Poff v. Oklahoma Department of Human Services et al

Filing 107

ORDER granting in part and denying in part 81 Motion for Summary Judgment by Tony Bryan, as more fully set out. Signed by Honorable David L. Russell on 11/20/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
KIMBERLY POFF,
Plaintiff,
v.
STATE OF OKLAHOMA, ex rel.
DEPARTMENT OF HUMAN
SERVICES, ED LAKE, individually
And as Director of the
Oklahoma Department of
Human Services, TONY BRYAN,
Individually and in his official
capacity as Director of the
Department of Human Services,
Defendants.

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Case No. CIV-15-936-R

ORDER
Defendant Tony Bryan, Inspector General for the Department of Human Services
(“DHS”), seeks summary judgment on Plaintiff’s claims of civil conspiracy and a 42
U.S.C. § 1983 claim alleging Bryan violated her First Amendment rights by terminating
her from her position with DHS. Plaintiff contends her termination was in retaliation for a
lawsuit she filed against her previous employer, the Oklahoma Department of Mental
Health and Substance Abuse Services (“ODMHSAS”), and that Defendant Bryan was
responsible for her termination and that he conspired with others to violate her rights.1 By

 At page 13 of her Response, Plaintiff’s argument could be interpreted as an attempt to raise an intentional infliction
of emotional distress claim. See Doc. No. 90, p. 13 (“Thus, Poff has the right to pursue claims against Lake and Bryan
for their intentional conduct with regard to the intentional infliction of emotional distress and her conspiracy claims,
as Poff was intentionally terminated by OIG after the publication of the article in the Daily Oklahoman, despite the
pre-existing knowledge of the circumstances which ended her employment with ODMHSAS prior to her reinstatement
with DHS.”). No such claim was included in the Third Amended Complaint, and accordingly, no such claim exists in
this action.  
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separate order the Court has addressed the separate motions of Defendant Lake and the
Department of Human Services. Plaintiff responded in opposition to Defendant Bryan’s
motion, and having considered the parties’ submissions, the Court finds as follows.2
Summary judgment is appropriate if “there is no genuine dispute as to any material
fact.” Fed. R. Civ. P. 56(a)). “A fact is ‘material’ if, under the governing law, it could have
an effect on the outcome of the lawsuit. A dispute over a material fact is ‘genuine’ if a
rational jury could find in favor of the nonmoving party on the evidence presented.” Tabor
v. Hill, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (quoting Equal Emp’t Opportunity
Comm’n v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.2000)).
Defendant Bryan contends he is entitled to summary judgment on Plaintiff’s 42
U.S.C. § 1983 claim alleging violation of her First Amendment rights because her
termination was not the result of her lawsuit against the ODMHSAS, but rather because
she misstated the basis of her departure from ODMHSAS on her application for
employment at the OIG for the Department. Defendant Bryan additionally asserts that
Plaintiff’s lawsuit and her comments, via attorney, regarding the lawsuit against
ODHMSAS were not protected speech. Finally, Defendant contends he is entitled to
qualified immunity on Plaintiff’s 42 U.S.C. § 1983 claim. With regard to Plaintiff’s
conspiracy claim, Defendant Bryan argues there is insufficient evidence to support
Plaintiff’s contention that there was civil conspiracy with regard to her termination.
Although Plaintiff’s claims involve her termination by the Oklahoma Department

2

  Plaintiff filed a combined response to the motions of Defendants Lake and Bryan. 

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of Human Services, the underlying facts extend to Plaintiff’s prior employment with the
Oklahoma Department of Mental Health and Substance Abuse Services and the end of her
tenure there. Plaintiff was employed there as the Inspector General until August 23, 2013,
when her employment ended. Plaintiff conducted a meeting on August 23, 2014, and
requested that she be permitted to resign in lieu of termination. Her request was granted,
provided that notice of her intention to resign was received by August 26, 2014. On August
26, 2013 Plaintiff, via counsel, conveyed the belief that she was the victim of
discrimination and that her termination by ODMHSAS was in violation of the
Whistleblower Act, because she refused to change findings in a high-profile investigation.
The letter sought a resolution of her issues, stating:
In an effort to resolve this claim, my client is willing to accept 2 year’s salary
($140,000.00), state provided health insurance for one year, a positive
employment reference with no reference to her resignation in lieu of
termination or the potential termination, the ODMHSAS will not contest her
receipt of unemployment compensation and the payout of the full balance of
sick leave and vacation at time of termination in recompense for loss of
retirement. If this matter proceeds to my client making a claim with the
EEOC, we will seek damages in excess of $500,000.00 for the full damages
that ODMHSAS’s conduct has caused my client.
Doc. No. 91-3, p. 5. ODMSAS apparently did not interpret the letter as accepting its offer
to permit her to resign in lieu of termination and it coded her departure as a termination.
On January 7, 2014 Plaintiff started a job at the Department of Human Services, as
a Social Services Inspector III, an agency where she worked prior to joining ODMHSAS.
A week later she filed an EEOC charge against the ODMHSAS alleging retaliation, and
discrimination on the basis of age and gender. She continued her employment at DHS
without incident, and in April 2014, applied for an opening in the DHS Office of Inspector
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General (“OIG”) as an Investigative Agent III. Ms. Poff was interviewed and
recommended for hiring by the interview committee. Prior to starting the position, Ms. Poff
underwent a substantial background check. Defendant Bryan asked the investigator to
conduct a thorough check, because he was aware Plaintiff had been terminated by
ODMHSAS although he was uncertain why. Although the investigator contacted the
ODMHSAS regarding Ms. Poff’s departure, the agency did not respond to his requests for
information and other persons led him to believe it was office politics that led to her
termination.3 After completion of the background check the DHS OIG hired Plaintiff as
Investigative Agent III. There is no dispute that Defendant Bryant had the ability to
disapprove of Plaintiff’s selection to the position, although it appears that at the last minute,
he assigned George Tipton to be the appointing officer. Plaintiff’s employment in this
capacity continued without apparent incident until August 2014, when Plaintiff filed suit
against the ODMHSAS and her attorney publicized the filing of the action.
On August 20, 2014, an article appeared in The Oklahoman newspaper. It included
the following:
The state Department of Mental Health “buried” an inspector general’s report
recommending that Narconon Arrowhead be shut down after three patients
died there, two lawsuits against the agency claim. The Department of Mental
Health and Substance Abuse Services fired its inspector general, Kim Poff,
and an investigator, Michael DeLong, last year after they objected to the
agency’s withholding of the Narconon report, the lawsuits state.
Doc. No. 83-5. The article stated that Poff refused to change her report to comply with her

  The investigative report indicates the ODMHSAS would not comment on Ms. Poff’s situation due to ongoing
litigation, no additional details about any litigation are contained therein.  
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supervisors’ request, which resulted in retaliation. The article quoted Plaintiff’s counsel,
“Ms. Poff believes that by not releasing the report, the ODMHSAS failed to protect the
interest of Oklahomans at the facilities in the past, present and future.” Id. The article also
noted that Ms. Poff has been hired by the Department of Human Services, where she had
previously worked, counsel having stated, “I don’t believe DHS would have hired her back
if they thought there was merit.” Id.
Ed Lake, head of DHS, read the article and that date contacted Lee Anne Bruce
Boone, Chief of Staff for DHS, inquiring into why DHS hired an employee terminated by
ODMHSAS.4 He asked her to look into the issue. Lake also spoke with Terri White,
Commissioner of the ODMSAS, who confirmed Plaintiff had been terminated for cause,
although she did not reveal the cause. Lake had no additional involvement in the personnel
matter.
Lee Anne Bruce Boone contacted Defendant Bryan that same date to inquire about
why DHS hired Ms. Poff after termination by ODMHSAS. Bryan stated he would look
into the matter. Bryan thereafter read the article in The Oklahoman and requested Plaintiff’s
selection file for her job with OIG. He reviewed her April 18, 2014 application for
employment at OIG and noted that she indicated therein she had “resigned in lieu of
termination” from her position at ODMHSAS because “[h]er previous position was
unclassified . . . [l]eadership indicated my services were no longer needed and I resigned.”
She marked a space indicating she not been terminated from any employment. Defendant

 Ed Lake’s affidavit indicates that he was unconcerned about the substance of the allegations in Plaintiff’s lawsuit
against ODMHSAS.   
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Bryan, who had been aware since before January 2014 that ODMHSAS had terminated
Plaintiff’s employment, indicated that he considered these statements to be
misrepresentations.5 The next day, August 21, 2014, Defendant Bryan informed Lee Anne
Bruce Boone that he intended to terminate Ms. Poff because of her misrepresentations on
the April 18, 2014 application. Bryan also sent an email to Leanne Saunders, Discipline
Manager for DHS, indicating that he discovered a probationary employee had been
dishonest on her application for employment and he believed termination was in order. Ms.
Sanders responded that termination would be consistent with DHS practice with regard to
probationary employees and misrepresentations on an employment application. Bryan
informed Poff on August 22, 2014 of his decision regarding her termination, he apparently
did not inquire into why she indicated she had resigned in lieu of termination on her
application.6 Bryan contends he was unaware of any allegations of gender or age
discrimination by Plaintiff against ODMHSAS in her litigation, and the August 20, 2014
newspaper article did not convey information regarding such claims. Defendant Bryan
contends he is entitled to summary judgment on Plaintiff’s 42 U.S.C. § 1983 claim and on
her civil conspiracy claim.
“The First Amendment limits the ability of a public employer to leverage the
employment relationship to restrict, incidentally or intentionally, the liberties employees
enjoy in their capacities as private citizens.” Garcetti v. Ceballos, 547 U.S. 410, 419, 126

  According to his affidavit, Defendant Bryan was concerned that DHS would be required to disclose the
misrepresentations which would impact Plaintiff’s credibility in her position as investigator, which can require
testimony in administrative or court proceedings.
6
 It does not appear that Mr. Bryan permitted Plaintiff to explain her belief that she had indeed resigned.  
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S.Ct. 1951, 164 L.Ed.2d 689 (2006). Plaintiff's claim is governed by the familiar five-step
Garcetti/Pickering test:
(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.
Halget v. City of Hays, Kansas, 844 F.3d 1216, 1221 (10th Cir. 2017) (citations omitted).
Steps one through three are questions of law for the court, and the final two concern
questions of fact. Id. Defendant also contends that he is entitled to qualified immunity
because Plaintiff cannot establish that she engaged in speech on a matter of public concern,
nor that any such speech was a motivating factor in her termination and because the law
was not clearly established.
It is apparent as it related to Plaintiff’s official duties at DHS, that Plaintiff’s claims
against ODMSAS were not made pursuant thereto.7 Defendant also contends that because
the lawsuit revolved around Plaintiff’s dissatisfaction with her termination that her speech
was not on a matter of public concern.
Speech involves a public concern when the speaker intends to “‘bring to light
actual or potential wrongdoing or breach of public rust’” by a public official
or to “disclose [ ] any evidence of corruption, impropriety, or other
malfeasance” within a governmental entity.” Conaway v. Smith, 853 F.2d
789, 796 (10th Cir. 1988)(quoting Connick v. Myers, 461 U.S. 138, 148, 103
S.Ct. 1684, 75 L.Ed.2d 708 (1983)). When we evaluate whether speech

  Defendant argues, although not vigorously and without citation to relevant factually similar authority, that Plaintiff
did not engage in speech because the comments about which she complains, those in the article, were made by her
attorney. It is obvious that the comments of Plaintiff’s lawyer were conveying her sentiments, as expressed in the
August 2014 lawsuit against ODMHSAS. As noted by Defendant Bryan, the article largely consisted of reiteration
of the allegations in the petition filed in that case.   
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concerns the public, we do so “by the content, form, and context of a given
statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138,
147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
Eisenhour v. Weber County, 744 F.3d 1220, 1228 (10th Cir. 2014). Defendant correctly
asserts that statements regarding employment disputes may not constitute protected speech.
However, the subject of the statements given by Plaintiff’s counsel to the media on her
behalf and the contents of her lawsuit that were repeated in the article that precipitated her
termination involve issues of public concern and the article specifically notes her concern
for the safety of persons treated at the Narconon treatment center.
[A] mixed motive is not fatal to her claim. See Deutsch v. Jordan, 618 F.3d
1093, 1100 (10th Cir.2010) (“But the speaker's having a highly personal
motive for a disclosure does not necessarily mean that the speech is not a
matter of public concern.”); Wulf v. City of Wichita, 883 F.2d 842, 860 n. 26
(10th Cir.1989) (noting that while speech was “linked to some degree to [the
plaintiff's] personal dispute with [the defendant] on and to his dissatisfaction
with his transfer to [another] [d]epartment, which he viewed as retaliatory,
[the speech also] contain[ed] allegations of public concern”).
Id. at 1228–29. The Court finds as a matter of law that the issue as raised by Ms. Poff was
one of public concern, especially given her recommendation that the facility be closed
because it was unsafe, a recommendation allegedly hidden despite the patient deaths that
had occurred at the Narconon facility. Accordingly, because the Court finds that the speech
involved public concern, the Court must consider the final legal factor, whether the
interests of Plaintiff’s employer, DHS, outweighed Plaintiff’s free speech rights.
Defendant correctly notes this factor has little relevance in this case. Furthermore,
“[a]lthough this element is framed as a ‘balancing’ test, [the Tenth Circuit] has held that
First Amendment rights are protected unless the employer shows that some restriction is
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necessary to prevent the disruption of official functions or to insure effective performance
by the employee.” Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009)(citing
Gardetto v. Mason, 100 F.3d 803, 815 (10th Cir. 1996). There is no basis for concluding
that DHS had an interest in promoting the efficiency of the public service that outweighed
Plaintiff’s speech rights under the circumstances of this case. DHS was not the entity to
which Plaintiff’s comments were directed and there is no indication that Plaintiff’s
comments and attendant lawsuit would have interfered in any manner with her employment
at DHS. Accordingly, the Court turns to whether genuine issues of material fact exist with
regard to the fourth step.
Defendant adamantly denies that the article and lawsuit were a motivating factor in
the decision to terminate Plaintiff’s employment two days after it was brought to his
attention. Despite his arguments to the contrary, and his explanation that Plaintiff was
terminated for falsifying her application, the Court finds that the evidence construed in the
light most favorable to Plaintiff is sufficient to avoid summary judgment. First, the decision
on Plaintiff’s termination was made within two days of the article appearing in the paper
and Defendant’s attention was specifically called to the article by Lee Anne Bruce Boone.
Second, although Defendant contends Plaintiff was terminated because she falsely
indicated on her application that she had never been terminated, Mr. Bryan was aware that
Plaintiff had been terminated by ODMHSAS. He ordered a full check into her background
before she was hired into the OIG in April 2014. Defendant’s attempt to argue that DHS
routinely terminates people who make misrepresentations on their applications ignores two
points. Defendant notes that two other employees were terminated under what he contends
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are the same circumstances, Blanca Fernandez and Erika White. First, with regard to Ms.
Fernandez, she had lied regarding her education and experience, and the Department was
apparently unaware that she lacked the minimum requirements for the job she had been
performing at DHS. When Ms. Fernandez asked if she would be fired and was told that the
Legal made the decision but historically leaned toward termination, she resigned. Erika
White was also permitted to resign when presented with information that she had lied on
her application with DHS regarding a prior conviction, which she contended was the result
of her misunderstanding her rights and identity theft. Furthermore, although both
Fernandez and White were slated for termination, both were apparently offered the
opportunity to explain their situations, which Plaintiff was denied. Again, Defendant Bryan
was aware throughout that Plaintiff had been terminated by ODMHSAS, her alleged
misrepresentation had no apparent impact on the hiring decision.8 The timing combined
with the dubious explanation as to why Defendant terminated Plaintiff on August 22, 2014,
are sufficient to avoid summary judgment on the fourth step of the Garcetti/Pickering
analysis.
Defendant further contends that Plaintiff cannot prevail because he has established
that Plaintiff would have been terminated for the falsification regardless of the article or
lawsuit.
Summary judgment is appropriate on the fifth step when “any reasonable
jury would [have found] that [the plaintiff] would have been terminated even
absent any desire on the Defendants' part to punish him in retaliation for his

  There is no dispute that Plaintiff was aware ODMHSAS intended to terminate her, and that she requested the
opportunity to resign. Plaintiff contends she resigned in lieu of termination, which is supported, albeit with some
searching, by the letter her counsel sent to ODMHSAS on August 26, 2013. She apparently believed she had
resigned despite the threats she made in that letter to sue over her termination.

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allegedly protected speech.” Anemone v. Metro. Transp. Auth., 629 F.3d 97,
117 (2d Cir.2011); see also Couch v. Bd. of Trs. of Mem'l Hosp. of Carbon
Cnty., 587 F.3d 1223, 1244–45 (10th Cir.2009) (affirming summary
judgment in part because defendants met their burden at the fifth step);
Guilloty Perez v. Pierluisi, 339 F.3d 43, 59–60 (1st Cir.2003) (granting
defendants judgment as a matter of law based on Mt. Healthy analysis); Heil
v. Santoro, 147 F.3d 103, 110 (2d Cir.1998); Harris v. Shelby Cnty. Bd. of
Educ., 99 F.3d 1078, 1086 (11th Cir.1996). Thus, for example, in Anemone,
the court found that the “undisputed evidence” of the plaintiff's
insubordination and the employer's “ongoing efforts to address it—efforts
beginning well before any allegedly protected conduct—” were sufficient to
meet the defendants' burden at the summary judgment stage. 629 F.3d at 117.
And it was significant that the plaintiff was aware that his job was in jeopardy
before he engaged in the protected conduct. See id. at 118.
Trant v. Oklahoma, 754 F.3d 1158, 1167–68 (10th Cir. 2014). Here, unlike Trant, there is
no evidence that Plaintiff’s protected speech came only after she was aware that her
position was in jeopardy. Rather, it appears that despite knowing Plaintiff had been
terminated, Defendant decided after the lawsuit publicity that indicating she had resigned
in lieu of termination was material, despite his earlier belief she had been fired. The Court
cannot say that there are no factual issues related to steps four or five so as to entitle
Defendant to summary judgment.
Defendant argues he is entitled qualified immunity in part because Plaintiff cannot
establish a violation of her rights, an argument rejected above. He also contends the law
was not clearly established. A right is clearly established if the contours of the right are
sufficiently clear that a reasonable official would understand that what he is doing violates
that right. Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007);
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court
or Tenth Circuit decision on point, or the clearly established weight of authority from other
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courts must have found the law to be as the plaintiff maintains.” Currier v. Doran, 242
F.3d 905, 923 (10th Cir.2001). On the other hand, the Supreme Court has observed that it
is generally not necessary to find a controlling decision declaring the “very action in
question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). In 2014, it was
clearly established that a public employer could not terminate an employee in retaliation
for the employee’s protected First amendment activities. See Brammer-Heolter v. Twin
Peaks Charter Academy, 602 F.3d 1175, 1187 (10th Cir. 2010). Furthermore, “the protected
nature of [Plaintiffs'] speech [was] sufficiently clear that defendants should have been
reasonably on notice” they were not entitled to regulate it. Melton v. City of Okla. City, 879
F.2d 706, 729 (10th Cir.), reh'g in part granted on other grounds, 888 F.2d 724 (10th
Cir.1989). As such, Defendant Bryan is not entitled to qualified immunity.
Finally, with regard to Plaintiff’s civil conspiracy claim, the Court finds Defendant
Bryan is entitled to summary judgment.9 Plaintiff fails to cite to any evidence of an
agreement by Defendant Bryan and any other person to accomplish an unlawful purposes
or to accomplish a lawful purpose by unlawful means as required to establish her claim for
civil conspiracy. See Brock v. Thompson, 948 P.2d 279, 294 (Okla. 1997), as corrected
(Apr. 3, 1998)(citation omitted). As such, Defendant is entitled to summary judgment on
this claim.
For the reasons set forth herein, Defendant Bryan’s Motion for Summary Judgment

 Plaintiff did not indicate the legal basis for her civil conspiracy claim, and therefore Defendant Bryan addressed
such a claim under three potential theories, state law, 42 U.S.C. § 1983 and 42 U.S.C. § 1985. In her response
Plaintiff did not clarify, but limited her citation to cases from Oklahoma state courts. As such, the Court limits its
consideration of her civil conspiracy claim to a state law claim 
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is GRANTED IN PART AND DENIED IN PART.
IT IS SO ORDERED this 20th day of November 2017.

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