The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BILLY D. “RUSTY’ RHOADES III, )
an individual; )
MEGAN L. SIMPSON, an individual; )
and MICHAEL S. HARRELL, )
an individual, )
)
Plaintiffs, )
)
v. ) No. CIV-20-761-R
)
)
THE STATE OF OKLAHOMA, ex rel . )
GOVERNOR KEVIN STITT; )
THE STATE OF OKLAHOMA, ex rel. )
THE DEPARTMENT OF PUBLIC )
SAFETY; )
KEVIN STITT, an individual; )
CHIP KEATING, an individual; )
JASON NELSON, an individual; and )
JOE CLARO, an individual, )
)
Defendants. )
ORDER
Before the Court is the Motion for Summary Judgment (Doc. No. 63) filed by
Defendants Chip Keating and Jason Nelson.1 Plaintiffs Rhoades and Simpson responded
in opposition (Doc. No. 71) 2 and Defendants filed a Reply in support of their motion. (Doc.
No. 75). Upon consideration of the parties’ submissions, the Court finds as follows.
1 As with the Motion for Summary Judgment filed by Defendant Stitt, Defendants’ Motion does not comply with
Local Civil Rule 56.1 The Court has limited its factual consideration to the facts set forth in the Statement of
Undisputed Material Fact to the extent those facts are supported by the cited evidence.
2 Although page 1 of Plaintiffs’ Response Brief indicates it is being filed on behalf of Rhoades and Simpson, the Court
assumes the brief was intended to be filed on behalf of all Plaintiffs, as it does reference Harrell’s claims.
Summary judgment is proper “if the movant shows there is no genuine issue as to
any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The movant bears the initial burden of demonstrating the absence of a dispute of
material fact warranting summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986). A material fact is one that “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is
genuine if the evidence is such that a reasonable jury could return a verdict for either party.
Id. at 255. Where the undisputed facts establish that a plaintiff cannot prove an essential
element of a cause of action, the defendant is entitled to judgment on that cause of action.
Celotex, 477 U.S. at 322.
This case arises from the Plaintiffs’ separation from their positions within the
Department of Public Safety—Rhoads and Simpson—and from the Oklahoma Highway
Patrol—Harrell. On September 2, 2019, each was contacted individually by Defendant
Nelson, operating under authority delegated to him by Governor Stitt, and given the option
of resigning, retiring if eligible, or being terminated. Among the claims alleged in the
Amended Complaint are a due process claim by Plaintiff Harrell against Defendants Stitt,
Keating, and Nelson (Third Cause of Action) and a claim for tortious interference (Sixth
Cause of Action) by each of the Plaintiffs against Defendants Keating and Nelson.
Defendants Keating and Nelson seek summary judgment on both claims.
The elements for the common law tort of intentional interference with a contractual
or business relationship are: (1) interference with a business or contractual right; (2)
malicious and wrongful interference that is neither justified, privileged, nor excusable; and
(3) damage proximately sustained as a result of the interference. Tuffy's, Inc. v. City of
Oklahoma City, 212 P.3d 1158, 1165 (Okla. 2009). Defendants seek summary judgment
on this claim arguing that each was acting in accord with his statutory duties as an agent of
the State and interference must come from a third party, not an agent of the employer. See
Martin v. Johnson, 975 P.2d 889, 896 (Okla. 1998). Defendants acknowledge the exception
to this rule, that an agent may be liable for tortious interference when he acts in his own
interest and against the interest of his employer, id., but argues that Plaintiff lacks evidence
to support such a finding.
Oklahoma courts have routinely held that one who is acting in a
representative capacity for a party to a contract cannot be liable for wrongful
interference—absent an allegation that the representative was acting outside
the scope of its agency and contrary to the interests of the principal employer.
See, e.g., Martin v. Johnson, 1998 OK 127, ¶ 30, 975 P.2d 889, 896; Grillot
v. Oklahoma ex rel. Univ. of Okla. Bd. of Regents, No. CIV-19-0241-F, 2019
WL 3558183, at *3–4 (W.D. Okla. Aug. 5, 2019). There must be evidence
that the defendant “acted in bad faith and contrary to the interests of his or
her employer. The standard requires more than proof of bad faith. A plaintiff
must show that the agent or employee was acting to further his or her own
interests.” Graham v. Cargill, Inc., No. CIV–10–0977–HE, 2011 WL
5429316, at *3 (W.D. Okla. Nov. 9, 2011) (internal citations omitted); see
also Martin, 1998 OK 127, ¶ 32 (“It is fundamental that an employee or agent
must act in good faith and in the interest of the employer or principal. If an
employee acts in bad faith and contrary to the interests of the employer in
tampering with a third party's contract with the employer we can divine no
reason that the employee should be exempt from a tort claim for interference
with contract.”).
Tufaro v. State of Oklahoma, No. CIV-20-1138-J, 2023 WL 2608878, *6 (W.D.Okla. Feb.
21, 2023). The Court has reviewed the evidence presented in the light most favorable to
Plaintiffs and finds that Defendants Keating and Nelson are entitled to summary judgment
on Plaintiffs’ tortious interference claim.
Plaintiffs attempt to craft a tale of a widespread conspiracy within the Oklahoma
Highway Patrol, which operates as part of the Department of Public Safety. The conspiracy
involves allegations that Plaintiff Harrell aided a promotion candidate by providing him
with information about what topics would be covered on the exam and efforts to allegedly
blackmail Defendant Rhoades by threatening to report the cheating if certain people were
not promoted. The alleged perpetrator of the blackmail was indicted by a multi-county
grand jury after Oklahoma County District Attorney David Prater declined to press charges,
but the charges were dropped allegedly at the request of the Patrol, which Plaintiffs deny.
Plaintiffs further contend that the public explanation for their termination, perceived delays
in implementation of REAL-ID in Oklahoma, was a false narrative created to cover up the
nefarious decision to relieve them of their positions.
The shortcoming in all of the evidence, however, is the absence of anything beyond
speculation that either Defendant Keating or Defendant Nelson acted in bad faith, that is,
in his own best interest. Plaintiff Rhoades offered the following testimony in his deposition:
Q: All right. What motive would Mr. Keating have - - or what motive do
you allege Mr. Keating had in participating in this cover-up?
A: Well, first, that question is probably best addressed to Chip Keating.
But it was, as stated, to protect friends or acquaintances that were potentially
going to be in trouble for illegal - - illegal actions and significant policy
violations.
Doc. No. 71-1, p. 21. Plaintiff’s testimony, however, is nothing more than speculation.
First, the Court notes that it is undisputed that Governor Stitt made the decision to terminate
all three Plaintiffs. That Defendant Keating may have provided information to Governor
Stitt, via Stitt’s staff members,3 does not mean that he “interject[ed] [himself] into the
personnel decisions of DPS.” (Doc. No. 71, p. 20). Additionally, the Governor’s delegation
of the authority to Defendant Nelson to effectuate the termination of Plaintiffs does not
transform Nelson’s actions into actions taken in furtherance of his own interests. Although
Plaintiffs characterize the inferences to be drawn from their evidence as reasonable, the
Court disagrees. Supposition about what “would have” motivated Defendant Keating or
Nelson is not admissible nor does the evidence support the inference Plaintiffs request that
the Court draw.
That Plaintiff Harrell was not offered the right to revert to the position as major in
the Highway Patrol also does not take Defendants’ actions outside the scope of their
employment. “The fact that [a] Supervisor's decision to terminate [an employee] was
contrary to policy prohibiting termination does not alone take that decision outside the
scope of [the] Supervisor's employment.” Shephard v. CompSource Oklahoma, 209 P.3d
288, 294 (Okla. 2009). Accordingly, the failure by Defendant Nelson to offer that
opportunity does not support the denial of summary judgment on the tortious interference
claim.
3 The Plaintiffs argue that without information about what the Governor was told, how he processed that information,
and what facts led to his decision, issues that cannot be resolved while the question of whether deposing the governor
remains outstanding, summary judgment is inappropriate. However, as noted above, there is no evidence that
Defendant Keating communicated directly with the Governor. Plaintiffs could have taken the depositions of the
conduit advisors to Governor Stitt and inquired about what information they received from Defendant Keating and in
turn conveyed to Governor Stitt. Because the Governor is not a defendant to the tortious interference claim, his thought
process is irrelevant to the outcome of this claim against Defendants Keating and Nelson. Furthermore, there is no
indication that Defendant Nelson played any role in the separation decisions, other than to provide information to
Keating after his conversation with David Prater and in serving as the message bearer.
The Court finds that Plaintiffs have failed to present sufficient evidence to support
their claim for tortious interference against either Defendant Keating or Defendant Nelson.
Accordingly, Defendants’ motion is granted as to the Sixth Cause of Action.
As to Plaintiff Harrell’s due process claim, Defendants Keating and Nelson merely
adopted Defendant Stitt’s motion for summary judgment. By separate order the Court
denied qualified immunity to Governor Stitt and because Defendants so limited their
arguments, the Court has no additional basis on which to grant summary judgment.
For the reasons set forth herein, the motion for summary judgment filed by
Defendants Keating and Nelson is granted in part and denied in part.
IT IS SO ORDERED this 30" day of March 2023.
UNITED STATES DISTRICT JUDGE