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ROUSE v. OKLAHOMA MERIT PROTECTION COMMISSION2015 OK 7Case Number: 112637Decided: 02/17/2015As Corrected: February 19, 2015THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2015 OK 7, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL 
RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. 


CHESTER ROUSE, Petitioner,v.OKLAHOMA MERIT PROTECTION 
COMMISSION, AND GRAND RIVER DAM AUTHORITY, Respondents.

APPEAL FROM THE DISTRICT COURT OF MAYES COUNTY
Honorable Rebecca J. Gore, Trial Judge

¶0 The Grand River Dam Authority terminated the employment of the petitioner, 
Chester Rouse, after several years of evaluations of inefficiency, incompetence, 
and misconduct, and after three significant events which occurred at its coal 
fired plant. Rouse appealed the termination to the Oklahoma Merit Protection 
Commission and then to the district court. The administrative appeal and the 
district court appeal each resulted in the affirmation of the termination. Rouse 
appealed and we retained the appeal, and affirm the administrative appeal and 
the trial court.

OKLAHOMA MERIT PROTECTION COMMISSION AFFIRMED; 
TRIAL COURT AFFIRMED.

James C. Thomas, William D. Thomas, Tulsa, Oklahoma, for Appellant.J. 
Heath Lofton, Vinita, Oklahoma, for Appellee.


KAUGER, J.:
¶1 This is the second appeal resulting from the Grand River Dam Authority's 
(GRDA) termination of the appellant, Chester Rouse (Rouse/employee). The first 
case, Rouse v. Grand River Dam Authority, 2014 OK 39, 326 P.3d 1139, involved the issues 
of whether the employee: 1) was barred by sovereign immunity from bringing a 
federal claim under the Fair Labor Standards Act, 29 U.S. C. §§201 et seq.; and 
2) could assert a tort claim under Oklahoma law. The unanimous Court affirmed 
the trial court's dismissal of the employee's lawsuit because we determined that 
legislatively authorized administrative remedies were available through an 
appeal to the Oklahoma Merit Protection Commission (OMPC). The employee appealed 
to the OMPC, and then to the district court. This cause concerns the employee's 
appeal of the district court's order upholding the GRDA's termination of 
Rouse.
¶2 The employee raises 16 issues in his petition in error, some of which are 
either redundant, repetitive, related,1 or were not briefed on appeal.2 We consolidate the 
allegations of error into four succinct, broader encompassing issues. The four 
determinative issues are whether the trial court erred in: 1) its statutory 
interpretation and application of 74 O.S. 2011 §840-6.5;3 2) determining that the 
reasons for termination were not pretextual, or post hoc rationalizations; 3) 
determining that the employee was estopped from challenging the level of 
discipline imposed (termination); and 4) its review of the OMPC's ruling and the 
introduction of evidence. After consideration of all of the dispositive issues, 
we affirm the trial court.
FACTS
¶3 The appellee, the GRDA terminated the employment of the appellant, Chester 
Rouse (Rouse/employee) on February 17, 2012. The GRDA had employed Rouse at its 
electricity generating, coal fired plant in Chouteau, Oklahoma, since May of 
1982. Rouse started as an auxiliary equipment operator, and in 1984 he was 
promoted to the position of control room operator where he remained until 2005. 
In November of 2005 he was made operations shift supervisor, a position in which 
he remained until he was terminated. Nothing in the record indicates specific 
performance issues during his tenure at GRDA prior to 2005. However, it appears 
that after he was placed in the position as of shift supervisor in November of 
2005, his performance became a reoccurring issue.
¶4 In 2006 and 2007, his evaluations noted he was taking a lot of extra time 
on smoke breaks. In 2008, he was told that he was wasting excessive time smoking 
and reading fictional books while on duty. Apparently, Rouse spent so much time 
in the designated smoking room, the room became referred to as "Jay's Office" by 
other employees. Rouse's 2008 performance reviews rated him as needing 
improvement, inefficient, guilty of misconduct, and needing to set a better 
example for his crew. His 2009 evaluations again noted the need to set a better 
example for his crew.
¶5 Rouse was suspended without pay for seven working days on July 19, 2010. 
The reasons given for the suspension included: wasting time smoking and reading 
fictional books at work, having evaluations rated as needing improvement because 
of inefficiency and misconduct, lack of setting a good example for employees, 
negative and unprofessional behavior, and using bitter language. The GRDA 
initially considered a ten day suspension, but reduced it to only seven days 
after Rouse expressed remorse and commitment to improve in behavior and 
leadership.
¶6 At the time of his discharge, Rouse was a classified employee. The GRDA 
provided Rouse with notice of proposed disciplinary action of termination on 
January 11, 2012, and a pre-termination hearing was conducted on January 20, and 
February 6, 2012, giving Rouse an opportunity to respond. By letter dated 
February 17, 2012, Rouse was officially terminated based on Merit Rule 
530:10-11-914 
and 74 O.S. 2011 §840-6.5.5
¶7 The letter stated that Rouse was being terminated for inefficiency, 
misconduct, insubordination, inability to perform the duties of the position, 
and violations of the Oklahoma Personnel Act. Additionally, it referenced 
specific instances such as Rouse's: 1) incomplete work task assignment from 
August of 2011; 2) incompetence in handling an alarm event occurring on December 
13, 2011; and 3) inattentiveness to a costly tube leak/overflow event on 
December 14, 2011. It also referenced the fact that staff members reported that 
Rouse was regularly unable to identify key problems and take the necessary 
actions appropriate for his position and it referenced the prior suspension 
without pay in 2010.
¶8 Just prior to the termination, on December 1, 2011, the GRDA got a new CEO 
and Director of Investments, Dan Sullivan (CEO). On December 15, 2011, the day 
after a significant flooding event had occurred and two days after a significant 
boiler chemistry event had occurred, Sullivan met with Rouse at Rouse's request. 
Apparently, Rouse requested to switch to an unclassified position, a switch 
which he previously had been denied. In an otherwise cordial meeting, Sullivan 
testified at the very end of their meeting Rouse made veiled threats about 
taking further action on a wage claim, but he really did not recall exactly what 
was said or explain what he meant by "veiled threats."
¶9 After receiving the February 17, 2012, termination letter, Rouse contacted 
the GRDA's human resources department about retiring in lieu of termination. 
Even though he was terminated, the GRDA's CEO, Sullivan, in deference to his 
years of service, accommodated Rouse by halting the termination and permitting 
him to retire instead, and even waiving the sixty day notice period. As a 
result, Rouse secured thousands more than he would have had he been terminated 
including his full salary and longevity pay until his retirement date of March 
1, 2012, in addition to other retirement benefits such as an insurance subsidy 
of $200.00 that is not available to terminated employees.
¶10 The employee appealed his termination to the OMPC on March 9, 2012, 
alleging that he was fired as retaliation for cooperating with a Department of 
Labor (DOL) investigation which had resulted in the GRDA having to pay some 
employees back wages in May of 2010, for asking employees to show up 10-15 
minutes before their shifts started so that they would start their shifts on 
time. The time frame for the back wages was January of 2008 to January of 2010. 
Rouse received a total of $506.10 before taxes as a result of the 
investigation.6
¶11 On appeal, Rouse sought reinstatement, as well as back pay and a 
promotion to an unclassified position. An administrative law judge (ALJ) held a 
two day trial on June 13-14, 2013, and issued a final order on August 16, 2013, 
finding that the GRDA had proven, by a preponderance of the evidence, just cause 
to discipline the employee for insubordination, inefficiency, and inability to 
perform his duties and that the discipline imposed was just.
¶12 During the proceeding, the GRDA argued that Rouse had agreed to waive an 
appeal to the OMPC in exchange for being allowed to retire rather than be 
terminated. However, the judge determined there was insufficient evidence of a 
"meeting of the minds" to such an agreement which would bar an appeal, but that 
Rouse accepted the benefits of retirement without taking any steps to clarify 
any misunderstanding even after the GRDA took steps to advice Rouse and his 
attorney of its understanding that an appeal right was waived. Accordingly, the 
judge determined the Rouse should be estopped from challenging the level of 
dicipline imposed (termination) but that even if such estoppel were 
inapplicable, the cumulative effect of his misconduct, the serious nature of the 
incidents concerned, and Rouse's refusal to acknowledge his misconduct or take 
any responsibility thereof justified termination.
¶13 On October 1, 2013, the OMPC issued its final order upholding the ALJ's 
decision and denying reconsideration. On October 7, 2013, the employee filed a 
petition for judicial review in the District Court of Mayes County, Oklahoma.7
¶14 On February 20, 2014, the trial court affirmed the ALJ and OMPC. On March 
11, 2014, the employee filed an appeal and on June 5, 2014, filed a motion for 
this Court to retain the cause. We granted the motion to retain on June 19, 
2014, and the cause was assigned to this office on November 13, 2014. This Court 
has long been committed to the rule that an administrative decision will be 
affirmed on appeal if it is supported by substantial evidence8 and it is not arbitrary or 
capricious.9
PURSUANT TO 74 O.S. 2011 §840-6.5, WILLFULNESS 
ORCULPABLE NEGLIGENCE IS NOT REQUIRED TO JUSTIFY 
TERMINATION FOR JUST CAUSE.
¶15 The employee argues that: 1) pursuant to 74 O.S. 2011 §840-6.5,10 the GRDA 
must prove that the employee acted with an element of willfulness or culpable 
negligence to justify any cause for termination of a classified employee; and 2) 
because the GRDA offered no specific evidence of Rouse's willful conduct or 
culpable negligence, the termination must be reversed. The GRDA contends that 
such intent or culpability is not required.
¶16 The pertinent language of 74 O.S. 2011 §840-6.5 provides that:


Any employee in the classified service may be discharged . . . for 
    misconduct, insubordination, inefficiency, habitual drunkenness, inability 
    to perform the duties of the position in which employed, willful violation 
    of the Oklahoma Personnel Act, the Merit Rules for Employment or of the 
    rules prescribed by the Oklahoma Merit Protection Commission, conduct 
    unbecoming a public employee, conviction of a crime involving moral 
    turpitude, or any other just cause. .
The purpose of the OMPC is to encourage prompt and equitable resolutions of 
grievances at the lowest possible level and encourage resolution of disputes 
quickly and informally.11 It also provides a system for the prompt, fair, 
and equitable disposition of appeals by employees.12
¶17 The statute is plain and unambiguous. When a statute is plain and 
unambiguous, there is no need to resort to statutory construction13 nor does 
any justification exist for the use of interpretive devices to fabricate a 
different meaning.14 The class of employees affected by the statute is 
clearly classified employees. Such employees can be discharged for any of a 
litany of things. The only conduct requiring willful behavior under the clear 
terms of the statute is "willful violation of the Oklahoma Personnel Act, the 
Merit Rules for Employment or of the rules prescribed by the Oklahoma Merit 
Protection Commission." Nothing in the terms of the act or its stated purposes 
or any previous decision by this Court requires that an employee terminated for 
"just cause" must, as Rouse argues, have been proved to have acted with an 
element of willfulness or culpable negligence. Accordingly, neither the OMPC nor 
the district court erred in refusing to infuse such a requirement into this 
cause.
THE RECORD REFLECTS THAT THE GRDA'S REASONS FOR 
TERMINATION WERE NEITHERPRETEXTUAL NOR POST HOC 
RATIONALIZATIONS.
¶18 The OMPC found that, despite the employee's valiant efforts to establish 
that the termination was pretextual to cover the CEO's alleged real motivation 
for firing Rouse as retaliation for filing a wage claim, there was "simply no 
evidence to support this." The trial court determined that he failed to 
establish any pretext because Rouse admitted to: 1) not completing the 
assignment given to him in August of 2011; 2) neglecting to check the equipment 
during his shift on December 14, 2011 and; 3) he did not specifically instruct 
his crew to check the equipment. Additionally, the trial court found that 
because of these same admissions by Rouse, he failed to demonstrate that the 
offered reasons for termination were post hoc rationalizations.
¶19 Rouse argues that the evidence is clear that his supervisors had 
knowledge that he complained to the DOL for not getting paid to show up for 
shifts 10-15 minutes early, and that it was not until he did complain, that, for 
the first time during his thirty year tenure, he faced discipline. He also 
insists that he was targeted to be discharged. GRDA argues that it had multiple, 
valid reasons for discharge unrelated to any DOL complaint and that the reasons 
for supporting discharge have been consistent with his poor evaluations.
¶20 Pretextual reasons for an employer's termination of an employee come into 
question when an employee is alleged to have been terminated in retaliation for 
things such as filing a workers compensation claim,15 or, in retaliation for reporting an 
employer's violation of the law and/or public policy.16 An employer can rebut an employee's 
claim by showing that the discharge was for a legitimate non-retaliatory reasons 
which obviously includes the inability to perform the assigned duties.17 This is 
precisely what the GRDA did in this cause.
¶21 The only evidence in the record supporting Rouse's claim that supervisors 
and the CEO knew that he filed a complaint with the DOL and that he was fired in 
retaliation for doing so, was Rouse's own "because I said so" testimony.18 This 
evidence is countered with substantial evidence of years of inefficiency, 
insubordination, and inability to perform the duties of his position, all of 
which were admitted to by Rouse. The wage claim was resolved by 2010, nearly two 
years before Rouse was terminated, and no one knew who actually called the DOL 
to complain about not getting paid for showing up 15 minutes early.
¶22 Additionally, the cited reasons for termination were supported by 
testimony and documentation because Rouse: 1) failed to complete a work 
assignment that every other supervisor managed to complete on time; 2) was 
inattentive and failed to react to a severe water chemistry condition on 
December 13, 2011; and 3) failed to take action during a water leak on December 
14, 2011, that destroyed and damaged equipment.19 The GRDA was entitled to terminate 
Rouse for just cause and it appears that it did so and the employee has made no 
showing otherwise. Even if the three reasons as stated above had not occurred, 
the employee's inefficiency of the repetitive behavior of wasting time smoking 
and reading year after year while at work would have been more than adequate 
just cause for termination. Accordingly both the trial court and the OMPC are 
affirmed on this issue.
THE APPLICATION OF ESTOPPEL IS IMMATERIAL.
¶23 The employee was allowed to appeal his termination, despite accepting 
retirement benefits in lieu of termination. However, he argues that he should 
not have been estopped from challenging the level of discipline imposed -- 
termination. He also contends that applying estoppel would be unfair and 
contrary to public policy in this cause. The GRDA argues that whether estoppel 
was appropriately applied to this cause is immaterial. We agree.
¶24 Estoppel is an equitable doctrine used to prevent one party from taking a 
position which is inconsistent with an earlier action that places the other 
party at a disadvantage.20 The employee was not estopped from appealing his 
termination and the GRDA's decision to terminate was supported by the evidence 
and was not arbitrary or capricious. Had Rouse's conduct, insubordination, 
inefficiency and inability to perform his duties not justified termination, then 
the application of estoppel may have been material to determining what level of 
discipline, if any, was appropriate. Nevertheless, the ALJ additionally 
determined that regardless of the applicability of estoppel, termination was 
appropriate.
¶25 Even if estoppel were incorrectly applied to this cause, because the 
GRDA's decision to terminate was supported by sufficient evidence, the 
application of estoppel was immaterial. Furthermore, the employee, while being 
represented by his attorney, accepted all the benefits of retirement and the 
financial effects of the termination were abandoned by the GRDA. If estoppel 
were applicable to this cause, it is the GRDA who should have been able to rely 
on it. However, the doctrine of estoppel is not ordinarily applicable to state 
agencies operating under statutory authority.21
THE TRIAL COURT DID NOT ERR IN ADMITTING EVIDENCE 
OF PRIOR DISCIPLINE.
¶26 The employee argues that he was denied due process because he was not 
provided with a specific written statement that his prior evaluations of 
spending too much time smoking, reading fictional books, and other incompetence 
would be used against him as a reason for termination after the events in 
December of 2011. He also then incongruously argues that he should have been 
given some type of progressive discipline without termination.22 The GRDA contends that 
his notice was adequate and that he was given progressive discipline leading to 
termination.23 Rouse's arguments regarding notice are 
unconvincing.
¶27 The facts demonstrate that since 2005, Rouse was progressively 
disciplined culminating in termination in 2012. In 2006, 2007, 2008, and 2009, 
his evaluations reflected his inefficiency, and insubordination. By 2010, the 
cumulative effect of these evaluations led to suspension without pay. By 2012, 
the cumulative effect of the suspension without pay, coupled with inability to 
perform assigned tasks and other significant incidents led to termination.24 To argue 
that there was no progressive discipline imposed ignores the facts altogether. 
Nevertheless, progressive discipline is not mandated in all causes, nor are 
public employers required to prove that some less severe disciplinary act would 
be ineffective before the imposition of a more stringent penalty.25 The system 
is designed to be conformable to a variety of circumstances and it is not a 
rigid program.26
¶28 The minimal statutory notice required by the employer is found in 74 O.S. 
2011 §840-6.4 and it provides in pertinent part:


. . .B. The procedures for a pretermination hearing shall be:
1. Notice of a pretermination hearing shall be served by actual delivery 
    or by certified or registered mail service at least seven (7) calendar days 
    prior to the scheduled pretermination hearing;
2. Said notice of the pretermination hearing shall state all grounds for 
    termination and shall include a general summary of evidence or physical 
    evidence to support each of the stated grounds for termination; . . 
  .
In the pretermination letter issued to Rouse on January 11, 2012, and 
attached to this opinion as an exhibit, Rouse was expressly notified that he had 
been disciplined in July of 2010 for a suspension without pay for inefficiency, 
misconduct, insubordination and inability to perform his job duties. He knew 
exactly why he was suspended in 2010 without pay because he actually had a 
pre-suspension hearing at that time, which he participated in and he was 
actually suspended without pay. He was expressly notified that this suspension 
was one of the reasons he was being terminated in 2012, in addition to the other 
enumerated events outlined in the notice. The employee has made no convincing 
showing that the statute was not followed nor does he argue that the statutory 
directives are on their face inadequate. Accordingly, we must determine that the 
trial court did not err in admitting evidence of prior discipline to support its 
decision to terminate.
CONCLUSION
¶29 An administrative decision will be affirmed on appeal if it is supported 
by substantial evidence27 and is not arbitrary or capricious.28 Pursuant to 
74 O.S. 2011 §840-6.5,29 the GRDA was not required to prove that the 
employee acted with an element of willfulness or culpable negligence to justify 
the termination of its classified employee. The GRDA's reasons for termination 
were neither pretexual nor post hoc rationalizations, but were, instead, 
supported by substantial evidence. Estoppel was immaterial to this cause. 
Because the trial court did not err in admitting evidence of prior discipline, 
and the employee was given adequate notice of the reasons for termination, we 
affirm the OMPC and the trial court.

OKLAHOMA MERIT PROTECTION COMMISSION AFFIRMED: 
TRIAL COURT AFFIRMED.

ALL JUSTICES CONCUR.

FOOTNOTES

1 The 
stated issues as raised on appeal in the petition in error filed on March 11, 
2014, are as follows:
1. The District Court committed error in its misapplication of the standard 
of review of agency decisions, as pronounced in the Oklahoma Administrative 
Procedures Act, 75 Oka. Stat. § 322, and simply rubber stamped the Merit 
Protection Commission's erroneous, adverse ruling.
2. The District Court committed error in its failure to recognize the clear 
evidence in the record that the ALJ exhibited personal bias against Appellant, 
classified employee of GRDA.
3. The District Court committed error in its failure to recognize the three 
stated reasons given by GRDA for Rouse's termination as being pretextual.
4. The District Court committed error in its failure to recognize the three 
stated reasons given by GRDA for Rouse's Termination were nothing more than post 
hoc rationalizations of the real reason Rouse was terminated.
5. The District Court committed error in isolating phrase in 74 Okla. Stat. 
§840-6.5, and concluding that a classified employee "may be discharged for 
misconduct, insubordination, inefficiency, habitual drunkenness, inability to 
perform the duties of the position in which employed."
6. The District Court committed error in not reading the statute as a whole 
and reading all parts of the statute together, thereby concluding that under 74 
Okla. Stat. §840-6.5, a classified employee may be disciplined for "specific 
acts or omissions," only when "specific acts or omissions" rise to the level of 
"misconduct, insubordination, inefficiency, habitual drunkenness, inability to 
perform the duties of the position in which employed."
7. The District Court committed error in holding that the just cause statute 
does not require employing agency to prove some level of willfulness or culpable 
negligence in relationship to the alleged "specific acts or omissions."
8. The District Court committed error in ignoring the settled law on the 
issue of estoppel, upholding Merit Commission's misapplication of the estoppel 
doctrine, that Rouse was estopped from challenging his termination by GRDA. 
After the court's error as a matter of law, the court then compounded its error 
by ruling that petitioner was not prejudiced by the ALJ's ruling on 
estoppel.
9. The District Court committed error in upholding the Merit Commission's 
error which permitted GRDA to introduce evidence against Rouse, during just 
cause hearing which had not been referenced in the 74 Okla. Stat. § 840-6.5 due 
process notice.
10. The District Court committed error, as a matter of law, that allowed GRDA 
to introduce evidence of prior discipline against classified employee, during 
just cause hearing.
11. The District Court committed error in not recognizing that 74 Okla. Stat. 
§840-6.5 was intended to be classified employee's due process notice of the 
specific charges against classified employee; and that this "due process 
required notice which reasonably informs" person that his protected interest 
"may be adversely affected." Hagar v. State, 1999 OK CR 35, ¶14, 990 P.2d 894, 898.
12. The District Court committed error in upholding evidentiary decision of 
Merit Commission which allowed Counsel for GRDA to introduce evidence of prior 
discipline of Appellant, during the "just cause" part of the hearing, without 
giving Appellant adequate notice.
13. The District Court committed error in not ruling that GRDA's introduction 
of evidence of prior discipline violated Appellant classified employee's most 
basic right to constitutional due process.
14. The District Court committed error in upholding the three stated grounds 
for terminating Appellant Rouse against Rouse's claim that the language 
describing the grounds of termination were far too general to satisfy the 
requirements expressed in 74 Okla. Stat. § 840-6.5.
15. The District Court committed error in upholding the three stated grounds 
for terminating Appellant Rouse against Rouse's claim that the stated grounds 
were not supported by substantial evidence, reading the record as a whole.
16. The District Court committed error in upholding the decision of ALJ in 
denying Appellant's offer of exhibit that would add greater clarity to one of 
the grounds of GRDA's termination of Rouse.

2 To the 
extent that each of its allegations of error were not contained within the 
arguments in its brief, they are waived. Parties waive issues by failing to 
brief them. Johnson v. Ford Motor Co., 2002 OK 24, ¶ 1, fn. 2, 45 P.3d 86; Burrows v. 
Burrows, 1994 OK 129, ¶ 3, 
886 P.2d 984; American
First Abstract Co. v. Western Info. 
Syst., Inc., 1987 OK 
24, ¶ 11, 735 P.2d 
1187.

3 74 O.S. 
2001 §840-6.5 provides in pertinent part:
C. Any employee in the classified service may be discharged, suspended 
without pay for not to exceed sixty (60) calendar days, or demoted by the 
agency, department, institution, or officer by whom employed, for misconduct, 
insubordination, inefficiency, habitual drunkenness, inability to perform the 
duties of the position in which employed, willful violation of the Oklahoma 
Personnel Act, the Merit Rules for Employment or of the rules prescribed by the 
Oklahoma Merit Protection Commission, conduct unbecoming a public employee, 
conviction of a crime involving moral turpitude, or any other just cause. 
Employees in the classified service, upon final conviction of, or pleading 
guilty or nolo contendere to, a felony shall be discharged if the felony is 
job-related pursuant to Section 24.1 of Title 51 of the Oklahoma Statutes. 
Before any such action is taken against a permanent classified employee, the 
employing agency, department, institution or officer shall provide the employee 
with a written statement of the specific acts or omissions that are causes or 
reasons for the proposed action, an explanation of the agency's evidence, and an 
opportunity to present reasons why the proposed action is improper.

4 Merit 
Rule 530:10-11-91 provides:
Conduct of classified employees
(a) Every classified employee shall fulfill to the best of his or her ability 
the duties of the office or position conferred upon the employee and shall 
behave at all times in a manner befitting the office or position the employee 
holds. In performing official activities the classified employee shall pursue 
the common good, and, not only be impartial, but act so that there can be no 
question of impartiality.
(b) A classified employee shall not engage in any employment, activity or 
enterprise which has been determined to be inconsistent, incompatible, or in 
conflict with his or her duties as a classified employee or with the duties, 
functions or responsibilities of the Appointing Authority by which the person is 
employed.
(c) Each Appointing Authority shall determine and prescribe those activities 
within applicable laws, which, for employees under its jurisdiction, will be 
considered inconsistent, incompatible or in conflict with their duties as 
classified employees. In making this determination, the Appointing Authority 
shall give consideration to employment, activity or enterprise which:
(1) involves the use for private gain or advantage of state time, facilities, 
equipment and supplies; or, the badge, uniform, prestige or influence of one's 
state office or employment,or(2) involves receipt or acceptance by the 
classified employee of any money or other consideration from anyone, other than 
the state, for the performance of an act which the classified employee would be 
required or expect to render in the regular course or hours of state employment 
or as a part of the duties as a state classified employee, or(3) involves 
the performance of an act which may later be subject directly or indirectly to 
the control, inspection, review, audit or enforcement by such classified 
employee.(d) Each classified employee shall devote full time, attention and 
effort to the duties and responsibilities of his or her position during assigned 
hours of duty.

5 Title 
74 O.S. 2001 §840-6.5, see note 3, supra.

6 
Apparently, Rouse is the person who called the DOL and complained. A formal 
complaint was never filed, but the DOL did investigate and order some minimal 
back pay to some employees. The evidence in the record reflects that, prior to 
Rouse's dismissal, no one even knew that he was the one who made the complaint, 
although he insists otherwise.

7 Title 
75 O.S. 2011 §318 provides in 
pertinent part:
A. 1. Any party aggrieved by a final agency order in an individual proceeding 
is entitled to certain, speedy, adequate and complete judicial review thereof 
pursuant to the provisions of this section and Sections 319, 320, 321, 322 and 
323 of this title. . . .
B. 1. The judicial review prescribed by this section for final agency orders, 
as to agencies whose final agency orders are made subject to review, under 
constitutional or statutory provisions, by appellate proceedings in the Supreme 
Court of Oklahoma, shall be afforded by such proceedings taken in accordance 
with the procedure and under the conditions otherwise provided by law, but 
subject to the applicable provisions of Sections 319 through 324 of this title, 
and the rules of the Supreme Court.
2. In all other instances, proceedings for review shall be instituted by 
filing a petition, in the district court of the county in which the party 
seeking review resides or at the option of such party where the property 
interest affected is situated, naming as respondents only the agency, such other 
party or parties in the administrative proceeding as may be named by the 
petitioner or as otherwise may be allowed by law, within thirty (30) days after 
the appellant is notified of the final agency order as provided in Section 312 
of this title. . . .

8
State of Oklahoma ex. rel. Oklahoma
Department of Agriculture v. Yanes, 1987 OK 124, ¶20, 755 P.2d 611; Corporation
Commission v. Okla. State Personnel Bd., 1973 OK 94, ¶15, 513 P.2d 116, Pannell v. 
Farmers Union Co-Op Gin Assn, 1943 OK 256, ¶8, 138 P.2d 817.

9 In 
Cox v. State ex rel. Dept. of
Human Services, 2004 
OK 17, ¶1, 87 P.3d 607, we 
stated that the factual determination to uphold an employee's discharge was 
clearly erroneous in view of the reliable, material, probative and substantially 
competent evidence or arbitrary or capricious.
Title 75 O.S. 2011 §322 
provides:
(1) In any proceeding for the review of an agency order, the Supreme Court or 
the district or superior court, as the case may be, in the exercise of proper 
judicial discretion or authority, may set aside or modify the order, or reverse 
it and remand it to the agency for further proceedings, if it determines that 
the substantial rights of the appellant or petitioner for review have been 
prejudiced because the agency findings, inferences, conclusions or decisions, 
are:
(a) in violation of constitutional provisions; or(b) in excess of the 
statutory authority or jurisdiction of the agency; or(c) made upon unlawful 
procedure; or(d) affected by other error of law; or(e) clearly erroneous 
in view of the reliable, material, probative and substantial competent evidence, 
as defined in Section 10 of this act, including matters properly noticed by the 
agency upon examination and consideration of the entire record as submitted; but 
without otherwise substituting its judgment as to the weight of the evidence for 
that of the agency on question of fact; or(f) arbitrary or capricious; 
or(g) because findings of fact, upon issues essential to the decision were 
not made although requested.
(2) The reviewing court, also in the exercise of proper judicial discretion 
or authority, may remand the case to the agency for the taking and consideration 
of further evidence, if it is deemed essential to a proper disposition of the 
issue.
(3) The reviewing court shall affirm the order and decision of the agency, if 
it is found to be valid and the proceedings are free from prejudicial error to 
the appellant.

10 
Title 74 O.S. 2011 §840-6.5, see note 3, supra.

11 
Title 74 O.S. 2011 §840-6.2 provides in pertinent part:
. . .A. The Oklahoma Merit Protection Commission shall establish standard 
internal agency grievance resolution procedures for classified state employees. 
The procedures shall encourage prompt and equitable resolution of grievances at 
the lowest possible level within the employing agency. . . .. . .E. The 
internal agency grievance resolution procedures established by the Oklahoma 
Merit Protection Commission shall contain the following minimum 
requirements:
1. Procedures encouraging resolution of disputes within the agency quickly, 
informally and at the lowest possible level;. . .

12 
Title 74 O.S. 2011 §840-6.5 provides in pertinent part:
A. It is the purpose of this section to provide a system for the prompt, 
fair, and equitable disposition of appeals by permanent classified employees who 
have been demoted, suspended, or discharged. Further, it is the intent of this 
section that all decisions rendered as a result of this procedure shall be 
confined to the issues submitted for decision and consistent with the applicable 
laws and rules.

13
Twin Hills Golf & Country Club, 
Inc. v. Town of Forrest Park, 2005 OK 71, ¶6, 123 P.3d 5. Only where the 
legislative intent cannot be ascertained from the statutory language, i.e. in 
cases of ambiguity or conflict, are rules of statutory construction employed. 
Cox v. State ex rel.Oklahoma Dept. 
of Human Services, see note 9, supra. Because the statute 
is not ambiguous, the employee's argument that the statutory interpretation 
doctrines of noscitur a sociis and ejusdem generis is misplaced. 
Broadway Clinic v. Liberty Mut. Ins. 
Co., 2006 OK 29, ¶¶18-19, 
139 P.3d 873 [Noscitur a 
sociis asserts that the meaning of an unclear or ambiguous word or phrase 
should be determined by the words immediately surrounding it. Ejusdem generis 
applies when (1) a statute contains a specific enumeration; (2) the members 
of the enumeration suggest a class; (3) the class is not exhausted by the 
enumeration; (4) a general reference supplementing the enumeration is made, 
usually following the enumeration; and (5) there is not clearly manifested an 
intent that the general term be given a broader meaning than the doctrine 
requires.]

14
Strong v. State of Oklahoma, ex rel., 
The Oklahoma Police Pension and
Retirement Board, 2005 
OK 45, ¶8, 115 P.3d 889; 
Keating v. Edmondson, 2001 OK 110, ¶15, 37 P.3d 882; Neer v. 
State ex rel. Oklahoma Tax Comm'n, 1999 OK 41, ¶16, 982 P.2d 1071.

15
Buckner v. General Motors Corp., 1988 OK 73, ¶¶9-11, 760 P.2d 803.

16 For 
example in Gilmore v. Enogex, Inc, 1994 OK 76, 878 P.2d 360, an at-will employee 
attempted to sue his employer for refusing to submit to a random drug test which 
was determined not to be a violation of public policy. Pretext is shown by 
exposing an employer's weaknesses, implausibilities, inconsistencies, 
incoherencies, or contradictions in the employer's proffered legitimate reasons 
for its action that a reasonable fact finder could rationally find them unworthy 
of credence and hence infer that the employer did not act for the asserted 
non-discriminatory reasons. Vaughn v. Epworth Villa, 537 
F.3d 1147, 1153 (10th Cir. 2008); Rivera v. City &
County of Denver, 365 F.3d 912, 925 (10th Cir. 
2004).

17
Buckner v. General Motors Corp, see note 15, 
supra.

18 No 
formal complaint was ever filed. Rouse admitted that he made one phone call to 
an investigator one time. He did not show that anyone else even knew or 
suspected that he was the one who did it.

19 In 
addition to Rouse's own testimony admitting to going to the "smoke shack" 3-6 
times during his shift and reading books while at work, the CEO testified he did 
not even know Rouse before their December 2011 meeting. The Assistant General 
Manager and the Plant Superintendent also testified as to Rouse's 
inattentiveness and lack of action which was also supported by written 
documentation over the years. Rouse insists that these three events were 
trivial, arbitrary and capricious, but the substantial evidence shows 
otherwise.

20
Strong v. State of Oklahoma, ex rel., 
The Oklahoma Police Pension and
Retirement Board, see note 14, supra at ¶9; Oxley v. 
General Atlantic Resources, Inc., 1997 OK 46, ¶19, 936 P.2d 943; Apex
Siding & Roofing Co., v. First
Fed. Savings & Loan Ass'n of
Shawnee, 1956 OK 195, ¶6, 
301 P.2d 352. The elements of 
equitable estoppel are: 1) a false representation or concealment of facts; 2) 
made with actual or constructive knowledge of facts; 3) to a person without 
knowledge of, or the means of knowing, those facts; 4) with the intent that it 
be acted upon; and 5) the person to whom it was made acted in reliance upon it 
to his detriment. Sullivan v. Buckhorn Ranch
Partnership, 2005 OK 41, 
31, 119 P.3d 192.

21
Strong v. State of Oklahoma, ex rel., 
The Oklahoma Police Pension and
Retirement Board, see note 14, supra.

22 
Rouse also insists that the scope of the December 13, 2011, water chemistry 
alarm event were increased. This argument is without merit. Rouse was 
specifically notified that the water conditioning event on December 13, 2011, 
concerned an alarm regarding a "severe water chemistry condition." Then, even 
though other employees, as well as the shift supervisor's log show that water 
chemistry conditioning is evaluated by pH level, dissolved oxygen, conductivity 
and sodium, apparently, Rouse apparently assumed that "water chemistry 
condition" referred only to water's pH level. The notice did not limit 
water condition only to a pH level, so Rouse's assumptions were clearly 
misplaced. Furthermore, he was allowed to cross examine the other employees and 
address the water chemistry condition fully at trial.

23 Due 
process requires adequate notice, a realistic opportunity to appear and the 
right to participate in a meaningful manner. Bailey v. Campbell, 
1991 OK 67, ¶16, 862 P.2d 461.

24 
Title 74 O.S. 2011 §840-6.3 provides:
A. Each appointing authority shall establish written policies and procedures 
for progressive discipline of employees according to the rules established by 
the Oklahoma Merit Protection Commission.
B. Progressive discipline is a system designed to ensure not only the 
consistency, impartiality and predictability of discipline, but also the 
flexibility to vary penalties if justified by aggravating or mitigating 
conditions. Typically, penalties range from verbal warning to discharge, with 
intermediate levels of a written warning, suspension or demotion. Absent 
mitigating circumstances, repetition of an offense is accompanied by a generally 
automatic progression to the next higher level of discipline.
C. Each supervisor shall be responsible for applying discipline when 
necessary that is progressive in nature, appropriate for the offense, and 
equitable. Each supervisor shall consider aggravating or mitigating 
circumstances when determining the proper disciplinary action. Each supervisor 
shall use prompt, positive action to avoid more serious disciplinary actions. 
The Oklahoma Merit Protection Commission shall promulgate rules to establish the 
requirements and guidelines for discipline.
D. The rules shall prohibit supervisors from considering incidents that 
occurred longer than four (4) years prior to an offense in order to move to a 
higher level of discipline. The prohibition shall not apply to incidents 
involving the following types of conduct:
1. Criminal activity;
2. Sexual misconduct and/or harassment;
3. Racially discriminatory behavior and/or harassment;
4. Threats or acts of violence against employees in the workplace; and
5. Drug and/or alcohol use or abuse on the job.

25
Cox v. State ex rel.Oklahoma Dept. 
of Human Services, 2004 OK 17, ¶18, 87 P.3d 607.

26
Oklahoma Dept. of Public Safety v. 
McCrady, 2007 OK 39, ¶14, 
176 P.3d 1194.

27
State of Oklahoma ex. rel. Oklahoma
Department of Agriculture v. Yanes, see note 9, 
supra; Corporation Commission v. Okla. State
Personnel Bd., see note 8, supra; Pannell v. Farmers
Union Co-Op Gin Assn, see note 8, supra.

28
Cox v. State ex rel. Dept. of
Human Services, see note 9, supra. Title 75 O.S. 2011 §322 see note 9, 
supra.

29 
Title 74 O.S. 2011 §840-6.5, see note 3, 
supra.

Citationizer© Summary of Documents Citing This Document


Cite
Name
Level


None Found.


Citationizer: Table of Authority


Cite
Name
Level


Oklahoma Court of Criminal Appeals Cases
 CiteNameLevel
 1999 OK CR 35, 990 P.2d 894, 70 OBJ        2766, Hagar v. StateDiscussed
Oklahoma Supreme Court Cases
 CiteNameLevel
 1987 OK 24, 735 P.2d 1187, 58 OBJ        1056, American First Abstract Co. v. Western Information Systems, Inc.Discussed
 1987 OK 124, 755 P.2d 611, 58 OBJ        3426, State ex rel. Oklahoma Dept. of Agriculture v. YanesDiscussed
 1988 OK 73, 760 P.2d 803, 59 OBJ        1801, Buckner v. General Motors Corp.Discussed
 1994 OK 76, 878 P.2d 360, 65 OBJ        2238, Gilmore v. Enogex, Inc.Discussed
 1994 OK 129, 886 P.2d 984, 65 OBJ        3967, Burrows v. BurrowsDiscussed
 1997 OK 46, 936 P.2d 943, 68 OBJ        1275, Oxley v. General Atlantic Resources, Inc.Discussed
 1956 OK 195, 301 P.2d 352, APEX SIDING & ROOF. v. FIRST FED. SAV. & L. ASS'NDiscussed
 2001 OK 110, 37 P.3d 882, 72 OBJ        3672, KEATING v. EDMONDSONDiscussed
 2002 OK 24, 45 P.3d 86, JOHNSON v. FORD MOTOR CO.Discussed
 1973 OK 94, 513 P.2d 116, CORPORATION COM'N v. OKLAHOMA STATE PERSONNEL BD.Discussed
 2004 OK 17, 87 P.3d 607, COX v. STATE ex rel. DEPT. OF HUMAN SERVICESDiscussed at Length
 2005 OK 41, 119 P.3d 192, SULLIVAN v. BUCKHORN RANCH PARTNERSHIPDiscussed
 2005 OK 45, 115 P.3d 889, IN THE MATTER OF STRONGDiscussed
 2005 OK 71, 123 P.3d 5, TWIN HILLS GOLF & COUNTRY CLUB, INC. v. TOWN OF FOREST PARKDiscussed
 2006 OK 29, 139 P.3d 873, BROADWAY CLINIC v. LIBERTY MUTUAL INSURANCE CO.Discussed
 2007 OK 39, 176 P.3d 1194, OKLAHOMA DEPARTMENT OF PUBLIC SAFETY v. McCRADYDiscussed
 2014 OK 39, 326 P.3d 1139, ROUSE v. GRAND RIVER DAM AUTHORITYDiscussed
 1991 OK 67, 862 P.2d 461, Bailey v. CampbellDiscussed
 1999 OK 41, 982 P.2d 1071, 70 OBJ        1551, Neer v. State ex rel. Oklahoma Tax CommissionDiscussed
 1943 OK 256, 138 P.2d 817, 192 Okla. 652, PANNELL v. FARMERS UNION CO-OP. GIN ASS'NDiscussed
Title 75. Statutes and Reports
 CiteNameLevel
 75 O.S. 318, Judicial ReviewCited
 75 O.S. 322, Setting Aside, Modifying, or Reversing of Orders - Remand - AffirmanceDiscussed













