Brown v. City of Tulsa

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

WAYNE BROWN,

Plaintiff,

v. No. 19-cv-00538-WPJ-FHM

(1) CITY OF TULSA; and

(2) CHARLES W. JORDAN,

individually and in his official capacity as

Chief of Police, Tulsa Police Department;

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT CITY OF

TULSA’S MOTION TO DISMISS AND GRANTING DEFENDANT JORDAN’S

MOTION TO DISMISS

THIS MATTER comes before the Court1 upon Defendants City of Tulsa’s (“Defendant

City”) and Defendant Charles W. Jordan’s (“Defendant Jordan”) Motions to Dismiss (Docs. 13,

14), each filed February 3, 2020. Plaintiff Wayne Brown (“Plaintiff”) timely responded to each

(Docs. 17, 18), to which Defendants replied (Docs. 20, 21). Having reviewed the relevant

pleadings and the applicable law, the Court finds Defendants’ Motions are well-taken and,

therefore, GRANTS the Motions.

BACKGROUND2

Five years ago, on October 24, 2018, Plaintiff received news from the Tulsa Police

Department (“TPD”) that he was selected for the Tulsa Police Academy (“Academy”). Doc. 6 at

1 Chief United States District Court Judge William P. Johnson of the District of New Mexico was assigned this case

as a result of the Tenth Circuit Order designating Judge Johnson to hear and preside over cases in the Northern District

of Oklahoma.

2 The following recitation of facts derive from Plaintiff’s First Amended Complaint (Doc. 6), which the Court, as it

must on a motion to dismiss, accepts as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2008).

⁋ 17. The Academy commenced on January 22, 2019 (at which time Plaintiff began his

employment with TPD) and lasted a rigorous twenty-eight weeks. Id. at ⁋⁋ 19, 22. Prior to and

during the Academy, Plaintiff was subject to close scrutiny and background investigations to

ensure he had the demeanor, character, and temperament to become a uniformed police officer. Id.

at ⁋⁋ 20, 22. Twenty-eight weeks later, Plaintiff successfully completed the Academy. Id. at ⁋ 23.

Shortly thereafter, on August 6, 2019, Plaintiff began his field training with TPD Officer Jim

Tornberg, which progressed without issue. Id. at ⁋⁋ 26, 28–31. Defendant Charles W. Jordan was

the Chief of Police for the TPD during the relevant timeline of this case. Id. at ⁋16.

Plaintiff’s employment as an officer was short-lived and less than one month later, on

September 4, 2019, he was terminated from TPD. Id. at ⁋ 32. On the morning of his termination,

Plaintiff knew something was brewing behind the scenes. Id. at ⁋ 56. This is because around 11:11

a.m., a friend forwarded to Plaintiff a copy of a local political activist’s Facebook posts which

referred to a number of old posts made by Plaintiff. Id. at ⁋ 55. Marq Lewis, “a local, radical, left-

wing, political activist and agitator” posted on his Facebook that Plaintiff “has biases towards

people who practice Islam and Black Americans.” Id. at ⁋⁋ 33, 37. Lewis reached this conclusion

by referencing “very offensive social media” posts made by Plaintiff, under his Facebook name,

“Duke Brown.” Id. at ⁋⁋ 38. The posts complained of by Lewis are described by him as follows

(typographical errors in original):

Image of The president riding a lion with the Confederate flag.

Image of the a first, acknowledging a fight against the religious faith, Islam.

Image of the punisher with crosshairs. The image originated from the American

sniper Chris Kyle who was very controversial with killing Iraqi citizens along with

killing American citizens during Katrina.”

Id. at ⁋⁋ 38, 72.A, 72.B., 72.C. See infra Table 1.

Marq Lewis then made a complaint to Defendants regarding these old Facebook posts. Id.

at ⁋ 34. With a hunch that something was brewing, at approximately 2:05 p.m., Plaintiff was told

by Captain Thom Bell to come in the meeting room where Captain Luke Sherman and Internal

Affairs officers were waiting. Id. at ⁋ 40. Plaintiff entered the room, the door was closed behind

him, and he was instructed to remove his gun belt. Id. at ⁋ 41. Plaintiff complied and handed his

gun belt to the Internal Affairs officer to his immediate left, who then laid it on the table. Id. at ⁋

42. Plaintiff was told to sit down, which he did. Id. at ⁋ 43. He was then handed an Interoffice

Correspondence from Defendant Jordan dated September 4, 2019, with the subject line, “Personnel

Order #19-257 Termination,” and was told to read it. Id.3 The Interoffice Correspondence stated

Plaintiff’s employment was “hereby terminated effective immediately,” because the TPD “was

made aware of social media postings made by [Plaintiff] that violate Department Rules &

Regulations and Policies and Procedures.” Id.

The relevant TPD policy is “Policy and Procedure 31-324 (Social Media and Networking)

Procedures C.6.,” which states,

Department personnel should be mindful that their speech, when using social

media, is public and becomes part of the worldwide electronic domain, Therefore,

adherence to the department’s code of conduct is required in the personal use of

social media. In particular, department personnel are prohibited from posting

speech containing obscene or sexually explicit language, images, acts, and

statements or other forms of speech that ridicule, malign, disparage, or otherwise

express bias against any race, religion, or protected class of individuals.

Id. at ⁋ 45 (hereinafter “TPD Social Media Policy”).

During the meeting on September 4, and consistent with the Interoffice Correspondence,

Plaintiff was told that his employment was being terminated because he violated the TPD Social

3 The Interoffice Correspondence, referenced in the First Amended Complaint, was also attached to the Complaint as

Exhibit A. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (“[T]he district court may consider

documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not

dispute the documents’ authenticity.”).

Media Policy via his Facebook posts complained of by a citizen. Id. at ⁋⁋ 48–49. “Within one hour

and fifteen minutes of receiving the complaint the officer was terminated,” TPD Sergeant Shan

Tuell told reporters. Id. at ⁋ 35. After receiving his termination, Plaintiff asked if they were going

to give him a chance to explain “his side of it,” to which Captain Bell and an Internal Affairs

officer said they were not there to listen to anything Plaintiff had to say and that he needed to sign

the termination paper. Id. at ⁋ 50. Plaintiff stated that this was not right and that he had done

nothing wrong. Id. at ⁋ 51. Plaintiff told them that the posts were three to six years-old and that

termination was complete “BS.” Id. at ⁋ 54. Nevertheless, Plaintiff asked if there was any way that

he could talk to Chief Jordan about this termination decision. Id. at ⁋ 52. The officers would not

say exactly but did say they would relay his message to Chief Jordan. Id.

To avoid further embarrassment, Plaintiff asked the officers to please not make him do a

“shame walk” in front of everyone as he left, and they agreed. Id. at ⁋ 57. Plaintiff signed the

Interoffice Correspondence, though he did not want to. Id. at ⁋ 58. His patrol car was cleaned out

and Plaintiff was then led out of the meeting room and out the back door. Id. at ⁋⁋ 59–60. At this

point, Plaintiff was “totally dejected, embarrassed, and humiliated.” Id. at ⁋ 61.

The next day, September 5, 2019, at around 1:00 p.m., Plaintiff returned to TPD to bring

the rest of his TPD property he still had and to retrieve personal headphones he had left. Id. at ⁋

63. Upon giving him his personal headphones, Captain Bell told Plaintiff, “On a personal note I

didn’t want to do this . . . and I think [it’s] BS, but understand I have a job to do as well and best

of luck to you in the future,” or words to that effect. Id. at ⁋ 64.

Then the media got a hold of the story. Shortly after the firing, news reports began

circulating and social media erupted, condemning Plaintiff and labeling him as a racist and an

Islamophobe. Id. at ⁋ 66. In response to a media inquiry, Sgt. Tuell, TPD’s Public Information

Officer, wrote: “Early yesterday morning the police department was notified of some questionable

social media posts by one of our officers. The Chief... immediately ordered internal affairs to

open an investigation, and within one hour and 15 minutes of receiving the complaint the officer

was terminated.” /d. at P 68. Defendants confirmed with the media that Plaintiff was terminated

because Defendants believed that Plaintiff violated the TPD Social Media Policy prohibiting

personnel “from posting forms of speech that express bias against any race, religion, or protected

class of individuals.” /d. at P 69. Below is a table of three social media posts that Plaintiff alleges

“served as Defendants’ basis for terminating Plaintiff,” along with Plaintiff's description of the

posts. Jd. at P 72. All of the posts that potentially served as the basis for terminating Plaintiff were

made years before Plaintiff's employment with TPD. /d. at P 74.

Table 1

Facebook Post Plaintiff’s Description

72.A. □□ | “An image of yet-to-be-president Donald

Rar: i Trump (‘Trump Post’), which was posted

| ™ on or about August 6, 2015:”

a a a \ i. “i

i y i --

il i —_—

i Pu a

+ In total, there were nine Facebook posts that Marq Lewis complained of on social media. Doc. 6, at PP72-73.

However, Plaintiff alleges that it is three posts (PP 72.A., 72.B., 72.C.) that likely prompted his termination. Jd. at P72.

Also, ata hearing, Deputy Chief Eric Dalgliesh stated Plaintiff was terminated for posting only two images: the Trump

Post and the Blue Lives Matter Post. /d. at P 90. Therefore, the Court will confine its analysis to the three posts in

Table 1.

72.B. □□□ □□ a “An image making the point that

PVH Ed Americans (particularly Christians, such

Pi as Plaintiff, who will not convert or

vee submit to Islam as a matter of religious

RA ts conviction) will not surrender or submit

" “ . . . .

ew to sharia-supremacism, which is a

‘ollie! tyrannical form of government prevalent

a) ae in countries such as Iran and a form of

rant governance demanded by _ terrorist

organizations such as ISIS and Al Qaeda.

bee rl The image was posted on or about

aia November 15, 2015:”

72.C. @ een = “An image created by the famous

American sniper and decorated war hero

Chris Kyle superimposed over the

American flag with a thin blue line—the

flag image is associated with the ‘blue

lives matter? movement. This image

mo y) (‘Blue Lives Matter Post’) was posted on

\ Waieet or about March 24, 2016.”

ar ie }

©: onnment

Plaintiff alleges that the termination has caused him public humiliation, embarrassment,

anger, and stress. /d. at |P 85. He alleges that this termination has undermined the trust and

confidence that the TPD police officers have in their leadership, in that Defendants’ will “throw

them under the bus” to promote political correctness and appease political activists. /d. at P 86.

Because of his termination, Plaintiff requested unemployment benefits, which were

initially denied. /d. at P 89. Deputy Chief Eric Dalgliesh, who was testifying for the City, stated

that Plaintiff was terminated for posting only two images on his Facebook page: the Trump Post

and the Blue Lives Matter Post. Id. at ⁋ 90. On September 26, 2019, Plaintiff submitted to the City

Clerk a Notice of Tort Claim, seeking recovery for wrongful termination under state law. Id. at ⁋

92.

Plaintiff filed this action in federal court on October 9, 2019, against Defendant City of

Tulsa and Defendant Charles W. Jordan, in his official and individual capacities. See Docs. 2, 6.

In his First Amended Complaint, Plaintiff alleges that the Defendants violated his First

Amendment rights by retaliating against his speech, Defendants violated his rights under the Equal

Protection Clause of the Fourteenth Amendment, and Defendants wrongfully discharged Plaintiff

under Oklahoma common law (Burk claim). Doc. 6 at ⁋⁋ 94–110. Plaintiff seeks declaratory relief,

injunctive relief, and damages. Id. at Prayer for Relief. Defendants then filed a motion to dismiss

under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Docs. 13, 14.

STANDARD

The federal rules require a complaint to contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To “survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a court must accept all the complaint’s

factual allegations as true, the same is not true of legal conclusions. See id. Mere “labels and

conclusions” or “formulaic recitation[s] of a cause of action” will not suffice. Twombly, 550 U.S.

at 555. “Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements

of law and consider whether the remaining specific factual allegations, if assumed to be true,

plausibly suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214

(10th Cir. 2011).

Overall, the “plausibility” standard refers to “the scope of the allegations in a complaint: if

they are so general that they encompass a wide swath of conduct, much of it innocent, then the

plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins v.

Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “‘The

Twombly standard may have greater bite’ in the context of a § 1983 claim against individual

government actors, because ‘they typically include complex claims against multiple defendants.’”

Kan. Penn Gaming, LLC, 656 F.3d at 1215 (quoting Robbins, 519 F.3d at 1249). It is “particularly

important in such circumstances that the complaint make clear exactly who is alleged to have done

what to whom, to provide each individual with fair notice as to the basis of the claims against him

or her, as distinguished from collective allegations against the state.” Kan. Penn Gaming, LLC,

656 F.3d at 1215 (internal quotation marks omitted).

DISCUSSION

The Court will first discuss Defendant City of Tulsa’s Motion to Dismiss (Doc. 13),

including the First Amendment claim and the equal protection claim. Second, the Court will

discuss Defendant Jordan’s Motion to Dismiss (Doc. 14), including the official capacity claims,

and the claims in his individual capacity (First Amendment and equal protection claims). Third,

the Court will move on to discuss the declaratory and injunctive relief requested by Plaintiff.

Finally, the Court will discuss Plaintiff’s state law Burk claim against both Defendants.

I. City of Tulsa

A. First Amendment Claim

Plaintiff argues that Defendant City punished and retaliated against him because of the

expression of his political and religious viewpoints, in violation of Plaintiff’s First Amendment

free speech rights. Doc. 6, at ⁋⁋ 95–100; Doc. 17. Defendant City disagrees and concludes its

interest, as employer, outweighed Plaintiff’s free speech interest. Doc. 13. For reasons detailed

below, the Court finds Defendant City’s Motion is well-taken.

Sitting on the Supreme Judicial Court of Massachusetts in 1892, Justice Holmes observed:

A policeman “may have a constitutional right to talk politics, but he has no constitutional right to

be a policeman.” McAuliffe v. City of New Bedford, 29 N.E. 517, 517 (Mass. 1892). This was the

unchallenged dogma for many years, that “a public employee had no right to object to conditions

placed upon terms of employment—including those which restricted the exercise of constitutional

rights.” Connick v. Myers, 461 U.S. 138, 143 (1983). However, that “dogma has been qualified in

important respects.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).

Now, the Supreme Court “has made clear that public employees do not surrender all their

First Amendment rights by reasons of their employment. Rather, the First Amendment protects a

public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public

concern.” Garcetti v. Ceballos, 547 U.S. at 417. This First Amendment protection exists even if

the public employee is probationary and even if the public employee can be discharged for any

reason or no reason at all. Rankin v. McPherson, 483 U.S. 378, 383–84 (1987). The challenge,

however, is to “arrive at a balance between the interests of the [public employee], as a citizen, in

commenting upon matters of public concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs through its employees.” Pickering v.

Bd. of Ed. of Tp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968); see also Garcetti, 547 U.S. at 420

(“The Court’s decisions, then, have sought to promote the individual and societal interests that are

served when employees speak as citizens on matters of public concern and to respect the needs of

government employers attempting to perform their important public functions.”).

The Pickering Court sought to achieve this balance through the adoption of a four-part test

to be implemented in public-employee, free-speech cases. See, e.g., Kent v. Martin, 252 F.3d 1141,

1143 (10th Cir. 2001) (describing Pickering test). The Court in Garcetti “expanded on the

Pickering test by adding a fifth, threshold inquiry that seeks to determine whether the speech at

issue was made pursuant to the public employee’s official duties.” Leverington v. City of Colorado

Springs, 643 F.3d 719, 724 (10th Cir. 2011). “Thus, after Garcetti, ‘it is apparent that the

“Pickering” analysis of freedom of speech retaliation claims is a five-step inquiry which we now

refer to as the “Garcetti/Pickering” analysis.’” Id. (quoting Brammer-Hoelter v. Twin Peaks

Charter Acad., 492 F.3d 1192, 1202 (10th Cir. 2007)).

The familiar Garcetti/Pickering test includes the following inquiries:

(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.

Duda v. Elder, 7 F.4th 899, 910 (10th Cir. 2021). “‘The first three elements are issues of

law for the court to decide, while the last two are factual issues typically decided by the jury.’”

Knopf v. Williams, 884 F.3d 939, 945 (10th Cir. 2018) (quoting Trant v. Oklahoma, 754 F.3d 1158,

1165 (10th Cir. 2014)).

i. Employee’s Official Duties

Defendant City states, “there is no dispute that Plaintiff spoke as a private citizen rather

than as a public employee and the first element of the Garcetti/Picke[r]ing analysis is satisfied.”

Doc. 13, at 11. Plaintiff states, “it is without dispute that Plaintiff’s protected expression was made

years prior to his hiring by the City as a police officer and thus well before he was a public

employee . . . .” Doc. 17, at 17 (emphasis in original). The First Amended Complaint alleges

Plaintiff commenced his employment with TPD on January 22, 2019, and the Facebook posts at-

issue were published in 2015 and 2016. Doc. 6, at ⁋⁋ 19, 72. Therefore, it is undisputed by the

parties and there are no allegations in the First Amended Complaint to indicate Plaintiff’s exercise

of his right to free speech was made pursuant to his official duties. Therefore, this element weighs

in Plaintiff’s favor. See Cramer v. Okla. Cnty. Bd. Of Cnty. Comm’rs, 2018 WL 8966815, at *4

(W.D. Okla. May 30, 2018).

ii. Matter of Public Concern / Protected Expression

A “public employee’s speech is entitled to Pickering balancing only when the employee

speaks ‘as a citizen upon matters of public concern’ rather than ‘as an employee upon matters only

of personal interest.’” City of San Diego v. Roe, 543 U.S. 77, 83 (2004) (quoting Connick v. Myers,

461 U.S. 138, 147 (1983)). Whether speech addresses a matter of public concern is determined by

“the content, form, and context of a given statement, as revealed by the whole record.” Connick v.

Myers, 461 U.S. at 147–48. Public concern relates “to any matter of political, social, or other

concern to the community . . . .” Id. at 146. Additionally,

public concern is something that is a subject of legitimate news interest; that is, a

subject of general interest and of value and concern to the public at the time of

publication. The Court has also recognized that certain private remarks, such as

negative comments about the President of the United States, touch on matters of

public concern and should thus be subject to Pickering balancing.

City of San Diego v. Rose, 543 U.S. at 83–84.

If an employee’s speech does not touch on a matter of public concern, “the employee has

no First Amendment cause of action based on his or her employer’s reaction to the speech.”

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); see also Connick, 461 U.S. at 146 (If the speech

does not relate to any matter of public concern, then “government officials should enjoy wide

latitude in managing their offices, without intrusive oversight by the judiciary in the name of the

First Amendment.”).

However, the Tenth Circuit has recognized the threshold public concern test is not

applicable to all situations. In Flanagan v. Munger, police officers were reprimanded for violating

off-duty employment regulations for conduct unbecoming of an officer by owning and operating

a video rental store that sold and rented out sexually explicit videos. 890 F.2d 1557, 1560–61 (10th

Cir. 1989). The officers sued the Chief of Police and the City, alleging the defendants violated

their First Amendment rights. Id. at 1561. The Tenth Circuit stated that the Pickering/Connick

public concern test does not apply “when public employee nonverbal protected expression does

not occur at work and is not about work.” Id. at 1564. The Court identified that simply owning a

store is “not debate or explicit verbal speech” and if “plaintiffs had made off-duty statements

supporting sexually explicit films, those comments would almost surely relate to a matter of public

concern.” Id. at 1563. The Flanagan Court explained:

When a statement is made at or about work, use of the public concern test, indeed

a narrow definition of public concern, makes sense. . . . However, in a case like this

of nonverbal protected expression not at or about the workplace, the “speech”

already takes place outside of the workplace and thus the purpose behind using the

public concern is simply irrelevant.

The formulation of the public concern test in Connick and its progeny also implies

that the test is not intended to apply to areas in which the employee does not speak

at work or about work. . . . Thus, the Connick public concern test is intended to

weed out speech by an employee speaking as an employee upon matters only of

personal interest. The speech of the plaintiffs in this case is clearly not speech as an

employee, and thus does not fulfill the purpose of the public concern test. . . .

Clearly, plaintiffs are not speaking as employees and thus do not fit the narrow

spectrum which the public concern test is meant to identify.

Thus, we conclude that the public concern test does not apply when public

employee nonverbal protected expression does not occur at work and is not about

work.

Id. at 1564.

The Tenth Circuit announced, “[t]he alternative test should be whether the speech involved

is ‘protected expression.’ If the speech involved is protected expression, then the second half of

the existing Pickering test . . . should be applied.” Id. at 1564–65. Other courts have applied the

Flanagan test to public employee speech which occurs out of work and is unrelated to work. See,

e.g., Rothschild v. Bd. Of Educ. of City of Buffalo, 778 F. Supp. 642, 654–55 (W.D.N.Y. Dec. 5,

1991) (Teachers were disciplined for their participation in the production of a videotape filmed at

a public school outside of work hours. The Rothschild Court applied the Tenth Circuit’s approach

in Flanagan and held the speech was protected); Hawkins v. Dep’t of Pub. Safety and Corr.

Services, 602 A.2d 712, 719–20 (Md. 1992) (considering Flanagan while analyzing a prison

guard’s abusive words and conduct towards a private citizen while guard was off duty, away from

the prison and out of uniform); Melzer v. Bd. of Educ. of City Sch. Dist. of City of New York, 196

F. Supp. 2d 229, 250 (E.D. N.Y. Feb. 26, 2002) (“there is no province in trying to discern if a

protected expression or association is in regard to a matter of public concern if it is not about work

or related to work”).

The Court recognizes that Flanagan’s holding relates to nonverbal expression and the

Tenth Circuit has declined to extend Flanagan to an employee’s out of work verbal expression.

See Leverington v. City of Colorado Springs, 643 F.3d 719 (10th Cir. 2011). In Leverington, a

nurse was terminated after she told a police officer who issued her a speeding ticket that she “hoped

she never had him as a patient.” Id. at 722. The Tenth Circuit declined to apply Flanagan stating,

the nurse’s “statement was clearly verbal expression, it related to her work, and it potentially had

an impact upon her employer. Unlike the difficulty in Flanagan in determining what ‘comment’

was being made . . ., here we have no difficulty in evaluating Ms. Leverington’s statement. Id. at

725. Based upon the facts of this case, the Court considers Flanagan’s protected expression test to

be the more appropriate test to apply.5 Plaintiff clearly did not speak as an employee, his speech

did not concern work, and his speech did not occur at work. Flanagan, 890 F.2d at 1564.

Plaintiff alleges that two, but possibly three, Facebook posts formed the basis of his

termination: the “Trump Post,” the “Blue Lives Matter Post,” and the November 15, 2015, post.

See Doc. 6, at ⁋⁋ 72, 90. Therefore, the Court will only analyze whether these three Facebook posts

are protected expression. Virginia v. Black, 538 U.S. 343, 358 (2003) (“The First Amendment

affords protection to symbolic or expressive conduct as well as to actual speech.”).

1. August 6, 2015, Trump Post

The first post at issue is an image of then-presidential candidate Donald Trump riding a

lion with a confederate flag in the background, posted August 6, 2015. See Doc. 6, at ⁋ 72.A.;

Table 1. “[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment

values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (internal

quotation marks omitted). Political speech is “at the core of protected speech.” Bass v. Richards,

308 F.3d 1081, 1089 (10th Cir. 2002). The August 6, 2015, post of Donald Trump is a protected

expression of political speech.

2. March 24, 2016, Blue Lives Matter Post

The next post is an image allegedly created by American veteran Chris Kyle superimposed

over the American Flag with a thin blue line—the image associated with the “Blue Lives Matter”

5 The Court acknowledges the Defendant City contends the public concern test is the appropriate test to apply. See

Doc. 13, at 11; Doc. 20, at 3. Regardless, both parties concede either test is met (for the three posts at issue) and both

proceed to Pickering balancing. See Doc. 13, at 11; Doc. 17, at 16.

movement. Doc. 6, at ⁋ 72.C.; Table 1. The post contains the words, “despite what your momma

told you . . . violence does solve problems.” Id. Recently, the Honorable J. Nicholas Ranjan of the

District Court of the Western District of Pennsylvania acknowledged that political or social-protest

speech—such as employees wearing facemasks that displayed the slogan “Black Lives Matter”—

was social speech which struck “at the heart of the most valuable speech protected by the First

Amendment.” Amalgamated Transit Union Local 85 v. Port Auth. of Alleghany Cnty., 513 F. Supp.

3d 593, 612 (W.D. Pa. Jan. 19, 2021). Just as speech concerning the Black Lives Matter movement

is protected social speech, so is speech promoting the Blue Lives Matter movement.

3. November 15, 2015, Post

Lastly, Plaintiff posted an image with the text, “Pledge to my family, flag and country when

the day comes I will fight to my last breath, before I submit to Islam.” Doc. 6, at ⁋ 72.B.; Table 1.

“The hallmark of the protection of free speech is to allow ‘free trade in ideas’—even ideas that the

overwhelming majority of people might find distasteful or discomforting.” Virginia v. Black, 538

U.S. 343, 358 (2003) (citing Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting)). There are certain well-defined and narrowly limited classes of speech which are not

afforded Constitutional protection. See id. Speech which incites imminent lawless action, true

threats and fighting words are not protected. Id. at 359. Speech cannot be curtailed “simply because

the speaker’s message may be offensive to his audience.” Hill v. Colorado, 530 U.S. 703, 716

(2000). The Court does not consider this post to be one of the exceptions to Constitutional

protection. Fighting words are those “personally abusive epithets which, when addressed to the

ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent

reaction.” Virginia v. Black, 538 U.S. at 359. While this post contemplates fighting, the Court does

not find it was inherently likely to provoke a violent reaction. Nor does the Court consider the post

to incite imminent lawless action or constitute a true threat. For these reasons, the November 15,

2015, post is protected expression.

iii. Balancing the Parties’ Interests

Having concluded that the Facebook posts at issue are protected expression, the Court must

now proceed to the third element of the Garcetti/Pickering test. The Defendant City contends it

have a superior interest in maintaining the public’s confidence, Plaintiff’s Facebook posts did

cause a “significant actual disruption,” and Plaintiff’s Facebook posts “harmed the public’s trust

in Plaintiff as a Tulsa Police Officer in that he would treat all members of the community fairly.”

Doc. 13, at 17 (emphasis in original). Conversely, Plaintiff argues the City did not have a legitimate

interest in limiting his speech, his speech did not cause an internal disruption, and the City’s

termination of his employment amounts to an impermissible heckler’s veto. See Doc. 17, at 19–

20.

The balance of Plaintiff’s right to free speech and the employer’s right to curtail activity

which interferes with the efficient operation of the office does not occur in a vacuum. Flanagan v.

Munger, 890 F.2d 1557, 1564–65 (10th Cir. 1989). “The manner, time, and place of the employee’s

expression are relevant, as is the context in which the dispute arose.” Rankin v. McPherson, 483

U.S. 378, 388 (1987). Pertinent considerations include “whether the statement impairs discipline

by superiors or harmony among co-workers, has a detrimental impact on close working

relationships for which personal loyalty and confidence are necessary, or impedes the performance

of the speaker’s duties or interferes with the regular operation of the enterprise.” Id. Essentially,

the balance must tip in favor of protection “unless the employer shows that some restriction is

necessary to prevent the disruption of official functions or to insure effective performance by the

employee.” Flanagan v. Munger, 890 F.2d at 1565 (internal quotation marks omitted).

The Tenth Circuit has said “the only public employer interest that outweighs the

employee’s free speech interest is avoiding direct disruption, by the speech itself, of the public

employer’s internal operations and employment relationships.” Duda v. Elder, 7 F.4th 899, 912

(10th Cir. 2021) (emphasis in original). This circuit requires “the employer to prove ‘actual

disruption’ when the adverse employment action took place ‘long after’ the employee spoke on a

matter of public concern.” Id. at 912–13 (citing Bailey v. Indep. Sch. Dist. No. 69, 896 F.3d 1176,

1183 (10th Cir. 2018) (quotations omitted)). A showing of actual disruption is not required if the

adverse action occurred soon after the employee’s protected speech, but a showing of potential

disruption is required. Id.6

In the context of law enforcement, “a police department’s determination that an officer’s

speech warrants discipline is afforded considerable deference . . . and police departments may

permissibly consider the special status officers occupy in the community when deciding what

limitations to place on officers’ off-duty speech.” Hernandez v. City of Phoenix, 43 F.4th 966, 979

(9th Cir. 2022) (citation omitted); see also Fields v. City of Tulsa, 753 F.3d 1000, 1015 (10th Cir.

2014) (“We have long recognized that law-enforcement agencies have a heightened interest in

maintaining discipline among employees.”); Connick v. Myers, 461 U.S. 138, 151–152 (1983)

(“When close working relationships are essential to fulfilling public responsibilities, a wide degree

of deference to the employer’s judgment is appropriate.”).

“Efficient law enforcement requires mutual respect, trust and support.” McMullen v.

Carson, 754 F.2d 936, 939 (11th Cir. 1985). This is difficult for the City to achieve if its employees

are permitted to publicly broadcast images that causes actual disruption, which the city is required

to establish. Duda, 7 F.4th at 912–913; see supra note 6. Based on facts taken from Plaintiff’s

6 Although the Tenth Circuit has never fixed temporal boundaries for the actual disruption test, it has found that “six

months falls on the ‘long after’ side of the line.” Duda v. Elder, 7 F.4th 899, 913 n. 10 (10th Cir. 2021).

Complaint, Plaintiff’s speech itself did create actual disruption. A complaint about the Facebook

posts was made by a local activist to TPD; “news reports began circulating and social media

erupted,” Vilifying Plaintiff as a racist and Islamophobe; TPD administration had to respond to

media inquiries; and the termination (because of the Facebook posts) “undermined the trust and

confidence that TPD police officers have in their leadership.” Doc. 6, at ⁋⁋ 6, 66–69, 86. The

Defendant City contends—uncontroverted by Plaintiff—that the posts “created such a public

disruption that Chief Jordan and the Tulsa Police Department received numerous inquiries from

concerned citizens,” and the posts “caused public outrage and disruption[,] harmed the public’s

trust in Plaintiff as a Tulsa Police Officer” and set back the efforts to build trust between TPD and

the community. Doc. 13, at 16–17; see Doc. 17, at 2–4 (Plaintiff’s response to Defendant City,

objecting to some of Defendant City’s facts).

Here, the Defendant City’s interest in maintaining a police force that instills public

confidence and prohibits partisanship in law enforcement outweighs Plaintiff’s interest in having

his expressions protected. McMullen v. Carson, 745 F.2d at 939 (affirming district court’s

application of the Pickering balancing test and holding the Sheriff’s interest in carrying out the

sheriff department’s duties to the public outweighed terminated clerk’s interest in right to

participate in an organization committed to violent, criminal and racist conduct); Grutzmacher v.

Howard County, 851 F.3d 332, 345 (4th Cir. 2017) (fire department’s interest in efficiency and

preventing disruption outweighed plaintiff’s interest in speaking in manner he did and posting on

social media). Since the Court has found for Defendant City on the Garcetti/Pickering balancing

(a question of law), the Court need not reach the last two elements, which are “factual issues

typically decided by the jury.” Knopf v. Williams, 884 F.3d 939, 945 (10th Cir. 2018) (internal

quotation marks omitted); see also Duda v. Elder, 7 F.4th 899, 910–11 (10th Cir. 2021) (“To

prevail, a plaintiff must show all five elements.”).

Because the Defendant City’s interest outweighs Plaintiff’s interest in his protected speech,

as a matter of law, Plaintiff’s First Amendment claim against the City must be dismissed.

B. Equal Protection Claim

Plaintiff alleges Defendant City violated his rights under the Equal Protection Clause of

the Fourteenth Amendment by selectively targeting the content and viewpoint of Plaintiff’s speech

and beliefs, and selectively enforcing policies against Plaintiff. Doc. 6, at ⁋⁋ 101–107. Defendant

City argues Plaintiff’s “very vague and ill-defined claim” is a “class of one” theory of equal

protection, foreclosed by the Supreme Court in Engquist v. Oregon Dept. of Agric., 553 U.S. 591

(2008). Doc. 13, at 19–21. In response, and in an attempt to clarify, Plaintiff relies on Police Dp’t

of the City of Chicago v. Mosley for the conclusion that the law was clearly established: “[U]nder

the Equal Protection Clause, not to mention the First Amendment itself, government may not grant

the use of a forum to people whose views it finds acceptable, but deny use to those wishing to

express less favored or more controversial views.” 408 U.S. 92, 96 (1972).

“The Equal Protection Clause is concerned with governmental classifications that ‘affect

some groups of citizens differently than others,’ especially those in ‘an identifiable group.’”

Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1221 (10th Cir. 2008) (quoting Engquist v.

Oregon Dep’t of Agric., 553 U.S. at 600–01. “a public employee-turned-plaintiff must be a

member of an identifiable class to bring an equal protection claim, Pignanelli, 540 F.3d at 1220,

and must allege that “the challenged state action intentionally discriminates between groups of

persons.” SECSYS, LLC v. Vigil, 666 F.3d 678, 685 (10th Cir. 2012).

Here, Plaintiff’s complaint fails to plausibly plead sufficient facts of an equal protection

violation. Plaintiff has not identified any individual or group who were granted the use of a forum

to which he was denied. Nor has Plaintiff alleged he was discriminated against on the basis of

membership in some class or group. In effect, Plaintiff argues that he was arbitrarily treated

differently from others, without any assertion that the different treatment was based on his

membership in any particular class. This type of “class of one” theory of equal protection was

foreclosed by the Supreme Court in Engquist. See Engquist, 553 U.S. at 594 (rejecting in the public

employment context a “class of one” theory whereby the plaintiff alleges “she was arbitrarily

treated differently from other similarly situated employees, with no assertion that the different

treatment was based on membership in any particular class”).

For these reasons, Plaintiff has not plausibly pleaded Defendant City violated his right to

equal protection. Therefore, the Court dismisses Plaintiff’s equal protection claim against

Defendant City.

II. Defendant Jordan

A. Official Capacity Claims

At the outset, the Court will discuss Plaintiff’s Section 1983 official capacity claims against

Defendant Jordan. “Defendant Jordan is sued individually and in his official capacity as the Chief

of Police.” Doc. 6, ⁋ 16. Defendant Jordan argues that all claims against him in his official capacity

are redundant of those against the City and therefore, should be dismissed. Doc. 14, at 4–5. Plaintiff

argues—in a footnote—that since Plaintiff was fired based on a TPD social media policy (which

may or may not be a City policy), and since Defendant Jordan is a decisionmaker for the City, then

Defendant Jordan is the person against whom declaratory and injunctive relief would be

appropriate. Doc. 18, at 14 n. 10. Plaintiff, however, would agree that naming Defendant Jordan

in his official capacity would not be needed if the Defendant City concedes the municipal liability

issue. Id.

Plaintiff conflates the individual and official capacity claims. If Plaintiff concludes that

“Defendant Jordan would be the person against whom declaratory and injunctive relief would be

appropriate,” then an official capacity suit is the wrong vehicle to achieve Plaintiff’s relief. “[A]n

official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It

is not a suit against the official personally, for the real party in interest is the entity.” Kentucky v.

Graham, 473 U.S. 159, 166 (1985) (citation omitted). In other words, suing Chief Jordan in his

official capacity under section 1983, is the same as suing the City. This is not a “finding of non-

liability but rather of redundancy because of the fact that the City is already a defendant in this

lawsuit. In other words, [the Chief] in his official capacity is the City.” Lopez v. Bd. of Cnty.

Comm’rs for Lea Cnty., 2016 WL 10588126, at *2 (D.N.M. March 4, 2016); see also Romero v.

Storey, 2010 WL 11619180, at *2 (D.N.M. Sept. 17, 2010) (“Consequently, § 1983 claims against

individual defendants in their official capacities are redundant when those same claims are also

brought against the municipal entity that employs the individual defendants.”). Overall, “[t]here is

no longer a need to bring official-capacity actions against local government officials, for under

Monell . . . local government units can be sued directly for damages and injunctive or declaratory

relief.” Kentucky v. Graham, 473 U.S. at 167 n. 14.

The official capacity claims against Defendant Jordan would fail for the same reason as the

claims against the Defendant City of Tulsa and are redundant. Since the section 1983 official

capacity claims against Defendant Jordan are redundant, the Court dismisses with prejudice the

official capacity claims against Defendant Jordan for failure to state plausible section 1983 claims.

See Romero v. Storey, 2010 WL at *2 (“[T]he majority of cases which have dealt with the issue of

redundancy in § 1983 lawsuits have held that the appropriate remedy is, in fact, dismissal of the

official capacity claim.”) (compiling cases).

B. Individual Capacity Claims

Defendant Jordan argues that all claims against him in his individual capacity should be

dismissed because he is entitled to qualified immunity. See Doc. 14. Plaintiff, conversely, argues

that Defendant Jordan violated Plaintiff’s clearly established rights and therefore, is not entitled to

qualified immunity. See Doc. 18.

Qualified immunity “protects government officials ‘from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Although typically at the summary judgment

stage, a district court may grant a motion to dismiss based on qualified immunity “but asserting a

qualified immunity defense via a Rule 12(b)(6) motion . . . subjects the defendant to a more

challenging standard of review than would apply on summary judgment.” Truman v. Orem City,

1 F.4th 1227, 1235 (10th Cir. 2021) (internal quotation marks omitted). “Specifically, the court

analyzes the defendant’s conduct as alleged in the complaint.” Id. (emphasis in original) (internal

quotation marks omitted). The Tenth Circuit employs a strict two-part test that the plaintiff must

meet: First, the plaintiff must establish “that the defendant violated a constitutional or statutory

right,” and second, “that this right was clearly established at the time of the defendant’s conduct .

. . .” McBeth v. Himes, 598 F.3d 708, 716 (10th Cir. 2010) (internal quotation marks omitted). The

Court has discretion to decide which prong to address first. Id. A case is clearly established “when

a Supreme Court or Tenth Circuit decision is on point,” and the “clearly established law should

not be defined at a high level of generality.” Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir.

2018) (internal quotation marks omitted). Although a prior case need not have identical facts, “the

clearly established law must be particularized to the facts of the case.” White v. Pauly, 580 U.S.

73, 79 (2017).

i. First Amendment Retaliation

Plaintiff argues that by terminating him, Defendant Jordan violated his clearly established

right to free speech. Doc. 18, at 17. Plaintiff principally relies on Flanagan v. Munger, 890 F.2d

1557 (10th Cir. 1989), arguing it “compels the Court to deny Defendant Jordan’s motion.” Doc.

18, at 19.

In Flanagan, police officers were reprimanded for violating off-duty employment

regulations for conduct unbecoming of an officer by owning and operating a video rental store that

sold and rented out sexually explicit videos. 890 F.2d at 1560–61. The officers sued the Chief of

Police and the City, alleging the defendants violated their First Amendment rights. Id. at 1561.

The Tenth Circuit stated that the Pickering/Connick public concern test does not apply “when

public employee nonverbal protected expression does not occur at work and is not about work.”

Id. at 1564. Importantly, the Court identified that simply owning a store is “not debate or explicit

verbal speech” and if “plaintiffs had made off-duty statements supporting sexually explicit films,

those comments would almost surely relate to a matter of public concern.” Id. at 1563. Instead of

the public concern test, the Tenth Circuit crafted the “protected expression” test: “If the speech

involved is protected expression, then the second half of the existing Pickering test—the balancing

between the employee’s right to free speech and the employer’s right to curtail activity which

interferes with the efficient operation of the office—should be applied. Id. at 1564–65. Once the

Court moved on to Pickering balancing, it found in favor of the officers, because any disruption

from the speech itself was too attenuated. Id. at 1566.

The Court disagrees that Flanagan compels the Court—in this qualified immunity

context—to deny Defendant Jordan’s motion because the facts in Flanagan are inapposite here.

The issue here is not whether Defendants violated Plaintiff’s free speech rights by regulating his

unbecoming, outside-of-work business dealings. Dealings which, as the Tenth Circuit identified,

had no indicia of verbal speech, statements, nor debate. Flanagan, 890 F.2d at 1563. Rather, the

issue is whether Plaintiff’s termination by Defendants due to his social media posts violated his

free speech rights. Thus, Flanagan is not particularized to the facts of this case. See Knopf v.

Williams, 884 F.3d 939, 944 (10th Cir. 2018) (“the clearly established law must be particularized

to the facts of the case” and the “dispositive question is whether the violative nature of particular

conduct is clearly established”) (internal quotation marks omitted). Plaintiff does not cite or

analyze any other Tenth Circuit or Supreme Court cases that are particularized to the facts here

which establish that Defendant Jordan’s actions violated clearly established law.7 The second

prong of the qualified immunity analysis is not satisfied, and Defendant Jordan is entitled to

qualified immunity. Therefore, as a matter of law, Plaintiff’s First Amendment claim against

Defendant Jordan in his individual capacity must be dismissed.

ii. Equal Protection Claim

Plaintiff also alleges Defendant Jordan violated his rights under the Equal Protection

Clause of the Fourteenth Amendment by selectively targeting the content and viewpoint of

Plaintiff’s speech and beliefs, and selectively enforcing policies against Plaintiff. Doc. 6, at ⁋⁋

101–107. Defendant Jordan argues Plaintiff’s “very vague and ill-defined claim” is a “class of

7 Plaintiff does cite many cases that stand for the proposition that “public employees may not be discharged in

retaliation for speaking on matters of public concern,” etc. See Doc. 18, at 17. However, such broad statements of law

that merely repeat the generic Garcetti/Pickering standard are insufficient for the clearly established prong. See Knopf

v. Williams, 884 F.3d 939, 946–47 (10th Cir. 2018) (concluding that repeating the generic Garcetti/Pickering standard

is not particularized and fails the second prong of the qualified immunity analysis).

one” theory of equal protection, foreclosed by the Supreme Court in Engquist v. Oregon Dept. of

Agr., 553 U.S. 591 (2008). Doc. 14, at 10–11.

For the same reasons in the Court’s discussion of the equal protection claim against

Defendant City, Plaintiff’s complaint fails to plausibly plead sufficient facts of an equal protection

violation. Plaintiff has not identified any individual or group who were granted the use of a forum

to which he was denied. Nor has Plaintiff alleged he was discriminated against on the basis of

membership in some class or group. Plaintiff has not plausibly pleaded Defendant Jordan violated

his right to equal protection and Plaintiff cannot overcome Defendant Jordan’s qualified immunity.

Therefore, the Court dismisses Plaintiff’s equal protection claim against Defendant Jordan in his

individual capacity.

III. Declaratory and Injunctive Relief

Plaintiff seeks declaratory and injunctive relief against the Defendants, requesting:

[A] declaration that Defendants violated his clearly established rights as set forth

in this First Amended Complaint; a declaration that the termination of Plaintiff’s

employment as a police officer with the TPD was unlawful; an injunction enjoining

the enforcement of Defendant’s unconstitutional acts, policies, practices,

procedures, and/or customs that were the moving force behind the violation of

Plaintiff’s rights as set forth in this First Amended Complaint; an injunction

expunging all paperwork or references from Plaintiff’s personnel file related to the

incident giving rise to Defendants’ violation of his rights as set forth in this First

Amended Complaint and prohibiting the use of any such paperwork or references

in any future employment matter . . . .

Doc. 6, at ⁋ 6. Plaintiff grounds this relief under 28 U.S.C. §§ 2201 and 2202, and Rules 57 and

65 of the Federal Rules of Civil Procedure. Id. at ⁋ 8.

To the extent Plaintiff is seeking declaratory and injunctive relief against Defendant Jordan

in his official capacity, those claims are dismissed for the above stated reasons. Regarding

Plaintiff’s request for declaratory judgment against Defendant Jordan in his individual capacity

and against Defendant City, the Declaratory Judgment Act (“DJA”) provides:

In a case of actual controversy within its jurisdiction . . . any court of the United

States, upon the filing of an appropriate pleading, may declare the rights and other

legal relations of any interested party seeking such declaration, whether or not

further relief is or could be sought. Any such declaration shall have the force and

effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C. § 2201(a). Whether subject matter jurisdiction exists, there are “two separate hurdles

for parties seeking a declaratory judgment to overcome,” a Constitutional one and a discretionary

one. Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008). First, there must be

an “actual controversy,” which is “equated to the Constitution’s case-or-controversy requirement.”

Id. (citing Aetna Life Ins. Co. v. Hayworth, 300 U.S. 227, 239–40 (1937)). Second, since the DJA

is discretionary (“may,” not “must”), a plaintiff must persuade the court to make a declaration on

the merits based on a number of case specific factors. Id. Relevant factors include whether a

declaratory judgment: (1) would settle the controversy; (2) would serve a useful purpose in

clarifying the legal relations at issue; (3) is being used merely for the purpose of procedural fencing

or to win the “race to res judicata”; (4) would increase friction between federal and state courts

and improperly encroach upon state jurisdiction; and (5) is in addition to an alternative remedy

which is better or more effective. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 983 (10th

Cir. 1994).

Here, there is an “actual controversy,” but the Court declines to exercise its jurisdiction

under the DJA. The Court has concluded as a matter of law that Defendant Jordan is entitled to

qualified immunity with respect to Plaintiff’s constitutional claims and dismissed all federal claims

against Defendant City. Therefore, if the Court were to exercise its jurisdiction, it would not settle

the controversy or serve a useful purpose. Plaintiff’s claim for declaratory relief against Defendant

Jordan in his individual capacity and against Defendant City is dismissed.

Concerning Plaintiff’s request for injunctive relief (Doc. 6, at ⁋ 6), the Court notes that

Defendant Jordan is no longer the Chief of Police of TPD. See Doc. 21, at 6. Therefore, Defendant

Jordan, individually, cannot provide Plaintiff with any of the relief he seeks. Concerning

Defendant City, because the Court dismissed all the constitutional claims, an injunction in the

manner requested by Plaintiff is likewise denied.

IV. Burk State Law Claim

Plaintiff lastly asserts a state law, wrongful discharge claim—a Burk claim8—against

Defendants. Doc. 6, at ⁋⁋ 109–110. Plaintiff alleges the Defendants impermissibly infringed upon

his freedom of speech or expression in violation of the First Amendment, the Oklahoma

Constitution, and the City’s policy. Doc, 6, at ⁋ 109. Defendant City argues the claim must be

dismissed because it is impermissibly vague, and Plaintiff is not entitled to double recovery. Doc.

13, at 22–24. Defendant Jordan argues this claim should be dismissed. Doc. 14, at 12–15. Plaintiff

did not respond to Defendant Jordan’s arguments. See Doc. 18. Therefore, the Court considers

Plaintiff’s Burk claim against Defendant Jordan abandoned and dismisses the claim without

prejudice.

Regarding the Burk claim against Defendant City, since the Court has dismissed Plaintiff’s

federal claims, it is necessary to consider whether it is appropriate to decide the remaining state

8 In Burk v. K-Mart Corp., 770 P.2d 24, the Oklahoma Supreme Court created an exception to its general rule of at-

will employment by recognizing a cause of action for wrongful discharge in violation of public policy. Wilburn v.

Mid-S. Health Dev., Inc., 343 F.3d 1274, 1277 n.2 (10th Cir. 2003). Generally, “employers are free to discharge at-

will employees in good or bad faith, with or without cause,” but the Burk tort allows an at-will employee to sue for

wrongful discharge in violation of public policy. Darrow v. Integris Health, Inc., 176 P.3d 1204, 1210 (Okla. 2008).

To state a claim for wrongful discharge under the public policy exception to at-will employment, a plaintiff must

allege:

(1) An actual or constructive discharge (2) of an at-will employee (3) in significant part for a reason

that violates an Oklahoma public policy goal (4) that is found in Oklahoma’s constitutional,

statutory, or decisional law or in a federal constitutional provision that prescribes a norm of conduct

for Oklahoma and (5) no statutory remedy exists that is adequate to protect the Oklahoma policy

goal.

Vasek v. Bd. Of Cnty. Comm’rs of Noble Cnty., 186 P.3d 928, 932 (Okla. 2008).

law claim. Supplemental jurisdiction “is a doctrine of discretion, not of plaintiff’s right.” City of

Chicago v. Int’l. Coll. of Surgeons, 522 U.S. 156, 172 (1997) (quoting United Mine Workers v.

Gibbs, 383 U.S. 715, 726 (1966)). Under 28 U.S.C. § 1367(c)(3), a district court may decline to

exercise supplemental jurisdiction if the district court has dismissed all claims over which it has

original jurisdiction. See Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d

1161, 1165 (10th Cir. 2004) (“Even where a ‘common nucleus of operative fact’ exists, federal

jurisdiction is not mandatory over pendant claims or parties.”). When deciding whether to exercise

supplemental jurisdiction, a federal court should consider and weigh in each case, and at every

stage in the litigation, the values of “judicial economy, convenience, fairness, and comity.” Gibbs,

383 U.S. at 726. If federal claims are dismissed before trial, leaving only issues of state law, “the

federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.”

Bauchman for Bauchman v. West High Sch., 132 F.3d 542, 549 (10th Cir. 1997) (quoting

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988); Gibbs, 383 U.S. at 726).

Here, the Court has dismissed Plaintiff’s federal claims. The case is still in its initial stages:

a Scheduling Order has not been entered and the litigation has not progressed past the motion to

dismiss stage. Therefore, it will not be unduly inconvenient for the parties to transfer to state court

to try the Burk claim at this juncture. The Burk claim implicates Oklahoma public policy, and this

Court finds it is more appropriate for an Oklahoma state court to adjudicate such a claim. For these

reasons, the Court dismisses the Burk claim against Defendant City without prejudice.

CONCLUSION

IT IS THEREFORE ORDERED that Defendant City of Tulsa’s Motion to Dismiss

Plaintiff’s First Amended Complaint (Doc. 13) is GRANTED. Plaintiff Wayne Brown’s section

1983 claims (First Amendment and equal protection claims) against Defendant City of Tulsa are

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant Charles W. Jordan’s Motion to Dismiss

Plaintiff's First Amended Complaint (Doc. 14) is GRANTED. Plaintiff Wayne Brown’s section

1983 claims (First Amendment and equal protection claims), in his official and individual

capacities, are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff Wayne Brown’s state law Burk claim against

Defendant City of Tulsa and Defendant Charles W. Jordan is DISMISSED WITHOUT

PREJUDICE.

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE ™.

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