DeLong vs. Oklahoma: Motion To Dismiss

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 1 of 30
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA
Case No. 5:14-cv-01439-C
(1) MICHAEL DELONG,
Plaintiff,
v.
(1) STATE OF OKLAHOMA ex rel THE OKLAHOMA DEPARTMENT OF MENTAL
HEALTH AND SUBSTANCE ABUSE SERVICES;
(2) THE BOARD OF DIRECTORS FOR THE OKLAHOMA DEPARTMENT OF
MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES;
(3) TERRY WHITE, individually and as the Commissioner and Chief Executive Officer of
the Oklahoma Department of Mental Health And Substance Abuse Services;
(4) DURAND CROSBY, individually and as the Chief Operating Officer of the Oklahoma
Department of Mental Health And Substance Abuse Services;
(5) CRATUS DEWAYNE MOORE, individually and as the General Counsel of Oklahoma
Department of Mental Health And Substance Abuse Services; and
(6) ELLEN BUETTNER, individually and as the Director, Human Resources Management,
Human Resources Development for the Oklahoma Department of Mental Health And
Substance Abuse Services,
Defendants.
MOTION TO DISMISS AND BRIEF IN SUPPORT
BY DEFENDANTS STATE OF OKLAHOMA EX REL. THE OKLAHOMA
DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES
AND THE BOARD OF DIRECTORS FOR THE OKLAHOMA DEPARTMENT OF
MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES
VICTOR F. ALBERT, OBA #12069
CRYSTAL A. JOHNSON, OBA #21715
CONNER & WINTERS, LLP
1700 One Leadership Square
211 N. Robinson Ave.
Oklahoma City, OK 73102
Telephone: (405) 272-5711
Facsimile: (405) 232-2695
Email: valbert@cwlaw.com
Email: cjohnson@cwlaw.com
Attorney for Defendants, State of Oklahoma ex rel The Oklahoma Department of Mental
Health and Substance Abuse Services and The Board of Directors for The Oklahoma
Department of Mental Health and Substance Abuse Services
January 20, 2015
K:\VALB\Clients A-M\15640 Dept. & Board\0003 Delong, Michael\Pleadings (USDC-WDOK 14-cv-1439)\DeLong - M2Dismiss FINAL.docx
TABLE OF CONTENTS
BRIEF IN SUPPORT .......................................................................................................... 4
STANDARD OF REVIEW ................................................................................................. 4
PROPOSITION I The Court should dismiss DeLongs Unlawful and Wrongful
Termination claim .............................................................................................................. 5
PROPOSITION II The Court should dismiss DeLongs retaliation claim..................... 7
A.
There is No Legal Basis for DeLongs Generic Retaliation Claim .............. 7
B.
DeLong Does not Have a Colorable Retaliation Claim under Title

VII ................................................................................................................. 9
PROPOSITION III The Court should dismiss DeLongs Section 1983 claims (due
process, free speech and free assembly) ............................................................................ 12
A.
The Department and The Board Are Not Liable Under Section 1983. ....... 12
B.
The Due Process Claim Fails as a Matter of Law. ...................................... 12
C.
The First Amendment Claims Fail as a Matter of Law. .............................. 13
D.
The Free Speech Claim Fails as a Matter of Law. ...................................... 15
PROPOSITION IV The Court should dismiss DeLongs negligent

training/supervision claim ................................................................................................. 19
A.
DeLong Likely Does not Have a Cognizable Claim Under Oklahoma

Law .............................................................................................................. 19
B.
The Department and The Board Are Immune under the Tort Claims
Act. .............................................................................................................. 20
C.
DeLongs Conclusory Allegations Fail to State a Claim for

Negligence ................................................................................................... 20
PROPOSITION V The Court should dismiss DeLongs Violation of Public

Policy claim ..................................................................................................................... 23
CONCLUSION ................................................................................................................. 25
i
TABLE OF AUTHORITIES
Cases
Adams v. Neubauer,
195 F. Appx 711 (10th Cir. 2006) .......................................................................... 12
Allen v. Justice Alma Wilson Seeworth Acad., Inc.,
2012 WL 1298588, at *2 (W.D. Okla. 2012) ......................................................... 20
Asojo v. Oklahoma ex rel. Board of Regents of University of Oklahoma,
2012 WL 3679539 (W.D. Okla. 2012) ............................................................. 20, 22
Bell Atlantic Corp. v. Twombly,
550 U.S. 544, (2007) .......................................................................................... 4, 19
Benedix v. Indep. Sch. Dist. No. I-007 of Oklahoma Cnty., Okla.,
2009 WL 975145, at *2 (W.D. Okla. 2009) ..................................................... 19, 20
Brammer-Hoelter v. Twin Peaks Charter Acad.,
492 F.3d 1192 (10th Cir. 2007) .............................................................................. 16
Cobb v. Pozzi,
363 F.3d 89 (2nd Cir. 2004) .................................................................................... 18
Davis v. Unified Sch. Dist. 500,
750 F.3d 1168 (10th Cir. 2014) ................................................................................. 9
Garcetti v. Ceballos,
547 U.S. 410 (2006) ......................................................................................... 15, 16
Khalik v. United Air Lines,
671 F.3d 1188 (10th Cir. 2012) ................................................................................. 4
Merrifield v. Bd. of Cnty. Comm'rs for Cnty. of Santa Fe,
654 F.3d 1073 (10th Cir. 2011) .............................................................................. 17
Murphy v. Spring,
2013 WL 5172951, at *9 (N.D. Okla. 2013) .......................................................... 13
Myles v. Richmond Cnty. Bd. of Educ.,
267 F. Appx 898 (11th Cir. 2008) ......................................................................... 18
N.H. v. Presbyterian Church (U.S.A.),
998 P.2d 592 (Okla. 1999) ..................................................................................... 19
Parker v. Salazar,
431 F. Appx 697 (10th Cir. 2011) .......................................................................... 11
Polson v. Davis,
895 F.2d 705 (10th Cir. 1990) ................................................................................ 20
Robbins v. Oklahoma,
519 F.3d 1242 (10th Cir. 2008) ................................................................................ 4
i
Rural Water Dist. No. 1, Ellsworth Cnty., Kansas v. City of Wilson, Kansas,
243 F.3d 1263 (10th Cir. 2001) .............................................................................. 13
Salazar v. City of Commerce City,
535 F. Appx 692 (10th Cir. 2013) .................................................................... 15, 16
Shephard v. Compsource,
209 P.3d 288 (Okla. 2009) ................................................................................... 5, 6
Smith v. Stuteville,
2014 WL 3557641, at *4 (D. Kan. 2014) ......................................................... 21, 22
Stewart v. Oklahoma ex rel. Oklahoma Office of Juvenile Affairs,
2013 WL 6670291, at *7 (W.D. Okla. 2013) ......................................................... 20
Stokes v. City of Mount Vernon, N.Y.
2012 WL 3536461 (S.D.N.Y. 2012) ...................................................................... 16
Taken v. Oklahoma Corp. Comm'n,
125 F.3d 1366 (10th Cir. 1997) ......................................................................... 10, 11
Trant v. Oklahoma,
426 F. Appx 653 (10th Cir. 2011) .................................................................. 4, 5, 12
Univ. of Texas Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517 (2013) ............................................................................................. 9
Will v. Michigan Dept. of State Police,
491 U.S. 58 (1989) ................................................................................................. 12
Statutes
25 O.S. 1350 ............................................................................................................. 23, 24
51 O.S. 155 ..................................................................................................................... 20
Rules
42 U.S.C. 1983 ............................................................................................... 3, 12, 14, 16
ii
IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA
(1) MICHAEL DELONG,
Plaintiff,
v.
Case No. 5:14-cv-01439-C
(1) STATE OF OKLAHOMA ex rel

THE OKLAHOMA DEPARTMENT
OF MENTAL HEALTH AND
SUBSTANCE ABUSE SERVICES;
(2) THE BOARD OF DIRECTORS
FOR THE OKLAHOMA
DEPARTMENT OF MENTAL
HEALTH AND SUBSTANCE
ABUSE SERVICES;
(3) TERRY WHITE, individually and as
the Commissioner and Chief
Executive Officer of the Oklahoma
Department of Mental Health And
Substance Abuse Services;
(4) DURAND CROSBY, individually
and as the Chief Operating Officer of
the Oklahoma Department of Mental
Health And Substance Abuse
Services;
(5) CRATUS DEWAYNE MOORE,
individually and as the General
Counsel of Oklahoma Department of
Mental Health And Substance Abuse
Services; and
(6) ELLEN BUETTNER, individually
and as the Director, Human
Resources Management, Human
Resources Development for the
Oklahoma Department of Mental
Health And Substance Abuse
Services,
Defendants.
1
MOTION TO DISMISS AND BRIEF IN SUPPORT

BY DEFENDANTS STATE OF OKLAHOMA EX REL. THE OKLAHOMA
DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES
AND THE BOARD OF DIRECTORS FOR THE OKLAHOMA DEPARTMENT
OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES
Defendants, the State of Oklahoma ex rel. The Oklahoma Department of Mental
Health and Substance Abuse Services (the Department) and The Board of Directors for
the Oklahoma Department of Mental Health and Substance Abuse Services (the
Board), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, respectfully
request this Court dismiss all claims asserted by Plaintiff Michael DeLong (DeLong)
against the Department and the Board.1 The gravamen of the Petition contends Plaintiff
was terminated by the Department based on his knowledge of investigations into
Department officials and his vocal disagreement with supervisors over an alleged
decision to bury an investigation report concerning a Scientology-based drug treatment
center,2 as well as his alleged opposition to the manner in which a purported harassment
DeLongs claims are virtually, although not completely, identical to those filed by
Plaintiff Kimberly Poff in Case No. CIV-14-1438-C, recently removed to this Court. See
Plaintiffs Petitions, attached as Exhibit Nos. 1 and 2. Accordingly, the arguments
submitted in support of this Motion to Dismiss will be asserted in a separate Motion to
Dismiss filed in the Poff case. DeLongs multiple claims against various Defendants are
referenced in a chart attached as Exhibit No. 3.
2
The Department was established in 1953 by the Oklahoma Mental Health Law. Since
that time, the Department has provided services, assistance, and resources to hundreds of
thousands of Oklahomans affected by mental illness and substance abuse. While
Plaintiffs Petition is replete with errors and untruths that sully the Departments
reputation, Defendants are mindful that, due to the applicable standard of review, this
Motion to Dismiss is not an appropriate vehicle for rebutting those errors and untruths.
However, to the extent any of Plaintiffs claims survive the pleading stage, Defendants
look forward to responding factually to Plaintiffs remaining allegations.
2
claim was investigated. As set out in the separate Propositions in the Brief in Support, all
of DeLongs claims are legally barred, factually insufficient, or both. The Propositions
are summarized as follows:
I.
The Court should dismiss DeLongs Unlawful and Wrongful

Termination claim (found at page 8 of the Petition) because there is no
statutory or common law basis alleged. Further, even if this claim is
construed as one for whistle blowing, it is barred by Shephard v.
Compsource because DeLong did not avail himself of an adequate
statutory remedy under the Oklahoma Whistleblower Act.
II.
The Court should dismiss DeLongs Retaliation claim (found at page

9 of the Petition) because there is no statutory basis stated and there is
no basis for a generic retaliation claim under Oklahoma or federal
law. This claim is apparently a "whistleblower claim, which should be
dismissed for the reasons stated in Proposition I. Finally, even if the
retaliation claim can be generously construed as arising under
Title VII, it should still be dismissed because DeLong did not engage in
protected activity under Title VII.
III.
The Court should dismiss DeLongs claim under 42 U.S.C. 1983

(found at pages 11 and 13 of the Petition), because a state is not (and
hence the Department and the Board are not) persons, because
DeLong has no property interest in his employment as an at-will
employee, and because DeLong did not engage in protected speech or
protected assembly.
IV.
The Court should dismiss DeLongs negligent training/supervision

claim (found at page 14 of the Petition) because it is unlikely such a
claim exists under Oklahoma law, the Department and the Board are
immune from liability under the discretionary function exception of
the Oklahoma Governmental Tort Claims Act (GTCA), and the
Petition fails to allege sufficient facts to state a plausible claim to relief
under a negligence theory.
V.
The Court should dismiss DeLongs Violation of Oklahoma Public

Policy claim (found at page 15 of the Petition) because a public policy
3
claim cannot be based on 25 O.S. 1350, and DeLong does not identify
any other basis for his public policy claim.3
BRIEF IN SUPPORT
STANDARD OF REVIEW
In examining whether the allegations in a petition are sufficient to withstand a
motion to dismiss, it is well established that only well-pleaded facts, as distinguished
from conclusory allegations are accepted as true. Trant v. Oklahoma, 426 F. Appx 653,
659 (10th Cir. 2011). A petition must contain enough allegations of fact, taken as true,
to state a claim to relief that is plausible on its face. Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
(2007)). A claim that is merely conceivable is insufficienta plaintiff must nudge his
claims across the line from conceivable to plausible. Id. If the allegations are so
general that they encompass a wide swath of conduct, much of it innocent, then the
plaintiff has not nudged his claims across the line from conceivable to plausible. Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). Mere labels and conclusions and
a formulaic recitation of the elements of a cause of action will not suffice. Twombly,
550 U.S. at 555.
In the present case, DeLongs Petitionlike that of his co-Plaintiff Kimberly
Poffbears the hallmarks of labels, conclusions, and formulaic recitations. Furthermore,
the facts that DeLong does allege reveal that several of his claims are barred under
3
DeLong asserts a Civil Conspiracy claim at page 12 of his Petition but does not name
the Department or the Board in that claim. That claim is not the subject of this Motion
since it does not apply to these Defendants. Thus, this Motion seeks dismissal of all
claims alleged against the Department and the Board.
4
applicable law. Accordingly, the allegations in DeLongs Petition are insufficient to

withstand this Motion to Dismiss.
PROPOSITION I
THE COURT SHOULD DISMISS DELONGS
UNLAWFUL AND WRONGFUL TERMINATION CLAIM
The Court should dismiss DeLongs unlawful and wrongful termination claim
(found at page 8 of the Petition) because he does not identify any statutory or common
law basis for his claim, and his allegation that he had a right to continuous employment
with the Department is directly contrary to applicable law.
DeLong admits he was an employee at-will but claims that he has a property
interest in his job, and that Defendants disregarded his right to ongoing and continuous
employment with the State of Oklahoma. See Petition at 45, 83. As noted below
under the discussion of DeLongs 1983 claims, his at-will employment status did not
convey any right or expectation of continued employment. Trant v. Oklahoma, 426 F.
Appx 653, 662 (10th Cir. 2011) (quoting 74 O.S. 840-5.1A)(A)). Thus, DeLong did
not have a property interest in his position sufficient to trigger due process protections
(or some other unspecified protection from discharge). Id. at 663.
Further, although DeLong did not allege a Whistleblower claim as his
co-Plaintiff Kimberly Poff did, even if he had included one (or this claim could be
broadly interpreted to allege such a claim), it would be barred by Shephard v.
Compsource, 209 P.3d 288, 292 (Okla. 2009).
5
In Shephard, the Oklahoma Supreme Court held that an alleged whistleblower at

Compsource was precluded from bringing a private cause of action, whether it was
couched in terms of a Burk wrongful discharge theory, or asserted directly under the Act.
The court noted that the Legislature did not authorize a private right of action for the
enforcement of the Whistleblower Act. Id. As such, the remedies the Legislature
provided in the Act are sufficient to protect the Oklahoma public policy goal of
protecting employees who report . . . wrongful governmental activities. The Act thus
provides the exclusive remedy for an employee who claims he was terminated for
reporting wrongful governmental activities, and he may not resort to a tort cause of
action. Id. at 293.
Just like the plaintiff in Shephard, DeLong claims he was terminated for reporting
wrongful governmental activities. And, just like the plaintiff in Shephard, DeLong had
an adequate remedy under the Whistleblower Act. Because DeLong did not avail himself
of the adequate remedy under the Act, he can maintain neither a Burk wrongful discharge
tort nor a private cause of action under the Act.
Consequently, regardless of whether DeLongs Unlawful and Wrongful
Termination claim is based on a property right or a whistleblower status, the claim
is fatally deficient and must be dismissed.
6
PROPOSITION II
THE COURT SHOULD DISMISS
DELONGS RETALIATION CLAIM
The Court should dismiss DeLongs retaliation claim (found at page 9 of the
Petition) because there is no statutory basis stated and there is no basis in Oklahoma or
federal law for a generic retaliation claim. Further, to the extent the claim can be
construed as a retaliation claim under Title VII, it should still be dismissed because
DeLong did not engage in protected activity under Title VII.
A.
There is No Legal Basis for DeLongs Generic Retaliation Claim

DeLongs retaliation claim is premised on the following allegations in his
Petition, which are nearly identical to those in Poffs retaliation discrimination cause of
action:
49. Mr. DeLong was terminated on August 23, 2013 from Oklahoma
Department of Mental Health & Substance Abuse Services, because of his
knowledge of case sensitive information which illustrates multiple
improprieties within the Department.
***
53. Leadership terminated Mr. DeLong & Ms. Poff in an attempt to
orchestrate investigations and manipulate outcomes to its desired
conclusion, to protect the department from media and governmental
scrutiny, and to show it in the best possible light.
54. When Mr. DeLong and Ms. Poff refused to bow to the demands to
manipulate investigative findings, Leadership decided to render the
Inspector General's office powerless by terminating the two most senior
members of the department, Ms. Poff and Mr. Delong, and placing an
investigator with four months of experience in charge of these sensitive
investigations.
55. Mr. DeLong and Ms. Poff opposed the acts of the Department and
Department Leadership and engaged in whistle blowing activity by
7
reporting the inappropriate and potentially illegal conduct within the office
of ODMHSAS and upon doing so, Leadership at the department retaliated
by terminating his employment.
56. The ODMHSAS retaliated against Mr. DeLong by firing him when he
would not tow the party line with regards to the investigation into sensitive
claims.
57. Mr. DeLong and Ms. Poff were terminated for engaging in lawful
activity of reporting unlawful and illegal conduct within the Department.
Careful examination of the allegations made in support of DeLongs retaliation
claim shows that he believes he was retaliated against because of his work on an
investigation involving Narconon4 and because of his knowledge of a consensual
romantic relationship between two Department employees. His allegations (all of which
are factually baseless) include claims that he was discharged because:
he refused to bow to the demands to manipulate investigative findings

(paragraph 54),
he opposed the acts of the Department and Department Leadership and

engaged in whistle blowing (paragraph 55),
he did not tow the party line with regards to the investigation into sensitive
claims (paragraph 56), and
he engaged in lawful activity of reporting unlawful and illegal conduct

within the Department (paragraph 57).
Although not articulated as such, it appears DeLong is attempting to bring a claim

under Oklahomas Whistleblower Act, 74 O.S. Section 840-2.5. If, as it appears,
Even if Plaintiffs claims about Narconon were correct and his investigation found
sufficient evidence to establish Narconon had violated the Department rules, the
Administrative Code does not require the Department to take any action, such as
revocation. The decision to revoke a license in such cases is discretionary and, therefore,
the Department is exempt from liability under the GTCA. 51 O.S. 155(5) & (12).
8
DeLongs retaliation claim is simply a whistleblower claim dressed in different garb, it

should be dismissed for the reasons set forth above in Proposition I.
B.
DeLong Does not Have a Colorable Retaliation Claim under Title VII
Although DeLong does not identify any statutory basis for his retaliation claim,
he may try to belatedly assert that the claim arises under Title VII, since he attached to
his Petition a Charge of Discrimination with a box checked for retaliation. To state a
Title VII retaliation claim, a plaintiff must plausibly allege: (1) he engaged in protected
activity; (2) he suffered an adverse employment action; and (3) his protected activity was
a but-for cause of the alleged adverse employment action. Davis v. Unified Sch. Dist.
500, 750 F.3d 1168, 1170 (10th Cir. 2014) (citing Univ. of Texas Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2534 (2013)).
DeLongs allegations reveal he did not engage in protected activity under Title
VII. DeLong claims at paragraph 57 of his Petition that he and Ms. Poff were terminated
for engaging in lawful activity of reporting unlawful and illegal conduct within the
Department, but DeLong does specify what the allegedly unlawful conduct was. The
closest DeLong comes to stating a retaliation claim in his Petition is his allegation that he
received a third party sexual harassment claim . . . regarding alleged preferential
treatment shown to the direct report of Mr. Moore. See Petition at 25. Although
DeLongs Petition does not go into detail about the basis of the third party sexual
harassment claim, his statement to the EEOC does:
Prior to my termination I was in the process of initiating a sexual
harassment claim made by another subordinate of Mr. Moores. This
employee complained to me of a hostile work environment based on the
9
affair between Mr. Moore and [an alleged paramour]. The employee
having an affair with Mr. Moore was being treated better than other
employees and received a promotion while employees who were not
engaged in a sexual relationship with the boss were not.5
Even if DeLongs allegations could be broadly construed to include a claim of
Title VII opposition connected to his knowledge of the details of an affair
involving co-employees, his claim is still deficient under extant law. The Tenth Circuit
has made it clear that a supervisors preferential treatment of a paramour does not support
a cause of action under Title VII.
In Taken v. Oklahoma Corp. Comm'n, 125 F.3d 1366 (10th Cir. 1997), the Tenth
Circuit examined a claim of sexual harassment premised on allegations that a
supervisors paramour received more favorable treatment than other employees. Even if
the allegations were true, the Court said, the plaintiffs failed to state a claim for relief
under Title VII:
[Plaintiffs] assert that their employer is liable under Title VII solely
because a supervisor preselected his paramour for a [promotion] even
though she was less qualified than either Plaintiff. Taking plaintiff's
allegations as true, we conclude that they do not state a claim for relief
under Title VII because they are based on a voluntary romantic affiliation,
and not on any gender differences. Plaintiffs were in the same position as
all men and all other women would have beenonly Ms. Preston was
considered for the promotion because of her special relationship with Mr.
Burnett. Favoritism, unfair treatment and unwise business decisions do
not violate Title VII unless based on a prohibited classification.
Because we decline to extent Title VII to include consensual romantic
involvements, we conclude that the promotion was not base[d] on a
prohibited classification.
Taken, 125 F.3d at 1370 (citations omitted) (emphasis added).
See page 6 of Exhibit 1 to DeLongs Petition (emphasis added).

10
This principle was affirmed in Parker v. Salazar, 431 F. Appx 697, 698-99 (10th
Cir. 2011). In Parker, the plaintiff alleged he was terminated for reporting that two
coworkers were flaunting their affair.
Id.
In evaluating whether the conduct the
plaintiff reported was the type of sex discrimination that would support a retaliation
claim under Title VII, the Parker court noted that the purpose of Title VII is to eliminate
disparate treatment of men and women. The court explained that Title VIIs reference
to sex means a class delineated by gender, rather than by sexual affiliations.
Therefore, to constitute protected activity, the reported discrimination must be genderrelated. Id. Because the plaintiff reported discrimination based on sexual affiliations
and not gender, he did not have a viable retaliation claim under Title VII.
The Tenth Circuit recently affirmed Taken in Clark v. Cache Valley Elec. Co.:
Mr. Clark presented no evidence that Cache Valley treated women more
favorably than men, and no circumstances giving rise to an inference of
discrimination. Indeed, as the district court concluded, Mr. Clark merely
provided evidence that Mr. Perschon extended preferential treatment to one
female employee: Ms. Silver, a co-worker with whom Mr. Perschon
allegedly was having an affair or some other form of improper
relationship. Favoritism of a paramour is not gender discrimination.6
As the Tenth Circuit explained in Taken and Clark, favoritism of a paramour is
not gender discrimination, and a promotion based on such favoritism cannot serve as the
basis for a claim under Title VII. Consequently, DeLong did not engage in protected
activity and he has failed to state a claim for any kind of retaliation, whether based on
Title VII or some other generic basis. Accordingly, this claim should be dismissed.
2014 WL 3685996, at *4 (10th Cir. 2014) (unpublished) (second emphasis added).

11
PROPOSITION III
THE COURT SHOULD DISMISS
DELONGS SECTION 1983 CLAIMS
(DUE PROCESS, FREE SPEECH AND FREE ASSEMBLY)
The Court should dismiss DeLongs claims under 42 U.S.C. 1983 (found at
pages 11 and 13 of the Petition), because a state is not (and hence the Board and the
Department are not) persons for purposes of 1983; further, all three prongs of
DeLongs 1983 claim should be dismissed because (1) DeLong has no property
interest in his admittedly at-will employment and, thus, no due process rights; (2)
DeLong cannot state a claim for free speech since he was admittedly speaking pursuant
to his duties as an Investigator for the Department; and (3) DeLong has not alleged any
basis for a free assembly claim.
A.
The Department and The Board Are Not Liable Under Section 1983.
First, neither the Department nor the Board is a person who can be found liable
under 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (holding
that a State is not a person amenable to suit under 1983). The Tenth Circuit has
reiterated this holding on many occasions. See, e.g., Adams v. Neubauer, 195 F. Appx
711, 713 (10th Cir. 2006) (A state agency is not a person under 1983 and is immune
from suit under the Eleventh Amendment.).
B.
The Due Process Claim Fails as a Matter of Law.

As to the due-process prong of DeLongs 1983 claim, DeLong admits he was an
at-will employee.
See Petition at 83.
As an at-will employee, DeLong had no
legitimate expectation of continued employment.
Trant, 426 F. Appx at 662.
12
Therefore, DeLong did not have a property interest in his position sufficient to trigger
due process protections, and his due process claim fails as a matter of law. Id. at 663.
C.
The First Amendment Claims Fail as a Matter of Law.

With respect to the First Amendment prong of DeLongs 1983 claim, he alleges
violations under the First Amendment of the U.S. Constitution and Article 2, Sections 3
(Free assembly) and 22 (Free speech), of the Oklahoma Constitution. None of these
provisions provides a legal basis for a 1983 cause of action under the facts alleged.
First, 1983 claims may not be based on violations of state constitutional rights.
Murphy v. Spring, 2013 WL 5172951, at *9 (N.D. Okla. 2013) (citing Rural Water Dist.
No. 1, Ellsworth Cnty., Kansas v. City of Wilson, Kansas, 243 F.3d 1263, 1275 (10th Cir.
2001)). Therefore, Sections 3 and 22 of Article 2 of the Oklahoma Constitution cannot
serve as a basis for DeLongs 1983 claims. And, as explained below, neither can the
First Amendment to the U.S. Constitution.
DeLong alleges two sub parts of his 1983 First Amendment claim: free speech
and freedom of association. Below are Plaintiffs factual allegations in support of
these claims (numerical references are paragraph numbers in Plaintiffs Petition):
34. No reason for given for Mr. DeLong's termination. In a letter received
from the attorney for ODMHSAS, the Department claimed that Mr. DeLong
attempted to intimidate a witness.
35. The alleged act of intimidation arose out of Mr. DeLong standing in the
back of the room at a training seminar where the "witness," who was an
employee of ODMHSAS, was putting on a training class.
36. The "witness" in question was on suspension from ODMHSAS because
another employee had had accused him of sexual harassment. On
information and belief, the "witness" was the only employee of ODMHSAS,
13
during the tenure of Ms. Poff or Mr. DeLong, to be allowed to work or to

teach such a seminar while also on suspension for suspected illegal
conduct.
37. The investigation into the sexual harassment involving the suspended
employee "witness" was allegedly being conducted by an outside party
because of a long standing friendship between Ms. Poff and the employee
victim of sexual harassment.
38. Ms. Poff asked for the independent investigation to insure that her
friendship did not act to bias the outcome of the investigation. Therefore,
neither Ms. Poff nor her employees, including Mr. DeLong, were
investigators on this case.
39. Mr. DeLong's mere act of being in a room with an alleged offender,
when he was not acting in his capacity as an investigator and he was
merely observing the training, do not rise to the level of witness
intimidation.
40. The conduct of Mr. DeLong, if wrongful in any manner, does not rise to
the level of termination given his past history of stellar performance within
the Department.
Then, in his 1983 claim, Plaintiff alleges:
61. On information and belief, the Defendants, each and all of their
justification for terminating Plaintiff was in part based upon the Plaintiffs
exercise of his freedom of speech when he engaged and challenged
decisions of the counsel and the delay of the issuance of Ms. Poffs report.
62. Further, on information and belief, the Defendants, each and all of their
justification for terminating Plaintiff was in part based upon the Plaintiff' s
exercise of his freedom of assembly when he appeared at an ODMHSAS
training event and watched the seminar that was being put on for
employees. The Defendants allege that his mere appearance at this
seminar constitutes an attempt to intimidate a witness in a case in which he
was not investigating the allegations of wrongdoing.
63. The Defendants, ODMHSAS, the Board of Directors for the
ODMHSAS, Terry White, Dewayne Moore, Durand Crosby and/or Ellen
Buettner, acting in either their individual capacity and/or in their capacity
as employees and directors of the ODMHSAS, retaliated against Plaintiff
for exercising his right to free speech under the 42 U.S.C. 1983 and the
United States and Oklahoma Constitutions. This retaliation occurred when
14
he made statements on a matter of public concern including inappropriate

sexual harassment within the Department and the failure of the Department
and Leadership to take action on the dangerous and illegal activity
occurring at the NARCONON facility.
D.
The Free Speech Claim Fails as a Matter of Law.

The United States Supreme Court has held that when public employees make
statements pursuant to their official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their communications
from employer discipline. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
DeLong alleges that his duties as an investigator were to investigate misconduct,
not only within State Operated facilities, but also within management and staff of
ODMHSAS. See Petition at 18 (emphasis added). DeLong then alleges he was
terminated for speaking in connection within his official duties, i.e., investigating
misconduct in the Department. Consequently, DeLongs alleged speech falls outside the
ambit of First Amendment protection as a matter of law.
The Tenth Circuits opinion in Salazar v. City of Commerce City, 535 F. Appx
692, 699 (10th Cir. 2013) is instructive.
In Salazar, the plaintiff alleged she was
terminated from her position as Director of Economic Development because she spoke
out regarding discrimination against herself and others. The trial court ruled that the
plaintiffs complaints of discrimination failed to support a First Amendment claim
because her complaints were related to her position or to her own job performance. Id.
at 700. In affirming the judgment of the trial court, the Tenth Circuit explained that the
First Amendment does not protect a public employees speech if the speech reasonably
15
contributes to or facilitates the employees performance of [an] official duty. Id. at 701
(quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir.
2007)). Because the plaintiffs communications were made pursuant to her official
duties, she was not speaking as a citizen for First Amendment purposes. Id.
Likewise, in a similar factual context, an Inspector General for the City of Mount
Vernon, New York brought a 1983 claim, alleging the City violated his free-speech
rights when it fired him for reporting improper actions within certain City programs.
Stokes v. City of Mount Vernon, N.Y. 2012 WL 3536461 (S.D.N.Y. 2012). The court
dismissed the claim, finding that, as Inspector General, reporting wrongdoing was his
official duty:
Here, there is no question plaintiff was not acting as a citizen when
performing his duties as Inspector General. According to the City Charter,
the Inspector General is empowered to investigate allegations of corruption,
fraud, criminal activity, or abuse by any Mount Vernon official or
employee and make public written reports of the investigations. Plaintiff's
[reports] were all issued pursuant to plaintiff's investigation . . ., which he
conducted in his capacity as Inspector General. Therefore, when he went
to work and performed the tasks he was paid to perform, plaintiff acted as a
government employee. Garcetti v. Ceballos, 547 U.S. at 422.
Stokes, 2012 WL 3536461, at *5 (emphasis added) (internal alterations omitted).
Under the holdings in Garcetti, Salazar, and Stokes, DeLong cannot base a First
Amendment claim on speech connected to his official duties. And Paragraph 63 of
DeLongs Petition makes the connection between his speech and his official duties
crystal clear:
Defendants . . . retaliated against Plaintiff for exercising his right to free
speech under the 42 U.S.C. 1983 and the United States and Oklahoma
Constitutions. This retaliation occurred when he made statements on a
16
matter of public concern including inappropriate sexual harassment within

the Department and the failure of the Department and Leadership to take
action on the dangerous and illegal activity occurring at the NARCONON
facility.
DeLongs allegations show that he was speaking as an employee, in the context of
his official duties as an investigator, and not as a citizen. Accordingly, the free-speech
prong of DeLongs 1983 First Amendment claim must be dismissed.
i.
The Freedom of Assembly Claim Fails as a Matter of Law.
The second prong of DeLongs 1983 First Amendment claim is an alleged

violation of his right to free assembly. DeLong alleges:
Further, on information and belief, the Defendants, each and all of their
justification for terminating Plaintiff was in part based upon the Plaintiff' s
exercise of his freedom of assembly when he appeared at an ODMHSAS
training event and watched the seminar that was being put on for
employees. The Defendants allege that his mere appearance at this
seminar constitutes an attempt to intimidate a witness in a case in which he
was not investigating the allegations of wrongdoing.7
Plaintiff advances a novel claim wholly unsupported by extant law, i.e., that an employee
has a right to assemble at a particular place in his work environment, contrary to his
employers wishes. Extensive research reveals no case that supports such a brazen claim.
In fact, most courts, including the Tenth Circuit, hold that to establish a free assembly
or freedom of association claim, a plaintiff must establish that his conduct involved a
matter of public concern. See Merrifield v. Bd. of Cnty. Comm'rs for Cnty. of Santa Fe,
654 F.3d 1073, 1081-82 (10th Cir. 2011) ([T]he public-concern requirement applies to a
claim that a government employer retaliated against an employee for exercising the
Petition at 61 (emphasis added).

17
instrumental right of freedom of association for the purpose of engaging in speech,

assembly, or petitioning for redress of grievances.); see also, e.g., Cobb v. Pozzi, 363
F.3d 89, 102 (2nd Cir. 2004) (joining the Fourth, Sixth and Seventh circuits and holding
that a public employee bringing a First Amendment freedom of association claim must
persuade a court that the associational conduct at issue touches on a matter of public
concern); Myles v. Richmond Cnty. Bd. of Educ., 267 F. Appx 898, 901 (11th Cir.
2008) (To enjoy protection under the First Amendment, an employee asserting a free
association claim must have engaged in her associational activity as a citizen, not as
an employee.) (emphasis added).
In the case at bar there is no such public concern connected with DeLongs
freedom of assembly claim. He claims, at most, his supervisors misconstrued his
presence at an employee training event and terminated him because they (wrongly, he
claims) believed he was trying to intimidate a witness. Even if these allegations were
true, DeLong has no free assembly claim because he was acting as an employee, not a
citizen, and a training event for Department employees is not a matter of public concern.
DeLongs allegations sow the seeds of his legal destruction, clearly showing that
he spoke and acted as an employee, in the context of his official duties. Further, his
allegations do not make out a freedom of assembly claim under 1983 since his
assembly had no connection with a matter of public concern. Finally, DeLong has no
due process rights as an at-will employee. Accordingly, DeLongs Constitutional
rights were not violated, and even if the Department and Board were amenable to suit
under 1983, DeLongs claims still fail as a matter of law.
18
PROPOSITION IV
NEGLIGENT TRAINING/SUPERVISION CLAIM
The Court should dismiss DeLongs negligent training/supervision claim (found at
page 15 of the Petition) because (a) it is unlikely the Oklahoma Supreme Court would
recognize such a claim in the context of alleged harm to a co-employee, (b) the claim is
based on discretionary activities for which there is immunity under the Governmental
Tort Claims Act and (c) the claim is nothing more than a formulaic recitation which
fails the pleading standards articulated by the Supreme Court in Twombly and Iqbal.
A.
DeLong Likely Does not Have a Cognizable Claim Under Oklahoma Law
Under Oklahoma law, a claim for negligent training/supervision against an
employer is based on an employees harm to a third party through employment. N.H.

v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla. 1999). A plaintiff must show
that at the time of the tortious incident, the employer had reason to believe the employee
would create an undue risk of harm to others. Id. The critical element for recovery is
the employer's prior knowledge of the servant's propensities to create the specific danger
resulting in damage. Id.
In deciding whether DeLong has asserted a viable cause of action, this Court must
predict how the Oklahoma Supreme Court would rule. Benedix v. Indep. Sch. Dist. No.
I-007 of Oklahoma Cnty., Okla., 2009 WL 975145, at *2 (W.D. Okla. 2009). It is
unlikely the Oklahoma Supreme Court would recognize a cause of action for negligent
training/supervision in the context of harm to a co-employee rather than a third party.
19
Stewart v. Oklahoma ex rel. Oklahoma Office of Juvenile Affairs, 2013 WL 6670291, at

*7 (W.D. Okla. 2013); see also Polson v. Davis, 895 F.2d 705, 710 (10th Cir. 1990)
(applying Kansas law and rejecting an employees attempt to circumvent the at-will
employment doctrine through the common-law tort of negligent supervision). Therefore,
DeLongs negligent training/supervision claim should be dismissed.
B.
The Department and The Board Are Immune under the Tort Claims Act.
The Department and Board are immunized from DeLongs negligence claim by
the discretionary function exemption of the GTCA. 51 O.S. 155(5). See Benedix,
2009 WL 975145, at *4 (Plaintiff's claim against the school district for negligence in his
hiring, supervision and retention is barred by the discretionary function exemption of
155(5).); Allen v. Justice Alma Wilson Seeworth Acad., Inc., 2012 WL 1298588, at *2
(W.D. Okla. 2012) (granting the defendants motion to dismiss after holding that
decisions involving the training, supervision, and retention of upper-level administrators
are the sort of discretionary decisions to which [Section 155(5)] appears to be directed).
C.
DeLongs Conclusory Allegations Fail to State a Claim for Negligence

In Asojo v. Oklahoma ex rel. Board of Regents of University of Oklahoma, 2012
WL 3679539 (W.D. Okla. 2012), this Court was faced with a comparable situation to the
one presented in the case at bar: generic allegations of a negligent failure to train or
supervise but no plausible basis on which those claims were based. This Court found
the State of Oklahoma (sued as the University of Oklahoma) was not liable based on
immunity and based on the absence of plausible pleadings:
20
Plaintiff's fourth cause of action purports to assert a claim pursuant to the

Oklahoma Governmental Tort Claims Act (GTCA), Okla. Stat. tit. 51
151, et seq., labeling it as a tort claim. She alleges the University
negligently and carelessly trained, supervised, and retained Administrators
to allow Plaintiff to be subjected to harassment by faculty and retaliated
against in the promotion process to secure full professorship rank when
Plaintiff's academic achievements and performance entitled her based on
her merits to receive promotion to the rank of Full Professor.
***
Plaintiff's allegations do not fall within the GTCA's limited waiver of
immunity. She cites no statutory provision which would render the
University, a state entity, liable for the tort of negligent supervision,
training or retention. In fact, Plaintiff has wholly failed to offer any
response to the University's contention that it is entitled to sovereign
immunity from liability on the fourth cause of action. . . .
Furthermore, even if the University could be potentially liable for a tort
cause of action under the facts alleged, the tort of negligent training and
supervision requires allegations that the employer had reason to know that
one of its employees is likely to harm others. Employers are held liable for
their prior knowledge of the servant's propensity to commit the very harm
for which damages are sought. The critical element for recovery is the
employers prior knowledge of the servant's propensities to create the
specific danger resulting in damage.
In this case, the Amended Complaint alleges no facts from which the Court
could conclude that the University could be potentially liable under this
theory of recovery. Plaintiff alleges nothing to show the University's prior
knowledge of any employees propensity to violate Title VII. The motion
to dismiss the fourth cause of action is granted.
Id. at *4-*5 (emphasis added) (citations and internal quotation marks
omitted).
A remarkably similar situationand conclusionappeared in Smith v. Stuteville,
2014 WL 3557641, at *4 (D. Kan. 2014) where bare-bones allegations of failure to
train were rejected by the court, saying:
The allegations in plaintiff's complaint for municipal liability based on a
failure-to-train theory reflect the formulaic recitation of bare assertions
21
deemed categorically deficient by the Supreme Court in Iqbal. In his

response to the motion to dismiss, plaintiff asserts that, because discovery
has not yet commenced, he cannot provide any additional allegations
concerning the City's training of its officers but urges that Officer
Stuteville's conduct, standing alone, demonstrates that he has not been
properly trained or supervised. This allegation is insufficient to state a
claim against the City.
The holdings in Asojo and Smith apply with the same force to the case at bar.
Even if the Oklahoma Supreme Court recognized Plaintiffs cause of action, and even if
that cause of action was not barred by the GTCA, Plaintiff alleges no facts from which
this Court could conclude the Department or the Board could be potentially liable.
Plaintiff alleges nothing to show the Departments or the Boards prior knowledge of any
propensity by any of the named Defendants to violate anyones constitutional rights. His
entire cause of action is stated in three short paragraphs, one of which is the claim for
relief. The two substantive paragraphs simply state:
79. The ODMHSAS by and through its Board of Directors and
Commissioner Terri White failed to hire, train and supervise its Leadership
employees to ensure that they knew and understood the law with regard to
the hiring, reviewing, disciplining and terminating employees for alleged
misconduct.
80. The ODMHSAS, by and through its Board of Directors and
Commissioner Terri White, was negligent when it failed to fully and
adequately investigate the allegations of sexual harassment and sexual
misconduct involving high ranking Department employees. The ODMHSAS
then subsequently terminated Ms. Poff and Mr. DeLong for vocalizing their
objection to the preferential treatment shown to the high ranking employees
to the detriment of other employees who also had harassment claims
relating to the conduct.
Paragraphs 79 and 80 are nothing more than the types of formulaic recitations
rejected by the Courts in Asojo and Smith.
Paragraph 80 levies allegations of
22
negligence against the Board, the Department and the Commissioner for failing to
investigate alleged sexual harassment and misconduct which was shown, in Proposition
II of this Brief, to involve a matter not legally recognized as a violation of Title VII.
Even if there was conduct which was actionable, there are no facts showing the
Department or the Board (who are not tasked with responsibility for investigations)
were negligent. Moreover, Plaintiff does not claim the alleged negligent investigation
was the proximate cause of his termination; instead, he claims he was terminated for
speaking out about the investigation.
Accordingly, the negligence and negligent
training/supervision claim must fall like a house of cards under the weight of even the
lightest legal scrutiny.
PROPOSITION V
VIOLATION OF PUBLIC POLICY CLAIM
Plaintiff advances a claim entitled Violation of Oklahoma Public Policy at page
15 of his Petition but interweaves threads of various causes of action in this claim,
ranging from due process to public policy to statutes to negligence:
83. Plaintiff . . . has a property interest in his job.
84. The actions of Defendants violate Oklahoma Public Policy and
Oklahoma Statutory law.
86. On November 1, 2011, 25 O.S. 1350 went into effect creating a
statutory remedy for employment-based discrimination and Mr. DeLong
has a claim against the Defendants under same.
87. As a result of the negligence of the Defendants, Mr. DeLong has
suffered damages . . . .
23
Regardless of the wide ranging allegations, there simply is no Public Policy claim that
Plaintiff can assert here.
The only statute Plaintiff cites in support of this claim, Section 1350 of Title 25,
specifically abolishes common-law causes of action (like Plaintiffs Public Policy
claim). See 25 O.S. 1350(A) (A cause of action for employment-based discrimination
is hereby created and any common law remedies are hereby abolished.). Subsection
(B) of Section 1350 enumerates the protected categories for a statutory cause of action
for discriminationnone of which are alleged in Plaintiffs Petition:
In order to have standing in a court of law to allege discrimination arising
from an employment-related matter, in a cause of action against an
employer for discrimination based on race, color, religion, sex, national
origin, age, disability, genetic information with respect to the employee, or
retaliation, an aggrieved party must . . . .
If the Court were to give Plaintiffs Petition the most generous reading possible, it
might conclude he is attempting to assert a statutory claim for retaliation under Title
25, but he cannot assert a common law cause of action for public policy violation. As
the Oklahoma Supreme Court opined this year in MacDonald v Corporate Integris
Health, 321 P.3d 980, 985 (Okla. 2014):
Section 1350 became effective November 1, 2011, and was in effect on
May 4, 2012, the date of plaintiff's termination. This statute expressly
creates a cause of action for employment-based discrimination and
abolishes common law remedies for such wrong. In the place of common
law remedies for employment-based discrimination, section 1350
authorizes a court (1) to enjoin unlawful discrimination employment
practices, (2) to grant affirmative relief such as reinstatement, (3) to award
back pay, and (4) to award an additional amount for liquidated damages.
24
As explained above in Proposition 2, Plaintiff has no claim for retaliation, statutory or

otherwise. Plaintiffs attempts to circumvent the Whistleblower Act are transparent and
should be rejected. His violation of public policy claim must be dismissed.
CONCLUSION
Plaintiff fails to plead a single viable cause of action against the Department or the
Board. It is important that the Court exercise its gate-keeper role at this stage to require
Plaintiff to properly plead viable, sustainable claims. Otherwise, the Court and the
parties will spend unnecessary time and resources during discovery, dispositive motions
and pretrial proceedings focusing on claims with no basis in law or fact. Because
Plaintiff fails to state a single plausible claim for relief against the Department or the
Board, these Defendants respectfully request that all claims against them be dismissed.
Respectfully submitted,
/s/ Victor F. Albert
VICTOR F. ALBERT, OBA #12069
CONNER & WINTERS, LLP
1700 One Leadership Square
211 North Robinson
Telephone: (405) 272-5711
Facsimile: (405) 232-2695
valbert@cwlaw.com
Attorney for Defendants,
State of Oklahoma ex rel The Oklahoma
Department of Mental Health and Substance
Abuse Services and The Board of Directors for
The Oklahoma Department of Mental Health
and Substance Abuse Services
25
CERTIFICATE OF SERVICE
I certify that on the 20th day of January 2015, this Motion to Dismiss was filed in
the United States District Court for the Western District of Oklahoma, and that a true and
correct copy of said Motion to Dismiss was served, via ECF, upon the following:
Rachel L. Bussett, OBA #19769
Bussett Law Firm, PC
3555 N.W. 58th Street, Suite 1010
Telephone: (405) 605-8073
Facsimile: (405) 601-7765
rachel@bussettlaw.com
Attorneys for Plaintiff
Jeremy Tubb, OBA #16739
Matthew S. Panach, OBA #22262
FULLER, TUBB, BICKFORD & KRAHL
201 Robert S. Kerr, Suite 1000
Telephone: (405) 235-2575
Facsimile: (405) 232-8384
jeremy.tubb@fullertubb.com
panach@fullertubb.com
Attorneys for Defendants
Terri White, Durand Crosby,
Cratus Dewayne Moore, and Ellen Buettner
/s/ Victor F. Albert

VICTOR F. ALBERT
26

DeLong vs. Oklahoma: Motion To Dismiss

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DeLong vs. Oklahoma: Motion To Dismiss

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Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 2 of 30

There is No Legal Basis for DeLongs Generic Retaliation Claim .............. 7

DeLong Does not Have a Colorable Retaliation Claim under Title

The Due Process Claim Fails as a Matter of Law. ...................................... 12

The First Amendment Claims Fail as a Matter of Law. .............................. 13

The Free Speech Claim Fails as a Matter of Law. ...................................... 15

PROPOSITION IV The Court should dismiss DeLongs negligent

DeLong Likely Does not Have a Cognizable Claim Under Oklahoma

DeLongs Conclusory Allegations Fail to State a Claim for

PROPOSITION V The Court should dismiss DeLongs Violation of Public

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 3 of 30

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 4 of 30

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 5 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE

Case No. 5:14-cv-01439-C

(1) STATE OF OKLAHOMA ex rel

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 6 of 30

MOTION TO DISMISS AND BRIEF IN SUPPORT

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 7 of 30

The Court should dismiss DeLongs Unlawful and Wrongful

The Court should dismiss DeLongs Retaliation claim (found at page

The Court should dismiss DeLongs claim under 42 U.S.C. 1983

The Court should dismiss DeLongs negligent training/supervision

The Court should dismiss DeLongs Violation of Oklahoma Public

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 8 of 30

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 9 of 30

applicable law. Accordingly, the allegations in DeLongs Petition are insufficient to

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 10 of 30

In Shephard, the Oklahoma Supreme Court held that an alleged whistleblower at

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 11 of 30

There is No Legal Basis for DeLongs Generic Retaliation Claim

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 12 of 30

he refused to bow to the demands to manipulate investigative findings

he opposed the acts of the Department and Department Leadership and

he engaged in lawful activity of reporting unlawful and illegal conduct

Although not articulated as such, it appears DeLong is attempting to bring a claim

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 13 of 30

DeLongs retaliation claim is simply a whistleblower claim dressed in different garb, it

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 14 of 30

See page 6 of Exhibit 1 to DeLongs Petition (emphasis added).

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 15 of 30

In evaluating whether the conduct the

2014 WL 3685996, at *4 (10th Cir. 2014) (unpublished) (second emphasis added).

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 16 of 30

The Due Process Claim Fails as a Matter of Law.

See Petition at 83.

As an at-will employee, DeLong had no

legitimate expectation of continued employment.

Trant, 426 F. Appx at 662.

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 17 of 30

The First Amendment Claims Fail as a Matter of Law.

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 18 of 30

during the tenure of Ms. Poff or Mr. DeLong, to be allowed to work or to

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 19 of 30

he made statements on a matter of public concern including inappropriate

The Free Speech Claim Fails as a Matter of Law.

In Salazar, the plaintiff alleged she was

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 20 of 30

Case 5:14-cv-01439-C Document 15 Filed 01/20/15 Page 21 of 30

matter of public concern including inappropriate sexual harassment within

The Freedom of Assembly Claim Fails as a Matter of Law.