Poff v. Oklahoma Department of Mental Health and Substance Abuse Services et al

Filing 32

ORDER granting 23 Employee Defendants' Motion to Dismiss Employee Defendants, and Brief in Support filed by Terry White, Durand Crosby, Cratus Dewayne Moore., Cratus Dewayne Moore (as the General Counsel of Oklahoma Department o f Mental Health and Substance Abuse Services), Cratus Dewayne Moore (individually), Terry White (individually), Terry White (as Commissioner and Chief Executive Officer of the Oklahoma Department of Mental Health and Substance Abuse Services), Durand Crosby (as the Chief Operating Officer of the Oklahoma Department of Mental Health and Substance Abuse Services) and Durand Crosby (individually ) terminated.. Signed by Honorable Robin J. Cauthron on 4/29/15. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KIMBERLY POFF,

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF OKLAHOMA ex rel. THE
)
OKLAHOMA DEPARTMENT OF
)
MENTAL HEALTH AND
)
SUBSTANCE ABUSE SERVICES;
)
BOARD OF DIRECTORS FOR THE
)
OKLAHOMA DEPARTMENT OF
)
MENTAL HEALTH AND SUBSTANCE )
ABUSE SERVICES; (3) TERRI WHITE, )
Commissioner and Chief Executive Officer )
of the Oklahoma Department of Mental
)
Health and Substance Abuse Services;
)
DURAND CROSBY, Chief Operating
)
Officer of the Oklahoma Department of
)
Mental Health and Substance Abuse
)
services; and CRATUS DEWAYNE
)
MOORE, General Counsel of the
)
Oklahoma Department of Mental Health
)
and Substance Abuse Services,
)
)
Defendants.
)

Case No. CIV-14-1438-C

MEMORANDUM OPINION AND ORDER
Plaintiff was employed by Defendant Department of Mental Health and Substance
Abuse Services as an inspector general. Following her termination by Defendants, she filed
the present action raising a number of claims under the United States and Oklahoma
Constitutions, as well as claims for violation of federal employment laws and state tort lawbased claims. Of import here is a First Amendment Claim alleging violation of Plaintiff’s
right of free speech. Defendants Terry White, Durand Crosby, and Cratus Dewayne Moore,

in their individual and representative capacities (“Employee Defendants”) seek dismissal of
this claim. Plaintiff’s claim of free speech violations centers around her allegation that the
leadership of the department wished to hide the findings of her investigation from the Board
of Directors. There are two paragraphs in Plaintiff’s First Amended Complaint that relate
to her free speech claim. The first is ¶ 44, which states: “Kimberly Poff was very vocal in
2012 and 2013 about her objection to ODMHSAS’s decision to bury the official report on
the NARCONON facility and Kimberly Poff believes her objection to the decision to bury
the findings of the NARCONON investigation directly relate to her termination by the
Department.”
The second is ¶ 61, which states: “Kimberly Poff engaged in protected speech when,
in 2012 and 2013, she was very vocal regarding her objection to the position of ODMHSAS
to bury the final investigative report on NARCONON, an act she reasonably believed was
an abuse of authority and that presented a substantial and specific danger to public health or
safety.”1 The remainder of the allegations related to this speech in Plaintiff’s Complaint
clarify that it was Plaintiff’s attempts to report her findings to the Board that were allegedly
suppressed or restricted by the Employee Defendants.

1

Plaintiff repeats these allegations in ¶¶ 87-97 to allege the same claim against the
Employee Defendants in their individual capacities. The Court’s resolution is equally
applicable to the individual capacity claims.
2

The parties are in dispute over the proper legal standard applicable to Plaintiff’s
speech. Defendants argue that it should be analyzed pursuant to the Garcetti/Pickering2
analysis. In contrast, Plaintiff argues that her free speech claim is not governed by
Garcetti/Pickering, but by Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000). Plaintiff argues
the Garcetti/Pickering analysis only applies when the free speech restriction occurs by an
employer, while Worrell applies in other instances.

She argues that the Employee

Defendants were not her employer and therefore Worrell is the proper test. Because
Plaintiff’s claims fail under both tests, it is unnecessary to resolve which applies here.
Following the teachings of Garcetti and Pickering, the Tenth Circuit established a
five-step process to analyze free speech claims. Brammer-Hoelter v. Twin Peaks Charter
Acad., 492 F.3d 1192, 1202 (10th Cir. 2007). Those steps are: First, the Court must
determine if the employee was speaking as a citizen or pursuant to official duties. Id. If the
speech was pursuant to official duties, there is no First Amendment protection. Id. “Second,
if an employee does not speak pursuant to his official duties, but instead speaks as a citizen,
the court must determine whether the subject of the speech is a matter of public concern.”
Id. “Third, if the employee speaks as a citizen on a matter of public concern, the court must
determine ‘whether the employee’s interest in commenting on the issue outweighs the
interest of the state as employer.’” Id., at 1203, quoting Casey v. W. Las Vegas Indep. Sch.
Dist., 473 F.3d 1323, 1327 (10th Cir. 2007). Fourth, was the speech a substantial or

2

Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Board of Education, 391
U.S. 563 (1968).
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motivating factor in the employment decision. Brammer-Hoelter, 492 F.3d at 1203. Finally,
if the speech was a factor, can the employer show the same decision would have been made
absent the speech. Id. “The first three steps are to be resolved by the district court, while the
last two are ordinarily for the trier of fact.” Id.
Here, Plaintiff’s claims fail at the first step. In evaluating the nature of the speech, the
Court must determine whether the speech was made within the scope of Plaintiff’s
employment duties. If the speech is consistent with the type of activities the employee was
paid to do, it is made within the scope of employment. Green v. Bd. of Cnty. Comm’rs, 472
F.3d 794, 801 (10th Cir. 2007). The facts of Plaintiff’s Amended Complaint make clear that
the report was prepared within the course of her official duties.

Indeed, Plaintiff

characterizes the report as a report to leadership and defines “leadership” as including the
Employee Defendants. Paragraph 24 of her Amended Complaint outlines Plaintiff’s duties
as Inspector General “were to investigate misconduct, not only within state-operated
facilities, but also within management and staff of ODMHSAS.” Consequently, the Court
finds that Plaintiff’s attempts to publish her report or speak about the findings of her report
were made pursuant to her official duties. Thus, there is no First Amendment protection for
her speech.
Additionally, the Court notes that even were it to have found Plaintiff had satisfied
the first three steps of the Garcetti/Pickering analysis, Plaintiff’s claim would fail at the
fourth step. At that step, Plaintiff must show that her speech was a substantial motivating
factor in a detrimental employment decision. However, in her response brief, Plaintiff takes
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great pains to argue that the Employee Defendants were not her employer and did not have
the authority or power to terminate her. Therefore, Plaintiff has failed to set forth facts in her
Complaint from which a reasonable jury could find that her speech led to her termination or
any other employment decision. Thus, her First Amendment claim would be subject to
dismissal on that basis, as well.
As noted above, Plaintiff argues that her free speech claim is not properly analyzed
under Garcetti/Pickering because the Employee Defendants did not have authority to make
employment decisions about her. She argues instead that the analysis set forth in Worrell
should apply. Under that case, in order to succeed on a free speech retaliation claim, the
plaintiff must prove “(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. at 1212 (quoting Lackey v. Cnty. of
Bernalillo, N.M., No. 97-2265, 1999 WL 2461, at 3 (10th Cir. Jan. 5, 1999)).
As Defendants note in their Reply brief, simply applying Worrell does not excuse
Plaintiff from her burden of demonstrating that her speech was entitled to protection. That
is, there still has to be a showing that the speech was outside the scope of her official duties.
See Leverington v. City of Colo. Springs, 643 F.3d 719, 733 (10th Cir. 2011). For the
reasons set forth above, Plaintiff’s claim fails this test.

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Plaintiff’s First Amended Complaint also fails to plead facts demonstrating that her
speech led to her termination. She offers a conclusory statement to this effect, but fails to
demonstrate that the Employee Defendants played a role in her ultimate termination. Indeed,
her response to their present Motion to Dismiss seems to disavow that those individuals
played any role in her termination.
CONCLUSION
Because Plaintiff has failed to demonstrate that her speech was protected by the First
Amendment, her 42 U.S.C. § 1983 claim must fail. Consequently, Employee Defendants’
Motion to Dismiss (Dkt. No. 23) is GRANTED. Plaintiff’s First Amendment claims fail as
a matter of law. Accordingly, they are dismissed with prejudice. Because those are the only
claims raised against Defendants Terry White, Durand Crosby, and Cratus Dewayne Moore
those individuals are DISMISSED. A separate judgment will issue at the close of this case.
IT IS SO ORDERED this 29th day of April, 2015.

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