides that similarly situated
persons should be treated the same but allows that different persons may be treated
differently within certain constitutional parameters. 	Plyler v. Doe, 457 U.S. 202, 216
(1982). 	“General rules that apply evenhandedly to all persons within the jurisdiction
unquestionably comply with this principle. Only when a governmental unit adopts a rule
that has a special impact on less than all the persons subject to its jurisdiction does the
question whether this principle is violated arise.” New York City Transit Auth. v. Beazer,
440 U.S. 568, 587-88 (1979).
Equal protection violations are determined based on what classifications are made
by the government. 	If a government classification or distinction does not burden a
“fundamental right” or target a “suspect class,” the restriction must be upheld unless it fails
to bear a rational relationship to some legitimate end. Romer v. Evans, 517 U.S. 620, 631
(1996). Plaintiff opaquely alleges that he was terminated because of his disability and need
for an accommodation. It is well-established that for purposes of equal protection analysis,
however, that the disabled do not constitute a suspect class. Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 367–68 (2001) (“[i]f special accommodations for the disabled are
to be required, they have to come from positive law and not through the Equal Protection
Clause”); Welsh v. Tulsa, 977 F.2d 1415, 1420 (10th Cir. 1992) (rejecting an equal
protection claim by a disabled job applicant, reasoning that “nothing in the United States
Constitution requires the City to accommodate [the disabled applicant’s] condition”).
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Because the disabled are not a suspect class for purposes of an equal protection
claim under 42 U.S.C. § 1983, under Supreme Court precedent, claims of disability
discrimination trigger rational-basis review. Marks v. Colorado Dept. of Corrections, 976
F.3d 1087, 1098 (10th Cir. 2020) (citing Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.
356, 367 (2001)). Under rational-basis review, the underlying decision is presumed valid.
Id. at 1099 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
This presumption requires courts to defer to the decisionmaker’s choice whenever it can
imagine “any reasonably conceivable state of facts that could provide a rational basis for
the classification.” Id. (citing Teigen v. Renfrow, 511 F.3d 1072, 1083 (10th Cir. 2007)).
Under this standard, states need not “make special accommodations for the disabled, so
long as their actions toward such individuals are rational.” Id. (citing Garrett, 531 U.S. at
367–68).
Plaintiff alleges that Clark’s new policy was a “blanket policy” directed towards all
employees, not him specifically. 	See Docket No. 25, ¶ 24. 	However, Plaintiff fails to
allege any details or even a description of the policy beyond that it did not allow for medical
leave or work from home, and fails to allege facts that Defendants implemented this new
policy even in part to eliminate Plaintiff’s or any other employee’s previously approved
accommodation. As Defendants note, in Welsh, the Tenth Circuit held that:
“the requirements for establishing a § 1983 claim are the same as those for
establishing the underlying constitutional . . . violations, . . . and purposeful
discrimination is an essential element of an equal protection violation.”
Lewis v. City of Fort Collins, 903 F.2d 752, 755 n. 1 (10th Cir. 1990)
(citations omitted). “‘Discriminatory purpose,’ however, implies more than
intent as volition or intent as awareness of consequences.” Personnel Adm'r
v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979).
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Rather, it implies that a decisionmaker “selected or reaffirmed a particular
course of action at least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.” Id. (footnote omitted).
Welsh, 977 F.2d at 1419-20. 	Plaintiff simply does not allege any facts supporting an
inference that Defendants enacted the new policy “at least in part” to withdrawal Plaintiff’s
or any other employee’s disability accommodation. Again, Plaintiff’s conclusory assertion
that Defendants engaged in a deliberate course of intentional discrimination lacks sufficient
factual basis to be accepted as true or to support his claim. Bellmon, 935 F.2d at 1109-10.
Although Plaintiff does not allege any specific provisions of the policy in question, the
undersigned Magistrate Judge can imagine reasonably conceivable facts that would form a
rational bases for a legitimate purpose for a general policy limiting leave or prohibiting
working from home for employees at a county jail authority. Therefore, there is a rational
basis for the policy and Plaintiff cannot allege a plausible 42 U.S.C. § 1983 equal protection
claim.
Lastly, in his Response Plaintiff appears to assert that in terminating Plaintiff,
Defendants “ratified the decision to terminate the Plaintiff due to his disability.” First, to
the extent Plaintiff is attempting to argue a ratification theory, no facts supporting such a
theory are alleged in the Second Amended Complaint. Plaintiff merely alleges that “[o]n
the day the Plaintiff was terminated by the [D]efendants, the Defendants retired to a joint
closed session (OCCJA and OCBC) and together acting in concert, terminated plaintiff and
gave no reason whatsoever for the termination at the time.” See Docket No. 25, ¶ 25. Thus,
Plaintiff alleges in his Second Amended Complaint that Defendants made the decision to
terminate him, not that they ratified such a decision made by others. Second, even in his
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attempt to interject a ratification theory, Plaintiff fails to assert who or what entity made
the decision that was subsequently ratified by Defendants. 	Third, “a federal court may
only consider facts alleged within the complaint” when ruling on a Rule 12(b)(6) motion.
See Peoples v. Long, 2020 WL 9076288, *10 (D. Colo. Dec. 16, 2020) (quoting Cty. of
Santa Fe, N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002). Neither a
ratification theory nor any factual allegations to support it are asserted in the Second
Amendment Complaint, and Plaintiff cannot amend his pleading through his Response to
the Motion to Dismiss. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995).
III. 	Plaintiff’s Abandoned Claims
Plaintiff’s Second Amended Complaint again vaguely alleges claims for Title VII
and the Oklahoma Anti-Discrimination Act. 	Plaintiff was previously instructed not to
include the OADA claim in his Second Amended Complaint because he previously
abandoned it. See Docket Nos. 19, 22 & 24. Nonetheless, after improperly including it in
the Second Amended Complaint, Plaintiff again affirmatively abandons his OADA claim.
See Docket No. 31, p. 5. Plaintiff also fails to respond to the Motion to Dismiss arguments
regarding his Title VII claim. See Docket No. 31.
Due to Plaintiff’s abandonment of these two claims, both should be dismissed. See,
e.g., 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. Ill. 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
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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” (citation omitted)); Tex. Cap. Bank N.A. v. Dallas
Roadster, Ltd. (In re Dallas Roadster, Ltd.), 846 F.3d 112, 126 (5th Cir. 2017) (concluding
plaintiff abandoned one of two claims argued on appeal because his “oppositions to the
motions to dismiss and for summary judgment contained arguments only about the” other
claim).
IV. 	Leave to Further Amend
Defendants ask the Court to deny further amendment of the Second Amended
Complaint as futile. Federal Rule of Civil Procedure 15(a)(2) provides, in pertinent part,
that “a party may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Whether to grant leave to amend is within the trial court’s discretion. Woolsey
v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991). “Refusing leave to amend is
generally only justified upon a showing of undue delay, undue prejudice to the opposing
party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously
allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.
1993) (emphasis added).
After this case was removed from Okmulgee District Court, Oklahoma, and
Defendants filed a motion to dismiss, the Court invited Plaintiff, if he so desired, to file an
amended complaint. 	See Docket No. 9. 	Plaintiff took up the Court’s offer and filed his
First Amended Complaint on April 9, 2023, Docket No. 11, to which Defendants again
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filed a motion to dismiss, Docket No. 13. 	Plaintiff was subsequently allowed a second
amendment. Id. at Nos. 22 & 24. Although Plaintiff has now had multiple opportunities
to amend his complaint to add additional facts to address issues raised in the motions to
dismiss, the undersigned Magistrate Judge nonetheless recommends that he be allowed to
amend his complaint one more time with respect to his ADA discrimination and retaliation
claims. 	Although multiple motions to dismiss were filed, none were evaluated or
adjudicated on merits until the current Motion to Dismiss. It is reasonable to believe that
additional relevant facts, including information regarding the approximate dates of certain
events that would allow the parties and the Court to better analyze whether he can plausibly
allege such claims, are or should be within the Plaintiff’s possession. 	Therefore, the
undersigned Magistrate Judge recommends that further leave to amend be granted only as
to the ADA discrimination and retaliation claims. As to Plaintiff’s 42 U.S.C. § 1983 equal
protection claim, however, Plaintiff had ample opportunity to allege additional facts to
address the issues raised in the multiple motions to dismiss with respect to such claim but
failed to cure the deficiencies in the previous amendments allowed, see Castleglen, Inc. v.
Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993) (repeated failure to cure
deficiencies by amendments previously allowed is grounds for denying leave to amend),
and it would be futile to do so. As discussed above, there is a rational basis for the policy
such that Plaintiff cannot state a plausible claim. 	Therefore, the undersigned Magistrate
Judge recommends that the equal protection claim dismissed herein, be dismissed with
prejudice and without leave to further amend.
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CONCLUSION
Based 	on 	the 	above 	findings, 	the 	undersigned 	Magistrate 	Judge 	hereby
RECOMMENDS 	that 	Defendants’ 	Motion 	to 	Dismiss 	Plaintiff’s 	Second 	Amended
Complaint and Brief in Support [Docket No. 30] be DENIED IN PART with respect to
Plaintiff’s ADA claim for failure to accommodate and GRANTED IN PART as to all of
Plaintiff’s remaining claims. It is further recommended that Plaintiff be granted leave to
amend the Second Amended Complaint with respect to only the ADA discrimination and
retaliation claims and that such amendment be filed within 14 days of the adoption of this
Report and Recommendation. 	A redline version of the Second Amended Complaint
must be attached to the Third Amended Complaint. Any objections to this Report and
Recommendation must be filed within fourteen days. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). Any objection and response shall each be limited to 10 pages and a reply is
permitted only with leave of court upon a showing of good cause.
DATED this 30th day of September, 2023.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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