The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
CHRISTI GILLESPIE,
Plaintiff,
v.
Case No. 23-CV-00395-SEH-CDL
DENTSPLY SIRONA, INC.,
Defendant.
OPINION AND ORDER1
Before the Court is Defendant Dentsply Sirona, Inc.’s (“Dentsply”)2 Motion
to Dismiss and Brief in Support. [ECF No. 10]. Dentsply moves to dismiss
Plaintiff Christi Gillespie’s First Amended Petition (“Amended Petition”) for
failure to state a claim upon which relief may be granted. For the reasons
stated below, the Amended Petition is dismissed with prejudice as to
immunity and free speech/Oklahoma Citizens Participation Act (“OCPA”)
Burk tort theories, but dismissed without prejudice as to the remaining Burk
1 Plaintiff requests a hearing. Upon review of the entire record, the Court finds that
a hearing is unnecessary in this matter and decides the issue based on the parties’
submissions.
2 Dentsply notes in its motion that Gillespie named the incorrect entity as the
defendant in this action. However, Dentsply does not move to dismiss on this
ground, and that issue does not impact the Court’s analysis on the issues raised in
the motion. Therefore, the Court will not substantively address the issue in this
order.
tort theories and as to Plaintiff’s wrongful discharge claim under
Pennsylvania law.
I. Background3
Dentsply employed Gillespie in a sales role. [ECF No. 2 at 29]. During her
employment with Dentsply, Gillespie was elected to the City Council for the
City of Broken Arrow, and she remained in office while continuing her
employment with Dentsply. [Id. at 29–32]. After the COVID-19 pandemic
began, Gillespie uploaded a live stream video to her public Facebook page
dedicated to her role as a city counselor in which she shared her opinions
about a proposed mask mandate. [Id. at 30]. Gillespie voted against the
proposal, and she posted another video to her public page in which she
explained her vote against the mandate. [Id. at 30–31].
Shortly after Gillespie uploaded the video, her area director with
Dentsply, Cindy Roach, contacted her to let her know that she “received
complaints about Gillespie’s behavior and conduct” at the City Council
meeting. [Id. at 31]. Roach also “made accusations and complaints to
Gillespie over the content of both of Gillespie’s Facebook pages as it related to
all things connected with Gillespie’s vote and stance on mask mandates.”
3 The Court does not make any factual determinations at this stage. Rather, this
background section includes the allegations made by Gillespie in the Amended
Petition. The Court views Gillespie’s factual allegations, as it must, in the light
most favorable to her as the non-moving party.
[Id.]. Gillespie removed the video from the Facebook page upon Roach’s
instruction. [Id.].
After Gillespie’s conversation with Roach, Kim Martin with Dentsply’s
human resources department contacted Gillespie to tell her that the company
would investigate the Facebook video and posts about the mask mandates.
[Id. at 32]. Dentsply terminated Gillespie a few days later. [Id.]. Martin told
her the reason was that “Gillespie had used her position at Dentsply to
further Gillespie’s city council agenda as it related to the mask mandate” and
that Gillespie violated the provision in her employment contract that she
“devote her best efforts ‘solely’ towards the business of the company.” [Id.].
Gillespie claims she was wrongfully terminated in violation of Oklahoma
and Pennsylvania public policy. [Id. at 32–36]. Dentsply moves to dismiss her
claims. [ECF No. 10].
II. Discussion
A. Standard
A defendant may move to dismiss under Fed. R. Civ. P. 12(b)(6) based on a
plaintiff’s failure to state a claim upon which relief can be granted. To survive
such a motion, “a plaintiff must plead sufficient factual allegations ‘to state a
claim to relief that is plausible on its face.’” Brokers’ Choice of Am., Inc. v.
NBC Universal, Inc., 861 F.3d 1081, 1104 (10th Cir. 2017) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “There is a low bar for surviving
a Rule 12(b)(6) motion to dismiss,” and a case “may proceed even if it strikes
a savvy judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.” Griffith v. El Paso Cnty., Colo., 129
F.4th 790, 815 (10th Cir. 2025) (cleaned up).
Although the facts alleged in the operative pleading are viewed in the
light most favorable to the non-moving party, “[f]actual allegations must be
enough to raise a right to relief above the speculative level” Twombly, 550
U.S. at 555. “In other words, dismissal under Rule 12(b)(6) is appropriate if
the complaint alone is legally insufficient to state a claim.” Brokers’ Choice,
861 F.3d at 1104–05.
Additionally, conclusory allegations need not be accepted. 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 on which relief can be based.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
B. Gillespie fails to state a claim for wrongful discharge under
Oklahoma public policy.
The default rule under Oklahoma law is that employees are “terminable
at-will, which means that either the employer or the employee may terminate
the employment relationship at any time for any reason or no reason at all
without incurring liability for doing so.” Patel v. Tulsa Pain Consultants, Inc.,
P.C., 511 P.3d 1059, 1062 (Okla. 2022). There is, however, a public policy
exception to the at-will employment rule that allows employees to bring a tort
action for wrongful discharge against their former employers. Burk v. K-Mart
Corp., 770 P.2d 24, 28 (Okla. 1989). These claims are commonly known as
“Burk tort” claims. To prove a Burk tort claim, a plaintiff must show the
following:
(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. Com’rs of Noble Cnty, 186 P.3d 928, 932 (Okla. 2008)
Burk tort claims are a “‘tightly circumscribed’ exception to the
employment at will doctrine.” Id. at 931. “An employer’s violation of a state-
declared public policy is the ‘fundamental predicate for a Burk tort.’” Booth v.
Home Depot, U.S.A., Inc., 504 P.3d 1153, 1156 (Okla. 2022) (quoting Darrow
v. Integris Health, Inc., 176 P.3d 1204, 1210 (Okla. 2008)). At bottom, Burk
torts are meant to provide a remedy for employees who are “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.”
Burk, 770 P.2d at 29 (emphasis added).
Dentsply argues that Gillespie’s amended petition should be dismissed
because she has not pled that her termination was made, in significant part,
for a reason that violates a clearly articulated public policy. [ECF No. 10 at
4–11]. Gillespie responds that that several Oklahoma public policies support
her Burk tort claim: (1) peace, health, and safety; (2) various governmental
immunities; and (3) freedom of speech principles and the Oklahoma Citizen’s
Participation Act (“OCPA”); and (4) exceptions to the at-will employment rule
identified in Groce v. Foster.4 [ECF No. 2]. As explained below, none of these
support a Burk tort claim.
1. Peace, health, and safety, as articulated by Gillespie, is not a
sufficient public policy to support a Burk tort claim.
Gillespie’s argument on this point is not particularly clear. But as the
Court understands it, Gillespie contends that the Oklahoma Supreme Court’s
decision in Ho v. Tulsa Spine & Specialty Hosp., L.L.C., 507 P.3d 673, 675–76
(Okla. 2021), and the Governor’s public statements support her theory of
recovery. [ECF No. 17 at 16–17]. Dentsply argues that Ho is meaningfully
distinguishable. [ECF NO. 21 at 5–6]. The Court agrees that Ho is
4 Gillespie is inconsistent between the First Amended Petition and her response to
the motion to dismiss about what precise authorities she relies on to show a
violation of Oklahoma public policy. Therefore, the Court will address only the
authorities sufficiently raised in the response brief.
meaningfully distinguishable, and finds that the Governor’s public
statements cannot support a Burk tort claim.
The plaintiff in Ho was a nurse at a Tulsa hospital. She alleged that the
hospital conducted “elective surgeries and required [her] to render services
without adequate availability and usage of personal protective equipment”
during the COVID-19 pandemic, despite an executive order that specifically
prohibited elective surgeries. 507 P.3d at 675–76. The plaintiff further
alleged that she expressed her safety concerns to the hospital, questioned
why elective surgeries were happening in violation of the executive order,
asked to be furloughed, and informed her manager that she would not come
to work due to safety concerns. Id. at 676.
The plaintiff’s employment was terminated after raising her concerns, and
she brough a Burk tort claim in Oklahoma state court. Id. In reviewing the
plaintiff’s claim, the Oklahoma Supreme Court reversed the lower court’s
dismissal and found that the Governor’s temporary emergency orders, which
fell under specific statutory authority from the legislature, sufficiently
“established public policy of curtailing an infectious disease.” Id. at 682. The
court highlighted that the purpose of the orders “was to protect the public,
patients, and hospital staffs, and to reduce the chances of contracting and
spreading the unprecedented contagious disease.” Id. The court further noted
that “[t]he ban on elective surgeries was only in effect for” a limited time
during which the Governor had specific authority under applicable statutes.
Id.
Gillespie acknowledges that “the underlying facts of Ho and the case at
bar are clearly distinguishable.” [ECF No. 17 at 17]. She nevertheless
contends that both cases “involve wrongful termination in response to legal
actions taken by employees in response to the COVID-19 pandemic,” and that
“there was a clear public policy [at the time she was terminated], per
Governor Stitt, that the issue of mask mandates was to be left to local
officials.” [Id.]. As the Court understands Gillespie’s argument, the relevant
public policy in this case can be found in the Governor’s public statements as
cited in news articles, not within a particular executive order issued under
specific statutory authority.5 [ECF No. 17 at 17].
In Ho, the Oklahoma Supreme Court relied upon the statutory authority
the Legislature granted the Governor to issue emergency orders and the
specific language and prohibitions contained in those orders. That specific
authority is what allowed the court to find a public policy of curtailing
infectious disease. Ho, 507 P.3d at 682. Gillespie cites no authority, and the
5 Gillespie alleges in the Amended Petition that nine unspecified executive orders
purportedly “allowed individual cities and local municipalities to pass certain
resolutions and ordinances related to the mask mandates adopted by certain cities.”
[ECF No. 2 at 30]. However, she fails to identify a specific executive order that
created the public policy she relies on for her claims, and she appears to abandon
that theory in her response brief. The Court will not make arguments on Gillespie’s
behalf.
Court is not aware of any, that allows the Governor’s public statements in a
news article to set public policy. Because Gillespie relies on these public
statements as opposed to a policy that can be found in a “clear mandate … as
articulated by constitutional, statutory, or decisional law,” she has failed to
state a claim upon which relief may be granted. Id. at 678. For that reason,
Dentsply’s motion to dismiss is granted as to this Burk tort theory.
2. The immunities cited by Gillespie do not support a Burk tort
claim.
Gillespie argues that the immunities set forth in 51 O.S. § 152.16 and
Okla. Const. art. 5, § 22 should be extended to prohibit private employers
from terminating an individual’s employment “for performing their civic
duties” related to their elected office. [ECF No. 17 at 17–19]. According to
Gillespie, the “compelling public policy” reason for extending these doctrines
to a private employer is that holding otherwise would “create a chilling effect
on local government.” [ECF No. 17 at 19]. Dentsply responds that these
protections are narrow and should not be expanded to this case. [ECF No. 21
at 6–7]. The Court agrees with Dentsply.
6 In her response to the motion to dismiss, Gillespie cites to section 152.1 of Title 12
of the Oklahoma statutes, rather than Title 51. However, there is no section 152.1
under Title 12, so the Court assumes she intended to cite to section 152.1 of Title
51, which is labeled “Sovereign immunity.”
a. Speech or Debate Clause
The Oklahoma Constitution provides limited protections for
representatives during legislative sessions: “Senators and Representatives
shall, except for treason, felony, or breach of the peace, be privileged from
arrest during the session of the Legislature, and in going to and returning
from the same, and, for any speech or debate in either House, shall not be
questioned in any other place.” Okla. Const. art. 5, § 22. This provision, called
the Speech or Debate Clause, protects state legislators “from suit calling for
judicial inquiry into their performance.” Hunsucker v. Fallin, 408 P.3d 599,
604 (Okla. 2017) (emphasis added). “The fundamental purpose of the clause
is to ensure that the legislative function may be performed free from a threat
of litigation.” Brock v. Thompson, 948 P.2d 279, 287 n.28 (Okla. 1997). The
immunity provided to legislators is predicated on an individual being
subjected to suit, not an individual who is terminated and then brings suit.
Therefore, Gillespie’s termination did not violate the Speech or Debate
Clause of the Oklahoma Constitution in contravention of an Oklahoma public
policy goal. Dentsply’s motion to dismiss Gillespie’s Burk tort claim is
granted as to this theory.
b. Sovereign immunity
Gillespie also relies on sovereign immunity under 51 O.S. § 152.1 to
support her Burk tort claim. [ECF No. 17 at 17–18]. In relevant part, the
Oklahoma sovereign immunity statue provides: “The state, its political
subdivisions, and all of their employees acting within the scope of their
employment, whether performing governmental or proprietary functions,
shall be immune from liability for torts.” 51 O.S. § 152.1(A). Gillespie could
potentially fall within the scope of the sovereign immunity statute because
she was an elected member of the Broken Arrow City Council. 51 O.S.
§ 152(7), (10)–(11) (including “elected or appointed officers” in the definition
of an employee of a “political subdivision,” which includes municipalities).
But again, Gillespie fundamentally misunderstands, underappreciates, or
perhaps ignores the scope and purpose of sovereign immunity. As stated in
the statute, sovereign immunity protects individuals “from liability for torts”
that they commit when “acting within the scope of their employment, whether
performing governmental or proprietary functions” Id. § 152.1(A). Gillespie is
not the one facing liability for a tort she committed in this action; rather, she
is seeking to recover damages from her former employer. Therefore, because
Gillespie is not facing liability for a tort she committed within the scope of
her position with the City of Broken Arrow, sovereign immunity is not
relevant to her allegations. Dentsply’s motion to dismiss Gillespie’s Burk tort
claim is granted as to this theory.
3. Gillespie’s First Amendment interests and the Oklahoma
Citizens Participation Act (“OCPA”) do not support a Burk
tort claim.
Gillespie contends that the protections provided by the First Amendment
and OCPA should serve as a basis for Burk tort claims. [ECF No. 17 at 20–
21]. Otherwise, she argues, “working class citizens would strongly be deterred
from holding local offices, and most of the candidates that would run for these
offices will either be independently wealthy, or retired.” [Id. at 21]. Dentsply
argues that First Amendment protections do not provide “private
employment job protection,” and that “the OCPA was enacted for the benefit
of individual defendants in litigation,” and it is “not implicated by Plaintiff’s
discharge from Dentsply.” [ECF No. 10 at 7–8, 10]. Dentsply is correct on
both fronts.
a. The First Amendment
The First Amendment to the United States Constitution provides:
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. Const. amend. I. The First
Amendment applies to “state or local government employers, such as the City
of [Broken Arrow], vis-à-vis the Fourteenth Amendment.” Brown v. City of
Tulsa, 124 F.4th 1251, 1266 (10th Cir. 2025) (citing Gitlow v. New York, 268
U.S. 652, 666 (1925)). A fundamental premise of the First Amendment is that
it is a protection from government action, it “does not restrict private
conduct.” Harris v. Quinn, 573 U.S. 616, 629 n.4 (2014).
Because Gillespie was terminated by her private employer, not a
governmental entity, the First Amendment is not relevant to her claim. She
nevertheless argues that the Court should extend First Amendment
protections to her under a Burk tort theory because “working class citizens
would [otherwise be] strongly … deterred from holding local offices, and most
of the candidates that would run for these offices will either be independently
wealthy, or retired,” and there would be “a chilling effect on participation in
local government.” [ECF No. 17 at 21]. Gillespie’s policy arguments do not
change the fundamental premise of First Amendment protections. The First
Amendment protects against government conduct, not private conduct.
Therefore, the First Amendment has no application here because Gillespie
was employed by a private employer, not a public one. And as Dentsply aptly
notes, providing private employees with seemingly unlimited protection for
anything they say or do under the guise of free speech “would swallow the
entire [Burk] doctrine.” [ECF No. 21 at 4]. Dentsply’s motion to dismiss is
granted as to this theory of Gillespie’s Burk tort claim.
b. The OCPA
The OCPA is Oklahoma’s anti-SLAPP law (strategic lawsuit against
public participation), and it does not set forth a public policy for plaintiffs to
use as a support for Burk tort claims. It is designed as a countermeasure for
SLAPP suits, “which are aimed at deterring public participation in decision-
making forums.” Anagnost v. Tomeck, 390 P.3d 707, 710 (Okla. 2017). Anti-
SLAPP laws are “the result of an increasing tendency by parties with
substantial resources to file meritless lawsuits against legitimate critics, with
the intent to silence those critics by burdening them with the time, stress,
and cost of a legal action.” Krimbill v. Talarico, 417 P.3d 1240, 1245 (Okla.
Civ. App. 2017).7
The OCPA operates by “allowing parties to file motions to dismiss legal
actions if the legal action relates or is in response to free speech.” Anagnost,
390 P.3d at 710. It does not create a civil cause of action. The OCPA’s
inherently defensive nature is also reflected in the statute’s stated purpose:
“[T]the legislative purpose of the OCPA is to weed out meritless suits while
protecting ‘the rights of a person to file meritorious lawsuits for demonstrable
injury.’” Krimball, 417 P.3d at 1246 (citing 12 O.S. § 1430(B)). Like the
argument in support of her First Amendment theory, Gillespie argues that
7 This case is cited for its persuasive effect. See Okla. S. Ct. R. 1.200(d)(2).
without allowing the OCPA to serve as a basis for her Burk tort claim,
“working class citizens would strongly be deterred from holding local offices,
and most of the candidates that would run for these offices will either be
independently wealthy, or retired,” and there would be a “chilling effect on
participation in local government.” [ECF No. 17 at 21]. The Court similarly
rejects this argument.
The OCPA is designed to protect defendants in civil actions when those
actions are initiated in retaliation for exercising free speech rights. Krimball,
417 P.3d at 1245; 12 O.S. § 1430(A). It is not an offensive weapon. As the
plaintiff in this case, Gillespie is in the opposite position of what the OCPA
contemplates. Because Burk tort claims must be “tightly circumscribed,” and
because this case presents the opposite situation contemplated in the OCPA,
the Court finds that Gillespie has failed to state a claim that her termination
was in violation of the OCPA and, consequently, in contravention of an
Oklahoma public policy goal. Dentsply’s motion to dismiss is granted as to
this Burk tort theory.
4. The at-will employment exceptions that Gillespie relies upon
under Groce v. Foster do not support a Burk tort Claim.
Gillespie argues that the following three categories of public policy
exceptions to the at-will employment rule under Groce v. Foster support her
Burk tort claim: (1) “performance of an important public obligation;” (2)
“exercise of a legal right or interest;” and (3) “performance of an act that
public policy would encourage or refusal to do something that public policy
would condemn, when the discharge is coupled with a showing of bad faith,
malice or retaliation.” [ECF No. 17 at 10]; 880 P.2d 902, 904–05. To the
extent that Gillespie argues the list identified in Groce contains specific
public policy exceptions that support a Burk tort claim, the Court disagrees.
This list represents “five public-policy areas in which wrongful-dismissal
claims may be actionable” that were identified by the Oklahoma Supreme
Court in a case decided before Burk. Groce, 880 P.2d at 904. Gillespie must
still identify a specific public policy goal in “Oklahoma’s constitutional,
statutory, or decisional law or in a federal constitutional provision that
prescribes a norm of conduct for Oklahoma.” Vasek v. Bd. of Cnty. Com’rs of
Noble Cnty., 186 P.3d 928, 932 (Okla. 2008).
Gillespie cites to several authorities8 in her response brief: Okla. Const.
art. 15, § 1; Okla. Const. pmbl.; Wood v. Georgia, 370 U.S. 375, 395 (1962); 12
O.S. § 1430; Tice v. Dougherty, 846 F. App’x 705 (10th Cir. 2021). [ECF No. 17
at 10–14]. Some of these authorities overlap with other issues that are
8 The Court acknowledges that Gillespie cites to other authorities for purposes of
comparison and to generally support her arguments. But the Court construes her
response brief as relying on these listed authorities as the Oklahoma constitutional,
statutory, or decisional law or federal constitutional provisions that support her
Burk tort claim.
specifically addressed above, but some are not, and they are also not
specifically referenced in the Amended Petition. “While it might be
appropriate for a court to consider additional facts or legal theories asserted
in a response brief to a motion to dismiss if they were consistent with the
facts and theories advanced in the complaint … a court may not consider
allegations or theories that are inconsistent with those pleaded in the
complaint.” Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001). The
above-identified authorities cited by Gillespie are in addition to, but are not
inconsistent with, the Burk tort theories raised in the Amended complaint.
Therefore, the Court will consider them.
First, Okla. Const. art. 15, § 1 does not support Gillespie’s Burk tort claim.
That provision requires “[a]ll public officers” to swear an oath before taking
office. Id. Gillespie does not claim that she was terminated before taking the
oath or that Dentsply otherwise interfered with her ability to take the oath
before she took office. In fact, she asserts that she did take an oath, [ECF No.
17 at 11], so this provision does not support her Burk tort claim. Additionally,
the oath itself is exceedingly broad. Officials must swear to “support, obey,
and defend the Constitution of the United States, and the Constitution of the
State of Oklahoma,” and that they will “faithfully discharge [his or her]
duties … to the best of [his or her] ability.” Okla. Const. art. 15, § 1. But the
Oklahoma Supreme Court requires Burk torts to be “tightly circumscribed,”
Vasek v. Bd. of Cnty. Com’rs of Noble Cnty., 186 P.3d 928, 931 (Okla. 2008)
(internal quotation marks and citation omitted). Gillespie identifies no outer
boundaries for what conduct by a private employer would prohibit an
employee from discharging the duties of an elected office to the best of his or
her ability. Dentsply’s motion to dismiss Gillespie’s Burk tort claim is granted
as to this theory.
Second, and for a similar reason, the preamble to the Oklahoma
Constitution does not support Gillespie’s Burk tort claim. The preamble
states: “Invoking the guidance of Almighty God, in order to secure and
perpetuate the blessing of liberty; to secure just and rightful government; to
promote our mutual welfare and happiness, we, the people of the State of
Oklahoma, do ordain and establish this Constitution.” Okla. Const. preamb.
These broad principles are not “tightly circumscribed” such that this
provision can support a Burk tort claim. Dentsply’s motion to dismiss
Gillespie’s Burk tort claim is granted as to this theory.
Third, Gillespie cites to Wood v. Georgia, 370 U.S. 375, 395 (1962) for the
proposition that elected officials should “be allowed to freely express
themselves on matters of current public importance.” [ECF No. 17 at 11].
Gillespie’s argument on this point is not well developed, but it appears that
she is invoking the First Amendment issues raised in that case. For the
reasons explained above, the First Amendment does not apply to Gillespie’s
Burk tort claim against her private employer. Dentsply’s motion to dismiss
Gillespie’s Burk tort claim is granted as to this theory.
Fourth, Gillespie cites to 12 O.S. § 1430, the OCPA, as supporting her
Burk tort claim. [ECF No. 17 at 12–13]. The OCPA does not support
Plaintiff’s Burk tort claim for the reasons explained above. Dentsply’s motion
to dismiss Gillespie’s Burk tort claim is granted as to this theory.
Fifth, Gillespie cites to Tice v. Dougherty, 846 F. App’x 705 (10th Cir.
2021), as supporting her Burk tort claim. [ECF No. 17 at 13]. Tice was an
action brought under 42 U.S.C. § 1983 for alleged First Amendment
violations. 846 F. App’x at 706–07. Again, and for the reasons explained
above, the First Amendment does not to Gillespie’s Burk tort claim.
Dentsply’s motion to dismiss Gillespie’s Burk tort claim is granted as to this
theory.
C. Dismissal of Gillespie’s Burk tort claim is with prejudice as to
the immunity and free speech/OCPA theories, but it is without
prejudice as to the remaining theories.
Dentsply requests that the First Amended Petition be dismissed with
prejudice. [ECF No. 10 at 1]. Dismissal with prejudice is appropriate when a
pleading “fails to state a claim under Rule 12(b)(6) and granting leave to
amend would be futile.” Knight v. Mooring Capital Fund, LLC, 749 F.3d
1180, 1190 (10th Cir. 2014). “A proposed amendment is futile if the
complaint, as amended, would be subject to dismissal.” United States ex rel.
Barrick v. Parker-Migliorini Int’l, LLC, 878 F.3d 1224, 1230 (10th Cir. 2017)
(internal quotation marks and citation omitted).
The Court finds that amendment would not be entirely futile, at least with
respect to Plaintiff’s Burk tort claim. However, certain Burk tort theories that
Gillespie asserts cannot survive amendment: the immunity theories; and the
free speech/OCPA theory. Gillespie’s arguments on this front are specious. As
explained in more detail above, Gillespie either ignores, underappreciates, or
fundamentally misunderstands the limited scope and purpose of the Speech
or Debate Clause, sovereign immunity, the First Amendment, and the OCPA.
Extending those authorities to Gillespie’s Burk tort claim would be wholly
inappropriate because those authorities do not apply to private employers or
are otherwise inapplicable. The Court finds amendment under these theories
would be futile. However, the Court also finds that amendment would not
necessarily be futile under a different theory or theories raised in the First
Amended Petition or in Gillespie’s response to Dentsply’s motion to dismiss.
D. Plaintiff fails to state a claim for wrongful discharge under
Pennsylvania public policy.
Gillespie asserts a wrongful discharge tort claim under Pennsylvania law
as an alternative to her Burk tort claim. [ECF No. 2 at 34–36]. Dentsply
argues that Pennsylvania law does not apply to Gillespie’s wrongful
discharge claim. [ECF No. 10 at 11]. Plaintiff responds, in conclusory fashion,
that her “employment contract with Defendant, had a Pennsylvania choice of
law provision.” [ECF No. 17 at 21–22].
Dentsply is correct that Pennsylvania law does not apply to Gillespie’s
claim. This case was removed from state court on the basis of federal
diversity jurisdiction under 28 U.S.C. § 1332(a). [ECF No. 2 at 3]. “A federal
court sitting in diversity applies the substantive law of the state in which it
sits.” Stenson v. Edmonds, 86 F.4th 870, 880 (10th Cir. 2023). This Court sits
in Oklahoma, so Oklahoma law applies, not Pennsylvania law.
Gillespie also attempts to rely on a choice of law provision in an agreement
she had with Dentsply. [ECF No. 17 at 21–22]. But Dentsply correctly argues
that the agreement is not relevant because Gillespie does not bring her claim
under its terms. [ECF No. 21 at 7–8]. The agreement specifically states: “This
Agreement shall be construed and enforced in accordance with the laws and
judicial decisions of the Commonwealth of Pennsylvania.” [ECF No. 2 at 40]
(emphasis added). Because Gillespie’s claim is for wrongful discharge under
Pennsylvania public policy—not the employment agreement—the Court
cannot apply Pennsylvania law. See Almeida v. BOKF, NA, 471 F.Supp.3d
1181, 1191 (N.D. Okla. 2020) (“a plaintiff’s tort claims will fall outside a
[choice of law provision] unless its language indicates some intent to the
contrary [because] a choice-of-law provision, like any other agreement, should
stretch only so far as its express terms allow.”).
Although amendment would be futile in this district, it would not
necessarily be futile in a Pennsylvania federal court. Therefore, Dentsply’s
motion to dismiss Plaintiff’s wrongful discharge claim under Pennsylvania
law is dismissed without prejudice.
III. Conclusion
For the reasons stated above, Dentsply’s motion to dismiss is GRANTED.
Dismissal of the First Amended Petition is with prejudice as to the immunity
and free speech/OCPA Burk tort theories, but it is without prejudice as to the
remaining Burk tort theories. Dismissal is also without prejudice as to
Gillespie’s claim for wrongful discharge under Pennsylvania law.
Gillespie also seeks leave to amend if the Court grants Dentsply’s motion
to dismiss. [ECF No. 17 at 24]. Gillespie does not provide a proposed
amended pleading, separately move to do so, or provide any basis for her
request. Rather, she requests in conclusory fashion that “[i]f the Court feels
inclined to grant Defendant’s motion, in the alternative, Plaintiff respectfully
requests this Court to grant Plaintiff leave to amend her Amended Petition in
accordance with the contents of this motion pursuant to Rule 15 of the
Federal Rules of Civil Procedure to cure any deficiencies.” [Id.]. Courts have
no obligation to recognize “perfunctory, conditional requests” for leave to
amend that are made in a response to a motion to dismiss. Sullivan v.
University of Kansas Hosp. Auth., 844 F. App’x. 43, 52 (10th Cir. 2021).
Therefore, the Court denies Plaintiff's request for leave to amend her
pleading. A separate judgment will be entered.
DATED this 10th day of October, 2025.
Sara E. Hill
UNITED STATES DISTRICT JUDGE
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