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Date: 12-07-2012

Case Style: Kenneth L. Simington v. Linda Parker

Case Number: CJ-2008-8584

Judge: Patricia G. Parris

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Daniel J. Gamino

Defendant's Attorney: Kevin R. Donelson and J. Blake Patton

Description: Kenneth L. Simington sued Linda Parker, in her official capacity and in her personal capacity and the Oklahoma Department of Rehabilitative Services of Oklahoma claiming:

1. Kenneth L. Simington was a citizen of Oklahoma at all times herein when these actions occurred.

2. Defendant Linda Parker was at all times a citizen of Oklahoma when these actions occurred and was employed full time in the position of Executive Director of the Oklahoma Department of Rehabilitation Services.

3. Defendant Oklahoma Department of Rehabilitation Services is an executive body of Oklahoma government authorized to provide rehabilitation services to the Oklahoma public.

4. Venue lies in Oklahoma County where all acts and omissions occurred, 12 O.S. 2001, §133.

5. That on or around February 14, 2008, Plaintiff’s legal counsel mailed written notice of tort claim by Certified Mail, Return Receipt Requested to Tort Claim Manager, Office of Risk Management, Oklahoma Department of Central Services, and to the Oklahoma Attorney General pursuant to legal authority of 51 O.S. 2001, § 156.

6. Independent records document delivery of same to the Department of Central Services on or around February 19, 2008 and to the Oklahoma Attorney General on or around February 15, 2008.

7. After the DCS statutory time expired pursuant to 51 O.S. 2011, § 157, the instant case was originally filed on September 22, 2008.

FIRST CAUSE OF ACTION—CONVERSION

(76 O.S. 2001, 6 AND COMMON LAW)

8. Plaintiff was a career employee of Defendant DRS and maintained an excellent workplace record and received promotions over the years.

9. Defendant Linda Parker was at all times herein the Executive Director of Oklahoma Department of Rehabilitation Services, and served as Chief Executive Officer of that body.

10. Plaintiffs workplace assignment was ranked as Program Manager I. Plaintiff filed an internal grievance allowed by law to seek a higher position. Defendant DRS and Linda Parker opposed the Plaintiffs grievance.

11. On or around May 25, 2006, the Oklahoma Office of Personnel Management formally reviewed Plaintiffs position and OPM ruled that his position was a Program Manager II. DRS was compelled to promote Plaintiff to the new position of Program Manager II.

12. Under Oklahoma law, the OPM ruling on Plaintiffs position was final and DRS was prohibited from appealing or reopening that issue, Oklahoma Merit Rule 530:10-5-58.

13. On or around August 22, 2006 Defendant Linda Parker surreptitiously emailed Cabinet Secretary Howard Hendrick to solicit his intervention with the Office of Personnel Management and its Cabinet Secretary and Director, Oscar Jackson. Defendant Linda Parker denied any knowledge of that email.

14. On or around September 5, 2006 Defendant Linda Parker emailed colleagues about the upcoming meeting with Howard Hendrick regarding Plaintiff and Linda Parker denied Plaintiff knowledge of that email.

15. On or around September 29, 2006 Defendant Linda Parker and Howard Hendrick and Oscar Jackson, Executive Director, OPM met in Mr. Hendrick’s office regarding the Plaintiff. Defendant Linda Parker denied Plaintiff knowledge of that meeting and denied Plaintiff any opportunity to appear.

16. On or around October 3, 2006, the second business day after the meeting of September 29, 2006, Oscar Jackson advised that OPM would reconsider Plaintiff’s promotion. OPM internally reassigned the case and removed the case from the normal channels and personnel of OPM.

17. On January 5, 2007 OPM reversed its original decision and ruled that Plaintiff’s position was that of Program Manager I. DRS subsequently demoted Plaintiff to Program Manager I. Linda Parker, in her individual capacity, acted willfully to violate Merit Rule 530:10-5-58 and to take from Plaintiff his allocated position of Program Manager II.

18. By the aforesaid acts and omissions Defendant wrongfully and unlawfully exercised dominion and control over the personality of the Plaintiff in denial of and inconsistent with Plaintiffs rights therein and deprived Plaintiff of the possession of the position he earned as Program Manager II.

19. That Defendant Linda Parker individually and the Defendant Oklahoma Department of Rehabilitation Services by the aforesaid intentional acts and omissions caused Plaintiff financial harm and detriment.

SECOND CAUSE OF ACTION—FRAUD/DECEIT

(76 O.S. 2001, 1-3)

20. The Plaintiff incorporates by reference all facts heretofore pled in paragraphs 1 through 19.

21. That Defendant Linda Parker as an individual in the acts and omissions set forth above undertaken willfully and deliberately while knowingly withholding knowledge from the Plaintiff of the truth.

22. That Defendant Linda Parker undertook the aforesaid intentional and deliberate acts and omissions with the intention and purpose that they would work to Plaintiffs detriment and cause Plaintiff financial loss and detriment.

23. That Defendant Linda Parker’s aforesaid intentional acts and omissions did cause Plaintiff financial loss and detriment.

THIRD CAUSE OF ACTION—INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

(76 O.S.2001, 6 AND COMMON LAW)

24. The Plaintiff incorporates by reference all facts heretofore pled in paragraphs 1 through 23.

25. That Defendant Linda Parker’s acts and omissions set forth above undertaken willfully and deliberately were extreme and outrageous and were undertaken knowing Plaintiff would suffer or was likely to suffer emotional distress or Defendant Linda Parker acted with willful disregard of injuries that Plaintiff may suffer caused by Defendant’s acts and omissions set forth above.

26. That Defendant Linda Parker’s acts and omissions were unreasonable as evidenced by Administrative Law Judge (AU) P.K. Floyd’s final decision in MPC 07-118 on January 7, 2008. The AU’s ruling states that the “Appellee (DRS) is to completely remove all information and reference to the demotion from Appellant’s file so his personnel record will indicate that when he left the DRS he was a Programs Manager II which was a position he held prior to his demotion to a Programs Manager I.”

27. That Plaintiff suffered physical injury as a direct result of the Defendant Linda Parker’s conduct, to include but not be limited to injuries to nervous system and mental pain, suffering and anguish.

WHEREFORE, Plaintiff seeks the following relief from Defendants Linda Parker in her personal capacity and from Oklahoma Department of Rehabilitation Services the following relief, to-wit:

1. Actual monetary damages in an amount in excess of $10,000.00;

2. Actual emotional distress, physical discomfort and inconvenience in an amount in excess of $10,000.00;

3. Punitive damages in an amount in excess of $10,000.00;

4. Attorney fees and court costs incurred by Plaintiff;

5. Such other and further relief as the Court may grant.

Defendant appeared and answered as follows:

1. Parker admits the allegations contained in Paragraph 1 of the Amended Petition.

2. Parker admits the allegations contained in Paragraph 2 of the Amended Petition.

3. Parker admits the allegations contained in Paragraph 3 of the Amended Petition.

4. Parker admits the allegations contained in Paragraph 4 of the Amended Petition.

5. Parker is without sufficient knowledge to admit or deny the allegations contained in Paragraph 5 of the Amended Petition, and therefor denies the same.

6. Parker is without sufficient knowledge to admit or deny the allegations contained in Paragraph 6 of the Amended Petition, and therefor denies the same.

7. Parker admits the allegations contained in Paragraph 7 of the Amended Petition.


FIRST CAUSE OF ACTION - CONVERSION

(76 0.5.2001, 6 AND COMMON LAW)

8. Parker denies the allegations contained in Paragraph 8 of the Amended Petition.

9. Parker admits the allegations contained in Paragraph 9 of the Amended Petition.

10. Parker denies any inference of opposition to Plaintiff. Parker admits the remainder of the allegations contained in Paragraph 10 of the Amended Petition.

11. Parker admits that Plaintiff was reclassified as Program Manager 11, but denies the remainder of the allegations contained in Paragraph 11 of the Amended Petition.

12. Paragraph 12 of the Amended Petition sets forth a legal conclusion which does not require a response from Parker.

13. Parker admits to sending an e-mail to Hendrick discussing the classification of agency Program Managers, but denies the remaining allegations contained in Paragraph 13 of the Amended Petition.

14. Parker admits she emailed colleagues about a meeting with Hendrick where they were to discuss classification of agency Program Managers, but denies the remainder of Paragraph 14 of the Amended Petition.

15. Parker admits that the referenced parties met on or around September 29, 2006 to discuss the classification of agency Program Managers, but denies the remainder of the allegations contained in Paragraph 15 of the Amended Petition.

16. Parker admits that on October 3, 2006, OPM announced that it would reconsider Plaintiffs classification. Parker is without sufficient knowledge to admit or deny the remainder of the allegations contained in Paragraph 16 of the Amended Petition, and therefore denies the same.

17. Parker admits that OPM reversed its decision that Plaintiffs position was Program Manger II and fUrther admits that Plaintiffs job title was changed back to Program Manager I, but denies the remaining allegations contained in Paragraph 17 of the Amended Petition.

18. Parker denies the allegations contained in Paragraph 18 of the Amended Petition.

19. Parker denies the allegations contained in Paragraph 19 of the Amended Petition.

SECOND CAUSE OF ACTION - FRAUD/DECEIT

(76 O.S.2001, 6 1-3)

20. No response from Parker is required as to Paragraph 20 of the Amended Petition.

21. Parker denies the allegations contained in Paragraph 21 of the Amended Petition.

22. Parker denies the allegations contained in Paragraph 22 of the Amended Petition.

23. Parker denies the allegations contained in Paragraph 23 of the Amended Petition.

THIRD CAUSE OF ACTION - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

(760.5.2001,66 AND COMMON LAW)

24. No response from Parker is required as to Paragraph 24 of the Amended Petition.

25. Parker denies the allegations contained in Paragraph 25 of the Amended Petition.

26. Parker admits that the AU ruled as indicated in Paragraph 26 of the Amended Petition, but denies the remaining allegations contained therein.

27. Parker denies the allegations contained in Paragraph 27 of the Amended Petition.

PRAYER FOR RELIEF

Parker denies any entitlement Plaintiff claims to have as set out in Paragraphs 1 through 5 of Plaintiffs prayer for relief in the Amended Petition.

AFFIRMATIVE DEFENSES For further response and by way of affirmative defenses, Parker alleges and states as follows:

1. To the extent not expressly admitted, Parker denies all of the allegations and legal conclusions contained in the Amended Petition.

2. The Amended Petition fails to state a claim upon which relief may be granted.

3. The Amended Petition is barred by the applicable statute of limitations.

4. Plaintiffs claims may be barred by the doctrines of unclean hands, waiver, estoppel, acquiescence, ratification and!or laches.

5. Plaintiff’s claims are barred in whole or part by his own conduct.

6. Plaintiff failed to mitigate his purported damages, if any.

7. Discovery is in the early stages, and Parker reserves the right to add additional Affirmative Defenses and/or Matters Constituting Avoidance.

8. Parker hereby gives notice that she intends to rely on any defense that may become available or appear hereafter, and hereby reserves the right to amend her Answer to assert any such defense.

WHEREFORE, having fully answered the Petition, Parker requests that the Court deny Plaintiff’s claims and award Parker her costs, reasonable attorney’s fees, and any other relief this Court deems just and proper.

Outcome: JUDGE PARRISH;ENT:11/05/2012 CASE COMES ON FOR JURY TRIAL. PLAINTIFF APPEARS WITH COUNSEL DANIEL J. GAMINO. KEVIN R. DONELSON AND JON BLAKE PATTON APPEARS WITH DEFENDANT. BOTH SIDES ANNOUNCE READY. TWENTY FIVE JURORS SWORN TO ANSWER QUESTIONS. NINETEEN CALLED TO THE BOX. JUROR # 12 EXCUSED FOR CAUSE. JUROR CALLED AND ANSWER QUESTIONS. JUROR # 16 EXCUSED FOR CAUSE. JUROR CALLED AND ANSWER QUESTIONS. VOIR DIRE CONDUCTED. PLAINTIFF AND DEFENDANT PASS JURY FOR CAUSE. PEREMTORY CHALLENGES. ALL CHALLENGES CALLED. THIRTEEN JURORS SWORN TO TRY CASE. COURT INSTRUCTION #1. OPENING STATEMENTS BY PLAINTIFF AND DEFENDANT. WITNESSES SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. COURT ADMONISHES JURY AND RECESSES UNTIL 11/6/2012 @ 9:00 AM. COURT REPORTER KAREN TWYFORD. DAY 2: 11/6/2012 ENT; JURY TRIAL CONTINUES AFTER NIGHTS RECESS. ALL PARTIES PRESENT AND READY. JURORS RETURN TO BOX. WITNESSES SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. PLAINTIFF REST. DEFENDANT CALLS WITNESSES, CROSS EXAMINATION. DEFENDANT REST. DEMURRER OVERRULED. COURT ADMONISHES JURY AND RECESSES UNTIL 11/7/2012 @ 8:15 AM. COURT REPORTER KAREN TWYFORD. DAY 3: 11/07/2012 ENT:JURY TRIAL CONTINUES AFTER NIGHTS RECESS. ALL PARTIES PRESENT AND READY. JURORS RETURN TO BOX. COURT'S INSTRUCTIONS TI THE JURY. CLOSING ARGUMENTS BY PLAINTIFF AND DEFENDANT. ALTERNATE JUROR EXCUSED. JURY RETIRES TO DELIBERATE AND RETURNS WITH VERDICT AND FINDS:IN FAVOR OF THE DEFENDANT. JURY DISCHARGED, CLERK DIRECTED TO FILE AND RECORD VERDICT ACCORDINGLY.

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