Poff v. Oklahoma: Motion To Dismiss

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 1 of 31
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA
Case No. 5:14-cv-01438-C
(1) KIMBERLY POFF,
Plaintiff,
v.
(1) STATE OF OKLAHOMA ex rel THE OKLAHOMA DEPARTMENT OF MENTAL
HEALTH AND SUBSTANCE ABUSE SERVICES;
(2) THE BOARD OF DIRECTORS FOR THE OKLAHOMA DEPARTMENT OF
MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES;
(3) TERRY WHITE, individually and as the Commissioner and Chief Executive Officer of
the Oklahoma Department of Mental Health And Substance Abuse Services;
(4) DURAND CROSBY, individually and as the Chief Operating Officer of the Oklahoma
Department of Mental Health And Substance Abuse Services;
(5) CRATUS DEWAYNE MOORE, individually and as the General Counsel of Oklahoma
Department of Mental Health And Substance Abuse Services; and
(6) ELLEN BUETTNER, individually and as the Director, Human Resources Management,
Human Resources Development for the Oklahoma Department of Mental Health And
Substance Abuse Services,
Defendants.
MOTION TO DISMISS AND BRIEF IN SUPPORT
BY DEFENDANTS STATE OF OKLAHOMA EX REL. THE OKLAHOMA
DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES
AND THE BOARD OF DIRECTORS FOR THE OKLAHOMA DEPARTMENT OF
MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES
VICTOR F. ALBERT, OBA #12069
CRYSTAL A. JOHNSON, OBA #21715
CONNER & WINTERS, LLP
1700 One Leadership Square
211 N. Robinson Ave.
Oklahoma City, OK 73102
Telephone: (405) 272-5711
Facsimile: (405) 232-2695
Email: valbert@cwlaw.com
Email: cjohnson@cwlaw.com
Attorney for Defendants, State of Oklahoma ex rel. The Oklahoma Department of Mental
Health and Substance Abuse Services and The Board of Directors for The Oklahoma
Department of Mental Health and Substance Abuse Services
January 20, 2015
K:\VALB\Clients A-M\15640 Dept. & Board\0002 Poff, Kimberly\Pleadings (USDC-WDOK 14-cv-1438)\Poff - M2Dismiss FINAL.docx
TABLE OF CONTENTS
BRIEF IN SUPPORT .......................................................................................................... 4
STANDARD OF REVIEW ................................................................................................. 4
PROPOSITION I The Court should dismiss Poffs Retaliation discrimination
claim. ................................................................................................................................... 5
A.
There is No Legal Basis for Poffs Generic Retaliation Claim ..................... 5
B.
Poff Fails to State a Retaliation Claim under Title VII ................................. 6
PROPOSITION II The Court should dismiss Poffs ADEA claim..................................... 9

PROPOSITION III The Court should dismiss Poffs Sex Discrimination claim. ........... 10
PROPOSITION IV The Court should dismiss Poffs Section 1983 claims (due
process and free speech) .................................................................................................... 16
A.
The Department and The Board Are Not Liable Under Section 1983. ....... 16
B.
The Due Process Claim Fails as a Matter of Law. ...................................... 16
C.
The Free Speech Claim Fails as a Matter of Law. ...................................... 17
PROPOSITION V The Court should dismiss Poffs negligent training/supervision

claim. ................................................................................................................................. 20
A.
Poff Likely Does not Have a Cognizable Claim Under Oklahoma

Law .............................................................................................................. 20
B.
The Department and The Board Are Immune under the Tort Claims
Act. .............................................................................................................. 21
C.
Poffs Conclusory Allegations Fail to State a Claim for Negligence ......... 21
PROPOSITION VI The Court should dismiss Poffs public policy wrongful

discharge claim and her Whistleblower claim. ............................................................ 24
CONCLUSION ................................................................................................................. 25
i
TABLE OF AUTHORITIES
Cases
Adams v. Neubauer,
195 F. Appx 711 (10th Cir. 2006) .......................................................................... 16
Allen v. Justice Alma Wilson Seeworth Acad., Inc.,
2012 WL 1298588, at *2 (W.D. Okla. 2012) ......................................................... 21
Asojo v. Oklahoma ex rel. Board of Regents of University of Oklahoma,
2012 WL 3679539 (W.D. Okla. 2012) ............................................................. 21, 23
Bell Atlantic Corp. v. Twombly,
550 U.S. 544, (2007) .................................................................................... 4, 15, 20
Benedix v. Indep. Sch. Dist. No. I-007 of Oklahoma Cnty., Okla.,
2009 WL 975145, at *2 (W.D. Okla. 2009) ........................................................... 21
Brammer-Hoelter v. Twin Peaks Charter Acad.,
492 F.3d 1192 (10th Cir. 2007) .............................................................................. 18
Davis v. Unified Sch. Dist. 500,
750 F.3d 1168 (10th Cir. 2014) ................................................................................. 7
Garcetti v. Ceballos,
547 U.S. 410 (2006) ................................................................................... 17, 18, 20
Gillman v. Inner City Broad. Corp.,
No. 08 Civ. 8909(LAP), 2009 WL 3003244, at *6 (S.D.N.Y. Sept.18, 2009) ...... 15
Grizzle v. Okla. Dept of Veterans Affairs,
2006 WL 3227880 (E.D. Okla. 2006) .................................................................... 10
Khalik v. United Air Lines,
671 F.3d 1188 (10th Cir. 2012) ................................................................................. 4
Kimel v. Florida Board of Regents,
528 U.S. 62 (2000) ................................................................................................. 10
Lee v. Oklahoma,
2014 WL 3689691, at *2 (W.D. Okla. 2014) ......................................................... 10
Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills,
815 F.Supp.2d 679 (S.D.N.Y.2011) ................................................................. 11, 14
Murphy v. Spring,
2013 WL 5172951, at *9 (N.D. Okla. 2013) .......................................................... 17
N.H. v. Presbyterian Church (U.S.A.),
998 P.2d 592 (Okla. 1999) ..................................................................................... 20
Parker v. Salazar,
431 F. Appx 697 (10th Cir. 2011) ............................................................................ 8
i
Penhurst State Sch. and Hosp. vs. Halderman,

465 U.S. 89 (1984) ................................................................................................. 10
Polson v. Davis,
895 F.2d 705 (10th Cir. 1990) ................................................................................ 21
Robbins v. Oklahoma,
519 F.3d 1242 (10th Cir. 2008) ................................................................................ 4
Ruiz v. Cnty. of Rockland,
609 F.3d 486 (2d Cir.2010) .................................................................................... 11
Rural Water Dist. No. 1, Ellsworth Cnty., Kansas v. City of Wilson, Kansas,
243 F.3d 1263 (10th Cir. 2001) .............................................................................. 17
Salazar v. City of Commerce City,
535 F. Appx 692 (10th Cir. 2013) .................................................................... 17, 20
Shephard v. Compsource,
209 P.3d 288 (Okla. 2009) ..................................................................................... 24
Smith v. Stuteville,
2014 WL 3557641, at *4 (D. Kan. 2014) ............................................................... 23
Stewart v. Oklahoma ex rel. Oklahoma Office of Juvenile Affairs,
2013 WL 6670291, at *7 (W.D. Okla. 2013) ......................................................... 21
Stokes v. City of Mount Vernon, N.Y.
2012 WL 3536461 (S.D.N.Y. 2012) ................................................................ 18, 20
Taken v. Oklahoma Corp. Comm'n,
125 F.3d 1366 (10th Cir. 1997) ............................................................................. 8, 9
Thompson v. New York City,
2013 WL 6409326 (S.D.N.Y. 2013) .................................................... 11, 12, 14, 15
Trant v. Oklahoma,
426 F. Appx 653 (10th Cir. 2011) ...................................................................... 4, 16
Univ. of Texas Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517 (2013) ............................................................................................. 7
Will v. Michigan Dept. of State Police,
491 U.S. 58 (1989) ................................................................................................. 16
Statutes
51 O.S. 152 ............................................................................................................... 10, 21
Rules
42 U.S.C. 1983 ............................................................................................................... 16
ii
IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA
(1) KIMBERLY POFF,
Plaintiff,
v.
Case No. 5:14-cv-01438-C
(1) STATE OF OKLAHOMA ex rel THE

OKLAHOMA DEPARTMENT OF
MENTAL HEALTH AND
SUBSTANCE ABUSE SERVICES;
(2) THE BOARD OF DIRECTORS FOR
THE OKLAHOMA DEPARTMENT
OF MENTAL HEALTH AND
SUBSTANCE ABUSE SERVICES;
(3) TERRY WHITE, individually and as
the Commissioner and Chief
Executive Officer of the Oklahoma
Department of Mental Health And
Substance Abuse Services;
(4) DURAND CROSBY, individually
and as the Chief Operating Officer of
the Oklahoma Department of Mental
Health And Substance Abuse
Services;
(5) CRATUS DEWAYNE MOORE,
individually and as the General
Counsel of Oklahoma Department of
Mental Health And Substance Abuse
Services; and
(6) ELLEN BUETTNER, individually
and as the Director, Human Resources
Management, Human Resources
Development for the Oklahoma
Department of Mental Health And
Substance Abuse Services,
Defendants.
1
MOTION TO DISMISS AND BRIEF IN SUPPORT

BY DEFENDANTS STATE OF OKLAHOMA EX REL. THE OKLAHOMA
DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES
AND THE BOARD OF DIRECTORS FOR THE OKLAHOMA DEPARTMENT
OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES
Defendants, the State of Oklahoma ex rel. The Oklahoma Department of Mental
Health and Substance Abuse Services (the Department) and The Board of Directors for
the Oklahoma Department of Mental Health and Substance Abuse Services (the
Board), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, respectfully
request this Court dismiss all claims asserted by Plaintiff Kimberly Poff (Poff) against
the Department and the Board.1
The gravamen of the Petition contends Poff was
terminated by the Department, and that such termination was based on several
wrongful factorsher age, her gender, her knowledge of investigations into
Department officials, and her vocal disagreement with supervisors over an alleged
decision to bury an investigation report concerning a Scientology-based drug treatment
center.2 As set out in the separate Propositions in the Brief in Support, all of Poffs
Poffs claims are virtually, although not completely, identical to those filed by Plaintiff
Michael DeLong in Case No. CIV-14-1439-C, recently removed to this Court. See
Plaintiffs Petitions, attached as Exhibit Nos. 1 and 2. Accordingly, the arguments
submitted in support of this Motion to Dismiss will be asserted in a separate Motion to
Dismiss filed in the DeLong case. Poffs multiple claims against various Defendants are
referenced in a chart attached as Exhibit No. 3.
2
The Department was established in 1953 by the Oklahoma Mental Health Law. Since
that time, the Department has provided services, assistance, and resources to hundreds of
thousands of Oklahomans affected by mental illness and substance abuse. While
Plaintiffs Petition is replete with errors and untruths that sully the Departments
reputation, Defendants are mindful that, due to the applicable standard of review, this
Motion to Dismiss is not an appropriate vehicle for rebutting those errors and untruths.
However, to the extent any of Plaintiffs claims survive the pleading stage, Defendants
look forward to responding factually to Plaintiffs remaining allegations.
2
claims are legally barred, factually insufficient, or both.
The Propositions are
summarized as follows:
I.
The Court should dismiss Poffs retaliation discrimination claim

(found at page 9 of the Petition) because there is no statutory basis
stated and there is no basis for a generic retaliation claim under
Oklahoma or federal law. This claim is apparently a whistleblower
claim, which should be dismissed for the reasons stated in Proposition
VI. Finally, even if the retaliation discrimination claim can be
generously construed as arising under Title VII, it should still be
dismissed because Poff did not engage in protected activity under
Title VII.
II.
The Court should dismiss the ADEA claim in Poffs Petition (found at
page 11 of the Petition and denominated age discrimination) because
the Department is immune from liability.
III.
The Court should dismiss the Title VII Sex Discrimination claim in
Poffs Petition (found at page 13 of the Petition) because the allegations
are insufficient to support a claim of sex discrimination.
IV.
The Court should dismiss Poffs claim under 42 U.S.C. 1983 (found at
pages 13 and 14 of the Petition), because a state is not (and hence the
Department and the Board are not) "persons, because Poff has no
property interest in her employment as an at-will employee, and because
Poff did not engage in protected speech.
V.
The Court should dismiss the negligent training/supervision claim in

Poffs Petition (found at page 15 of the Petition) because it is unlikely
such a claim exists under Oklahoma law, the Department and the Board
are immune from liability under the discretionary function exception
of the Oklahoma Governmental Tort Claims Act (GTCA), and the
Petition fails to allege sufficient facts to state a plausible claim to relief
under a negligence theory.
VI.
Poffs public policy wrongful discharge claim (found at page 16 of

the Petition) and her Whistleblower claim (found at page 17 of the
Petition) are barred by Shephard v. Compsource because she did not
avail herself of an adequate statutory remedy under the Oklahoma
Whistleblower Act.3
Poff asserts a claim for Civil Conspiracy at page 17 of her Petition but does not name
the Department or the Board in that claim. That claim is not the subject of this Motion
3
BRIEF IN SUPPORT
STANDARD OF REVIEW
In examining whether the allegations in a petition are sufficient to withstand a
motion to dismiss, it is well established that only well-pleaded facts, as distinguished
from conclusory allegations are accepted as true. Trant v. Oklahoma, 426 F. Appx 653,
659 (10th Cir. 2011). A petition must contain enough allegations of fact, taken as true,
to state a claim to relief that is plausible on its face. Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
(2007)). A claim that is merely conceivable is insufficienta plaintiff must nudge her
claims across the line from conceivable to plausible. Id. If the allegations are so
general that they encompass a wide swath of conduct, much of it innocent, then the
plaintiff has not nudged her claims across the line from conceivable to plausible.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
Mere labels and
conclusions and a formulaic recitation of the elements of a cause of action will not
suffice. Twombly, 550 U.S. at 555.
In the present case, Poffs Petition bears the hallmarks of labels, conclusions, and
formulaic recitations. Furthermore, the facts that Poff does allege reveal that several of
her claims are barred under applicable law.
Accordingly, the allegations in Poffs
Petition are insufficient to withstand this Motion to Dismiss.
since it does not apply to these Defendants. Thus, this Motion seeks dismissal of all
claims alleged against the Department and the Board.
4
PROPOSITION I
THE COURT SHOULD DISMISS POFFS
RETALIATION DISCRIMINATION CLAIM.
The Court should dismiss Poffs retaliation discrimination claim (found at page
9 of the Petition) because there is no statutory basis stated and there is no basis in
Oklahoma or federal law for a generic retaliation claim. Furthermore, Poffs retaliation
claim is apparently based on the same facts as her whistleblower claim, which should
be dismissed for the reasons stated in Proposition VI, infra. Further, to the extent the
claim can be construed as a retaliation claim under Title VII, it should still be dismissed
because Poff did not engage in protected activity under Title VII.
A.
There is No Legal Basis for Poffs Generic Retaliation Claim

Poffs retaliation discrimination claim is premised on the following allegations
in her Petition:
64. Leadership terminated Ms. Poff & Mr. DeLong in an attempt to
orchestrate investigations and manipulate outcomes to its desired
conclusion, to protect the department from media and governmental
scrutiny, and to show it in the best possible light.
65. When Ms. Poff refused to bow to the demands to manipulate
investigative findings, Leadership decided to render the Inspector General's
office powerless by terminating the two most senior members of the
department, Ms. Poff and Mr. Delong, and placing an investigator with
four months of experience in charge of these sensitive investigations.
66. Ms. Poff engaged in whistle blowing activity by reporting the
inappropriate and potentially illegal conduct within the office of
ODMHSAS and upon doing so, Leadership at the department retaliated by
terminating her employment. This is illegal.
Careful examination of the allegations made in support of her retaliation claim
show that Poff believes she was retaliated against because of her work on an
5
investigation involving Narconon and because of her opposition to a consensual romantic

relationship between two Department employees.
Her allegations (all of which are
baseless) include claims that leadership at the Department sought to suppress Poffs
findings about Narconon and orchestrate investigations and manipulate outcomes
(paragraphs 64-65).4 Such allegations do not constitute retaliation discrimination and
there is no statutory basis pled in the Petition for this cause of action so it is difficult to
conclude the legal basis for the claim. It appears to be based on the same whistle
blowing conduct alleged in Poffs Whistleblower Act claim based on 74 O.S. Section
840-2.5. If the retaliation discrimination claim is simply the whistleblower claim
dressed in different garb, it should be dismissed for the reasons outlined below in
connection with the whistleblower claim.5
B.
Poff Fails to State a Retaliation Claim under Title VII

Although Poff does not identify any statutory basis for her retaliation
discrimination claim, she may try to belatedly assert that the claim arises under
Title VII, since she attached to her Petition a Charge of Discrimination with a box
checked for retaliation. To state a Title VII retaliation claim, a plaintiff must plausibly
allege: (1) she engaged in protected activity; (2) she suffered an adverse employment
action; and (3) her protected activity was a but-for cause of the alleged adverse
Even if Plaintiffs claims about Narconon were correct and her investigation found
sufficient evidence to establish Narconon had violated the Department rules, the
Administrative Code does not require the Department to take any action, such as
revocation. The decision to revoke a license in such cases is discretionary and, therefore,
the Department is exempt from liability under the GTCA. 51 O.S. 155(5) & (12).
5
See Proposition VI, infra pp. 24-25.

6
employment action. Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170 (10th Cir.
2014) (citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013)).
Plaintiffs allegations reveal she did not engage in protected activity under Title
VII. The closest Plaintiff comes to stating a retaliation claim in her Petition is in
paragraph 56, where she claims she knows the details of certain alleged sexual
harassment complaints. Earlier in her Petition she claims that during her tenure with the
Department some unnamed employees supposedly made allegations of sexual
misconduct (paragraph 34) and that her co-Plaintiff Michael DeLong received a third
party sexual harassment claim alleging that a co-worker who was engaged in a romantic
relationship with her supervisor received preferential treatment (paragraph 35). But
Plaintiff stops far short of saying she investigated a complaint or opposed unlawful
activity under Title VII.
The only allegation that remotely resembles a Title VII retaliation claim is found
in page 2, Exhibit 2 of her Petition entitled Particulars of charge of discrimination. In
the second paragraph Poff states:
Additionally, I believe my discharge occurred and I was retaliated against
because I was vocal about the failure of management to take action on high
profile matters within the Department. Specifically, alleged third party
sexual harassment claims regarding a hostile work environment and belief
of quid pro quo advancement within the department arising out of the affair
between General Counsel Dewayne Moore and a subordinate co-worker.
It should first be observed Poffs Petition, itself, never makes such an allegation.
But more pointedly, even if the Petition had included such an allegation it would be
insufficient to state a claim for Title VII retaliation. Poff does not plausibly claim (nor
could she) that she engaged in any protected activity or opposed any unlawful activity.
7
The Tenth Circuit has made it clear that a supervisors preferential treatment of a
paramour does not support a cause of action under Title VII.
In Taken v. Oklahoma Corp. Comm'n, 125 F.3d 1366 (10th Cir. 1997), the Tenth
Circuit examined a claim of sexual harassment premised on allegations that a
supervisors paramour received more favorable treatment than other employees. Even if
the allegations were true, the Court said, the plaintiffs failed to state a claim for relief
under Title VII:
[Plaintiffs] assert that their employer is liable under Title VII solely
because a supervisor preselected his paramour for a [promotion] even
though she was less qualified than either Plaintiff. Taking plaintiff's
allegations as true, we conclude that they do not state a claim for relief
under Title VII because they are based on a voluntary romantic affiliation,
and not on any gender differences. Plaintiffs were in the same position as
all men and all other women would have beenonly Ms. Preston was
considered for the promotion because of her special relationship with Mr.
Burnett. Favoritism, unfair treatment and unwise business decisions do
not violate Title VII unless based on a prohibited classification.
Because we decline to extent Title VII to include consensual romantic
involvements, we conclude that the promotion was not base[d] on a
prohibited classification.
Taken, 125 F.3d at 1370 (citations omitted) (emphasis added).
This principle was affirmed in Parker v. Salazar, 431 F. Appx 697, 698-99 (10th
Cir. 2011). In Parker, the plaintiff alleged he was terminated for reporting that two
coworkers were flaunting their affair.
Id.
In evaluating whether the conduct the
plaintiff reported was the type of sex discrimination that would support a retaliation
claim under Title VII, the Parker court noted that the purpose of Title VII is to eliminate
disparate treatment of men and women. The court explained that Title VIIs reference
to sex means a class delineated by gender, rather than by sexual affiliations.
8
Therefore, to constitute protected activity, the reported discrimination must be genderrelated. Id. Because the plaintiff reported discrimination based on sexual affiliations
and not gender, he did not have a viable retaliation claim under Title VII.
The Tenth Circuit recently affirmed Taken in Clark v. Cache Valley Elec. Co.:
Mr. Clark presented no evidence that Cache Valley treated women more
favorably than men, and no circumstances giving rise to an inference of
discrimination. Indeed, as the district court concluded, Mr. Clark merely
provided evidence that Mr. Perschon extended preferential treatment to one
female employee: Ms. Silver, a co-worker with whom Mr. Perschon
allegedly was having an affair or some other form of improper
relationship. Favoritism of a paramour is not gender discrimination.6
As the Tenth Circuit explained in Taken and Clark, favoritism of a paramour is
not gender discrimination, and a promotion based on such favoritism cannot serve as the
basis for a claim under Title VII. Consequently, Poff did not engage in protected
activity and she has failed to state a claim for any kind of retaliation discrimination,
whether based on Title VII or some other generic basis. Accordingly, this claim should
be dismissed.
PROPOSITION II
THE COURT SHOULD DISMISS
POFFS ADEA CLAIM.
The Court should dismiss Poffs Age Discrimination in Employment Act
(ADEA)7 claim (found at page 11 of the Petition and denominated age
discrimination) because the Board and Department are immune from liability.
2014 WL 3685996, at *4 (10th Cir. 2014) (unpublished) (second emphasis added).
29 U.S.C. 621 634.

9
The Board and the Department are both part of an agency of the State of
Oklahoma. Therefore, the suit against these Defendants is treated as a suit against the
State. Penhurst State Sch. and Hosp. vs. Halderman, 465 U.S. 89, 100 (1984).
It is well settled that the State of Oklahoma has not completely waived its
sovereign immunity. 51 O.S. 152.2(B). See also Grizzle v. Okla. Dept of Veterans
Affairs, 2006 WL 3227880 (E.D. Okla. 2006). More pointedly, in Kimel v. Florida
Board of Regents, 528 U.S. 62, 91 (2000), the United States Supreme Court held that the
ADEA did not abrogate a states sovereign immunity from suit by a private individual.
As such, the Department and the Board are immune from Poffs ADEA claim, and it
must be dismissed. See Lee v. Oklahoma, 2014 WL 3689691, at *2 (W.D. Okla. 2014).
PROPOSITION III
POFFS SEX DISCRIMINATION CLAIM.
At page 13 of her Petition, Poff attempts to assert a claim of what she calls Sex
Discrimination. Her allegations are as follows:
83. Ms. Poff was also treated differently than four other male
employees facing similar investigations and suspensions.
84. In each of the four instances of male employees being investigated,
the male employees had multiple allegations against them of severe
misconduct that included falsification of documents, fraud, hostile,
offensive, and intimidating work environment, sexual harassment,
consumer abuse, racial and sexual discrimination and other
inappropriate conduct.
85. However, in each of these 4 employees' circumstances they were
disciplined and not fired.
86. None of these employees were treated as harshly as Ms. Poff has
been treated.
10
87. As a result of the age and sex discrimination and the other wrongful
acts of the Defendants, Ms. Poff has suffered damages in lost wages and
benefits, damage to reputation, lost opportunity for advancement and
training, mental stress, and pain and suffering.
Notably, Poff does not name the male employees or provide any meaningful
information about how she was treated differently. Nor does she support her boilerplate
allegations with any corroborating facts, such as gender-based comments. Compare
Poffs inadequate proffers with a similar complaint filed in Thompson v. New York City,
2013 WL 6409326 (S.D.N.Y. 2013), where the plaintiff claimed he was discriminated
against by being treated more harshly than a co-worker. The Thompson court began by
recognizing what a plaintiff must plead in order to survive a Rule 12(b)(6) motion:
Where a plaintiff seeks to derive an inference of discrimination from
allegations of disparate treatment, he or she must plausibly allege the
existence of at least one comparator who was more favorably treated
despite being similarly situated to the plaintiff in all material respects,
meaning the comparator was (1) subject to the same performance
evaluation and discipline standards and (2) engaged in comparable
conduct. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 49394 (2d Cir.2010)
(internal quotation marks omitted); see also Bhanusali, 2013 WL 4828657,
at *7 (Plaintiffs' general allegations that misconduct by younger and/or
white physicians' went without peer review or discipline are wholly
conclusory, do not specify the individuals involved or the nature of their
alleged misconduct, and are thus insufficient to render plausible the
inference of discriminatory intent.) (citations omitted). The issue is
whether the [Second Amended Complaint] has adequately alleged that any
of Thompson's proffered comparators is similarly situated in all material
respects and that a prudent person would think them roughly equivalent.
Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F.Supp.2d 679,
697 (S.D.N.Y.2011). At the motion to dismiss stage . . . a court still must
determine whether, based on a plaintiff's allegations in the complaint, it is
plausible that a jury could ultimately determine that the comparators are
similarly situated. Id. at 698. Thus, well-pled facts showing that the
plaintiff has been treated differently from others similarly situated, remains
an essential component of such a claim and conclusory allegations of
selective treatment are insufficient to state an equal protection claim. Id.
(citations omitted).
11
Thompson, 2013 WL 6409326, at *8 (internal alterations omitted).

Under this standard, what has Poff alleged in order to show that her proffered
comparators are similarly situated in all material respects that a prudent person would
think them roughly equivalent? Nothing at all in terms of her Petition. She makes only
the barest of allegations that clearly fail to state a claim under the Thompson standard.
What then does she allege by way of her exhibits to her Petition, assuming the
Court considers them? Although she provides more specificity at pages 5 - 6 of Exhibit 1
to her Petition, those specifics fail to show she was similarly situated in all material
respects to her supposed comparators. Here is what she says:
#8 Sex (gender) discrimination:
Treated better:
Dewayne Moore, male, General Counsel - Allegations of misconduct were
made against Dewayne Moore related to his personal relationship with his
employee,___________. Dewayne was not placed on suspension, there was
no investigation and he was not subject to any discipline. During this time,
Mr. Moore also received a pay raise. _________ was given a position
reporting directly to a Deputy Commissioner, a title change and a raise.
Robert Harshaw, male, Director of Nursing (Griffin Memorial Hospital) Allegations of misconduct were made against Robert Harshaw related to
retaliation and discrimination. An investigation was conducted; however,
Mr. Harshaw was not placed on suspension. There were supported
findings of both retaliation and discrimination against Mr. Harshaw but he
was not disciplined. In fact, the reports were never "officially" approved
and the findings were completely ignored. Mr. Harshaw was provided with
documentation related to this investigation including his Rights and
Responsibilities form and a copy of his recorded interview.
James Bond, male, Director of Human Resources DevelopmentAllegations of misconduct were made against James Bond related to a
sexual harassment claim. Mr. Bond was suspended. The investigation
determined the allegations were supported. Mr. Bond was allowed to use
approximately 4-5 months of his leave in order to continue to receive a
12
paycheck and his medical/dental benefits for both himself and his teenage
daughter. At the end of that period, Mr. Bond was allowed to resign.
______________ [no name given], male, ___________________________
was accused of both sexual harassment and consumer mistreatment.
______________was suspended for a period of over 4 months (AprilAugust) during which time he continued to respond to email, work with
Department staff, meet with community partners and represented the
agency on behalf of the Deputy Commissioner at New Employee
Orientation. It is my feeling that while ______________was ultimately
released from employment that was done solely because the decision had
been made to terminate me and the Department wanted to look like it was
acting equally. While Mr. DeLong and I were suspended we were not
allowed to continue performing any aspect of our jobs.
Randy May, male, Executive Director of Griffin Memorial Hospital - Mr.
May was previously investigated for discriminatory remarks/creating a
hostile or intimidating working environment and the findings were
supported. Mr. May was not disciplined and in fact, was subsequently
made the Executive Director of Griffin Memorial Hospital. Several years
later, Mr. May was investigated (again) following multiple reports of
sexually inappropriate and/or discriminatory comments. The investigation
determined Mr. May had in fact created a hostile working environment and
he was released from employment. However, Mr. May was allowed to use
leave, continue to receive medical/dental benefits for a period of time and
was allowed to resign rather than being terminated from his employment. I
was not allowed to serve out my leave time and was terminated and never
offered the opportunity to resign in lieu of termination.
Jeff Smith, male, Executive Director of the Children's Recovery Center allegations were made against Mr. Smith related to destroying documents
and creating a hostile working environment. Multiple policy violations
were supported against Mr. Smith. It was decided to give Mr. Smith
another chance and have him work under another director. He was given
the Assistant Executive Director position at the Oklahoma County Crisis
Intervention Center.
At page 2 of Exhibit 2 to her Petition, Poff states:
I believe I was subjected to unequal terms and conditions during this
suspension and subsequent discharge. At least five (5) high ranking male
personnel, who were similarly situated at the Department, and who were
subject to similar allegations of misconduct related to their employment,
were treated better than I was by either not being terminated and having
13
only some discipline imposed and/or being allowed to resign in lieu of

termination and to receive certain benefits prior to resigning their position.
Like the plaintiff in Thompson, Poff has included the names of specific
comparators and claimed they are similar. But like the comparators in Thompson, Poffs
comparators are clearly not similarly situated to Poff in all material respects, as
required.
The Thompson court, in evaluating the plaintiffs Second Amended Complaint
(which the court refers to it as the SAC), addressed the allegations regarding one
alleged comparator, Sentino, as follows:
The spare allegations in the SAC supply no nonspeculative basis to
conclude that defendants treated Thompson and Sentino differently based
on race. On the basis of the SAC, one could equally, if not more plausibly,
infer that the response to the allegations against Sentino derived from the
different allegations against him and the differing evidence at hand. The
SAC therefore has not adequately alleged that Sentino is similarly
situated [to Thompson] in all material respects and that a prudent person
would think [him] roughly equivalent. Mosdos Chofetz, 815 F. Supp. 2d
at 697.
Thompson, 2013 WL 6409326, at *9.
The same is true about Poffs allegations. She does not refer to any person who
was accused of the type of misconduct she was accused of, i.e., breach of confidentiality
in conducting confidential investigations.
And her allegations contain personal
conjecture about why one of her comparators was terminateda fact which undercuts her
allegation of unequal treatment.8
Poff claims It is my feeling that while [unnamed employee] was ultimately released
from employment that was done solely because the decision had been made to terminate
me and the Department wanted to look like it was acting equally. See pages 5 6 of
14
A careful examination of the sparse allegations of the Petition and the scant
allegations in the exhibits reveals how much this case resembles Thompson, where the
Court dismissed the claims of unequal treatment, saying:
In sum, the SAC is woefully unspecific about the four proffered
comparators. Its sparse allegations as to [the proffered comparators] fall
measurably short of that necessary to enable the Court to conclude that a
prudent person might think them roughly equivalent to Thompson. Id.;
see Bhanusali, 2013 WL 4828657, at *6 (holding that plaintiff doctor's
disparate treatment allegations could not survive motion to dismiss when
his complaint failed to allege anything about the white physicians, such as
what they may have done or how many times); Gillman v. Inner City
Broad. Corp., No. 08 Civ. 8909(LAP), 2009 WL 3003244, at *6 (S.D.N.Y.
Sept.18, 2009) (granting motion to dismiss when plaintiff who alleged age
discrimination pled no information about the reasons for comparators'
termination or specific employment practices by the Defendant); . . .
Without concrete allegations as to the nature, seriousness, and
evidentiary basis for accusations made against his comparators, the
SAC's claim of disparate treatment is unacceptably conclusory.
Because the SAC fails to state facts that would allow a court to infer he
was treated differently based on his race or gender, its claims for racial
and gender discrimination must therefore be dismissed.
Id. at *9-10 (emphasis added) (internal alterations omitted).
The same can be said of Poffs allegations. The comparators she references in
her exhibits are not comparable because the allegations fail to show they were similarly
situated in all material respects. The paucity of pleading requires dismissal under
Twombly and Thompson.
Exhibit 1 to Poffs Petition. Also, contrary to her allegations, Poff was, in fact, given the
opportunity to resign in lieu of termination, as were a couple of her comparators.
15
PROPOSITION IV
POFFS SECTION 1983 CLAIMS
(DUE PROCESS AND FREE SPEECH)
The Court should dismiss Poffs claims asserted under 42 U.S.C. 1983 (found at
pages 13 and 14 of the Petition), because a State is not (and hence the Board and the
Department are not) persons for purposes of 1983; further, both prongs of Plaintiffs
1983 claim should be dismissed because (1) Poff has no property interest in her
admittedly at-will employment and, thus, no due process rights and (2) Poff cannot
state a claim for free speech retaliation since she was admittedly performing her duties
as Inspector General for the Department.
A.
The Department and The Board Are Not Liable Under Section 1983.
First, neither the Department nor the Board is a person who can be found liable
under 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (holding
that a State is not a person amenable to suit under 1983). The Tenth Circuit has
reiterated this holding on many occasions. See, e.g., Adams v. Neubauer, 195 F. Appx
711, 713 (10th Cir. 2006) (A state agency is not a person under 1983 and is immune
from suit under the Eleventh Amendment.).
B.
The Due Process Claim Fails as a Matter of Law.

As to the due-process prong of Poffs 1983 claim, Poff admits she was an at-will
employee. See Petition at 106. As an at-will employee, Poff had no legitimate

expectation of continued employment. Trant, 426 F. Appx at 662. Consequently, Poff
16
did not have a property interest in her position sufficient to trigger due process
protections, and her due process claim fails as a matter of law. Id. at 663.
C.
The Free Speech Claim Fails as a Matter of Law.

With respect to the free-speech prong of Poffs 1983 claim, she alleges
violations under the First Amendment of the U.S. Constitution and Article 2, Section 22,
of the Oklahoma Constitution.9 Neither of these provisions supports a 1983 cause of
action under the facts alleged.
First, 1983 claims may not be based on violations of state constitutional rights.
Murphy v. Spring, 2013 WL 5172951, at *9 (N.D. Okla. 2013) (citing Rural Water Dist.
No. 1, Ellsworth Cnty., Kansas v. City of Wilson, Kansas, 243 F.3d 1263, 1275 (10th Cir.
2001)). Therefore, Section 22 of Article 2 of the Oklahoma Constitution cannot serve as
a basis for Poffs 1983 claim.
Second, Poff clearly alleges she was speaking pursuant to her official duties,
which, as a matter of law, takes her speech outside the ambit of First Amendment
protection. The United States Supreme Court has held that when public employees
make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline. Garcetti v. Ceballos, 547 U.S. 410, 421
(2006).
The Tenth Circuits opinion in Salazar v. City of Commerce City, 535 F. Appx
692, 699 (10th Cir. 2013) is instructive.
In Salazar, the plaintiff alleged she was
Poff also references Article 2, Section 3 of the Oklahoma Constitution (free assembly),
but she does not allege her right of free assembly was violated.
17
terminated from her position as Director of Economic Development because she spoke
out regarding discrimination against herself and others. The trial court ruled that the
plaintiffs complaints of discrimination failed to support a First Amendment claim
because her complaints were related to her position or to her own job performance. Id.
at 700. In affirming the judgment of the trial court, the Tenth Circuit explained that the
First Amendment does not protect a public employees speech if the speech reasonably
contributes to or facilitates the employees performance of [an] official duty. Id. at 701
(quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir.
2007)). Because the plaintiffs communications were made pursuant to her official
duties, she was not speaking as a citizen for First Amendment purposes. Id.
Likewise, in a very similar factual context, an Inspector General for the City of
Mount Vernon, New York brought a 1983 claim, alleging the City violated his freespeech rights when it fired him for reporting improper actions within certain City
programs. Stokes v. City of Mount Vernon, N.Y. 2012 WL 3536461 (S.D.N.Y. 2012).
The court dismissed the claim, finding that, as Inspector General, reporting wrongdoing
was his official duty:
Here, there is no question plaintiff was not acting as a citizen when
performing his duties as Inspector General. According to the City Charter,
the Inspector General is empowered to investigate allegations of corruption,
fraud, criminal activity, or abuse by any Mount Vernon official or
employee and make public written reports of the investigations. Plaintiff's
[reports] were all issued pursuant to plaintiff's investigation . . ., which he
conducted in his capacity as Inspector General. Therefore, when he went
to work and performed the tasks he was paid to perform, plaintiff acted as a
government employee. Garcetti v. Ceballos, 547 U.S. at 422.
Stokes, 2012 WL 3536461, at *5 (emphasis added) (internal alterations omitted).
18
Here, Plaintiffs own allegations about her official duties provide the basis for
dismissal of her 1983 First Amendment claim (numerical references are paragraph
numbers in Plaintiffs Petition):
19. Ms. Poff began employment with ODMHSAS as the Inspector General
in 2007.
22. Ms. Poff's duties as Inspector General were to investigate misconduct,
not only within State Operated facilities, but also within management and
staff of ODMHSAS.
32. During the course of her employment with ODMHSAS, Poff was
involved with the investigation of several high profile matters within the
Department. Specifically, Poff investigated complaints made by employees
at the ODMHSAS against high profile employees within the department and
the investigation related to the NARCONON Arrowhead facility wherein
three died while undergoing drug treatment.
38. Ms. Poff & Mr. DeLong, were tasked with investigating complaints
arising out of the death of the individuals who were in the drug treatment at
the Oklahoma NARCONON Facility.
39. As a result of their investigation, Ms. Poff and Mr. DeLong determined
that the NARCONON facility violated numerous state laws and
recommended to leadership that the facility be shut down by ODMHSAS.
Ms. Poffs report to Leadership was finalized in the summer/fall of 2012.
40. Despite the finalization of this report, Leadership at ODMHSAS
including Terri White, Dewayne Moore, Durand Crosby and/or Ellen
Buettner attempted to hide the findings of Ms. Poff and Mr. DeLong by
telling Ms. Poff to advise the Board of Directors for ODMHSAS that the
report and investigation were still pending.
41. On information and belief, Leadership at ODMHSAS including Terri
White, Dewayne Moore, Durand Crosby and/or Ellen Buettner buried the
report, recommendations and findings of Ms. Poff & Mr. DeLong because
the Department did not want to get involved with litigation involving the
Church of Scientology.
42. Ms. Poff & Mr. DeLong were very vocal in 2012 and 2013 about their
objection to ODMHSAS's decision to bury the report and Ms. Poff believes
her objection to the decision to bury the findings of the NARCONON
investigation directly relate to her termination by the Department.
19
Plaintiffs allegations sow the seeds of legal destruction, clearly showing that she
was speaking as an employee, in the context of her official duties as Inspector General,
and not as a citizen. This takes Plaintiff outside the protection of the First Amendment
and 1983, as the Garcetti, Salazar, and Stokes cases have held. Thus, Plaintiffs 1983
free-speech claim must be dismissed.
PROPOSITION V
THE COURT SHOULD DISMISS POFFS NEGLIGENT
TRAINING/SUPERVISION CLAIM.
The Court should dismiss Poffs negligent training/supervision claim (found at
page 15 of the Petition) because (a) it is unlikely the Oklahoma Supreme Court would
recognize such a claim in the context of alleged harm to a co-employee, (b) the claim is
based on discretionary activities for which there is immunity under the Tort Claims Act
and (c) the claim is nothing more than a formulaic recitation which fails the pleading
standards articulated by the Supreme Court in Twombly and Iqbal.
A.
Poff Likely Does not Have a Cognizable Claim Under Oklahoma Law
Under Oklahoma law, a claim for negligent training/supervision against an
employer is based on an employees harm to a third party through employment. N.H.

v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla. 1999). A plaintiff must show
that at the time of the tortious incident, the employer had reason to believe the employee
would create an undue risk of harm to others. Id. The critical element for recovery is
the employer's prior knowledge of the servant's propensities to create the specific danger
resulting in damage. Id.
20
In deciding whether Poff has asserted a viable cause of action, this Court must
predict how the Oklahoma Supreme Court would rule. Benedix v. Indep. Sch. Dist. No.
I-007 of Oklahoma Cnty., Okla., 2009 WL 975145, at *2 (W.D. Okla. 2009). It is
unlikely the Oklahoma Supreme Court would recognize a cause of action for negligent
training/supervision in the context of harm to a co-employee rather than a third party.
Stewart v. Oklahoma ex rel. Oklahoma Office of Juvenile Affairs, 2013 WL 6670291, at
*7 (W.D. Okla. 2013); see also Polson v. Davis, 895 F.2d 705, 710 (10th Cir. 1990)
(applying Kansas law and rejecting an employees attempt to circumvent the at-will
employment doctrine through the common-law tort of negligent supervision). Therefore,
Poffs negligent training/supervision claim should be dismissed.
B.
The Department and The Board Are Immune under the Tort Claims Act.
The Department and Board are immunized from Plaintiffs negligence claim by
the discretionary function exemption of the GTCA. 51 O.S. 155(5). See Benedix,
2009 WL 975145, at *4 (Plaintiff's claim against the school district for negligence in his
hiring, supervision and retention is barred by the discretionary function exemption of
155(5).); Allen v. Justice Alma Wilson Seeworth Acad., Inc., 2012 WL 1298588, at *2
(W.D. Okla. 2012) (granting the defendants motion to dismiss after holding that
decisions involving the training, supervision, and retention of upper-level administrators
are the sort of discretionary decisions to which [Section 155(5)] appears to be directed).
C.
Poffs Conclusory Allegations Fail to State a Claim for Negligence

In Asojo v. Oklahoma ex rel. Board of Regents of University of Oklahoma, 2012
WL 3679539 (W.D. Okla. 2012), this Court was faced with a comparable situation to the
21
one presented in the case at bar: generic allegations of a negligent failure to train or
supervise but no plausible basis on which those claims were based. This Court found
the State of Oklahoma (sued as the University of Oklahoma) was not liable based on
immunity and based on the absence of plausible pleadings:
Plaintiff's fourth cause of action purports to assert a claim pursuant to the
Oklahoma Governmental Tort Claims Act (GTCA), Okla. Stat. tit. 51
151, et seq., labeling it as a tort claim. She alleges the University
negligently and carelessly trained, supervised, and retained Administrators
to allow Plaintiff to be subjected to harassment by faculty and retaliated
against in the promotion process to secure full professorship rank when
Plaintiff's academic achievements and performance entitled her based on
her merits to receive promotion to the rank of Full Professor.
***
Plaintiff's allegations do not fall within the GTCA's limited waiver of
immunity. She cites no statutory provision which would render the
University, a state entity, liable for the tort of negligent supervision,
training or retention. In fact, Plaintiff has wholly failed to offer any
response to the University's contention that it is entitled to sovereign
immunity from liability on the fourth cause of action. . . .
Furthermore, even if the University could be potentially liable for a tort
cause of action under the facts alleged, the tort of negligent training and
supervision requires allegations that the employer had reason to know that
one of its employees is likely to harm others. Employers are held liable for
their prior knowledge of the servant's propensity to commit the very harm
for which damages are sought. The critical element for recovery is the
employers prior knowledge of the servant's propensities to create the
specific danger resulting in damage.
In this case, the Amended Complaint alleges no facts from which the Court
could conclude that the University could be potentially liable under this
theory of recovery. Plaintiff alleges nothing to show the University's prior
knowledge of any employees propensity to violate Title VII. The motion
to dismiss the fourth cause of action is granted.
Id. at *4-*5 (emphasis added) (citations and internal quotation marks
omitted).
22
A remarkably similar situationand conclusionappeared in Smith v. Stuteville,

2014 WL 3557641, at *4 (D. Kan. 2014) where bare-bones allegations of failure to
train were rejected by the court, saying:
The allegations in plaintiff's complaint for municipal liability based on a
failure-to-train theory reflect the formulaic recitation of bare assertions
deemed categorically deficient by the Supreme Court in Iqbal. In his
response to the motion to dismiss, plaintiff asserts that, because discovery
has not yet commenced, he cannot provide any additional allegations
concerning the City's training of its officers but urges that Officer
Stuteville's conduct, standing alone, demonstrates that he has not been
properly trained or supervised. This allegation is insufficient to state a
claim against the City.
The allegations of Poffs Petition suffer the same fatal deficiency. The entire
cause of action is stated in three short paragraphs, one of which is the claim for relief.
The two substantive paragraphs simply state:
102. The ODMHSAS by and through its Board of Directors and
Commissioner Terri White failed to hire, train and supervise its Leadership
employees to ensure that they knew and understood the law with regard to
the hiring, reviewing, disciplining and terminating employees for alleged
misconduct.
103. The ODMHSAS, by and through its Board of Directors and
Commissioner Terri White, was negligent when it failed to fully and
adequately investigate the allegations of sexual harassment and sexual
misconduct involving high ranking Department employees. The ODMHSAS
then subsequently terminated Ms. Poff and Mr. DeLong for vocalizing their
objection to the preferential treatment shown to the high ranking employees
to the detriment of other employees who also had harassment claims
relating to the conduct.
Paragraph 102 is nothing more than the type of formulaic recitation rejected by
the Courts in Asojo and Smith. Paragraph 103 levies allegations of negligence for
failing to investigate alleged sexual harassment and misconduct, which was shown
under Proposition I of this Brief to involve a matter not legally recognized as a violation
23
of Title VII. Even if the harassment/misconduct were actionable, there are no allegations
showing the Board or the Commissioner (who are not tasked with responsibility for
investigations) were negligent.
Moreover, Plaintiff does not claim the alleged
negligent investigation was the proximate cause of her termination; instead, she claims
she was terminated for speaking out about the investigation. Accordingly, the negligence
and negligent training/supervision claim must fall like a house of cards under the weight
of even the lightest legal scrutiny.
PROPOSITION VI
THE COURT SHOULD DISMISS POFFS
PUBLIC POLICY WRONGFUL DISCHARGE
CLAIM AND HER WHISTLEBLOWER CLAIM.
This Court should dismiss Poffs public policy wrongful discharge claim (found
at page 16 of the Petition) because the only public policy she identifies is Title 25 of the
Oklahoma Statutes, which specifically abolishes common-law claims for employment
discrimination.10 Further, both the public policy wrongful discharge claim and the
Whistleblower claim (found at page 17 of the Petition) should be dismissed because
Poff had an adequate remedy under the Whistleblower Act, 74 O.S. Section 840-2.5.
Because Poff did not avail herself of the adequate remedy under the Act, her claims are
barred by Shephard v. Compsource, 209 P.3d 288, 292 (Okla. 2009).
In Shephard, the Oklahoma Supreme Court held that an alleged whistleblower at
Compsource was precluded from bringing a private cause of action, whether it was
couched in terms of a Burk wrongful discharge theory, or asserted directly under the Act.
10
See 25 O.S. 1350(A).

24
The court noted that the Legislature did not authorize a private right of action for the
enforcement of the Whistleblower Act. Id. As such, the remedies the Legislature
provided in the Act are sufficient to protect the Oklahoma public policy goal of
protecting employees who report . . . wrongful governmental activities. Consequently,
the Act provides the exclusive remedy for an employee who claims she was terminated
for reporting wrongful governmental activities, and she may not resort to a tort cause of
action. Id. at 293.
Likewise, here, since an adequate remedy existed for Plaintiff under the
Whistleblower Act, she can maintain neither a Burk wrongful discharge tort nor a private
cause of action under the Act. Both claims must be dismissed.
CONCLUSION
Plaintiff fails to plead a single viable cause of action against the Department or the
Board. It is important that the Court exercise its gate-keeper role at this stage to require
Plaintiff to properly plead viable, sustainable claims. Otherwise, the Court and the
parties will spend unnecessary time and resources during discovery, dispositive motions
and pretrial proceedings focusing on claims with no basis in law or fact. Because
Plaintiff fails to state a single plausible claim for relief against the Department or the
Board, these Defendants respectfully request that all claims against them be dismissed.
25
Respectfully submitted,
/s/ Victor F. Albert
VICTOR F. ALBERT, OBA #12069
CONNER & WINTERS, LLP
1700 One Leadership Square
211 North Robinson
Telephone: (405) 272-5711
Facsimile: (405) 232-2695
valbert@cwlaw.com
Attorney for Defendants, State of Oklahoma
ex rel. The Oklahoma Department of Mental
Health and Substance Abuse Services and The
Board of Directors for The Oklahoma
Department of Mental Health and Substance
Abuse Services
26
CERTIFICATE OF SERVICE
I certify that on the 20th day of January 2015, this Motion to Dismiss was filed in
the United States District Court for the Western District of Oklahoma, and that a true and
correct copy of said Motion to Dismiss was served, via ECF, upon the following:
Rachel L. Bussett, OBA #19769
Bussett Law Firm, PC
3555 N.W. 58th Street, Suite 1010
Telephone: (405) 605-8073
Facsimile: (405) 601-7765
rachel@bussettlaw.com
Attorneys for Plaintiff
Jeremy Tubb, OBA #16739
Matthew S. Panach, OBA #22262
FULLER, TUBB, BICKFORD & KRAHL
201 Robert S. Kerr, Suite 1000
Telephone: (405) 235-2575
Facsimile: (405) 232-8384
jeremy.tubb@fullertubb.com
panach@fullertubb.com
Attorneys for Defendants
Terri White, Durand Crosby,
Cratus Dewayne Moore, and Ellen Buettner
/s/ Victor F. Albert

VICTOR F. ALBERT
27

Poff v. Oklahoma: Motion To Dismiss

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Poff v. Oklahoma: Motion To Dismiss

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Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 2 of 31

There is No Legal Basis for Poffs Generic Retaliation Claim ..................... 5

Poff Fails to State a Retaliation Claim under Title VII ................................. 6

PROPOSITION II The Court should dismiss Poffs ADEA claim..................................... 9

The Due Process Claim Fails as a Matter of Law. ...................................... 16

The Free Speech Claim Fails as a Matter of Law. ...................................... 17

PROPOSITION V The Court should dismiss Poffs negligent training/supervision

Poff Likely Does not Have a Cognizable Claim Under Oklahoma

Poffs Conclusory Allegations Fail to State a Claim for Negligence ......... 21

PROPOSITION VI The Court should dismiss Poffs public policy wrongful

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 3 of 31

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 4 of 31

Penhurst State Sch. and Hosp. vs. Halderman,

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 5 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE

Case No. 5:14-cv-01438-C

(1) STATE OF OKLAHOMA ex rel THE

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 6 of 31

MOTION TO DISMISS AND BRIEF IN SUPPORT

The gravamen of the Petition contends Poff was

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 7 of 31

claims are legally barred, factually insufficient, or both.

The Propositions are

The Court should dismiss Poffs retaliation discrimination claim

The Court should dismiss the negligent training/supervision claim in

Poffs public policy wrongful discharge claim (found at page 16 of

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 8 of 31

Mere labels and

Accordingly, the allegations in Poffs

Petition are insufficient to withstand this Motion to Dismiss.

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 9 of 31

There is No Legal Basis for Poffs Generic Retaliation Claim

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 10 of 31

investigation involving Narconon and because of her opposition to a consensual romantic

Her allegations (all of which are

Poff Fails to State a Retaliation Claim under Title VII

See Proposition VI, infra pp. 24-25.

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 11 of 31

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 12 of 31

In evaluating whether the conduct the

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 13 of 31

2014 WL 3685996, at *4 (10th Cir. 2014) (unpublished) (second emphasis added).

29 U.S.C. 621 634.

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 14 of 31

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 15 of 31

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 16 of 31

Thompson, 2013 WL 6409326, at *8 (internal alterations omitted).

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 17 of 31

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 18 of 31

only some discipline imposed and/or being allowed to resign in lieu of

And her allegations contain personal

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 19 of 31

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 20 of 31

The Due Process Claim Fails as a Matter of Law.

employee. See Petition at 106. As an at-will employee, Poff had no legitimate

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 21 of 31

The Free Speech Claim Fails as a Matter of Law.

In Salazar, the plaintiff alleged she was

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 22 of 31

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 23 of 31

Case 5:14-cv-01438-C Document 16 Filed 01/20/15 Page 24 of 31