Burke v. Hanning et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MISTY DAWN BURKE, 	)
)
Plaintiff, 	)
v. 	) 	Case No. CIV-25-174-RAW-GLJ
)
JUDY ELLIOTT, Individually and in 	)
her Official Capacity, 	)
JAMES EARL HANNING, 	)
Individually and in his Official 	)
Capacity; WAGONER COUNTY 	)
BOARD OF COUNTY 	)
COMMISSIONERS, 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Plaintiff Misty Dawn Burke filed this action against Defendants July Elliott,
individually and in her official capacity; James Earl Hanning, individually and in his
official capacity; and the Wagoner County Board of County Commissioners (“Board”).1
This matter comes before the Court on motions to dismiss by all remaining Defendants.
For the reasons set forth below, the Court finds that the Defendants’ Hanning, Wagoner
County E-911 and Board of County Commissioners of Wagoner County’s Motion to
Dismiss and Brief in Support [Docket No. 19] should be GRANTED IN PART and
DENIED IN PART and the Motion to Dismiss of Defendant Judy Elliott and Brief in
Support [Docket No. 20] should be GRANTED.
1 Defendant Wagoner County E-911 was previously dismissed. See Docket No. 22.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 1 of 44

2
I. 	PROCEDURAL HISTORY
Plaintiff filed this case in state court in Wagoner County, Oklahoma on March 6,
2025, Case No. CJ-2025-104. As relevant, the original state court petition named the Board
and Wagoner County E-911, as well as Judy Elliott and James Hanning in their individual
capacities only. 	Docket No. 2, Ex. 2. 	Plaintiff filed an amended state court Petition on
April 17, 2025, which names the entities as well as Elliott and Hanning in their individual
and official capacities. Id., Ex. 6. On May 23, 2025, all Defendants removed the case to
this Court. Docket Nos. 1-2.
Plaintiff’s First Amended Petition enumerates seven causes of action but actually
incorporates nine.2 	Because Plaintiff previously dismissed Defendant Wagoner County
E-911, the following eight causes of action remain: 	(1) 42 U.S.C. § 1983 claim for
retaliation in violation of the First Amendment, as to Elliott and Hanning; (2) failing to pay
unpaid wages and overtime in violation of the Fair Labor Standards Act (“FLSA”), as to
the Board; (3) retaliation in violation of the FLSA, as to Elliott, Hanning, and the Board;
(4) interference in violation of the Family and Medical Leave Act (“FMLA”), as to
Hanning and the Board; (5) retaliation in violation of the FMLA, as to Hanning and the
Board; (6) breach of contract as to the Board; (7) promissory estoppel, as to the Board; and
2 “At minimum, [R]ule 8(a) requires a comprehensible, short and plain statement of the claim(s)
sufficient to give the opposing party reasonable and fair notice of the basis of the complaint.”
Abdelsamed v. Colorado, 6 Fed. Appx. 771, 772 (10th Cir. 2001). Although the undersigned
Magistrate Judge proceeds on the substance, Counsel is cautioned that, “as a structural matter, the
. . . Complaint is deficient because it purports to assert multiple claims for relief within each ‘Claim
for Relief.’” Park v. TD Ameritrade Tr. Co., 2010 WL 4608225, at *2 (D. Colo. Nov. 5, 2010).
This improper format, which is repeated in Claims II and III, is improper under Rule 8 of the
Federal Rules of Civil Procedure.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 2 of 44

3
(8) malicious interference with a contractual relationship, as to Elliott and Hanning.
Docket No. 2, Ex. 6, pp. 9-19.
Despite the heading on the First Amended Petition, Plaintiff appears to allege claims
against Elliott and Hanning only in their individual capacities. The undersigned Magistrate
Judge notes that counsel entered appearances on behalf of Elliott and Hanning in their
individual and official capacities. Docket Nos. 6-10. On June 4, 2025, however, Plaintiff’s
Demand for Jury Trial, Docket No. 16, identified Elliott and Hanning in their individual
capacities only, and continued to do so in all subsequent pleadings. 	Defendant Hanning
followed suit, see, e.g., Docket No. 19, while Defendant Elliott followed the proper
heading, see, e.g., Docket No. 20. 	Given Plaintiff makes no claims or arguments related
to Elliott or Hanning in their official capacities, the undersigned Magistrate Judge first
recommends that any claims against them in their official capacities should be dismissed
as moot.
II. 	LAW APPLICABLE
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face. A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-557, 570 (2007)). 	Detailed factual allegations are
not required, but the statement of the claim under Rule 8(a)(2) must be “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” 	Iqbal, 556 U.S. at 678
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 3 of 44

4
(citing Twombly, 550 U.S. at 555); see generally Fed. R. Civ. P. 8(a)(2) (complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief[.]”).
“While the 12(b)(6) standard does not require that Plaintiff establish a prima facie
case in h[is] complaint, the elements of each alleged cause of action help to determine
whether Plaintiff has set forth a plausible claim.” 	Khalik v. United Air Lines, 671 F.3d
1188, 1192 (10th Cir. 2012). 	Thus, the appropriate inquiry is “‘whether the complaint
sufficiently alleges facts supporting all the elements necessary to establish an entitlement
to relief under the legal theory proposed.’” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir.
2007) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)). “A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a
cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s]
devoid of further factual enhancement[.]” Iqbal, 556 U.S. at 678 (quotations omitted).
III. 	FACTUAL BACKGROUND
Plaintiff’s First Amended Petition alleges a series of events surrounding her
employment at E-911 in Wagoner County, Oklahoma, from March 2024 leading up to her
employment termination on January 21, 2025. 	In general, Plaintiff alleges that she and
others submitted grievances to Human Resources regarding Elliott’s behavior, including
allegations of a hostile work environment related to violations of the FLSA and FMLA.
Elliott was informed of the complaints at a March 11, 2024, Board meeting, and Hanning
allegedly texted Elliott the names of at least some of the people who made complaints.
Plaintiff alleges Elliott’s conduct toward employees after she learned of these complaints
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 4 of 44

5
led to an emergency session of the Board on March 12, 2024, at which time Elliott was
placed on administrative leave and Plaintiff was promoted to Interim Coordinator. Docket
No 2, Ex. 6, pp. 2-7, ¶¶ 6-21.
Plaintiff next alleges that she needed major spine surgery in June 2024, and
requested FMLA leave for her surgery, hospitalization, and several weeks after for
recovery time. Plaintiff’s FMLA leave was approved by the Board Chairman, but Hanning
contacted her while she was on FMLA leave and during a Board meeting, placing her on
speakerphone, to demand answers regarding the plan and approval process for Plaintiff’s
leave. Additionally, he asked her to submit correspondence regarding the FMLA approval.
Id., pp. 7-8, ¶¶ 22-23.
In December 2024, Plaintiff submitted two separate Open Records Act (“ORA”)
requests for correspondence, and Plaintiff attaches the two requests to her First Amended
Petition. 	Id., p. 8, ¶ 24 & pp. 45-47. 	Plaintiff requested: (i) emails and text messages
between District Attorney Jack Thorp and any county commissioner from July 22, 2024,
through November 15, 2024, as well as (ii) emails and text messages between Hanning and
Elliott on March 12, 2024. Id., pp. 45-47.
On January 21, 2025, Plaintiff was fired following a Board meeting wherein her
employment was discussed and terminated. 	Plaintiff alleges that, during the executive
session for this meeting, Hanning said that Plaintiff used her position for special treatment.
Id., p. 8, ¶ 26. Plaintiff further alleges, however, that Hanning himself has used his position
for special treatment, including asking Thorp to bury “numerous acts of criminal conduct,”
and “using his position to have criminal charges filed against individuals that he has a
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 5 of 44

6
motive or agenda against, using his position of power for special treatment.” Id., pp. 8-9,
¶ 26.
IV. 	ANALYSIS
Defendants Elliott, Hanning, and Board contend that they are entitled to dismissal
of all causes of action in this case. The undersigned Magistrate Judge makes the following
findings as to each claim for relief against each Defendant.
A. 	First Amendment Retaliation Pursuant to § 1983 (Elliott and Hanning).
a. 	First Amendment Retaliation Allegations and Applicable Law.
Plaintiff alleges that Elliott was Plaintiff’s immediate supervisor and E-911 director,
and that Plaintiff worked for E-911, a public entity operated by the Board of County
Commissioners of Wagoner County. Hanning was a County Commissioner and Chairman
of the Board at the time of her termination. Docket No. 2, Ex. 6, pp.1-2, ¶¶ 1, 3-6. Plaintiff
alleges she engaged in protected speech when she submitted a grievance regarding Elliott,
in which she alleged Elliott created a hostile work environment. Plaintiff does not allege
the contents of the grievance submitted, nor the date on which she submitted it. The First
Amended Petition notes, however, that, following the submission of a number of
grievances regarding Elliott, the Board discussed Elliott’s conduct at its March 11, 2024,
meeting while in executive session. Furthermore, the Board called an emergency meeting
on March 12, 2024, upon reports of further misconduct by Elliott. 	Elliott was placed on
administrative leave that day, and Plaintiff was placed in the role of Interim Coordinator
for Wagoner County E-911 on March 13, 2024. There are no allegations that Elliott ever
returned to a position at E-911 after being placed on administrative leave. 	Plaintiff also
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 6 of 44

7
alleges she engaged in protected speech when she submitted ORA requests in December
2024 for text messages/emails between Hanning and Elliott on March 12, 2024. Id., pp. 2-
7, ¶¶ 7-21 & p, 8, ¶ 24.
Plaintiff alleges that Hanning texted Elliott on March 11, 2024, to share the names
of individuals who filed grievances against Elliott, information he learned during an
executive session of the Board. 	Id., p. 5, ¶ 14. 	Furthermore, at the January 21, 2025
executive session that resulted in Plaintiff being fired, Hanning alleged that Plaintiff used
her position for special treatment. Id., p. 8, ¶ 26.
Plaintiff’s First Amended Petition alleges that “Hanning and Elliott violated
Plaintiff’s First Amendment rights, first by creating a hostile work environment then by
terminating her. 	Indeed, Hanning is the individual who recommended termination.
Hanning did so in conspiracy with [Elliott], her husband Sheriff Chris Elliott, and DA Jack
Thorp.” Docket No. 2, Ex. 6, p. 9, ¶ 28. Parsing the combined allegations against Elliott
and Hanning, Plaintiff alleges that Elliott created a hostile work environment, was placed
on administrative leave, then conspired with Hanning to ultimately terminate Plaintiff’s
employment.
“To state a claim upon which relief can be granted under § 1983, a plaintiff must
allege: (i) a deprivation of a federal right; and (ii) that the person who deprived the plaintiff
of that right acted under color of state law.” Kvech v. New Mexico Dept. of Public Safety,
987 F. Supp. 2d 1162, 1186 (D. N.M. 2013) (citing West v. Atkins, 487 U.S. 42, 48 (1988));
see also Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009) (same). 	Thus, “the only
proper defendants in a Section 1983 claim are those who ‘represent [the state] in some
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 7 of 44

8
capacity, whether they act in accordance with their authority or misuse it.’” Gallagher v.
Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (quoting National
Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988)); see also American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“the under-color-of-state-law element of
§ 1983 excludes from its reach merely private conduct, no matter how discriminatory or
wrongful[.]”) (internal 	citations and quotations omitted). 	The 	Supreme Court has
established several tests for analyzing the state actor requirement to include the public
function,3 state compulsion,4 nexus,5 and joint action6 tests. None of these appear
applicable here based on the face of the Complaint. See Lugar v. Edmondson Oil Co., Inc.,
457 U.S. 922, 938-939 (1982) (compiling cases). 	Plaintiff’s First Amended Complaint
merely alleges that “the conduct at issue herein was taken under color of law.” Docket No.
2, Ex. 6, p. 10, ¶ 31. This sufficiently applies to Hanning, who was Chairman of the Board
in January 2025 and an alleged decisionmaker in Plaintiff’s termination. 	The First
Amended Petition contains no allegation, however, as to how Elliott was acting directly
3 Pursuant to the public function test, a party is deemed a state actor “[i]f the state delegates to a
private party a function traditionally exclusively reserved to the State.” 	Gallagher, 49 F.3d at
1456.
4 The state compulsion test “asks whether the challenged activity was the result of the State’s
exercise of coercive power or the State’s significant encouragement.” Vargas v. Frietze, 2003 WL
27385444, at *5 (D.N.M. Mar. 31, 2003) (citing Brentwood Academy v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 296 (2001)).
5 “Under the nexus test, a plaintiff must demonstrate that ‘there is a sufficiently close nexus’
between the government and the challenged conduct such that the conduct ‘may be fairly treated
as that of the State itself.’” Gallagher, 49 F.3d at 1448 (quoting Jackson v. Metro. Edison Co.,
419 U.S. 345, 351 (1974)).
6 “Under the joint action test, ‘courts examine whether state officials and private parties have acted
in concert in effecting a particular deprivation of constitutional rights.’” Janny v. Gamez, 8 F.4th
883, 918-919 (10th Cir. 2021) (quoting Gallagher, 49 F.3d at 1453)).
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 8 of 44

9
under color of law after she had been placed on administrative leave, and the conclusory
allegation of a conspiracy with Hanning and her husband, Sheriff Chris Elliott, is
insufficient to overcome that hurdle. 	Olson v. Carmack, 641 Fed. Appx. 822, 827 (10th
Cir. 2016) (“Here, the amended complaint contains no allegations that any of the Neighbors
was acting directly under color of law. And although this color-of-state-law requirement
can be established by allegations that a private actor conspired with a state actor the
amended complaint is devoid of any factual allegations, as opposed to unsupported
conclusions, that the Neighbors reached an agreement with a state actor to violate Mr.
Olson’s constitutional rights.”) (citing Dennis v. Sparks, 449 U.S. 24, 29 (1980)); see also
Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (“‘Conclusory allegations of
conspiracy are insufficient to state a valid § 1983 claim.’”) (quoting Durre v. Dempsey,
869 F.2d 543, 545 (10th Cir. 1989)). 	Even accepting as true that there was a conspiracy
among Elliott, her husband, and Hanning, the First Amended Petition fails to state a federal
claim of state action against Elliott for First Amendment retaliation.
Where a public employer is the same entity or individual alleged to have taken the
adverse action against the employee, claims are evaluated under the Garcetti/Pickering7
test, “[t]o achieve the required balance between the interests of public employees in
commenting on matters of public concern and the interests of government employers in
performing efficiently.” 	Bailey v. Indep. Sch. Dist. No. 69 of Canadian Cty. Oklahoma,
896 F.3d 1176, 1181 (10th Cir. 2018). Using that test, the Court asks:
(1) whether the speech was made pursuant to an employee’s official duties;
7 Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Board of Education, 391 U.S. 563 (1968).
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 9 of 44

10
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the
public service are sufficient to outweigh the plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.
Id. (quoting Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009)). 	This is the
appropriate test for Hanning.
However, a different test applies “for assessing First Amendment claims against a
defendant who is neither an employer nor a party to a contract with the plaintiff.” Worrell
v. Henry, 219 F.3d 1197, 1213 (10th Cir. 2000); see also Couch v. Bd. Of Trustees of
Memorial Hosp. of Carbon County, 587 F.3d 1223, 1237 (10th Cir. 2009) (citing Worrell,
id. at 1212, as applying “in First Amendment retaliation claims against defendants other
than the plaintiff’s employers.”). 	Where a Defendant was not Plaintiff’s employer at the
time of the adverse employment action, and there is no contractual relationship between
them, the Tenth Circuit requires:
[P]roof of the following elements: (1) that the plaintiff was engaged in
constitutionally protected activity; (2) that the defendant’s actions caused the
plaintiff to suffer an injury that would chill a person of ordinary firmness
from continuing to engage in that activity; and (3) that the defendant’s
adverse action was substantially motivated as a response to the plaintiff’s
exercise of constitutionally protected conduct.
Worrell, 219 F.3d at 1212 (quotations omitted); Irizarry v. Yehia, 38 F.4th 1282, 1288
(10th Cir. 2022) (same); see also Leverington v. City of Colorado Springs, 643 F.3d 719,
729 (10th Cir. 2011) (“Here, Officer Peters is not Ms. Leverington’s employer, and there
is 	no 	contractual 	relationship 	between 	them. 	Accordingly, 	Worrell 	applies 	to 	Ms.
Leverington’s cause of action against Peters.”). 	The Worrell test thus applies to Elliott.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 10 of 44

11
b. 	Elliott.
Even assuming arguendo that Plaintiff sufficiently alleges state action, Plaintiff’s
claim for First Amendment retaliation fails to state a claim under the Worrell test. Plaintiff
alleges she suffered an adverse employment action “because of her protected speech in that
she was terminated and that a significant motivating factor was expression of her political
speech and as such termination of Plaintiff is in contravention of her First Amendment
rights[.]” 	Docket No. 2, Ex. 6, pp. 9-10, ¶ 30. 	The alleged adverse employment action
arose, then, when Elliott was neither a supervisor nor final decisionmaker at the time of her
termination. 	Although Plaintiff and Elliott apply the Garcetti/Pickering test in their
briefing, the undersigned Magistrate Judge applies the Worrell test, as noted above, as
Elliott could no longer be considered an employer or in a contractual relationship with
Plaintiff. 	In assessing these elements, the undersigned Magistrate Judge notes that
“reliance on speculations and conclusory allegations is futile in pleading a plausible
retaliation claim.” 	VDARE Found. v. City of Colorado Springs, 449 F. Supp. 3d 1032,
1050 (D. Colo. 2020), affirmed, 11 F.4th 1151 (10th Cir. 2021).
The Tenth Circuit has stated that addressing the first Worrell prong—the Plaintiff
engaging in constitutionally-protected activity—is generally determined by the second
prong in the Garcetti/Pickering test as to whether a government employee’s speech is
protected because it is a matter of public concern. 	Leverington, 643 F.3d at 733 (citing
Dixon v. Kirkpatrick, 553 F.3d 1294, 1303-1304 (10th Cir. 2009) (applying public-concern
test to determine whether a government employee’s speech is “constitutionally protected”);
Brammer–Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1203 (10th Cir. 2007)
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 11 of 44

12
(“If the speech is not a matter of public concern, then the speech is unprotected and the
inquiry ends.”), abrogated on other grounds in Timmons v. Plotkin, _ F.4th _, 2025 WL
3059811, at *5 (10th Cir. Nov. 3, 2025); Worrell, 219 F.3d at 1205 (stating, in applying
Pickering test, that “only matters of public concern . . . are protected by the First
Amendment in this context”). 	“Matters of public concern are those of interest to the
community, whether for social, political, or other reasons.” Morris v. City of Colo. Springs,
666 F.3d 654, 661 (10th Cir. 2012) (quoting Leverington, 643 F.3d at 727). 	“Courts
construe ‘public concern’ very narrowly.” Butler v. Bd. of Cnty. Comm’rs, 920 F.3d 651,
656 (10th Cir. 2019) (quoting Leverington, 643 F.3d at 727). This is a legal question that
the Court is required to resolve. See Hulen v. Yates, 322 F.3d 1229, 1237 (10th Cir. 2003).
“In deciding what is a matter of public concern, we are required to consider ‘the content,
form, and context of a given statement, as revealed by the whole record.’” 	Brammer-
Hoelter, 492 F.3d at 1205 (quoting Connick v. Myers, 461 U.S. 138, 147-148, (1983)); see
also Van Deelen v. Johnson, 497 F.3d 1151, 1156 (10th Cir. 2007) (“[T]he test quite
properly applies to claims brought by government employees—but its scope reaches no
further.”).
The Tenth Circuit has “held that the following are not matters of public concern:
speech regarding grievances about internal departmental affairs, disputes over the term of
employment, and workplace frustration.” Brammer-Hoelter, 492 F.3d at 1205 (citing Hom
v. Squire, 81 F.3d 969, 974 (10th Cir. 1996); Lancaster v. Indep. Sch. Dist. No. 5, 149 F.3d
1228, 1233-1234 (10th Cir. 1998); & McEvoy v. Shoemaker, 882 F.2d 463, 466 (10th Cir.
1989)). 	“‘[S]peech relating to internal personnel disputes and working conditions
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 12 of 44

13
ordinarily will not be viewed as addressing matters of public concern.’” Morris, 666 F.3d
at 661 (quoting David v. City & Cnty. of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996)).
However, “‘[s]peech which discloses any evidence of corruption, impropriety, or other
malfeasance on the part of [state] officials, in terms of content, clearly concerns matters of
public import.’” Hulen, 322 F.3d at 1237 (quoting Conaway v. Smith, 853 F.2d 789, 796
(10th Cir. 1988) (alteration in original)). 	Additionally, “a public concern usually exists
when the speech exposes racial discrimination, harassment, or corruption in a public
workplace.” 	Rogers v. Riggs, 71 F.4th 1256, 1260 (10th Cir. 2023) (citing Connick, 461
U.S. at 148 n.8 (racial discrimination); Wulf v. City of Wichita, 883 F.2d 842, 860 (10th
Cir. 1989) (harassment); Conaway, 853 F.2d at 796 (corruption)).
Elliott contends that Plaintiff’s grievances were not a matter of public concern
because they were about Elliott’s behavior as a supervisor, and thus in the realm of
workplace frustrations. Plaintiff alleges in the First Amended Complaint that the written
complaints regarding Elliott filed by Plaintiff and others regarded allegations that she
created a hostile work environment, but likewise included allegations that she was violating
the FLSA and FMLA. Plaintiff therefore asserts that her grievances are matters of public
concern regarding use of taxpayer funds as to overtime pay and compliance with the law
regarding a potential hostile work environment by a taxpayer-funded entity. 	The
undersigned Magistrate Judge agrees with Plaintiff that at least some of her claims are
matters of public concern because they go to allegations of alleged official impropriety.
See Brammer-Hoelter, 492 F.3d at 1205 (“Statements revealing official impropriety
usually involve matters of public concern.”). Specifically, Plaintiff’s allegations regarding
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 13 of 44

14
alleged violations of FMLA and FLSA are sufficient allegations of matters of public
concern at this stage of the case.
Turning to the second element, the undersigned Magistrate Judge considers whether
Elliott’s actions “caused the plaintiff to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity.” Worrell, 219 F.3d at 1212.
“[O]ur standard for evaluating that chilling effect on speech is objective, rather than
subjective[.]” 	Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007)
(quotation 	omitted). 	The First Amended 	Petition 	asserts that 	Plaintiff 	and 	others
complained of Elliott’s behavior in March 2024, at which time Elliott was placed on
administrative leave. 	Plaintiff submitted ORA records request in December 2024, the
relevant one here being for emails and text messages between Hanning and Elliott on
March 12, 2024, alone.8 Plaintiff alleges she was fired on January 21, 2025, asserting that
Hanning used his position as a Wagoner County Commissioner to accomplish this. 	See
Docket No. 2, Ex. 6, p. 8, ¶¶ 24-26. As noted above, however, there is no allegation that
Elliott was an employee or supervisor of Plaintiff at the time Plaintiff was fired. In Count
1, then, Plaintiff alleges that Hanning and Elliott conspired, along with Elliott’s husband
and a district attorney, to accomplish her employment termination. 	Based on the First
Amended Petition, Plaintiff’s protected speech in March 2024 resulted in Elliott being
placed on administrative leave. Plaintiff alleges no facts regarding Elliott’s actions other
8 Although the First Amended Petition makes no effort to clarify what the ORA requests entailed
or why they were relevant, the attached requests themselves indicate the parties involved and the
scope of each ORA request by date and content, i.e., text messages and emails.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 14 of 44

15
than a conclusory accusation of conspiracy to have her employment terminated. Plaintiff
makes no allegation that Elliott interfered with her ability to speak freely, nor that Elliott’s
actions would have chilled a person of ordinary firmness. See Rees v. Dahl, 24 Fed. Appx.
907, 911 (10th Cir. 2001) (“He does not allege that Defendants attempted to interfere with
his ability to speak freely, or that he refrained from engaging in protected speech after
Defendants filed their replevin action. These circumstances, without an explicit allegation
that a person of ordinary firmness would have been chilled by Defendants’ actions, are
insufficient to satisfy Worrell’s objective chilling standard[.]”) (citing Smith v. Plati, 258
F.3d 1167, 1177 (10th Cir. 2001) (upholding a motion to dismiss a § 1983 plaintiff’s First
Amendment retaliation claim under Worrell because defendants did not, nor did they have
the power to, interfere with plaintiff’s actual First Amendment activity, and because
plaintiff persisted in speaking out despite the defendants’ alleged retaliatory acts).
Moreover, Plaintiff fails to allege that Elliott took an adverse action as to Plaintiff, much
less that such action was “substantially motivated as a response to Plaintiff’s exercise of
constitutionally protected conduct.” 	Worrell, 219 F.3d at 1212. 	For these reasons, the
undersigned Magistrate Judge finds Plaintiff fails to state a First Amendment retaliation
claim as to Elliott.
c. 	Hanning
As with Elliott, Hanning alone was not Plaintiff’s employer. Hanning served as a
Wagoner County Commissioner and Chairman on the Board of County Commissioners of
the County of Wagoner County, and Plaintiff alleges that E-911 and the Board are her
employers. Docket No. 2, Ex. 6, pp. 1, 10, ¶¶ 2, 36. Plaintiff nevertheless files this claim
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 15 of 44

16
against 	Hanning 	alone, 	and 	not 	the 	Board. 	Hanning 	acknowledges 	both 	the
Garcetti/Pickering 	test 	and 	the 	Worrell 	test 	in 	his 	briefing 	and 	seems 	to 	apply
Garcetti/Pickering while simultaneously arguing that Hanning himself was not Plaintiff’s
employer. Plaintiff applies the Garcetti/Pickering test, without addressing the identity of
Plaintiff’s employer, instead asserting that, “[j]ust because Hanning is prohibited from
acting unilaterally does not mean that he didn’t.” Docket No. 23, p. 4.
The Tenth 	Circuit has upheld 	the concept 	of individual 	liability in a 	First
Amendment retaliation case, as have other Circuits. Under Tenth Circuit precedent, while
Hanning alone did not make the final decision to terminate Plaintiff’s employment, he may
be liable if he possessed a retaliatory motive that set in motion the events that ultimately
led to her termination. Maestas v. Segura, 416 F.3d 1182, 1191 (10th Cir. 2005) (“While
Segura made the final decision to transfer Plaintiffs, Pratt, though a subordinate, might be
liable if he possessed a retaliatory motive which set in motion the events that ultimately
led to Plaintiffs’ transfers.”); see also Sims v. City of Madisonville, 894 F.3d 632, 639 (5th
Cir. 2018) (“If an individual defendant’s animus against a coworker’s exercise of First
Amendment rights is a link in the causal chain that leads to a plaintiff’s firing, the
individual may be liable even if she is not the final decisionmaker.”).
The 	undersigned 	Magistrate 	Judge 	applies 	here 	the 	more 	stringent
Garcetti/Pickering employee test. Pryor v. Sch. Dist. No. 1, 99 F.4th 1243, 1250 (10th Cir.
2024) 	(“Without 	deciding 	Plaintiff’s 	status, 	we 	apply 	the 	more 	stringent
[Garcetti/Pickering] 	employee 	test 	as 	Defendants 	urge. 	As 	noted 	above, 	a 	court
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 16 of 44

17
considering a First Amendment retaliation claim in the employee context must balance five
factors:
(1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the
public service are sufficient to outweigh the plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.
Bailey, 896 F.3d at 1181. “In general, the first three prongs are legal issues to be decided
by the court and the last two prongs are factual issues left to the factfinder.” Id. (emphasis
added).
Taking each prong in turn, Garcetti explains that, under the first prong, “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.” 	547 U.S. at 421. 	The Supreme Court
has more recently clarified that “[t]he critical question under Garcetti is whether the speech
at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely
concerns those duties.” 	Lane v. Franks, 573 U.S. 228, 240 (2014); accord Kennedy v.
Bremerton Sch. Dist., 597 U.S. 507, 529 (2022) (recognizing that Lane held that “the fact
the speech touched on matters related to public employment was not enough to render it
government speech”). Plaintiff does not allege what position she was originally hired for
at E-911, but alleges she was made Interim Coordinator on March 13, 2024. Docket No.
2, Ex. 6, pp. 1-2, 7, ¶¶ 1, 6, 21. See Brown v. Smith, 2012 WL 1085498, at *3 (N.D. Okla.
Mar. 29, 2012) (“This is not the type of well-pleaded allegation that must be accepted as
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 17 of 44

18
true when ruling on a motion to dismiss. By itself, plaintiff’s failure to provide some
indication of her job duties is a pleading deficiency.”). Plaintiff contends in her Response
Brief that complaints regarding violations of the FLSA and FMLA do not fall within
Plaintiff’s official duties, and Defendants do not challenge this argument. 	Plaintiff’s
Response brief only addresses the first prong.
As discussed more fully above, the undersigned Magistrate Judge finds, despite
Plaintiff’s lack of discussion on this subject, that at least some of her claims are matters of
public concern because they go to allegations of alleged official impropriety. 	See
Brammer-Hoelter, 492 F.3d at 1205 (“Statements revealing official impropriety usually
involve matters of public concern.”). Specifically, Plaintiff’s allegations regarding alleged
violations of FMLA and FLSA are sufficient allegations of matters of public concern at
this stage of the case. 	See, e. g., Hawkins v. Bd. of Cnty. Commissioners of Coffey Cnty.
Kansas, 376 F. Supp. 3d 1200, 1213 (D. Kan. 2019) (“[A]ccepting plaintiff’s allegations
as true, one could plausibly conclude that the second statement involved a matter of public
concern, namely that plaintiff intended the speech to inform the public of potential
wrongdoing or impropriety with respect to County practices regarding the treatment of
employees who are subject to personnel decisions of elected officials.”). But see Brammer-
Hoelter, 492 F.3d at 1206 (stating that a reference to a supervisor’s favoritism is “clearly”
not a matter of public concern).
The third prong – whether the government’s interests, as employer, in promoting
the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech
interests – largely requires a sufficient factual basis lacking at this stage of the proceedings.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 18 of 44

19
The undersigned Magistrate Judge notes that the First Amended Petition does not address
this prong even in conclusory fashion, nor do the parties address it in the briefing. 	See
Iwasko v. Santa Fe Cmty. Coll., 2011 WL 13284601, at *8 (D.N.M. Sept. 2, 2011) (“At
this point, Defendants have had no opportunity to present evidence concerning their interest
in regulating the speech at issue. Neither has the plaintiff set forth any allegations relevant
to this prong beyond her assertion of her First Amendment interest in free speech.”).
Because Plaintiff’s claim nevertheless fails at the fourth prong as discussed below, the
undersigned Magistrate Judge finds that a failure to engage with this prong does not save
the claim. See id. (“[I]t is unimportant that the Court cannot fully engage with this factor.
As explained below, even if Ms. Iwasko has met her burden on this issue, her claim
ultimately fails at the fourth step of the Garcetti/Pickering inquiry.”).
“Under the fourth-prong of Garcetti, plaintiffs bear the burden of establishing both
a detrimental employment decision (adverse employment action) and ‘causation—that is,
that the constitutionally protected speech was a substantial motivating factor in the
employer’s decision to adversely alter the employee’s conditions of employment.’” Couch,
587 F.3d at 1236 2009) (quoting Maestas, 416 F.3d at 1188 & n. 5). Plaintiff alleges she
was terminated in retaliation for protected speech, and that such speech was a significant
motivating factor. 	Docket No. 2, Ex. 6, pp. 9-10, ¶ 30. 	Generally, this factor is in the
province of the fact-finder, but Plaintiff cannot rely on this to avoid her pleading burden
under Fed. R. Civ. P. 12(b)(6).
Plaintiff alleges she filed a grievance as to Elliott, who was placed on leave in March
2024 while Plaintiff was promoted to Interim Coordinator, and that she filed ORA requests
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 19 of 44

20
in December 2024, and was fired in January 2025. 	Plaintiff alleges that, on January 21,
2025, during the executive session that led to her termination, Hanning asserted that
“Plaintiff had a character flaw because she used her position for special treatment.” Docket
No. 2, Ex. 6, p. 8, ¶ 26. Hanning’s alleged accusation that Plaintiff used her position for
special treatment has no connection to either her grievance as to Elliott or an ORA request.
“While [Plaintiff] is not required to prove its case in the pleadings, the complaint must
allege facts which plausibly support the allegation that [Defendant’s] alleged actions
involved a retaliatory motive.” 	Glover v. Mabrey, 384 Fed. Appx. 763, 772 (10th Cir.
2010) (citing Iqbal, 556 at 682). 	The undersigned Magistrate Judge notes that even
considering the approximate month between her ORA request and her employment
termination, such temporal proximity standing alone is insufficient to establish an inference
of retaliatory motive in this legal context. 	See Trant v. Oklahoma, 754 F.3d 1158, 1170
(10th Cir. 2014) (“[T]emporal proximity between the protected speech and the alleged
retaliatory conduct, without more, does not allow for an inference of a retaliatory motive.”).
Plaintiff provides no facts that a substantial motivating factor in her termination was any
protected activity, and she therefore fails to state a claim of First Amendment retaliation as
to Hanning.
B. 	FLSA Unpaid Wages and Overtime (Board).
Plaintiff alleges in her First Amended Petition that, while working for E-911 and
the Board, she routinely worked overtime but was neither paid overtime nor given
compensatory time off. She alleges that she was therefore not compensated as required by
the FLSA, and that she should be reimbursed for her reasonable fees and court costs.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 20 of 44

21
Docket No. 2, Ex. 6, pp. 10-11, ¶¶ 38-43. Related factual allegations in the First Amended
Petition are that several employees made complaints about Elliott to Human Resources,
which include allegations she violated the FLSA. Plaintiff alleges she made a complaint
about Elliott but does not indicate on what grounds.9 Id., pp. 2-3, ¶¶ 8-9.
The FLSA, 29 U.S.C. §§ 201-219, “protect[s] all covered workers from substandard
wages and oppressive working hours.” 	ElHelbawy v. Pritzker, 663 Fed. Appx. 658, 663
(10th Cir. 2016) (internal quotations and citations omitted). Section 206(a)(1) of the FLSA
sets a minimum wage, and Section 215(a)(2) enforces it. Generally, employees who work
more than 40 hours in a workweek are due overtime compensation of at least one-and-one-
half times their regular rate of pay. 29 U.S.C. § 207(a)(1). “[T]he Tenth Circuit has yet to
adopt a specific approach for determining the level of detail needed in an FLSA []claim to
overcome a Rule 12(b)(6) motion.” 	Gandy v. RWLS, LLC, 308 F. Supp. 3d 1220, 1223
(D.N.M. 2018). 	At the least, however, it seems apparent that the allegations must allege
that Plaintiff “worked more than 40 hours in any week [and] that, if she did, she was not
paid overtime for those hours.” ElHelbawy, 663 Fed. Appx. at 663. Plaintiff merely alleges
that 	she 	worked 	overtime, 	and 	that 	she 	was 	not 	paid 	overtime 	or 	provided 	with
compensatory time. Plaintiff does not allege she worked 40 hours per week and likewise
provides no relevant timeframe for these allegations. Plaintiff provides insufficient factual
context to nudge her claims from conceivable to plausible to state a claim for relief for
9 Later allegations in the First Amended Petition, as part of Plaintiff’s FLSA retaliation claim,
indicate that Plaintiff’s grievance included a complaint regarding lack of overtime pay. 	Docket
No. 2, Ex. 6, p. 12, ¶ 46.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 21 of 44

22
failure to pay overtime. 	Her assertions are merely conclusory statements that do not set
forth any facts that “raise a right to relief above the speculative level.” Twombly, 550 U.S.
at 555. The undersigned Magistrate Judge therefore recommends that Plaintiff’s claim for
an FLSA violation based on unpaid wages and overtime be dismissed.
C. 	FLSA Retaliation (Elliott, Hanning, and Board).
Next is Plaintiff’s claim of FLSA retaliation. 	Plaintiff alleges she engaged in
protected conduct by: (i) submitting a written grievance against Elliott that included an
assertion of lack of overtime pay, and (ii) refusing to retaliate against other individuals as
demanded by Elliott. 	Docket No. 2, Ex. 6, p. 12, ¶ 46. 	Plaintiff further alleges that
“Defendants retaliated against Plaintiff . . . by terminating Plaintiff, and creating a hostile
work environment and the availment of her rights was a significant motivating factor in
her termination.” 	Id., ¶ 47. 	Plaintiff vaguely alleges that Elliott and Hanning both
“attempted to dissuade plaintiff to not exercise her rights and terminated Plaintiff for a
sham reason.” 	Id. 	Plaintiff includes no further information as to when, where, or how
either Elliott or Hanning took these actions, either together or separately.
a. 	Elliot
Plaintiff alleges in her First Amended Petition that the FLSA allows for individual
liability under an economic realities test. Docket No. 2, Ex. 6, p. 12, ¶ 48. Plaintiff cites
“Hodson v. Okada, 472 F.2d 965, 1156, 1160 (10th Cir. 2018); Dole v. Elliott Travel &
Tours, Inc., 942 F.2d 962 (10th Cir. 1991).” Id. (emphasis added). The cases cited in the
First Amended Petition, however, are incorrectly cited and one lacks precedential value.
The apparent correct citations for these cases are as follows: Hodgson v. Okada, 472 F.2d
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 22 of 44

23
965 (10th Cir. 1973), a 1973 case which ends on page 969 (meaning the pinpoint cite does
not exist as to this case), as well as Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962 (6th
Cir. 1991), a case from an entirely different Circuit. 	Other courts to address the issue
extend liability only to “a person acting on behalf of the actual employer . . . with respect
to the employment relationship[.]” 	Diaz v. Longcore, 751 Fed. Appx. 755, 758 (6th Cir.
2018).
Plaintiff attempts to conflate her March 2024 grievance with her employment
termination in January 2025, but a significant intervening factor as admitted in the First
Amended Petition is that Elliott was placed on administrative leave after March 12, 2024.
Plaintiff’s response brief acknowledges what she states in the First Amended Petition: that
Hanning was a decisionmaker in her employment termination, not Elliott. 	The Tenth
Circuit recently approved the “economic reality test” for determining whether an individual
qualifies as an FMLA employer[,]” and the Tenth Circuit noted at the time that the FMLA
definition 	of 	“employer” 	“largely 	tracks 	the 	FLSA’s 	definition 	of 	employer[.]”
Walkingstick Dixon v. Oklahoma ex rel. Reg’l Univ. Sys. of Oklahoma Bd. of Regents, 125
F.4th 1321, 1342 (10th Cir. 2025) (internal quotation omitted).
The economic-reality test requires the Court to assess, under the totality of the
circumstances, “whether the alleged individual [i] has the power to hire and fire employees;
[ii] supervises and controls employee work schedules or conditions of employment;
[iii] determines the rate and method of payment; and [iv] maintains employment records.”
Gnapi v. Am. Farmers & Ranchers Mut. Ins. Co., 2022 WL 1213131, at *2 (W.D. Okla.
Apr. 25, 2022) (quotation omitted). 	None of these factors apply to Elliott at the time of
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 23 of 44

24
Plaintiff’s termination. For these reasons, the undersigned Magistrate Judge finds Plaintiff
fails to state an FLSA retaliation claim as to Elliott.
The undersigned Magistrate Judge finds this question of liability does not have to
be resolved as to Elliott because Elliott was not employed by E-911 or the Board at the
time of Plaintiff’s adverse employment action, and was therefore not a “person acting
directly OR indirectly in the interest of an employer in relation to an employee[.]” 	29
U.S.C. § 203(d) (defining employer under the FLSA) (emphasis added). 	Accordingly,
whether an individual supervisor or manager can be held liable is irrelevant here because
Elliott was neither at the time of the adverse employment action.10
b. 	Hanning
Under 29 U.S.C. § 215(a)(3), “it shall be unlawful for any person . . . to discharge
or in any other manner discriminate against any employee because such employee has filed
any complaint or instituted or caused to be instituted any proceeding under or related to
this chapter[.]” 	(emphasis added). 	And while any person who violates § 215 is, upon
conviction, liable for a fine, see 29 U.S.C. § 216(a), “[a]ny employer who violates the
provisions of section 215(a)(3) or 218d of this title shall be liable for such legal or equitable
relief as may be appropriate to effectuate the purposes of section 215(a)(3) or 218d of this
title[.]” § 216(b) (emphasis added). Although only persuasive authority, the undersigned
10 Plaintiff attempts to argue that her allegations of a hostile work environment while Elliott was
still her supervisor also constitute an adverse employment action, but the First Amended Petition
only alleges specific actions by Elliott as to Plaintiff on March 12, 2024. Although the allegations
from that day are serious, the result as identified in the First Amended Petition is that on March
13, 2024, Plaintiff was placed in an Interim supervisor role and Elliott was placed on administrative
leave. This does not constitute an adverse employment action.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 24 of 44

25
Magistrate Judge is inclined to agree with the Southern District of Florida that “[t]hese
provisions make clear that, under the FLSA, a ‘person’ may be fined or imprisoned for
violating section 215(a)(3) whereas legal or equitable relief may only be obtained against
an ‘employer.’” Poole v. City of Plantation, Fla., 2006 WL 8432490, at *3 (S.D. Fla. May
17, 2006). District courts in the Second Circuit have similarly concluded that “Congress
concluded its objectives would be best served by extending criminal liability to all persons
who engage in prohibited retaliation while limiting the private remedy to be only against
employers who engage in such retaliation.” Kim v. Lee, 576 F. Supp. 3d 14, 29 (S.D.N.Y.
2021), affirmed, 2023 WL 2317248 (2d Cir. Mar. 2, 2023). Such an interpretation is still
in keeping with the Tenth Circuit’s holding that “the anti-retaliation provisions of FLSA
apply to any person regardless of whether that person is an enterprise engaged in
commerce.” 	Acosta v. Foreclosure Connection, Inc., 903 F.3d 1132, 1136 (10th Cir.
2018). 	For these reasons, the undersigned Magistrate Judge finds Plaintiff has failed to
state an FLSA retaliation claim as to Hanning.
c. 	Board
For FLSA retaliation claims, courts are instructed to apply the shifting burden of
proof scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
“Under 	McDonnell 	Douglas, 	the 	plaintiff 	must 	first 	prove 	a 	prima 	facie 	case 	of
discrimination. 	If she does so, then the burden ‘shifts to the defendant to produce a
legitimate, non-discriminatory reason for the adverse employment action.’ If the defendant
provides such a reason, ‘the burden then shifts back to the plaintiff to show that the
plaintiff's protected status was a determinative factor in the employment decision or that
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 25 of 44

26
the employer’s explanation is pretext.’” Morman v. Campbell Cty. Mem. Hosp., 632 Fed.
Appx. 927, 933 (10th Cir. 2015) (quoting Khalik, 671 F.3d at 1192). “To establish a prima
facie case of FLSA retaliation, a plaintiff must show that: (1) he or she engaged in activity
protected by the FLSA; (2) he or she suffered adverse action by the employer subsequent
to or contemporaneous with such employee activity; and (3) a causal connection existed
between the employee’s activity and the employer’s adverse action.” Conner v. Schnuck
Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997) (citations omitted). These elements
can be contrasted with broader elements set forth by other Circuit courts, including the
Second Circuit, which does not require the adverse act to be committed by the “employer.”
See, e.g., Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010) (“[A] plaintiff alleging
retaliation under FLSA must first establish a prima facie case of retaliation by showing
(1) participation in protected activity known to the defendant, like the filing of a FLSA
lawsuit; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection
between the protected activity and the adverse employment action.”) (citing Cruz v. Coach
Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)). 	The first two elements are easily met.
Plaintiff, as discussed above, engaged in protected activity in March 2024 when she
reported alleged violations of the FLSA as part of her complaint regarding Elliott.
Furthermore, she was terminated in January 2025 after she engaged in this protected
activity.
Defendant’s arguments appropriately center on the third prong – a causal connection
– given the time elapsed between March 2024 and January 2025. The Board contends that
Plaintiff’s allegations of FLSA retaliation are conclusory, noting that Plaintiff’s complaints
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 26 of 44

27
relate to alleged FLSA violations submitted in March 2024, at which time she received a
promotion. 	The Board thus argues that any allegation that Plaintiff’s employment
termination in January 2025 was related to her March 2024 FLSA allegations is speculative
and lacks a basis in the facts because the time between the two is too long.
“[T]ermination following protected activity may create an inference of causation,
but ‘[u]nless the termination is very closely connected in time to the protected conduct, the
plaintiff will need to rely on additional evidence beyond mere temporal proximity.’” Inniss
v. Rocky Mountain Inventory, Inc., 385 F. Supp. 3d 1165, 1170 (D. Colo. 2019) (quoting
Conner, 121 F.3d at 1395). 	Generally, the sufficiency of temporal proximity falls
somewhere between six weeks or less and three months. See Anderson v. Coors Brewing
Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (“[W]e have held that a one and one-half month
period between protected activity and adverse action may, by itself, establish causation.
By contrast, we have held that a three-month period, standing alone, is insufficient to
establish causation.”) (citations omitted)). Plaintiff contends, however, that her December
2024 ORA requests likewise related to her FLSA complaint and constitute protected
activity because they sought the communications between Hanning and Elliott related to
the March 2024 complaint against Elliott. Plaintiff alleges that the December 2024 ORA
request 	was 	therefore 	sufficiently 	close 	in 	time 	to 	her 	January 	2025 	employment
termination to allege the requisite causal connection. 	The December 13, 2024, ORA
request for records between Elliott and Hanning was five weeks and two days prior to
Plaintiff’s employment termination. 	Though perhaps a close call, the undersigned
Magistrate Judge agrees that the December 13 ORA request relates to Plaintiff’s protected
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 27 of 44

28
activity because she requested communications between Hanning and Elliott in the March
2024 time period. 	At this stage of the case, the undersigned Magistrate Judge thus finds
that Plaintiff has sufficiently alleged an inference of causation through temporal proximity.
Because Plaintiff has alleged facts that could support a prima facie case of FLSA
retaliation, the undersigned Magistrate Judge finds that this claim should not be dismissed
as to the Board.
D. 	FMLA Interference (Hanning & Board).
The FMLA permits eligible employees to take leave for serious health conditions
and prohibits employers from retaliating against employees for doing so. 	See 29 U.S.C.
§§ 2612(a), 2615(a)(2); see also Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d
1164, 1170-1171 (10th Cir. 2006). The FMLA defines “employer” to “include[ ] . . . any
person who acts, directly or indirectly, in the interest of an employer to any of the
employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii). As noted above in the FLSA
context, the Tenth Circuit recently held that “(1) the FMLA permits individual liability and
(2) the economic reality test determines whether an individual qualifies as an FMLA
employer.” Walkingstick Dixon, 125 F.4th at 1342. The economic-reality test requires the
Court to assess, under the totality of the circumstances, “whether the alleged individual
[i] has the power to hire and fire employees; [ii] supervises and controls employee work
schedules or conditions of employment; [iii] determines the rate and method of payment;
and [iv] maintains employment records.” 	Gnapi, 2022 WL 1213131, at *2 (citation
omitted) (quoting Zisumbo v. Convergys Corp., 2020 WL 3546794, at *11 (D. Utah June
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 28 of 44

29
30, 2020) (quoting Saavedra v. Lowe’s Home Ctrs., Inc., 748 F. Supp. 2d 1273, 1292
(D.N.M. 2010)).
Plaintiff alleges in the First Amended Petition that she learned in June 2024 that she
needed major spine surgery, and underwent that surgery on June 23, 2024, and was
hospitalized overnight. 	After her June 24 hospital discharge, Plaintiff was scheduled to
return to work on a modified work schedule two weeks later, so she submitted FMLA
paperwork. Hanning’s predecessor as Board Chairman, Tim Kelley, approved the FMLA
leave. Docket No. 2, Ex. 6, p. 7, ¶ 22. Furthermore, Plaintiff alleges that she applied for
and was approved intermittent leave as a result of her serious health condition. Id., p. 13,
¶ 57. 	She alleges Hanning and the Board interfered with her FMLA rights “as set forth
above.” Id., p. 14 ¶¶ 58, 62.
“To establish an FMLA interference claim, an employee must show that (1) [s]he
was entitled to FMLA leave, (2) an adverse action by h[er] employer interfered with h[er]
right to take FMLA leave, and (3) this adverse action was related to the exercise or
attempted exercise of the employee’s FMLA rights.” DePaula v. Easter Seals El Mirador,
859 F.3d 957, 978 (10th Cir. 2017) (quotation omitted). “On return from FMLA leave, an
employee is entitled to be returned to the same position the employee held when leave
commenced, or to an equivalent position with equivalent benefits, pay, and other terms and
conditions 	of 	employment.” 	29 	C.F.R. 	§ 	825.214. 	“Under 	this 	theory, 	a 	denial,
interference, or restraint of FMLA rights is a violation regardless of the employer’s intent,
and the McDonnell Douglas burden-shifting analysis does not apply to interference
claims[.]” 	Metzler, 464 F.3d at 1180 (10th Cir. 2006) (citing Bones v. Honeywell Int’l,
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 29 of 44

30
Inc., 366 F.3d 869, 877 (10th Cir. 2004) (citing Smith v. Diffee Ford-Lincoln-Mercury, 298
F.3d 955, 960, 963 (10th Cir. 2002). At the motion to dismiss stage, Plaintiff has the burden
to plead the first two elements, because the burden for the third element lies with
Defendants. See Dalpiaz v. Carbon Cnty., Utah, 760 F.3d 1126, 1132 (10th Cir. 2014) (“If
the employee can demonstrate that the first two elements of interference are satisfied, the
employer then bears the burden of demonstrating that the adverse decision was not related
to the exercise or attempted exercise of [the employee’s] FMLA rights.”) (quotation
omitted).
Plaintiff’s First Amended Petition alleges that Hanning called Plaintiff while she
was out on FMLA leave, placing her on speakerphone during a Board meeting and asking
her to discuss and then provide communications related to her FMLA leave. Defendants
contend Plaintiff fails to allege in any way how her rights were interfered with because she
was able to have her surgery and take off the needed time. Plaintiff’s Response sets forth
the law related to FMLA interference claims, then concludes without further discussion
that she has alleged her FMLA rights were interfered with.
Assuming arguendo that both Hanning and the Board can be considered Plaintiff’s
employers, the undersigned Magistrate Judge nevertheless finds that Plaintiff fails to allege
facts that either Defendant took adverse action that interfered with her right to take FMLA
leave. While Plaintiff appropriately alleges that she was entitled to FMLA leave, she fails
at the second element. Plaintiff only alleges that Hanning called her regarding her FMLA
leave and asked for documentation. 	While such actions could be conceived as criticism,
they do not rise to the level of interference required to state a claim. And Plaintiff actively
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 30 of 44

31
alleges that Kelley, as Chairman of the Board, approved her FMLA leave. This is the only
passing reference to the Board as relates to this claim. “To satisfy the second element of
an interference claim—adverse action interfering with the right to take FMLA leave—‘the
employee must show that she was prevented from taking the full 12 weeks[ ] of leave
guaranteed 	by 	the 	FMLA, 	denied 	reinstatement 	following 	leave, 	or 	denied 	initial
permission to take leave.’” 	Dalpiaz, 760 F.3d at 1132 (quoting Campbell v. Gambro
Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007); see also 29 C.F.R. § 825.216(a)(1)
(containing limitations on an employees’ right to reinstatement). Plaintiff alleges none of
these as to either Defendant. 	Furthermore, even “comments that merely criticize an
employee for taking leave, especially those made after an employee returns from leave, do
not create a ‘powerful disincentive’ to an employee’s assertion of FMLA rights.” Schlagel
v. Disc. Tire Co. of Colorado, Inc., 2025 WL 316549, at *6 (D. Colo. Jan. 28, 2025)
(quoting Mardis v. Cent. Nat’l Bank & Tr. of Enid, 173 f.3d 864, 1999 WL 218903, at *2
(10th Cir. Apr. 15, 1999) (unpublished table opinion); see also Ford v. Brennan, 2023 WL
5606233, at *3 (10th Cir. Aug. 30, 2023) (Plaintiff “does not assert an adverse employment
action related to the exercise of his protected leave. 	He alleges several instances of
potential interference, including letters of warning; his supervisors’ harassment; and failure
to reinstate after taking protected leave. . . . At no point was Ford prevented from taking
his full 12 weeks of leave guaranteed by the FMLA or denied any rights pursuant to the
Act. While this court does not condone Gunnarson and Clark’s criticism of Ford’s FMLA
use, our precedent indicates such comments, without more, do not amount to ‘an adverse
employment decision [ ] made before the employee has been allowed to take FMLA leave
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 31 of 44

32
or while the employee is still on FMLA leave.’”) (quoting Dalpiaz, 760 F.3d at 1132).
Thus, Plaintiff fails to sufficiently allege the second element of an FMLA interference
claim and the claim should therefore be dismissed.
E. 	FMLA Retaliation (Hanning & Board).
Hanning called a special meeting of the Board on June 28, 2024, regarding
Plaintiff’s Interim Coordinator position. 	Plaintiff alleges Hanning “retaliated against
Plaintiff during this meeting, by placing her on speakerphone while she was at home
recovering from surgery, on pain medication, and on FMLA approved leave. 	Hanning
demanded to know who Plaintiff informed about her surgery, when she would be returning
to work, and who was covering her position in her absence.” Id., p. 8, ¶ 23. When he was
informed that Mr. Kelley approved Plaintiff’s leave, Hanning requested Plaintiff provide
correspondence between herself and Mr. Kelley to the County Clerk. The Board took no
action as to Plaintiff at that meeting. Id. Plaintiff’s employment was terminated in January
2025. 	Plaintiff’s cause of action for FMLA retaliation alleges that she availed herself of
her FMLA rights and Defendants retaliated against her for doing so. Docket No. 2, Ex. 6,
p. 15, ¶¶ 65-66.
FMLA retaliation claims are subject to the McDonnell Douglas burden-shifting test.
Dewitt v. Southwestern Bell Telephone Co., 845 F.3d 1299, 1318 (10th Cir. 2017). 	“Under
this analysis, the plaintiff bears the initial burden of establishing a prima facie case of
retaliation,” by proving that “(1) she engaged in a protected activity; (2) [Defendant] took
an action that a reasonable employee would have found materially adverse; and (3) there
exists a causal connection between the protected activity and the adverse action.” Metzler,
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 32 of 44

33
464 F.3d at 1170-1171 (footnote omitted). 	If Plaintiff establishes a prima facie case,
“[D]efendant must offer a legitimate, non-retaliatory reason for the employment action.
The plaintiff then bears the ultimate burden of demonstrating that the defendant's proffered
reason is pretextual.” Id. at 1170 (citation omitted). The McDonnell Douglas prima facie
case standard is “an evidentiary standard, not a pleading requirement.” 	Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 510 (2002). “Still, Twombly and Iqbal require that a plaintiff
allege a plausible claim[, and] we can evaluate her claim’s plausibility only by considering
the prima facie case of discrimination that she would need to prove in court.” 	Morman,
632 Fed. Appx. at 933. “In pleading a discrimination claim, she need not set forth a prima
facie case for discrimination. But she must allege facts that make such a claim at least
plausible.” 	Id. 	The Board and Hanning both contend that Plaintiff’s claim for FMLA
retaliation fails because Hanning was not solely responsible for Plaintiff’s termination, and
the claim is devoid of factual allegations to support a claim against either Hanning or the
Board. Plaintiff simply responds that she had stated a sufficient claim for relief.
For both Hanning and the Board, Plaintiff readily establishes the first prong of her
prima facie case because she engaged in protected activity when she took FMLA leave in
June 2024. 	A recent Supreme Court decision appears to modify the second prong
requirement that the adverse employment action must be “material,” or “significant.” “To
demand ‘significance’ is to add words—and significant words, as it were—to the statute
Congress enacted. 	It is to impose a new requirement on a [FMLA] claimant, so that the
law as applied demands something more of her than the law as written.” Muldrow v. City
of St. Louis, Missouri, 601 U.S. 346, 355 (2024). 	Even with this clarification, however,
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 33 of 44

34
the second prong nevertheless requires Plaintiff to “show some harm respecting an
identifiable term or condition of employment.” Id. A generous construction of Plaintiff’s
First Amended Complaint raises two possibilities for actions that a reasonable employee
may have considered adverse: (i) Hanning’s phone call to Plaintiff during a Board meeting
while she was out on FMLA leave, and (ii) her termination. 	Termination is easily
considered materially adverse. See Metzler, 464 F.3d at 1171(“[A]ny reasonable employee
would have found termination materially adverse.”). 	Hanning’s phone call during the
Board meeting is not, however, because Plaintiff fails to identify any harm related to the
terms or conditions of employment. Indeed, Plaintiff alleges the Board “voted to take no
action during the meeting, leaving Plaintiff in the Interim Coordinator position.” Docket
No. 2, Ex. 6, p. 8, ¶ 23. Only Plaintiff’s termination, then, establishes the second prong.
This nevertheless presents a problem for the third prong. Given the only alleged adverse
employment action was Plaintiff’s termination, temporal proximity alone is insufficient to
establish the causal connection required for the third prong, given that over six months
elapsed between Plaintiff’s FMLA leave and her employment termination. See Anderson,
181 F.3d at 1179 (“[W]e have held that a one and one-half month period between protected
activity and adverse action may, by itself, establish causation. By contrast, we have held
that a three-month period, standing alone, is insufficient to establish causation.”) (citations
omitted)).
Accordingly, the undersigned Magistrate Judge recommends that Plaintiff’s claim
for FMLA retaliation as to both Hanning and the Board be dismissed for failure to state a
claim. In light of this finding, the undersigned Magistrate Judge declines to assess, at this
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 34 of 44

35
stage of the case, whether Hanning is considered an employer pursuant to the economic
realities test for purposes of this claim.
F. 	Breach of Contract (Board).
Plaintiff alleges that she had an employment contract with the Board through the
Wagoner County Personnel Policy Handbook (“Handbook”), which she alleges the Board
breached through retaliation and interference with FMLA-approved leave. 	Plaintiff
includes excerpts from the Handbook in her First Amended Petitions and attached the entire
Handbook as an exhibit to the First Amended Petition. 	See Docket No. 2, Ex. 6, pp. 15-
19, ¶¶ 67-74 & pp. 23-44.11 Under Oklahoma law, the elements for a breach of contract
claim are: “(1) the formation of a contract, (2) breach of the contract, and (3) damages as a
result of that breach.” Cates v. Integris Health, Inc., 2018 OK 9, ¶ 11, 412 P.3d 98, 103.
The Board contends there is no contract because the Handbook states that it is not a
contract for employment. See Docket No. 2, Ex. 6, p. 26 (“This handbook is designed to
familiarize you with the policies and practices that apply to your employment. 	It is not
intended to be and does not constitute a contract of employment.”). Furthermore, the Board
contends that there was no breach of contract because Plaintiff’s allegations fail to establish
FMLA 	interference 	or 	retaliation. 	Plaintiff 	nevertheless 	contends 	that 	she 	has
appropriately alleged an implied contractual right to certain procedures, and that the
11 The excerpts include language related to “Earning Overtime” and “Compensatory Time Off for
Overtime,” which relate to the FLSA, as well as FMLA. Although Plaintiff only makes specific
reference to FMLA leave in the allegations following these excerpts, the undersigned Magistrate
Judge addresses this claim out of an abundance of caution considering the recommendation that
Plaintiff’s FLSA claim as to the Board should not be dismissed.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 35 of 44

36
existence of an implied contract is generally a question of fact. Furthermore, she contends
that any disclaimer of contractual rights as to an employee must be clear.
“An implied contract is one, the existence and terms of which are manifested by
conduct.” 	15 Okla. Stat. § 133. 	“[A]n employee handbook may form the basis of an
implied contract between an employer and its employees if four traditional contract
requirements 	exist: 	(1) 	competent 	parties, 	(2) 	consent, 	(3) 	a 	legal 	object 	and
(4) consideration[,]” but “an employer may deny (or disclaim) any intent to make the
provisions of a personnel manual part of the employment relationship,” although “the
disclaimer must be clear” and the employer’s conduct does not negate the disclaimer’s
effect. Russell v. Board of County Commissioners, Carter County, 1997 OK 80, ¶¶ 23-24,
952 P.2d 492, 501-502. 	An employer’s conduct that is inconsistent with the disclaimer
may negate the disclaimer’s effect, and “[t]he efficacy of a disclaimer is generally a mixed
question of law and of fact.” Id.
The Handbook in this case contains a clear disclaimer on the part of the Board, as
described above. 	Furthermore, the Acknowledgement Form requiring an employee’s
signature states, in bold, “I further understand The Handbook is not, nor is it intended
to be a contract of employment. 	I further understand the County Elected Official
retains the right of employment-at-will to terminate his/her employees at any time for
any reason not prohibited by Federal, State or Municipal law. Employees may also
terminate at will.” 	Docket No. 2, Ex. 6, p. 24. 	Plaintiff does not allege that either of
these disclaimers was negated by the Board’s conduct and relies solely on the manual to
support her claim. The disclaimer is therefore effective. The undersigned Magistrate Judge
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 36 of 44

37
finds Plaintiff fails to allege a sufficient implied contractual right, and Plaintiff’s breach of
contract claim should be dismissed. See also Webb v. City of Eufala, 2018 WL 4690382,
at *4 (E.D. Okla. Sept. 28, 2018) (“Here, there is a clear disclaimer on the part of the
Defendant, and thus no contract. Defendant City of Eufaula is entitled to dismissal of
Plaintiff’s claim for breach of contract (Count III).”); see also Maxey v. Ezzell, 2013 WL
6850792, at *2 (E.D. Okla. Dec. 30, 2013) (“[P]laintiff cites the portion of the personnel
materials stating that the employer may not violate federal or state law. 	The court finds
that this provision does not create an implied contract, but merely states the truism that ‘at
will’ employment does not mean an employer is exempt from the specific remedy provided
by the violation of a specific law.”).
G. 	Promissory Estoppel (Board).
Plaintiff alleges alternatively to her breach of contract claim that she “relied to her
detriment on the assurances provided by Defendant Board” such that a contract should be
enforced through promissory estoppel and/or detrimental reliance. Docket No. 2, Ex. 6, p.
19, ¶ 75. Other than incorporating the foregoing allegations of the First Amended Petition,
Plaintiff does not further define “assurances provided by Defendant Board” in her one-
paragraph cause of action. “The elements necessary to establish promissory estoppel are:
(1) a clear and unambiguous promise, (2) foreseeability by the promisor that the promisee
would rely upon it, (3) reasonable reliance upon the promise to the promisee’s detriment
and (4) hardship or unfairness can be avoided only by the promise’s enforcement.” Russell,
1997 OK 80, ¶ 27, 952 P.2d at 503.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 37 of 44

38
The Board asserts this claim should be dismissed because Plaintiff fails to identify
any specific promises, instead making conclusory assertions that she relied to her detriment
on “assurances.” 	Additionally, the Board contends Plaintiff’s allegations substantively
fails because she has failed to allege an act that could be reasonably characterized as
retaliation for exercise of FMLA rights. Plaintiff’s only response is that the Board seeks
to enforce the Handbook only for its benefit, and does not address questions regarding
specific promises made. 	If Plaintiff is alleging that she reasonably relied on promises
regarding FMLA leave contained in the Handbook, she has failed to plead facts to make
this claim viable. The undersigned Magistrate Judge therefore recommends that Plaintiff’s
claim for promissory estoppel be denied. 	See, e.g., McIntire v. Noble Energy, Inc., 2016
WL 11941721, at *5 (E.D. Okla. May 3, 2016) (“The court finds Plaintiffs have failed to
plead facts which make a claim for promissory estoppel viable.”) (citing Twombly, 550
U.S. at 570).
H. 	Malicious Interference with a Contractual Relationship (Elliott & Hanning).
Plaintiff alleges in the First Amended Petition that Elliott and “Hanning interfered
with Plaintiff’s contractual relationship by terminating her, and otherwise retaliating
against her.” 	Docket No. 2, Ex. 6, p. 19, ¶ 76. 	Further, she alleges Elliott and Hanning
interfered with her employment “maliciously and without justification.” Id., ¶ 77.
“Oklahoma recognizes tortious interference with prospective economic advantage,
as well as tortious interference with an actual contractual relationship.” 	Goff v. Hukill,
2010 WL 2595785, at *7 (N.D. Okla. June 24, 2010), (citing Gonzalez v. Sessom, 2006 OK
CIV APP 61, ¶ 16, 137 P.3d 1245, 1249; McNickle v. Phillips Petroleum Co., 2001 OK
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 38 of 44

39
CIV APP 54, ¶ 21, 23 P.3d 949, 953-954; and Harman v. Okla. ex. rel. N. Okla. Bd. of
Regents, 2007 WL 1674205, at *3 (W.D. Okla. June 7, 2007) (unpublished) (concluding
that “[a]lthough there apparently is no Oklahoma Supreme Court authority directly
recognizing [a tortious interference with prospective economic advantage] claim in the at-
will employment context . . . lower Oklahoma courts have recognized the cause of action
without hesitation”)). “[A]n actual contract is not a requirement for recovery.” Goff, 2010
WL 2595785, at *7; see also Cooper v. Northwest Rogers County Fire Protection District,
2017 WL 3710081, at *4 (N.D. Okla. Aug. 28, 2017) (“[T]he Oklahoma Court of Civil
Appeals has held that an at-will contract of employment can form the basis for a malicious
interference with a contractual relationship claim. The Court has found no decision of the
Oklahoma Supreme Court to indicate that it would disagree with the Oklahoma Court of
Civil Appeals on this issue. Moreover, several federal district courts have determined that
an at-will employee may state a claim for malicious interference with a contractual
relationship, relying on the decisions of the Oklahoma Court of Civil Appeals.”) (internal
citations omitted). In other words, “Plaintiff’s status as an at-will employee of the County
does not bar her tortious interference claim.” 	Wheeler v. Bd. of Cnty. Commissioners of
the Cnty. of Leflore Cnty., 2022 WL 20099257, at *9 (E.D. Okla. Dec. 30, 2022), report
and recommendation adopted sub nom., 2023 WL 3568028 (E.D. Okla. May 19, 2023).
“The elements of a claim for [tortious] interference are: 1) interference with a
business or contractual right; 2) malicious and wrongful interference that is neither
justified, privileged, nor excusable; and 3) damage proximately sustained as a result of the
interference.” Tuffy’s, Inc. v. City of Oklahoma City, 2009 OK 4, ¶¶ 14-15, 212 P.3d 1158,
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 39 of 44

40
1165 	(“The 	terms 	‘malicious 	interference,’ 	‘intentional 	interference,’ 	and 	‘tortious
interference’ with contract or business relations have been used interchangeably in
Oklahoma 	jurisprudence, 	and 	do 	not 	designate 	distinct 	torts[.]”) 	(internal 	citations
omitted). “The element of malice, for malicious interference, is defined as an unreasonable
and wrongful act done intentionally, without just cause or excuse. 	This element clearly
requires a showing of bad faith.” Tuffy’s, 2009 OK 4, ¶ 14, 212 P.3d at 1165.
a. 	Elliott
Elliott contends this claim should be dismissed because the First Amended Petition
only contains a conclusory allegation that Hanning and Elliott conspired to get her fired,
along with the acknowledgement that Elliott was placed on leave in March 2024, with no
allegation that her status changed by January 2025. 	The undersigned Magistrate Judge
agrees that Plaintiff makes no allegations, other than conclusory suggestions of conspiracy,
that Elliott took any specific action as to Plaintiff. 	Plaintiff’s allegations that Elliott
interfered with her employment by terminating her is insufficient, particularly where, as
here, the First Amended Petition makes clear that Elliott had no official role in Plaintiff’s
termination as she herself had been placed on administrative leave some ten months prior.
See, e.g., Coleson v. Feed the Child., Inc., 2022 WL 2655800, at *3 (W.D. Okla. July 8,
2022) (“There are simply no facts alleged that Ms. Moss gained, or attempted to gain,
anything personally from participating in Plaintiff’s termination. Without plausible factual
allegations that Ms. Moss acted against FTC’s interests in favor of her own, Mr. Coleson
has failed to state a claim against Defendant Moss under Oklahoma common law for
tortious interference.”); Wheeler, 2022 WL 20099257, at *10 (“[A]lleging that the
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 40 of 44

41
Individual Defendants interfered with her employment by terminating her is not enough.”)
(citing Wilson v. City of Tulsa, 2004 OK CIV APP 44, ¶¶ 17 & 19, 91 P.3d 673, 679 (“The
officer’s actions cannot be characterized as malicious or in bad faith based only on the fact
of the interference with the contract. Here, the record is devoid of other evidence regarding
Chief’s behavior or intentions toward Wilson in this context or any other. 	There is,
therefore, no legal basis for concluding that Chief operated outside the scope of his
employment.”) (citing Martin v. Johnson, 1998 OK 127, ¶ 33, 975 P.2d 889, 896)); Grillot
v. Oklahoma ex rel. University of Okla. Bd. of Regents, 2019 WL 3558183, *4 (W.D. Okla.
Aug. 5, 2019) (“[F]or the exception to the general rule to apply with the result that the
tortious interference claim alleged in this action survives, the agent accused of tortious
interference must have acted against the interest of the principle and in furtherance of the
agent’s own, personal interest. 	Moreover, to show that the agent was acting in his own
interests requires more than a showing of bad faith; plaintiff must show that the agent was
acting contrary to the business interest of his employer and in furtherance of the agent’s
own, 	personal 	interests.”) 	(citations 	omitted). 	For 	these 	reasons, 	the 	undersigned
Magistrate Judge finds Plaintiff fails to state a claim for malicious interference with a
contractual relationship as to Elliott.
b. 	Hanning
Hanning likewise contends this claim against him should be dismissed, asserting
that Plaintiff’s claims are conclusory and further fatal because Hanning is an agent of the
Board as one of the county commissioners. “A malicious interference claim ‘is viable only
if the interferor is not a party to the contract or business relationship[,]’ and an employee’s
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 41 of 44

42
‘interference with [an employer’s] contract will be privileged only when the interference
is undertaken in good faith and for a bona fide organizational purpose.’” 	Cooper, 2017
WL 3710081, at *5 (quoting Wilspec Tech. Inc. v. DunAn Holding Group, Co., 2009 OK
12, ¶ 15, 204 P.3d 69, 74, & Martin, 1998 OK 127, ¶ 31, 975 P.2d at 896 (quotation
omitted)). 	Hanning contends that, as a county commissioner, he is an agent acting in a
representative capacity for a party to any contract. See Voiles v. Santa Fe Minerals, Inc.,
1996 OK 13, ¶ 18, 911 P.2d 1205, 1210 (“Hugoton cannot be liable for wrongfully
interfering with a contract if it was acting in a representative capacity for a party to that
contract.”). The exception applies when an agent acts in bad faith and against the interest
of the employer/principal. 	See Martin, 1998 OK 127, ¶ 32, 975 P.2d at 896-897 (“If an
employee acts in bad faith and contrary to the interests of the employer in tampering with
a third party’s contract with the employer we can divine no reason that the employee should
be exempt from a tort claim for interference with contract.”); (citations omitted) (emphasis
in original). 	As noted above, merely alleging that Hanning interfered with Plaintiff’s
employment by terminating her is not enough. See Wilson, 2004 OK CIV APP 44, ¶ 19,
91 P.3d at 679 (“The officer’s actions cannot be characterized as malicious or in bad faith
based only on the fact of the interference with the contract. Here, the record is devoid of
other evidence regarding Chief’s behavior or intentions toward Wilson in this context or
any other. There is, therefore, no legal basis for concluding that Chief operated outside the
scope of his employment.”) (citing Martin, 975 P.2d at 897).
Plaintiff alleges that Hanning interfered with her employment “maliciously and
without justification,” and by “otherwise retaliating against her.” Docket No. 2, Ex. 6, p.
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 42 of 44

43
19, ¶¶ 76-77. In the facts provided related to her termination, Plaintiff alleges that Hanning
was overheard alleging “Plaintiff had a character flaw because she used her position for
special treatment. This assertion is an obvious pretext. It is false.” Id., p. 8, ¶ 26. Plaintiff,
however, alleges no facts that Hanning acted in bad faith specifically as to the termination
of her employment, and more importantly makes no allegations that Hanning’s actions,
with regard to her termination, were in furtherance of his own interest or contrary to the
interests of her employer and not for a bona fide organizational purpose. See Grillot, 2019
WL 3558183, at *4 (“This discussion in Martin makes clear that for the exception to the
general rule to apply with the result that the tortious interference claim alleged in this action
survives, the agent accused of tortious interference must have acted against the interest of
the principle and in furtherance of the agent’s own, personal interest. Moreover, to show
that the agent was acting in his own interests requires more than a showing of bad faith;
plaintiff must show that the agent was acting contrary to the business interest of his
employer and in furtherance of the agent’s own, personal interests.”). 	Accordingly, the
undersigned Magistrate Judge finds Plaintiff fails to state a claim for malicious interference
with a contractual relationship as to Hanning.
CONCLUSION
In sum, the undersigned Magistrate Judge hereby RECOMMENDS that Defendants’
Hanning, Wagoner County E-911 and Board of County Commissioners of Wagoner
County’s Motion to Dismiss and Brief in Support [Docket No. 19] be DENIED as to
Plaintiff’s claim for FLSA Retaliation as to the Board ONLY and otherwise GRANTED.
Additionally, the undersigned Magistrate Judge RECOMMENDS that the Motion to
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 43 of 44

44
Dismiss of Defendant Judy Elliott and Brief in Support [Docket No. 20] be GRANTED.
Any objections to this Report and Recommendation must be filed within fourteen days.
See 18 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Any objection and response shall each
be limited to 10 pages and a reply is permitted only with leave of Court upon a showing of
good cause.
DATED this 18th day of November, 2025.
_____________________________________
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
6:25-cv-00174-JFH-GLJ Document 38 Filed in ED/OK on 11/18/25 Page 44 of 44