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Poff v. State ex rel. Department of Human Services

United States District Court, W.D. Oklahoma

November 20, 2017

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.

          ORDER

          DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE

         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 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 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 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 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 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 S.Ct. 1951, 164 L.Ed.2d 689 ...


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