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ROUSE v. GRAND RIVER DAM AUTHORITY2014 OK 39326 P.3d 1139Case Number: 112058Decided: 05/13/2014As Corrected: May 20, 2014THE SUPREME COURT OF THE STATE OF OKLAHOMACite as: 2014 OK 39, 326 P.3d 1139
CHESTER ROUSE, Plaintiff/Appellant,v.GRAND RIVER DAM 
AUTHORITY and DANIEL S. SULLIVAN, Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OF MAYES 
COUNTYHONORABLE TERRY H. McBRIDE

¶0 Discharged employee sued the Grand River Dam Authority and its chief 
executive officer alleging wrongful termination. The trial court dismissed the 
suit for failure to state a claim upon which relief could be granted, ruling (1) 
sovereign immunity barred employee's claim based on the federal Fair Labor 
Standards Act and (2) the Oklahoma Whistleblower Act provided employee's remedy 
for the alleged wrongful termination, not state tort law. Employee appealed and 
this Court retained the appeal.

DISMISSAL AFFIRMED.

James C. Thomas, William D. Thomas, THOMAS LAW FIRM PLC, Tulsa, Oklahoma, 
Attorneys for Plaintiff/Appellant,J. Heath Lofton, Grand River Dam 
Authority, Vinita, Oklahoma, Attorney for Defendants/Appellees.


REIF, V.C.J.:
¶1 On February 25, 2013, Chester Rouse filed a wrongful termination suit 
against the Grand River Dam Authority (GRDA) and Daniel S. Sullivan. The 
petition alleged GRDA and Mr. Sullivan terminated Mr. Rouse on February 17, 
2012, in retaliation for filing an overtime complaint under the Fair Labor 
Standards Act (FLSA), 29 U.S.C. § 201 through § 219. Retaliation for filing such 
a complaint is forbidden by section 215(a)(3) and is actionable under section 
216(b). Mr. Rouse also alleged the termination of his employment for filing this 
complaint violated Oklahoma public policy protecting whistleblowers who make 
external reports of unlawful activity by their employers.
¶2 GRDA and Mr. Sullivan filed a motion to dismiss for failure to state a 
claim upon which relief can be granted. The motion to dismiss argued (1) 
sovereign immunity barred suit against GRDA and Mr. Sullivan on the federal 
claim and (2) Mr. Rouse had a remedy under the Oklahoma Whistleblower Act and, 
therefore, a tort claim was not available to protect the public policy that 
encourages reports of unlawful activity by employers.
¶3 The trial court granted the motion to dismiss and Mr. Rouse appealed. We 
retained this appeal and, upon review, affirm the dismissal.
¶4 When reviewing a motion to dismiss for failure to state a claim, the 
allegations in the petition must be taken as true. Indiana National Bank v. 
State of Oklahoma Department of Human Services, 1994 OK 98, ¶ 3, 880 P.2d 371, 375. Applying this 
rule to the petition in the case at hand establishes certain dispositive facts 
that dictate Mr. Rouse has failed to state a claim upon which relief can be 
granted.
¶5 The first dispositive fact of consequence is Mr. Rouse's status as an 
employee of GRDA at the time he made the overtime complaint. The other 
dispositive facts concern GRDA's status, Mr. Sullivan's status and Mr. 
Sullivan's actions.
¶6 By statute, "employees of [GRDA] are both classified and unclassified 
state employees subject to the same benefits and restrictions applicable 
to all state agencies except as otherwise provided by statute." 82 O.S.2011, § 861A (emphasis 
added). This same statute also states "[GRDA] is a nonappropriated agency of 
the State of Oklahoma . . . subject to the laws of the state as they apply 
to state agencies except as specifically exempted by statute." Id.
¶7 The Legislature has expressly provided that "The Grand River Dam Authority 
shall be under the Merit System," 74 O.S.2011, § 840-5.7(A). The Oklahoma 
Whistleblower Act, 74 O.S.2011, § 840-2.5 applies to "any state employee" 
aggrieved pursuant to the Act, and provides for proceedings before the Merit 
Protection Commission to seek relief for an alleged violation of the Act. In 
fact, the Legislature has specially charged the Merit Protection Commission with 
responsibility to enforce the Whistleblower Act. 74 O.S.2011, § 840-2.6 Neither 
GRDA nor its employees are specifically exempted from the Whistleblower Act.
¶8 As a "state employee," Mr. Rouse's conduct in filing the overtime 
complaint was protected by § 840-2.5(B) (2) of the Act. This Court has 
previously held that the remedies and penalties provided by the Whistleblower 
Act are adequate to protect the public policy of encouraging state employees to 
report wrongdoing and, therefore, a tort claim for discharge in violation of 
public policy is not available to a discharged whistleblower employee. 
Shephard v. CompSource Oklahoma, 2009 OK 25, ¶ 12, 209 P.3d 288, 293.
¶9 As concerns GRDA's status for purposes of sovereign immunity, we observe 
that the statute creating GRDA states, in pertinent part, "[GRDA] shall be, and 
hereby is declared to be, a governmental agency of the State of Oklahoma, body 
politic and corporate, with powers of government . . ." 82 O.S.2011, § 861. This Court has 
previously held that GRDA's status as "a governmental agency of the State of 
Oklahoma" makes GRDA "a governmental entity intended to be encompassed within 
the protective cloak of [the Governmental Tort Claims Act]," including the Act's 
adoption of sovereign immunity. Mustain v. Grand River Dam Authority, 2003 OK 43, ¶ 20, 68 P.3d 991, 998. This protective 
cloak of sovereign immunity bars private actions in state courts against state 
agency employers under the FLSA. Freeman v. State ex rel. Department of Human 
Services, 2006 OK 71, ¶¶ 2 
& 10, 145 P.3d 1078, 
1080.
¶10 We are cognizant that federal courts have held that Congress may abrogate 
state sovereign immunity for the enforcement of certain claims under the FLSA. 
However, such abrogation is appropriate for equal pay claims where there is an 
equal protection interest under the 14th Amendment to the United States 
Constitution, but not for the enforcement of overtime claims. See
Raper v. State of Iowa, 115 F.3d 623 (8th Cir. 1997)
¶11 In addition to asserting liability against GRDA, Mr. Rouse also contended 
that Mr. Sullivan individually is a proper defendant. The petition alleges that 
Mr. Sullivan was the "General Manager" and "Chief Executive Officer" of GRDA. 
Although not specifically naming Mr. Sullivan, a liberal reading of the petition 
reveals that Mr. Sullivan participated in and shared responsibility with GRDA 
for "a continuing course of retaliation [against Mr. Rouse] for making his 
complaint to the Department of Labor, Wage and Hour Division."
¶12 In addition, Mr. Rouse's first response to the Defendants' motion to 
dismiss identifies Mr. Sullivan as the "head of GRDA" and "the person who fired 
[Mr. Rouse] because he filed a claim with the Wage and Hour Division of the 
Federal Department of Labor." This response asserts: "When any official, 
including Daniel Sullivan, is willing to violate federal law, he cannot be 
acting in the scope of his official duties [and] has no claim of immunity." The 
response further states that "the decision to include Mr. Sullivan as a 
Defendant" was based on the request for injunctive relief to be reinstated. The 
response indicates that an order to reinstate Mr. Rouse "will do nothing more 
than command[] Mr. Sullivan to 'refrain from violating federal law.'"
¶13 In his second response to the motion to dismiss, Mr. Rouse alleged Mr. 
Sullivan "ignored the prohibition against retaliating against an employee who 
files a wage claim with the Federal Department of Labor." Mr. Rouse maintains 
that this "departure from the federal mandate addressed in the Fair Labor 
Standards Act [establishes] he was not acting within the scope of his 
authority."
¶14 In essence, Mr. Rouse contends Mr. Sullivan's decision to terminate him 
in violation of the Fair Labor Standards Act and the Whistleblower Act 
demonstrates a lack of good faith that would take Mr. Sullivan outside the scope 
of his employment. Despite the compelling logic of this position, this Court has 
said: "The fact that [the] decision to terminate . . . was contrary to policy 
prohibiting the termination does not alone take that decision outside the scope 
of [the decision maker's] employment." Shephard, 2009 OK 25, at ¶ 19, 209 P.3d at 
294.
¶15 As we explained, "[a]cting in good faith and using poor judgment are not 
mutually exclusive, and use of poor judgment does not, without more, exceed the 
scope of employment." Id. at ¶ 18, 209 P.3d at 294. Where the termination 
decision is ratified by the governmental entity,1 such ratification establishes prima 
facie that the decision maker acted in good faith and did not act contrary to 
the entity's interests. Id. at ¶ 17, 209 P.3d at 294. Preserving 
immunity from private liability for state employees in such circumstances 
"allows [state employees] to perform their duties and make decisions on behalf 
of the State free from fear of suit." Id. at ¶ 20, 209 P.3d at 294.
¶16 The fact that Mr. Rouse cannot pursue an action in court against GRDA or 
Mr. Sullivan does not mean that Mr. Rouse is without recourse. "The Legislature 
has provided (1) an appeal to the Oklahoma Merit Commission to any state 
employee or former state employee aggrieved pursuant to [the Whistleblower Act], 
and (2) corrective action against any employee found to have violated the 
Whistleblower Act." Id. at ¶ 5, 209 P.3d at 291 (citing 74 O.S.Supp.2008, 
§ 840-2.5 (G) and (H); identical to the current version, 74 O.S.2011, § 840-2.5 
(G) and (H)).
¶17 "These dual remedies provide relief to the offended employee and 
sanctions for the offending supervisor or agency official." Id. at ¶ 6, 
209 P.3d at 291-92. "Relief provided to the whistleblower on appeal to the Merit 
Protection Commission includes (1) reinstatement, (2) back pay and other 
benefits in appropriate cases, and (3) expungement of the adverse action from 
any and all of the employee's personnel records." Id. (citation omitted). 
"A prevailing employee can also be awarded attorney fees and costs when the 
employee can demonstrate by a preponderance of the evidence the position of the 
non-prevailing party was without a reasonable basis or was frivolous." 
Id.
¶18 The sanctions that can be imposed on an offending supervisor or agency 
official include suspension without pay, demotion or discharge. 74 O.S.2011, § 
840-2.5 (H). A suspended or demoted employee shall also be placed on six months 
probation. In addition, "Any employee, supervisor or appointing authority of any 
state agency . . . who knowingly and willfully violates [the 
Whistleblower Act] shall forfeit [their position] and be ineligible for 
appointment to or employment in a position in state service for a period of at 
least one (1) year and no more than five (5) years." Id. (emphasis 
added). The term appointing authority of an agency is generally defined to mean 
the chief administrative officer of an agency, 74 O.S.2011, § 840-1.3(3).
¶19 We again stress that jurisdiction over protected whistleblower conduct 
and retaliation, including power to impose the remedies and penalties under the 
Act, lies with the Merit Protection Commission. 74 O.S.2011, § 840-2.5(G) and 
(H) and § 840-2.6. We also stress that a private right of action is not 
one of the remedies given by the Legislature to enforce the Whistleblower Act 
and that state employees are limited to the remedies provided in the 
Whistleblower Act. Shephard, 2009 OK 25, at ¶¶ 7 & 12, 209 
P.3d at 292-293.
¶20 The relationship between state employees and those who hire and fire them 
is one of the core sovereign interests of the State of Oklahoma. In the 
Whistleblower Act, the Legislature has balanced the need for supervisors and the 
appointing authorities to manage employees who carry out their agency's mission 
against the benefits of having those employees report "a violation of . . . 
state or federal law" in the operation of the agency. The Legislature has 
determined that this state's sovereign interest is better served by the remedies 
and penalties in the Whistleblower Act, rather than by a suit in court.
¶21 In the absence of specific statutory authority to the contrary, 
supervisors and appointing authorities are cloaked with sovereign immunity from 
private suits for personnel decisions that the Merit Protection Commission may 
later find to violate the Whistleblower Act. Instead of private suits, they are 
subject to the remedies and penalties of the Whistleblower Act if, after 
investigation as provided in subsection (G) and hearing as provided in 
subsection (H), the Merit Protection Commission determines their personnel 
decisions violated the Act.
¶22 In conclusion, we hold the trial court correctly ruled that Mr. Rouse 
failed to state a claim upon which relief can be granted and properly dismissed 
this suit. Accordingly, the dismissal is affirmed.

DISMISSAL AFFIRMED.

¶23 ALL JUSTICES CONCUR.

FOOTNOTES

1 The 
petition in error in related appeal No. 112,637, Rouse v. Oklahoma Merit 
Protection Commission & Grand River Dam Authority, reflects that GRDA 
defended Mr. Sullivan's termination of Mr. Rouse before the Merit Protection 
Commission and in the district court. An appellate court may take judicial 
notice of its own records in litigation interconnected with the cause before it. 
Myers v. Lashley, 2002 OK 
14, ¶ 5, n. 8, 44 P.3d 553, 
556; Matter of C.A.D., 1992 OK 
89 ¶ 5, n. 10, 839 P.2d 165, 
169. We take judicial notice only of GRDA's ratification of Mr. Sullivan's 
action and express no opinion about the merits of appeal No. 
112,637.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Supreme Court Cases CiteNameLevel 1992 OK 89, 839 P.2d 165, 63 OBJ        1911, C.A.D., Matter ofDiscussed 1994 OK 98, 880 P.2d 371, 65 OBJ        2520, Indiana Nat. Bank v. State Dept. of Human ServicesDiscussed 2002 OK 14, 44 P.3d 553, 73 OBJ        879, MYERS v. LASHLEYDiscussed 2003 OK 43, 68 P.3d 991, MUSTAIN v. GRAND RIVER DAM AUTHORITYDiscussed 2006 OK 71, 145 P.3d 1078, FREEMAN v. STATE ex rel. DEPT. OF HUMAN SERVICESDiscussed 2009 OK 25, 209 P.3d 288, SHEPHARD v. COMPSOURCE OKLAHOMADiscussed at LengthTitle 82. Waters and Water Rights CiteNameLevel 82 O.S. 861A, Grand River Dam Authority - Agency Status - Mission - Authority - ExpensesCited 82 O.S. 861, District Created and Territory Included - Governmental Agency and Body Politic - Powers - Designation of Land and WaterCited










