Brown v. Dynamic Gaming Solutions LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ALLISON B. BROWN, )

)

Plaintiff, )

)

v. ) Case No. CIV-22-917-D

)

DYNAMIC GAMING SOLUTIONS, LLC, )

et al., )

)

Defendants. )

O R D E R

Before the Court is Plaintiff’s Motion for Partial Summary Judgment [Doc. No. 32]

under Fed. R. Civ. P. 56. Plaintiff seeks a judgment in her favor on four claims related to

the termination of her employment, leaving unresolved four other claims and an award of

damages. The Motion addresses the following theories of recovery: a retaliation claim

against all defendants under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 513(a);

a wrongful discharge claim against Defendant Dynamic Gaming Solutions, LLC

(“Dynamic”) under Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989); and tort claims

against Defendants Mark Larson (“Larson”) and Travis Skaggs (“Skaggs”) for tortious

interference with existing and prospective employment relationships.1

1 The Complaint also contains the following claims: disability discrimination under the

Americans with Disabilities Act of 1990 as amended, 42 U.S.C. § 12101 et seq.; gender

discrimination and retaliation under Title VII of the Civil Rights Act of 1964 as amended,

42 U.S.C. § 2000e et seq.; FLSA pay violations; and a violation of the Oklahoma Protection of

Labor Act, Okla. Stat. tit. 40, § 165.1 et seq.

Defendants have filed a timely response [Doc. No. 34] to the Motion, and Plaintiff

has replied [Doc. No. 36]. Thus, the Motion is fully briefed and at issue.

Factual and Procedural Background

Plaintiff brings this employment action against her former employer, Dynamic, and

two managerial employees who allegedly made the decision to terminate her employment.

Plaintiff claims her termination was motivated by disability and gender discrimination and

retaliation for making internal complaints of FLSA violations and Oklahoma tax violations

by Dynamic. Plaintiff alleges that Defendants gave pretextual reasons for terminating her

employment, that is, an unexcused absence from work and “disgruntled” behavior. See

Compl. [Doc. No. 1] ¶ 38. Plaintiff also claims that Larson and Skaggs tortiously interfered

with her relationship with Dynamic; these claims survived a motion to dismiss. See 2/6/23

Order [Doc. No. 18]. Following discovery, Plaintiff filed the instant Motion within the

deadline for dispositive motions.

Standard of Decision

Summary judgment is proper “if the movant shows there is no genuine issue as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). 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. All facts and reasonable inferences must be viewed in the light most favorable

to the nonmoving party. Id.

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). If the movant carries this burden, the nonmovant must then go beyond the

pleadings and “set forth specific facts” that would be admissible in evidence and that show

a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324. “To

accomplish this, the facts must be identified by reference to affidavits, deposition

transcripts, or specific exhibits incorporated therein.” Adler v. Wal-Mart Stores, Inc., 144

F.3d 664, 671 (10th Cir. 1998); see Fed. R. Civ. P. 56(c)(1)(A). The Court’s inquiry is

whether the facts and evidence identified by the parties present “a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as

a matter of law.” Anderson, 477 U.S. at 251-52.

Statement of Facts

Many facts presented by Plaintiff are undisputed. Plaintiff worked for Dynamic

from September 28, 2020, to September 28, 2021. She began as a temporary employee

but, after six months, accepted a full-time salaried position of administrative assistant

offered to her by Dynamic’s owner, Larson. Plaintiff was supervised by Dynamic’s

accountant, Paul Moen (“Moen”), and reported to its controller, Neal Remmers

(“Remmers”), who was training to assume Moen’s role. In mid-September 2021, Larson

and Remmers discussed promoting Plaintiff to an accounting position with a pay raise. In

this discussion, they expressed that Plaintiff would need to break “the 8-5 hourly mindset.”

See Pl.’s Mot. Summ. J. at 2, ¶ 6.

Plaintiff was informed of the promotion and her pay raise by Moen and Remmers

on Friday afternoon, September 24, 2021. Plaintiff had expected a $10,000 raise but

learned it would be $7,000. According to Remmers, this meeting began around 4:00 p.m.,

and when it ended, Plaintiff complained of unfair treatment, was visibly upset, and went

home.2 Plaintiff has testified that she worked her full shift on September 24, 2021, and

Defendants present no evidence to the contrary.

On the following Monday, September 27, 2021, Plaintiff met with Moen and

discussed her belief that she was owed overtime pay because Dynamic had misclassified

her position for FLSA purposes. Larson and Moen had previously decided that Plaintiff’s

work qualified for “exempt” status. Moen told Plaintiff he would talk to Skaggs, and Moen

then talked to Skaggs and Larson about Plaintiff’s complaint that she was not an exempt

employee under FLSA. Skaggs has testified that Plaintiff also told Remmers she should

qualify for overtime pay and Remmers talked to Skaggs about it. According to Skaggs,

2 Defendants attempt to dispute these facts and thirteen other enumerated facts by stating

an evidentiary objection, supported by a copy of Remmers’ obituary: “Mr. Remmers is deceased

and Plaintiff has no means of authenticating any unsigned memorandum allegedly written by

Mr. Remmers” or “Plaintiff has no means of authenticating any alleged conversations or

correspondence involving Mr. Remmers.” See Defs.’ Resp. Br. at 2-4, ¶¶ 7, 8, 9, 20, 23, 24, 25,

26, 27, 28; id. at 6-7, ¶¶ 51, 52, 54, 55. This objection is not otherwise explained in Defendants’

brief. It is primarily asserted in response to any fact for which Plaintiff includes a citation to a

document created by Remmers. Plaintiff says that Dynamic previously produced this document

for a related proceeding before the Oklahoma Employment Security Commission. See Pl.’s Reply

Br. at 6-7.

Rule 56(c) permits a party to dispute a fact by showing “an adverse party cannot produce

admissible evidence to support the fact” and permits an objection to summary judgment materials

on the ground that “a fact cannot be presented in a form that would be admissible in evidence.”

See Fed. R. Civ. P. 56(c)(1)(b) and (c)(2). Defendants do not satisfy either means of challenging

Plaintiff’s facts or materials.

Plaintiff was upset on September 27, 2021, about being misclassified as an exempt

employee for FLSA purposes and being owed overtime pay and “threatened to turn

[Dynamic] in for unfair labor practices.” See Pl.’s Mot., Ex. 11 [Doc. No. 32-11]. Skaggs

also discussed Plaintiff’s comments about her exempt status with Larson on September 27

and discussed them with Plaintiff during her termination meeting. See Pl.’s Mot., Ex. 5

[Doc No. 32-5], Dynamic’s Suppl. Resp. to Pl.’s Disc. Req. at 11-12 (Answer to Interrog.

No. 16).

Also on September 27, 2021, Plaintiff raised a concern that Dynamic was not

complying with Oklahoma tax laws regarding sales and use taxes. Plaintiff was worried

about her potential liability based on the duties of her new accounting position. Plaintiff

understood that she would be submitting reports to the Oklahoma Tax Commission.

Remmers told Plaintiff that he would look into it, and he discussed the tax issue with Moen

and did some research. Remmers made reassuring statements to Plaintiff, but Plaintiff

remained concerned and said she would go directly to the Oklahoma Tax Commission to

ask whether Dynamic was handling the tax issues appropriately. Skaggs also discussed the

tax issue with Moen and Remmers, and discussed “Plaintiff’s complaints of ‘tax evasion’

with Larson and Plaintiff.” See Pl.’s Mot., Ex. 11 [Doc. No. 32-11].

Skaggs has characterized Plaintiff’s comments to her supervisors on September 27

about improper tax treatment and improper FLSA employee status as “disparagement” of

Dynamic. Skaggs previously testified about this characterization as follows:

Well, I think, you know, accusing a company of tax evasion is fairly

disparaging. And accusing a company of, you know, improper, you know,

pay – status as far as exempt or nonexempt and not following those laws and

procedures is disparaging as well, yeah.

See Pl.’s Mot., Ex. 8 [Doc. No. 32-8], Tr. 30:11-18. Later in the workday on September 27,

Plaintiff began experiencing a migraine headache and went home; it is disputed whether

Plaintiff informed Remmers and obtained permission to leave work.

When Plaintiff returned to work the following day on September 28, 2021, Skaggs

informed her that Dynamic had terminated her employment. It is unclear who made the

termination decision. Skaggs has testified that he and Remmers were involved in the

decision. In his testimony, Skaggs explained the bases for his decision were Plaintiff’s

“leaving her post without permission” on two consecutive workdays, “the negativity that

went along with her disparaging statements,” and “[t]he negative impact it had on the rest

of the employees, because it wasn’t just [Plaintiff] having a closed door meeting.” Id. at

30:25-31:12. In discovery responses, however, Skaggs has stated that Larson instructed

him to fire Plaintiff, and Larson has taken responsibility for the decision. Larson has

explained his decision as follows:

I made the decision to terminate Plaintiff on September 27, 2021, after she

caused a scene and left work early. The basis for her termination included

having left work several hours early on September 24 and 27, 2021, without

using her Paid Time Off (“PTO”), because Plaintiff caused a scene in front

of her colleagues about the dollar amount of the raise tied to her promotion,

because she would not adhere to Dynamic’s limit of two smoke breaks per

day after repeated counseling on the same, and disparaged Dynamic to her

co-workers including, by, falsely, accusing Dynamic of tax evasion.

Pl.’s Mot., Ex. 4 [Doc. No. 32-4], Larson’s Resp. to Pl.’s Disc. Req. at 8 (Answer to

Interrog. No. 5); see also Pl.’s Mot., Ex. 10 [Doc No. 32-10], Skaggs’ Resp. to Pl.’s Disc.

Req. at 7-8 (Answer to Interrog. No. 5) (stating same reasons for termination).

Defendants have stated in discovery that Skaggs discussed with Plaintiff during the

September 28 termination meeting her “recent inappropriate actions in the workplace,”

which included excessive smoke breaks, leaving work early, complaining about her pay

raise, and “disparaging Dynamic to her co-workers, including claiming Dynamic engaged

in tax evasion.” See Pl.’s Mot., Ex. 10, Skaggs’ Resp. to Pl.’s Disc. Req. at 7 (Answer to

Interrog. No. 4). They also discussed in the September 28 meeting “Plaintiff’s comments

about her exempt status.” See Pl.’s Mot., Ex. 5, Dynamic’s Suppl. Resp. to Pl.’s Disc. Req.

at 11-12 (Answer to Interrog. No. 16).

Plaintiff’s Motion

Plaintiff contends the undisputed facts establish the termination of her employment

was retaliatory, that is, a motivating factor in the decision was her complaint about FLSA

violations. Similarly, Plaintiff contends the undisputed facts establish her discharge from

employment violated public policy, that is, a substantial factor in the decision was her

complaints about state tax law violations. As to Plaintiff’s tortious interference claims, she

contends these same facts establish that Larson and Skaggs are personally liable for her

termination because, in deciding to terminate her employment, Larson and Skaggs were

not acting in Dynamic’s interest but, instead, were motivated by their own personal

hostility toward Plaintiff’s complaints of unlawful activity.

Discussion

A. FLSA Retaliation Claim Against All Defendants

Plaintiff asserts that the undisputed facts establish all elements of a FLSA retaliation

claim under 29 U.S.C. § 215(a)(3). See Pl.’s Mot. at 11. In particular, Plaintiff contends

the statements of decisionmakers showing retaliatory animus and the timing of her

termination demonstrate a causal connection between her protected FLSA activity and the

termination of her employment and, therefore, prove her termination was motivated by

retaliation. Plaintiff argues that Defendants’ statements regarding her termination and

admission that her exempt status was discussed in her termination meeting are direct

evidence that her FLSA complaint was a motivating factor in the decision. Where all

elements of retaliatory discharge are established, Plaintiff asserts that she is entitled to

summary judgment on the issue of Defendants’ liability for this claim.

Defendants oppose Plaintiff’s Motion on the FLSA retaliation claim by arguing that

Plaintiff cannot prove an overtime wage violation occurred. See Defs.’ Resp. Br. at 11-12.

This argument is misguided because such proof is not an element of a retaliation claim.

Protected activity under § 215(a)(3) includes an employee’s complaint to her employer of

a belief that a wage violation has occurred. See McKenzie v. Renberg’s Inc., 94 F.3d 1478,

1486 (10th Cir. 1996) (Section 215(a)(3) “protects employees who articulate a good faith,

though unproven, belief that the employer is violating their rights under the FLSA,” and

“applies to the unofficial assertion of rights through complaints at work”); see also Acosta

v. Foreclosure Connection, Inc., 903 F.3d 1132, 1135 (10th Cir. 2018). (FLSA’s “anti-

retaliation provision does not require an actual violation to be proved”).

Defendants also argue that, although one reason for Plaintiff’s termination was her

complaint about “pay,” this refers to Plaintiff’s dissatisfaction with the amount of her raise

and not unpaid overtime work. See Defs.’ Resp. Br. at 12 (“In reality, Plaintiff’s complaints

were about her raise.”). This argument lacks a citation of factual support in the record.

Assuming Defendants are relying on their answers to interrogatories, which cast the

decision as being based on Plaintiff’s negative reaction to her pay raise, the undisputed

facts also show that Plaintiff complained at the time of her termination of being classified

as an exempt employee and not receiving overtime pay. Skaggs has testified under oath

that Plaintiff’s disparagement of Dynamic resulting in her termination included her

complaint of FLSA violations. Defendants have also admitted that Skaggs discussed with

Plaintiff during her termination meeting her comments about FLSA exempt status.

On the record presented, the Court finds that the undisputed facts show Plaintiff’s

FLSA complaint was a factor in the decision to terminate her employment with Dynamic.

The Court further finds Plaintiff has presented direct evidence of retaliation; statements of

a person involved in Plaintiff’s termination establish a direct link between the termination

decision and Plaintiff’s complaint of an FLSA violation. See, e.g., Fye v. Okla. Corp.

Comm’n, 516 F.3d 1217, 1226-27 (10th Cir. 2008) (direct evidence is evidence that, if

believed, proves retaliatory motivation, such as statements by decisionmakers that show

retaliatory animus). In addition to evidence of FLSA retaliation, however, the undisputed

facts also show the termination decision was based on Plaintiff’s complaint that Dynamic

was violating state tax laws. In other words, Plaintiff also has direct evidence to support a

state-law retaliation claim based on other allegedly protected activity, discussed infra.

The Tenth Circuit has explained the proper analysis for FLSA claims of retaliatory

discharge under 29 U.S.C. § 215(a)(3) as follows:

When the immediate cause or motivating factor of a discharge is the

employee’s assertion of statutory rights, the discharge is discriminatory

under § 215(a)(3) whether or not other grounds for discharge exist. If

retaliation is not the motivating factor, then the discharge is not unlawful.

The motivating factor test is equivalent to a “but for” inquiry – a discharge

is unlawful under § 215(a)(3) only if it would not have occurred but for the

retaliatory intent.

McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1483 (10th Cir. 1996) (internal quotations and

citations omitted). “[I]f a jury finds that a FLSA retaliation plaintiff would have been

terminated regardless of her FLSA activity, then it is required to find in favor of the

defendants.” Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997)

(quoting McKenzie, 94 F.3d at 1484). Here, given Plaintiff’s evidence of two distinct

retaliatory motivations for her termination, the Court finds that reasonable jurors could

reach different conclusions on the question of whether Plaintiff’s FLSA protected activity

was the motivating factor under the but-for standard, that is, whether she would have been

discharged regardless of her FLSA complaint.

Further, although Plaintiff seeks to hold all defendants liable for FLSA retaliation,

Plaintiff does not address in her Motion the issue of each defendant’s liability. The Tenth

Circuit has held that FLSA’s anti-retaliation provision applies to “any person” who

discriminates against an employee because the employee has filed a complaint and thus it

is not limited to actual employers covered by FLSA. See Acosta v. Foreclosure

Connection, Inc., 903 F.3d 1132, 1136 (10th Cir. 2018). However, the Tenth Circuit has

not decided the question of when an individual supervisor or manager can be held liable.

See Diaz v. Longcore, 751 F. App’x 755, 759 (6th Cir. 2018) (liability for FLSA retaliation

extends only to “a person acting on behalf of the actual employer . . . with respect to the

employment relationship”); see also Garner v. Int’l Union, United Auto. Workers of Am.,

No. 21-CV-01860-CMA-NYW, 2022 WL 860613, *7 (D. Colo. Mar. 23, 2022),

(magistrate judge’s report and recommendation), adopted, 2022 WL 1102526 (D. Colo.

Apr. 13, 2022) (noting “lack of binding authority establishing that a person may sue his or

her labor organization for retaliation under the FLSA” and surveying case law regarding

non-employer liability). Considering that Plaintiff’s Motion omits the individual liability

of Skaggs and Larsen for FLSA retaliation, the Court cannot grant summary judgment

against them on Plaintiff’s FLSA retaliation claim on the existing record.

For these reasons, the Court finds that Plaintiff has not shown she is entitled to

summary judgment on her FLSA retaliation claim.

B. Burk Wrongful Discharge Claim Against Dynamic

Plaintiff also asserts that the undisputed facts show her internal complaint of tax

evasion was a significant factor in Dynamic’s termination of her employment and,

therefore, establish Dynamic’s liability for the public policy tort recognized in Burk.

Plaintiff contends she was acting consistent with a clear public policy by exposing “tax

fraud and the crime associated therewith” and “refus[ing] to participate in illegal activity.”

See Pl.’s Mot. at 17 (citing Okla. Stat. tit. 68, § 246, which criminalizes verification of a

false report to the Oklahoma Tax Commission). Plaintiff cites case law articulating a

public policy “to encourage the disclosure of criminal activity” and holding that reporting

fraud in the use of public funds will support a wrongful discharge claim under Burk. See

id. at 17-18 (quoting Darrow v. Integris Health, Inc., 176 P.3d 1204, 1215 n.50 (Okla.

2008), and citing Booth v. Home Depot, U.S.A., Inc., 504 P.3d 1153, 1156 (Okla. 2022)).

In opposition to the Motion, Dynamic argues that Plaintiff was an at-will employee

and “the Burk exception . . . does not apply here.” See Defs.’ Resp. Br. at 13. Dynamic

contends Plaintiff was not discharged “for refusing to perform an illegal activity or for

exposing some wrongdoing by Dynamic . . . [because] there was no illegal activity

associated with her role, and there was no illegality to expose.” Id. Dynamic relies on an

October 2021 email communication from an employee of the Oklahoma Tax Commission

relating a nonprecedential ruling consistent with Dynamic’s position that no consumer use

taxes are owed. See Defs.’ Resp. Br., Ex. 3 [Doc. No. 34-3].

The Court again finds that Dynamic is misguided to oppose Plaintiff’s retaliation

claim by arguing the validity of its position regarding Oklahoma tax law. Dynamic cites

no legal authority for the proposition that an element of a Burk claim is proof that the

employer violated the law. To prevail on her wrongful discharge claim, however, Plaintiff

must prove that she engaged in protected activity, that is, conduct “consistent with a clear

and compelling public policy” that the law recognizes as warranting protection. See Burk,

770 P.2d at 29; see also Darrow, 176 P.3d at 1214 (employee’s report of falsified records

must come “within the scope of protected activity that has a public impact”).

Here, the Court finds that Plaintiff has failed to establish as a matter of law that she

engaged in protected activity under Burk. Contrary to Plaintiff’s suggestion that exposing

criminal activity is necessarily protected, the Oklahoma Supreme Court has “held that

reporting criminal activity is not infused with the necessary clear and compelling public

policy sufficient to protect the employee from discharge under the tort established in Burk.”

Booth, 504 P.3d at 1156. The court explained: “If a criminal statute is violated and the

employee reports the crime only to be fired, this Court will not find that the Legislature has

created public policy unless the public interest for reporting the crime is completely

entwined with the criminal law.” Id. Plaintiff cites an Oklahoma tax law that makes it a

felony to verify a false report or false return to the Oklahoma Tax Commission. See Pl.’s

Mot. at 17 (citing Okla. Stat. tit. 68, § 246). Plaintiff does not explain how this statute is

implicated by Dynamic’s nonpayment of sales or use taxes.

Turning to a possible public interest in enforcing tax obligations, Plaintiff clearly

complained about Dynamic’s nonpayment of taxes; Defendants characterized her conduct

as accusing Dynamic of tax evasion. A careful examination of the summary judgment

record shows, however, that Plaintiff engaged in the following conduct: she expressed a

concern that Dynamic was violating Oklahoma law requiring payment of sales and use

taxes; she questioned whether Dynamic’s management had adequately considered the

issue; and she threatened to ask the Oklahoma Tax Commission for an answer. These facts

do not make clear whether Plaintiff did more than question Dynamic’s nonpayment of

taxes. Plaintiff does not explain the basis of any belief that Dynamic was evading a tax

obligation, such as some specialized knowledge of Oklahoma tax law. To establish

protected activity, Plaintiff must show more than a difference of “opinion about the way

an organization should be managed” or “a rumor of wrongdoing when they have no idea if

the rumor is true.” See Barker v. State Ins. Fund, 40 P.3d 463, 470-71 (Okla. 2001).

In short, on the record presented, the Court cannot say whether Plaintiff engaged in

protected activity within the meaning of Burk. Therefore, the Court finds that Plaintiff has

not shown she is entitled to summary judgment on her wrongful discharge claim.

C. Tortious Interference Claims Against Larson and Skaggs

Finally, Plaintiff asserts that a manager’s termination of an employee for reasons

that violate public policy and the employee’s legally protected rights amounts to tortious

interference with the employment relationship. She argues that a person who acts for such

reasons cannot establish any justification, privilege, or excuse for interfering with the

relationship. See Reply Br. at 10 (quoting Mason v. Okla. Turnpike Auth., 115 F.3d 1442,

1454 (10th Cir. 1997), overruled on other grounds, TW Telecom Holdings Inc. v. Carolina

Internet Ltd., 661 F.3d 495 (10th Cir. 2011)). Of course, Larson and Skaggs deny acting

for unlawful reasons; they assert that removing Plaintiff from the workplace furthered

Dynamic’s interests and there are no facts to suggest they acted “in furtherance of their

own personal interests” or “benefitted individually” from Plaintiff’s termination. See

Defs.’ Resp. Br. at 13-14.

Plaintiff’s position, based on Mason, is that proof of retaliatory intent by Larson and

Skaggs in making the termination decision establishes tortious interference as a matter of

law. Plaintiff quotes the following passage from the Tenth Circuit’s opinion in Mason:

When a corporate officer or director seeks the termination of a fellow

employee for reasons that violate both public policy and the employee’s

constitutional rights, that officer or director does not act with an honest intent

or for a bona fide organizational purpose, and the factors suggested by the

Restatement weigh heavily in favor of finding that such interference is not

justified. See, e.g., Petroskey v. Lommen, Nelson, Cole, & Stageberg, 847

F.Supp. 1437, 1450 (D. Minn. 1994), aff’d, 40 F.3d 278 (8th Cir.1994)

(noting that an employer’s officer or agent may be liable for tortious

interference if the motivation underlying the interference was sufficiently

improper to establish a claim against the employer for wrongful discharge).

Mason, 115 F.3d at 1454.3 Notably, however, the court in Mason simply found that an

individual defendant’s status as a member of the employer’s governing board did not

preclude a tortious interference claim against him, and that the trial evidence was sufficient

to support the jury’s finding that the board member, who participated in and encouraged

the plaintiff’s wrongful discharge, was liable for tortious interference. The court did not

hold, as apparently argued by Plaintiff, that every employee who proves a wrongful

discharge claim is automatically entitled to a finding that the officers or managers who

participated in the unlawful decision committed tortious interference.

In this case, the Court has not found that summary judgment is proper on any

retaliation or wrongful discharge claim. Thus, without a determination that Plaintiff was

terminated for unlawful reasons, the Court cannot say that any tortious interference was

committed by either Larson or Skaggs, even if Plaintiff’s view of the law were correct.4

More importantly, the Court is not convinced that Plaintiff correctly states Oklahoma law

regarding tortious interference claims against managerial employees in wrongful discharge

cases. She has provided no legal authority, other than Mason, to support her expansive

view, and independent research reveals that other courts have rejected it. See, e.g., Grillot

v. Oklahoma ex rel. Univ. of Okla. Bd. of Regents, No. CIV-19-0241-F, 2019 WL 3558183,

3 In Mason, the Tenth Circuit addressed an unanswered question of Oklahoma law:

“whether a corporate officer, director or other employee can be held liable for tortiously interfering

in a corporate contract.” Id. at 1453. The court reached an affirmative answer, with which the

Oklahoma Supreme Court later agreed. See Martin v. Johnson, 975 P.2d 889, 896 (Okla. 1998).

4 Of course, the Court also could not say that both Larson and Skaggs are responsible for

any tortious interference that occurred because the undisputed facts do not establish what role

Skaggs played in the termination decision.

at *4 (W.D. Okla. Aug. 5, 2019); Graham v. Cargill, Inc., No. CIV-10-0977-HE, 2011 WL

5429316, *4 (W.D. Okla. Nov. 9, 2011). Therefore, the Court finds that Plaintiff has not

shown that summary judgment on her tortious interference claims against Larson and

Skaggs is proper.

Conclusion

For these reasons, the Court finds that Plaintiff has not established that she is entitled

to summary judgment on any claim addressed by her Motion.

IT IS THEREFORE ORDERED that Plaintiffs Motion for Partial Summary

Judgment [Doc. No. 32] is DENIED. This case will proceed to trial on all claims stated in

the Complaint.

IT IS SO ORDERED this 13" day of May, 2024.

Md □□ OiPt

TIMOTHY D. DeGIUSTI

Chief United States District Judge

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