Simington v. Parker
2011 OK CIV APP 28
Okla. Civ. App.2011Background
- Simington filed a tort action against DRS and Linda Parker (official and personal capacities) alleging conversion, fraud/deceit, and intentional infliction of emotional distress.
- DRS moved to dismiss under 12 O.S.2001 § 2012(B)(6) arguing an adequate statutory remedy under the Oklahoma Personnel Act (OPA) bars the suit, relying on McCrady I and McCrady II.
- The trial court granted the motion to dismiss with prejudice, concluding McCrady I/II foreclosed all tort claims.
- On appeal, the record was challenged for noncompliance with accelerated appellate rules, and the court struck all briefs; the appeal proceeded under § 2012(B)(6).
- The court held that GTCA notice issues bar only the official-capacity claim against Parker and DRS, remanding to determine whether GTCA notice defects can be cured, while reversing to allow suit against Parker personally to proceed, and affirming dismissal against Parker in official capacity.
- The court determined Parker in her personal capacity is not barred by McCrady I/II and remanded for further proceedings, with DRS remaining subject to GTCA-based dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McCrady I/II bar Simington's claims against DRS and Parker in official capacity | Simington argues McCrady I/II do not apply because this is not a wrongful discharge claim. | DRS contends McCrady I/II preclude such tort claims against a classified employee under the OPA. | McCrady I/II bar official-capacity Burk claims; but not all tort claims against Parker personally. |
| Whether GTCA notice defeats the official-capacity claim against DRS and Parker | Simington contends GTCA notice is not properly analyzed in this context, and notice defects can be remedied. | DRS asserts GTCA notice is missing and bars the action against the governmental entity. | GTCA notice defects bar official-capacity claims; remanded to determine cure under 12 O.S. Supp. 2004 § 2012(G). |
| Whether Parker's individual-capacity tort claims survive | Simington contends Parker’s personal acts outside scope of employment support tort claims against her personally. | DRS argues McCrady I/II preclude individual-capacity Burk claims against Parker. | McCrady I/II do not control claims against Parker personally; reversed and remanded for further proceedings. |
| Whether dismissal with prejudice was proper for all defendants | Simington sought the chance to amend to plead GTCA compliance or otherwise cure defects. | DRS argues the petition failed to state a claim and amendment would be futile. | Partial reversal; official-capacity dismissal affirmed; GTCA notice remand; individual-capacity claims remanded. |
Key Cases Cited
- McCrady v. Oklahoma Department of Public Safety, 2005 OK 67 (OK Supreme Court, 2005) (classified employee protections under the Oklahoma Personnel Act; not an at-will employee; Burk tort claims barred)
- Oklahoma Department of Public Safety v. McCrady, 2007 OK 39 (OK Supreme Court, 2007) (McCrady II; clarifies agency review vs. tort claims; classified employees’ protections and agency proceedings)
- Pellegrino v. State ex rel. Cameron University, 2003 OK 2 (OK Supreme Court, 2003) (GTCA notice and scope; official-capacity vs employee-capacity distinctions)
- Girdner v. Board of Commissioners of Cherokee County, 2009 OK CIV APP 94 (OK Civil App. 2009) (GTCA notice requirements; silent record on timely filing and notice)
- Willborn v. City of Tulsa, 1986 OK 44 (OK Supreme Court, 1986) (GTCA notice prerequisites and exhaustion principles)
- Vasek v. Board of County Commissioners of Noble County, 2008 OK 35 (OK Supreme Court, 2008) (claims required to plead elements of wrongful discharge; Burk lineage)