# Andrews v. Oklahoma Workers Compensation Commission

> District Court, W.D. Oklahoma · October 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10389203

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** October 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10389203

## How later opinions describe it (automated extraction)

- holding Congress did not properly abrogate state sovereign immunity when it passed the ADA
- explaining that the “plain, clear, unmistakable, unambiguous, and unequivocal language of § 840-2.5 clearly provides that the stated purpose of the Act is to encourage and protect the reporting of wrongful governmental activities . . .”
- holding that internal reporting regarding a state agency’s failure to enforce public policy was conduct covered by the Whistleblower Act

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

KENNETH RAY ANDREWS, )
)
Plaintiff, )
)
v. ) No. CIV-21-609-R
)
OKLAHOMA WORKERS’ )
COMPENSATION COMMISSION, )
an agency of the State of Oklahoma; )
HOPPER SMITH, individually and in his )
official capacity; ANDREA DELLING, )
individually and in her official capacity; )
and MARK LIOTTA, individually and in )
his official capacity, )
)
Defendants. )

ORDER

Before the Court is the Amended Motion to Dismiss filed by Defendants Oklahoma
Workers’ Compensation Commission (OWCC), Hopper Smith, Andrea Delling, and Mark
Liotta pursuant to Fed. R. Civ. P. 12(b)(1) and (6). (Doc. No. 11). Plaintiff responded in
opposition to the motion and Defendants filed a reply in support of their position. (Doc.
Nos. 16 and 17). Upon consideration of the parties’ submissions, the Court finds as follows.
Background
Plaintiff alleges he was employed by OWCC from February 1, 2014, until August
16, 2019. Doc. 5, ¶ 21. From August 2015 until March 2019, he served as OWCC’s
Compliance Director. Id. ¶¶ 24, 28. In that capacity Plaintiff advised administrators and
other state officials of the need to enforce cease-and-desist orders against employers who
failed to obtain the requisite workers’ compensation insurance. Id. ¶ 24. Plaintiff learned
the Commission was understating collection numbers in reports to the Oklahoma
Legislature which created fictitious budget problems. Id. ¶25. Plaintiff alleges that he spoke
with Bob Burke, an attorney for a watchdog group regarding Oklahoma workers’

compensation laws, although he does not identify the content of their conversation or the
capacity in which he spoke with Mr. Burke. Id. ¶ 26. He alleges, however, that shortly
thereafter a member of legislative leadership, Jon Echols, requested that the Commission
provide him with the compliance data from 2014 through 2019. Id. ¶ 27.
On March 4, 2019, Defendant Liotta, chair of the Commission, informed Plaintiff

that OWCC was demoting him from Compliance Director to Investigator, although his pay
was not reduced. Id. ¶ 28. Liotta advised Plaintiff he would still be classified as a
supervisor but would not be assigned any employees to supervise. Id. ¶ 29. Following
Plaintiff’s demotion, Defendant Smith, the Executive Director of the Commission, served
as interim Compliance Director until OWCC hired Plaintiff’s replacement. Id. ¶ 30.

Shortly after being demoted, Plaintiff provided the requested workers’
compensation compliance data to Attorney Burke, who provided the information to
Representative Echols. Id. ¶ 31. On April 29, 2019, Plaintiff conveyed to Representative
Zack Taylor his concerns that OWCC was struggling to meet its enforcement goals
regarding employer compliance. Id. ¶¶ 32–33. Plaintiff informed Representative Taylor

that he had expressed concerns to Chair Liotta, but that Liotta did not want the Legislature
or the public to be concerned about these issues. Id. Plaintiff also complained to
Representative Taylor about the lack of funding and staffing at OWCC. Id. ¶ 34.
Plaintiff’s then attorney sent a letter to Defendant Smith, initiating a formal
grievance against his demotion to the Investigator position. Id. ¶ 35. The letter also advised
Smith that Plaintiff suffered from serious health conditions and wished to take leave under

the Family Medical Leave Act (FMLA). Id. Although Smith never responded to the letter
[Id. ¶ 36], Defendant Delling, OWCC’s Chief Financial Officer and the Agency Human
Resources Representative, responded. Id. ¶ 37. Delling asked Plaintiff if he intended to
resign his position. Id. ¶ 38. She advised Plaintiff on May 15, 2019, that his request for
FMLA leave had been granted, covering the period from April 16 through May 27, 2019.

Id. ¶ 39. At the request of Plaintiff’s counsel, Delling extended the leave until July 11,
2019. Id. ¶ 40. In early July 2019, Plaintiff’s attorney advised Defendant Delling that
Plaintiff remained unable to work, but that he intended to use his accrued sick leave to
cover the additional time off he required.1 Id. ¶¶ 45, 50. On August 9, 2019, Defendant
Delling advised Plaintiff’s counsel that Mr. Andrews’ treating physician had not responded

to her numerous inquiries about when Plaintiff could be expected to return. Plaintiff alleges
he informed Defendant Delling that he had a procedure scheduled for August 13, 2019,
and intended to return to work on September 1, 2019. Id. ¶¶ 42, 45. He additionally
informed her that he planned to use his personal sick leave to cover the time that the FMLA
leave could not. Id. ¶¶ 45, 50.

On August 15, 2019, Plaintiff contacted the Oklahoma Public Employees
Retirement System to inquire about steps he needed to take to retire from the Commission.

1  Plaintiff’s physician advised Defendant Dellling that Plaintiff was still under his care and that he had additional
testing scheduled for August 2019.
Id. ¶ 46. The next day Defendant Delling advised Plaintiff via email that he was terminated,
and the letter did not provide a cause for termination. Id. ¶ 47.
In response, on November 21, 2019, Plaintiff filed an intake form with the Equal

Employment Opportunity Commission (EEOC). Doc. No. 16-1 at 18. The EEOC sent
OWCC a Notice of Charge of Discrimination on December 4, 2019 [Id. at 13], issued a
formal charge of discrimination to Plaintiff on March 9, 2020 [Doc. No. 5, ¶ 13], and sent
Plaintiff his Notice of Right to Sue on September 22, 2020 Id. ¶ 18. Plaintiff thereafter
initiated this action alleging violations of the Americans with Disabilities Act (ADA), the

Age Discrimination in Employment Act (ADEA), the FMLA, the Rehabilitation Act, the
Oklahoma Anti-Discrimination Act (OADA), state law tort claims, and a First Amendment
Claim under 42 U.S.C. § 1983. Doc. No. 5. Defendants seek dismissal of all claims except
those arising under the Rehabilitation Act.
Standard of Review

In considering a Motion to Dismiss under Rule 12(b)(6), the Court must determine
whether a plaintiff has stated a claim upon which relief may be granted. The Court grants
the Motion when the Complaint provides no “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). The Complaint must contain enough “facts to state a claim to relief

that is plausible on its face” [id. at 570], and the factual allegations “must be enough to
raise a right to relief above the speculative level.” Id. at 555 (citations omitted). The Court
must accept all the well-pled allegations of the Complaint as true and must construe the
allegations in the light most favorable to Plaintiff. Id.; Alvarado v. KOB–TV, L.L.C., 493
F.3d 1210, 1215 (10th Cir. 2007). However, the Court does not accept as true those
allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs,
263 F.3d 1151, 1154–55 (10th Cir. 2001). “[C]onclusory allegations without supporting

factual averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991). When Motion to Dismiss under Rule
12(b)(1) “standards apply, the [C]ourt notes that . . . the non-movant enjoys similar
safeguards; the allegations of the complaint should be construed favorably to the pleader
and the [C]ourt will not look beyond the face of the complaint to determine jurisdiction.”

Thomas v. Metropolitan Life Ins. Co., 540 F. Supp. 2d 1212, 1217 (W.D. Okla. 2008)
(citations omitted).
ADA and ADEA Claims
OWCC first seeks dismissal of Plaintiff’s ADA and ADEA claims, arguing that as
an agency of the State it is entitled to sovereign immunity. Doc. No. 11 at 13–15. The

Commission concedes that by virtue of removal of this action from state court it has waived
its immunity from being sued in this federal forum. See Lapides v. Bd. of Regents of Univ.
Sys. of Ga., 535 U.S. 613, 620 (2002); Estes v. Wyoming Dept. of Transp., 302 F.3d 1200
(10th Cir. 2002) (state department of transportation’s removal to federal court constituted
a waiver of sovereign immunity) (citing Lapides). However, OWCC argues that the State

has not waived its immunity from liability by consenting to appear in a federal court. See
Trant v. Oklahoma, 754 F.3d 1158, 1172 (10th Cir. 2014) (“A state enjoys another kind of
sovereign immunity besides immunity from suit that it may invoke even after agreeing to
removal—immunity from liability.”). Instead, it retains immunity from liability because
Congress did not validly abrogate the sovereign immunity of the States in enacting Title I
of the ADA or the ADEA. See Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S.
356 (2001) (holding Congress did not properly abrogate state sovereign immunity when it

passed the ADA); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (holding Congress
did not properly abrogate state sovereign immunity when it passed the ADEA).
Sovereign immunity encompasses two separate but related concepts: immunity
from suit and immunity from liability. Trant, 754 F.3d at 1172. “Although the [Supreme]
Court [in Lapides] did not clarify the extent to which the removal of state law claims results

in forfeiture of sovereign immunity, the presumption is that voluntary removal constitutes
consent to have the claim heard in a federal forum.” Id. In Trant, the Tenth Circuit held
“that state law should determine the nature and scope of a state’s immunity.” Id. “‘[U]nder
Lapides’s reasoning, a state waives its immunity from a federal forum when it removes a
case, which voluntarily invokes the jurisdiction of that federal forum. But nothing in

Lapides suggests that a state waives any defense it would have enjoyed in state court—
including immunity from liability for particular claims.’” Id. at 11172–73 (quoting Stroud
v. McIntosh, 722 F.3d 1294, 1302 (11th Cir. 2013).
The Commission, as an agency of the State, must be treated as an “arm of the state”
for sovereign immunity purposes. See Colby v. Herrick, 849 F.3d 1273, 1276 (10th Cir.

2017). In Garrett, the Supreme Court held that Title I of the ADA did not abrogate state
sovereign immunity from suit because, “. . . there must be a pattern of discrimination by
the States which violates the Fourteenth Amendment, and the remedy imposed by Congress
must be congruent and proportional to the targeted violation. Those requirements are not
met here . . . .” Garrett, 531 U.S. at 374. Similarly, in Kimel, 528 U.S. at 91, the Court held
that “in the ADEA, Congress did not validly abrogate the States’ sovereign immunity to
suits by private individuals”. Furthermore, Oklahoma has not consented to suit or liability

under the ADA or ADEA in its Government Tort Claims Act. See Okla. Stat. tit. 51, §
153. Consequently, Plaintiff’s Claim One, Claim Two, and Claim Eight, to the extent
Plaintiff relies on the ADA and the ADEA, are hereby DISMISSED.
The Exhaustion Requirement of the OADA
The Commission next argues that Plaintiff has failed to comply with the exhaustion

requirement of the OADA and therefore Claim Three should be dismissed. Doc. No 11 at
16–17. Defendant argues Plaintiff failed to file a charge of discrimination with the EEOC
or the Oklahoma Attorney General’s Office within 180 days of the last alleged
discriminatory act. Id. Plaintiff disagrees, arguing that he filed an intake form with the
EEOC on November 21, 2019, within the 180-day period, and therefore he has fulfilled the

exhaustion requirements of the OADA.
The OADA states, in the relevant part,
In order to have standing in a court of law to allege discrimination arising from an
employment related matter . . . an aggrieved party must, within one hundred eighty
(180) days from the last date of alleged discrimination, file a charge of
discrimination in employment with the Attorney General’s Office of Civil Rights
Enforcement or the [EEOC].

Okla. Stat. tit. 25, § 1350(b). According to OWCC, the last discriminatory act—firing
Plaintiff—took place on August 16, 2019, and Plaintiff did not file his statement of charges
until March 9, 2020, 209 days later. Doc. No 11 at 16–17. Plaintiff counters that he filed
his intake form on November 21, 2019, responded to all EEOC requests in a timely manner,
and should not be held responsible for how long it took the EEOC to issue his perfected
charge. Doc. No. 16 at 18–20. He further posits that his intake form meets the requisite
legal requirements to be a charge. Id. at 14.

The Tenth Circuit has held “a document constitutes a[n EEOC] charge if it (i)
provides the minimum information the regulations require, and (ii) can “be reasonably
construed as a request for the agency to take remedial action to protect the employee’s
rights or otherwise settle a dispute between the employer and employee.” Semsroth v. City
of Wichita, 304 F. App’x 707, 713 (10th Cir. 2008) (quoting Federal Exp. Corp. v.

Holowecki, 552 U.S. 389, 402 (2008)). It further found in Semsroth that “intake
questionnaires reasonably constitute charges for the purposes of Title VII.” Semsroth, 304
F. App’x at 714. Importantly to the Semsroth court, “[t]he presence of the Right-to-Sue
letters suggests that Semsroth and Voyles in fact took the affirmative steps necessary to
signal their desire to the EEOC to start its administrative process.” Id.

Here, Plaintiff filed his intake form on November 21, 2019—approximately two
months after his termination. His intake form itself states that “this questionnaire may serve
as a charge if it meets the elements of the charge.” Doc. No. 16-1 at 18. He then met all
timely deadlines and was ultimately issued a Right-to-Sue letter and a perfected charge.
Plaintiff has pled a plausible claim that his intake form is a charge and the Court DENIES

OWCC’s motion as to Claim Three.
FMLA Claim
Citing Coleman v. Ct. of Appeals of Maryland, 566 U.S. 30 (2012), Defendant
OWCC argues it is immune from Plaintiff’s FMLA retaliation claim. Doc. No. 11 at 17–
19. Plaintiff counters that his claim is distinguishable from Coleman because he is asserting
an FMLA retaliation claim, not an interference claim as was at issue in Coleman. Doc. No.
16 at 20–21. The Court concurs with the Commission that Coleman bars Plaintiff’s FMLA

claim.
The FMLA entitles eligible employees to take up to twelve weeks of unpaid leave
per year. 29 U.S.C. § 2601–2654. Under the FMLA, an employee may take leave for (A)
the birth of a son or daughter . . . in order to care for such son or daughter; (B) the adoption
or foster-care placement of a child with the employee; (C) the care of a spouse, son,

daughter, or parent with a serious health condition; and (D) the employee’s own serious
health condition when the condition interferes with the employee’s ability to perform at
work. 29 U.S.C. § 2612(a)(1). Subsection (D) is referred to as the “self-care” provision,
because the employee seeks leave to care for himself as opposed to another member of his
family.

The Supreme Court in Coleman addressed whether Eleventh Amendment immunity
applied in a subsection (D) interference claim. Because Congress failed to “identify a
pattern of constitutional violations and tailor a remedy congruent and proportional to the
documented violations,” the Court held Congress did not properly abrogate the states’
Eleventh Amendment immunity as to subsection (D). Id. 566 U.S. at 43. The parties’

disagreement here is whether that rationale extends to retaliation claims under the FMLA.
The Tenth Circuit has not addressed whether Coleman applies to retaliation claims
under the self-care provision of the FMLA. In Diaz v. Michigan Dep’t of Corr., 703 F.3d
956 (6th Cir. 2013), the Sixth Circuit concluded there is no distinction between an
interference claim and a retaliation claim where, as here, a plaintiff seeks money damages.
“[T]he Eleventh Amendment does not bar suits for equitable, prospective relief, such as
reinstatement, against state officials in their official capacity,” but “money damages under

the self-care provision are barred by the doctrine of sovereign immunity.” Id. at 961, 964
(citing Coleman, 566 U.S. at 33–34). The District of Kansas agreed with the Sixth Circuit’s
holding and dismissed a self-care FMLA retaliation claim finding that the “claim rests on
subsection (D), but the Supreme Court has held that the States have Eleventh Amendment
immunity against self-care claims based on subsection (D). The Court gave no indication

that the type of FMLA claim—interference or retaliation—was significant regarding
Eleventh Amendment immunity.” Humphrey v. Kansas Dep’t of Wildlife, No. 13-4025-
JTM, 2013 WL 4857889, at *3 (D. Kan. Sept. 10, 2013). The Court concurs with the
holdings of the Sixth Circuit and the District of Kansas and Plaintiff’s FMLA claim against
the Commission is hereby DISMISSED.

Burk Claims
In his response brief addressing Defendant’s FMLA argument Plaintiff raises a new
legal theory, asserting that he may proceed against the Commission for retaliating against
his right to medical leave as a public policy tort under Burk v. K-Mart Corp., 770 P.2d 24,
26 (Okla. 1989) (Burk tort). In Burk, the Oklahoma Supreme Court explained “[a]n

employer’s termination of an at-will employee in contravention of a clear mandate of
public policy is a tortious breach of contractual obligations.” Burk, 770 P.2d at 28. Pursuant
to Burk, if “an employee is discharged for refusing to act in violation of an established and
well-defined public policy or for performing an act consistent with a clear and compelling
public policy,” he may sue despite his at-will status. Wilburn v. Mid-S. Health Dev., Inc.,
343 F.3d 1274, 1277 (10th Cir. 2003) (quoting Burk, 770 P.2d at 29). Plaintiff argues that
because Oklahoma incorporated the FMLA into its statutes—Okla. Stat. tit. 74 § 840-

2.22—and has not provided a remedy for violation thereof, he should be permitted to
pursue a Burk tort. Doc. No. 16 at 20–21.
To state a claim under Burk, 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 Cty. Comm’rs of Noble Cnty., 186 P.3d 928, 932 (Okla. 2008) (citing
McCrady v. Okla. Dept. of Pub. Safety, 122 P.3d 473, 475 (Okla. 2005)). In its reply brief,
OWCC did not address Plaintiff’s Burk tort claim as it relates to his efforts to enforce the
State’s incorporation of the FMLA. Because Plaintiff’s Second Amended Complaint
incorporated by reference all preceding allegations, and the FMLA claim precedes
Plaintiff’s Burk tort claim in the Second Amended Complaint, the Court will allow the
Plaintiff to PROCEED with a Burk tort against OWCC based on the incorporation of the
FMLA into Oklahoma statute. Rathbun v. Montoya, 628 F. App’x 988, 992 (10th Cir. 2015)
(“The court may consider an additional legal theory asserted in response to a motion to
dismiss if it is ‘consistent with the facts and theories advanced in the complaint.’”) (citing
Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001)).
OWCC next contends that Plaintiff’s Burk tort as pled in Claim Six is subject to
dismissal. Plaintiff alleges retaliation for speaking out about OWCC’s misconduct in both
his comments to supervisors and the State Legislature. The Commission argues that claim

is subject to dismissal because Plaintiff has a sufficient statutory remedy under the
Oklahoma Whistleblower Act. Okla. Stat. tit. 74 § 840-2.5; Doc. No. 11 at 19. Plaintiff
counters that the Whistleblower Act covers only “[r]eporting a violation of the Oklahoma
Constitution, state or federal law, rule or policy; mismanagement; a gross waste of public
funds; an abuse of authority; or a substantial and specific danger to public health . . . .”

[Okla. Stat. tit. 74 § 840-2.5(B)(2)], and that he was not reporting such a violation to
OWCC administrators or the State Legislature when OWCC retaliated against him. Doc.
No. 16 at 24. Rather, he argues that he was reporting fraud, misrepresentation, and failure
to adequately complete the task at hand. Id.
“The [Oklahoma] Legislature has determined that this state’s sovereign interest is

better served by the remedies and penalties in the Whistleblower Act than by a suit in
court.” Poff v. Oklahoma ex rel. Oklahoma Dep’t of Mental Health & Substance Abuse
Servs., No. CIV-14-1438-C, 2015 WL 1955377, at *2 (W.D. Okla. Apr. 29, 2015), aff’d,
683 F. App’x 691 (10th Cir. 2017). Accordingly, “a Burk tort claim is not cognizable for
claims that would be covered by the Whistleblower Act.” Poff, 683 F. App’x 691, 695

(10th Cir. 2017) (citing Shephard v. CompSource Okla., 209 P.3d 288, 292–93 (Okla.
2009)). Thus, the issue before the Court is whether the Whistleblower Act covers the
conduct Plaintiff describes in his Second Amended Complaint.
When a plaintiff’s allegations “fall squarely within the [text of] the Whistleblower
Act,” an adequate remedy exists to preclude a Burk tort. Poff, 683 F. App’x at 695 (holding
that internal reporting regarding a state agency’s failure to enforce public policy was

conduct covered by the Whistleblower Act). “The purpose of the Whistleblower Act is to
encourage and protect the reporting of wrongful governmental activities and to deter
retaliation against state employees for reporting those activities.” Okla. Stat. tit. 74 § 840-
2.5(A). When explaining the type of conduct it covers, the Whistleblower Act provides:
[n]o officer or employee of any state agency shall prohibit or take
disciplinary action against employees of such agency . . . for:

. . .

2. Reporting a violation of the Oklahoma Constitution, state or federal law,
rule or policy; mismanagement; a gross waste of public funds; an abuse of
authority; or a substantial and specific danger to public health or safety;

3. Discussing the operations and functions of the agency . . . with . . . persons
in a position to investigate or initiate corrective action

Okla. Stat. tit. 74 § 840-2.5(B). The Whistleblower Act does not, however, protect
“general discussions . . . which do not report wrongful governmental activities ...”. See
Burgess v. State ex rel. Oklahoma Dep’t of Envtl. Quality, 438 P.3d 829, 834 ¶ 16 (Okla.
Civ. App. 2019) (explaining that the “plain, clear, unmistakable, unambiguous, and
unequivocal language of § 840-2.5 clearly provides that the stated purpose of the Act is to
encourage and protect the reporting of wrongful governmental activities . . .”) (emphasis
in original).
Plaintiff’s actions fall squarely in the text of Whistleblower Act. He pointed out
OWCC’s unwillingness to enforce failure to obtain workers’ compensation insurance
cease-and-desist orders against employers to the Commission’s administrators and
attorneys. Doc. No. 5, ¶ 24. When his internal reporting failed to impact OWCC’s
operations, Plaintiff next went to a lobbyist and then directly to the State Legislature,

presenting them with the alleged enforcement failures and budgetary discrepancies he
identified. Id. ¶¶ 25–27, 31–33. The information Plaintiff reported was “wrongful
governmental activities” as well as “mismanagement; a gross waste of public funds; an
abuse of authority.” Okla. Stat. tit. 74 § 840-2.5(B). Further, Plaintiff claims that his
demotion and termination were as a direct result of his actions speaking up against the

alleged misconduct. Doc. No. 5 at ¶¶ 125–128. Providing information to both supervisors
and the State Legislature of wrongful governmental activity is conduct covered by the
Whistleblower Act. Therefore, Plaintiff’s free speech Burk claim is DISMISSED.
§ 1983 First Amendment Claim
Defendants Smith, Delling and Liotta move to dismiss Claim Seven—Plaintiff’s 42

U.S.C. § 1983 First Amendment retaliation claim. Doc. No. 11 at 20–21. They first argue
the claim is not plausible because Defendants demoted Plaintiff before he began talking to
the State Legislature. Id. The individual Defendants further argue that when Plaintiff was
demoted and terminated, he was not speaking out on a matter of public concern as required
for protection under the First Amendment. Id.

To determine if a government employer violated the First Amendment by
terminating an employee the Court applies the Garcetti/Pickering test. Knopf v. Williams,
884 F.3d 939, 945 (10th Cir. 2018). This test requires the Court to consider the five
elements:
(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.

Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (modified). Elements one
through three are issues of law for the Court to decide, while four and five are factual
issues. Id.
The timeline set forth in the Second Amended Complaint supports Defendant’s
contention that Plaintiff had not yet made any potentially protected statements at the time
Defendants demoted him. However, Plaintiff’s demotion is not the only retaliation he
claims. He also relies on his termination, which occurred after the allegedly protected
speech. Therefore, the fact that Defendants demoted Plaintiff before he spoke with State
legislators is not dispositive.
As noted, Defendants further argue that Plaintiff was not speaking on a matter of
public concern. “Speech is a matter of public concern if it is of ‘interest to the community,’
and we ‘focus on the motive of the speaker and whether the speech is calculated to disclose
misconduct or merely deals with personal disputes and grievances unrelated to the public’s
interest.’” Trant, 754 F.3d at 1155 (quoting Lighton v. Univ. of Utah, 209 F.3d 1213, 1224
(10th Cir. 2000)). “Statements revealing official impropriety usually involve matters of
public concern.” Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1205.
Defendants claim that Plaintiff’s speech was mostly motivated by his demotion. While
ultimately Defendants’ theory may prove true, Plaintiff’s Second Amended Complaint
sufficiently pleads that he spoke out about alleged governmental misconduct—namely
failure to act on cease-and-desist orders and budgetary discrepancies. These are issues the

Tenth Circuit sees as involving matters of public concern. Id. Therefore, the Court DENIES
the motion as to Plaintiff’s 42 U.S.C. § 1983 claim against the individual Defendants.
OADA Age Discrimination Claim
OWCC next argues Plaintiff’s OADA age discrimination claim, Claim Eight, must
be dismissed because Plaintiff fails to plead that his age was the but-for cause of his

termination. Doc. No. 11 at 22–23. Plaintiff’s age discrimination claim under the OADA
is analyzed in the same way as an ADEA claim. See Taber v. City of Sand Springs, Okla.,
No. 12-cv-0666-CVE-TLW, 2014 WL 241697, at *7 (N.D. Okla. Jan. 22, 2014) (“When a
plaintiff fails to establish a prima facie claim under the ADEA, he fails to establish a claim
of age discrimination under the OADA.”) (citation omitted). The ADEA prohibits an

employer from “discriminat[ing] against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29
U.S.C. § 623(a)(1). Although it is not necessary for a plaintiff to allege a prima facie case
of age discrimination, the elements of a prima facie case present a useful starting point.
Accordingly, the Court queries whether Plaintiff has alleged that he is a member of a

protected class, that he suffered an adverse employment action, and that the challenged
action occurred under circumstances giving rise to an inference of discrimination. Bennett
v. Windstream Communications, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015).
In Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 177–78 (2009), the Supreme
Court held that a claim under the ADEA requires “but-for” causation. The Tenth Circuit
has followed that a plaintiff needs to prove but-for causation for an employer to be liable

under the ADEA, but it has not held that a plaintiff needs to “show that age [is] the sole
motivating factor in the employment decision.” Jones v. Oklahoma City Pub. Sch., 617
F.3d 1273, 1277 (10th Cir. 2010). Instead, the Circuit found that “an employer may be held
liable under the ADEA if other factors contributed to its taking an adverse action, as long
as age was the factor that made a difference.” Id. (internal quotation marks and citation

omitted) Plaintiff has pled that he is 56 years old, making him a member of a protected
class [Doc. 5, ¶ 168], that OWCC replaced him with a younger employee who had no
experience in his field [id. ¶ 169], and that OWCC never complained about his performance
before his demotion and termination. Id. ¶¶ 170. At this juncture, Plaintiff has pled
sufficient facts that make it plausible OWCC used age as “the factor that made a difference”

when it decided to fire him. Jones, 617 F.3d at 1277; see Berry v. Airxcel, Inc., No. CV 20-
1362-KHV, 2021 WL 4263489, at *5 (D. Kan. Sept. 20, 2021). Accordingly, the
Commission’s motion is DENIED as to Plaintiff’s age discrimination claim under the
OADA.
OWCC additionally argues that Plaintiff seeks relief not authorized by the OADA,

namely non-economic damages. Doc. No. 11 at 24–25. Plaintiff does not dispute
Defendant’s interpretation of the law. Doc. No. 16 at 29–30. He argues instead that his plea
was for general relief, and the Court need not dismiss his claim under the OADA because
of his request for improper relief. Id. The Court agrees with Plaintiff, however, clarifies
that he is entitled only to authorized damages, namely enjoining OWCC, reinstatement,
and liquidated damages, under the OADA.2
Claims against Defendant Smith

Finally, Defendant Smith argues that the claims against him—FMLA and 42 U.S.C.
§ 1983—should be dismissed because Plaintiff has failed to sufficiently allege “what it was
Smith allegedly did or did not do in relation to any adverse action taken against Plaintiff.”
Doc. No. 11 at 25. Plaintiff argues that he has sufficiently complied with the notice
requirements of Rule 8 by pleading that Defendant Smith was the Executive Director of

OWCC and that he served as interim Compliance Director, as well as arguing that Mr.
Smith was informed of Mr. Andrews’ dissatisfaction with being demoted. Plaintiff
complains that Smith ignored certain correspondence, and he has alleged that Smith was
involved in either making or carrying out the termination. Plaintiff is correct that he
references Smith’s title within OWCC, however, he does not make any non-conclusory

allegations that tie Defendant Smith to his termination. Although Smith did not respond to
the letter counsel sent on April 22, 2019, Plaintiff pleads that he received his twelve weeks
of FMLA leave as requested in the letter. Defendant Delling, in her capacity as human
resources officer also addressed Plaintiff’s grievance regarding his demotion. Smith’s
position as executive director and interim compliance director provide no basis for holding

him responsible absent sufficient allegations of personal participation in the alleged

2 The OADA, in the relevant part, states, [T]he court may enjoin the defendant or defendants from engaging in [an]
unlawful employment practice . . . order such affirmative action as reinstatement or hiring of employees . . . [and
order] backpay and an additional amount as liquidated damages . . . . Okla. Stat. tit. 25 § 1350(G).

wrongdoing. Because Plaintiff’s allegations against Defendant Smith are conclusory, the
motion as to him is GRANTED.
Finally, the Court addresses Plaintiff’s request to amend his Complaint contained
within the motion. A response to a Motion to Dismiss is not the proper filing to request
amendment to a Second Amended Complaint. If Plaintiff desires to amend, he may do so
by complying with Local Civil Rule 15.1. The Court will not grant leave based on a request
in a response to a motion to dismiss.
For the reasons stated above, Defendants’ Motion to Dismiss is GRANTED IN
PART and DENIED IN PART. Plaintiff's ADA (Claims One and Two), ADEA (Claim
Eight federal claim), FMLA (Claim Four), Burk whistleblower claims (Claim Six) against
the Commission are DISMISSED. Plaintiffs claims against Defendant Smith (Claims Four
and Seven) are DISMISSED. The Motion is DENIED as to Plaintiff's FMLA Burk tort
against the Commission, § 1983 First Amendment (Claim Seven) claims against
Defendants Liotta and Delling, and his OADA claims (Claims Three and state claims in
Eight).
IT IS SO ORDERED on this 7° day of October 2021.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389203. Public record. Not legal advice.