Poff v. State Ex Rel. Oklahoma Department of Mental Health & Substance Abuse Services
683 F. App'x 691
| 10th Cir. | 2017Background
- Kimberly Poff (Inspector General) and Michael DeLong (Investigator) worked for the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) and investigated Narconon and alleged misconduct involving senior officials.
- Plaintiffs allege they were terminated for reporting wrongdoing at Narconon and opposing a consensual relationship between General Counsel DeWayne Moore and subordinate Robin Wilson.
- Defendants asserted non-discriminatory reasons for termination: Poff for breaching confidentiality and condoning improper investigative tactics; DeLong for intimidating a witness.
- District court dismissed most state-law tort claims (Burk wrongful termination, negligent supervision) and § 1983 First Amendment claims for failure to state a claim; it allowed Poff’s Title VII sex discrimination and DeLong’s Title VII retaliation claims to proceed to summary judgment.
- On summary judgment, the district court granted judgment for defendants on Poff’s Title VII sex-discrimination claim and DeLong’s Title VII retaliation claim; it denied Poff leave to amend to add a Title VII retaliation claim as futile. The Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Viability of Burk wrongful-termination claim | Poff/DeLong: Termination violated Oklahoma public policy (reporting inadequate care/endangering public safety) | Defendants: Whistleblower Act provides adequate statutory remedy, precluding Burk claim | Burk claim barred because Oklahoma Whistleblower Act provides adequate remedy |
| Negligent supervision tort for employment decisions | Plaintiffs: Department negligently hired/ trained/ supervised leadership leading to wrongful terminations | Defendants: Oklahoma has not recognized such a negligence cause in employment termination context | Claim dismissed; court declines to create new negligence tort in employment termination context |
| § 1983 First Amendment claim (public-employee speech) | Plaintiffs: Termination was retaliation for protected speech about Narconon and workplace misconduct | Defendants: Speech was made pursuant to official duties; Garcetti/Pickering precludes protection | Dismissed: plaintiffs admitted speech was within job duties, so not protected under Garcetti/Pickering |
| Title VII claims (Poff: sex discrimination; DeLong: retaliation; Poff motion to amend) | Poff: Defendants’ stated reasons were pretextual; sought to add retaliation claim. DeLong: Fired for opposing Moore/Wilson relationship (retaliation). | Defendants: Proffered legitimate nondiscriminatory reasons believed in good faith; opposition to consensual relationship is not protected under Title VII; amendment would be futile | Summary judgment for defendants affirmed: Poff failed to show pretext; DeLong’s opposition to a consensual relationship not protected and pretext not shown; Poff’s proposed Title VII retaliation amendment futile |
Key Cases Cited
- Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989) (recognizing limited public-policy tort for wrongful discharge)
- Vasek v. Board of County Commissioners, 186 P.3d 928 (Okla. 2008) (Burk requires no adequate statutory remedy exists)
- Shephard v. CompSource Oklahoma, 209 P.3d 288 (Okla. 2009) (Oklahoma Whistleblower Act provides sufficient remedy for reported governmental wrongdoing)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (public-employee speech made pursuant to official duties not protected by First Amendment)
- Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007) (applying Garcetti/Pickering framework in Tenth Circuit)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework for disparate-treatment claims)
- Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (U.S. 2000) (plaintiff bears ultimate burden to prove discrimination; pretext analysis)
- Taken v. Oklahoma Corporation Commission, 125 F.3d 1366 (10th Cir. 1997) (Title VII does not extend to consensual workplace romantic relationships)
- Antonio v. Sygma Network, Inc., 458 F.3d 1177 (10th Cir. 2006) (same-actor inference in discrimination cases)