UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________ MICHAEL S. HARRELL, an individual, Plaintiff

- Appellee, and
BILLY D. “ RUSTY ” RHOADES; MEGAN L. SIMPSON, Plaintiffs,

v. KEVIN STITT, an individual; CHIP KEATING, an individual; JASON NELSON, an individual, Defendants

- Appellants, and
THE STATE OF OKLAHOMA, ex rel. GOVERNOR KEVIN STITT; THE STATE OF OKLAHOMA, ex rel. THE DEPARTMENT OF PUBLIC SAFETY, Defendants. No. 23

- 6048 (D.C. No. 5:20

- CV

- 00761

- R) (W.D. Okla.)

_________________________________ ORDER AND JUDGMENT *

_

________________________________ Before HARTZ , MORITZ , and ROSSMAN , Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But i t may be cited for its persuasive value

. See Fed. R. App. P. 32.1 (a) ; 10th Cir. R. 32.1 (A)

. FILED United States Court of Appeals Tenth Circuit 

### July 11, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 12 _________________________________ Michael Harrell served as c hief of the Oklahoma Highway Patrol for under two
years
. After his employment ended, Harrell brought this action under 42 U.S.C. § 1983 against defendants Kevin Stitt, the governor of Oklahoma; Chip Keating, the former Oklahoma s ecretary of p ublic s afety ; and Jason Nelson, the former Oklahoma d eputy s ecretary of p ublic s afety . Harrell alleg ed that defendants deprived him of a constitutionally protected property interest in continued employment without due
process of law

. The district court denied d efendants ’ mo tion for summary judgment based on qualified immunity , and defendants appeal

. We conclude that Harrell cannot establish a procedural

- due

- process violation b ecause he voluntarily elect ed to retire from the highway patrol

. W e therefore reverse the district court’s denial of qualified immunity and remand with directions to enter summary judgment in defendants’ favor

. Background From late 2017 u ntil 2019, Harrell served as c hief of the Highway Patrol Division of the Oklahoma Department of Public Safety (DPS)

. In the summer of 2018, Harrell provided Trooper Brian Orr with detailed information about the topics that would be covered on an upcoming promotional exam
. Harrell gave no such assistance to any other trooper taking the exam , and DPS commissioner Billy Rhoades was present during Harrell’s conversation with Orr

. Orr later told T rooper Troy German about how Harrell had helped him. German recorded his conversation with Orr and then confronted Rhoades about Orr’s assertion

. Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 23 Afte r th is confrontation, Harrell, Rhoades, and DPS general counsel Megan Simpson asked the Oklahoma County d istrict a ttorney , David Prater, to file blackmail charges against German. Prater declined to bring such charges because he believ ed that the ir blackmail allegations were unfounded and that the y had lied to him about Rhoades’s interactions with German

. Undeterred, Harrell, Rhoades, and Simpson then took their allegations to the state a ttorney g eneral, who later indicted German for blackmail. When Prater learned about the charges, he offered to testify on German’s behalf at the preliminary hearing, but the a ttorney g eneral dismissed the charges before Prater could testify

. In August 2019, after the charges were dismissed,
German sued Harrell, Rhoades, Simpson , and Orr for malicious prosecution and abuse of process

. After German filed suit, Prater spoke with Nelson over the phone about the testing controversy and its aftermath

. During the call, Prater explained that Harrell had admitted to providing Orr with assistance on the promotional exam . Prater also said he believed that the blackmail allegations were unfounded; that Harrell, Rhoades, and Simpson had lied to him about German ’s conduct; and that the three officials should be investigated for their own condu ct. Nelson in turn relayed the information he learned from Prat er to Keating, who then shared his concerns about the situation with the g overnor ’s staff. Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 34 Shortly thereafter , in early September 2019, S t itt ordered the removal of Harrell, Rhoades, and Simpson

— all un c lassified, at

- will employees

. 1 To this end,
S t itt signed affidavits stating that they were incapable of effectively leading the department . Stitt then delegated to Nelson the authority to carry out the resignation, retirement , or termination of Harrell, Rhoades, and Simpson

. Following these instructions , Nelson called the three officials and inform ed each official that they could choose between resignation, retirement (if eligible), and termination

. As relevant here, w hen Nelson asked Harrell during the call if he “ kn [ e ] w at this time what [he] would prefer to do,” Harrell responded that he would retire. App. vol. 2,
480. At his deposition, Harrell testified that he “took the least intrusive of the three options that were given [to him] , knowing full well that [ he ] had the statutor y ability” under Oklahoma law to return to his former classified position as a major in the highway patrol , though defendants “never offered that

. ” App . vol. 4, 1007

– 08. Two days a fter his call with Nelson, H arrell confirmed his retirement in writing and selected November 30, 2019, as the effective date of his retirement. Harrell “request[ed] to use terminal leave through that date” and “to be paid for any unused annual leave at that time.” App. vol. 2, 489

. Harrell then applied for monthly

1 Under the governing Oklahoma statute, “employees are designated as being in either ‘classified’ or ‘unclassified’ service.” Trant v. Oklahoma , 426 F. App’x 653, 662 (10th Cir. 2011) (quoting McCrady v. Okla. Dep’t of Pub. Safety , 122 P.3d 473, 475 (Okla. 2005) )

. C lassified employee s are “protected by detailed rules and procedures concerning all aspects of the employment relationship, including the right to appeal from .

. . suspensions[] and involuntary discharge without just cause.” Id. (ellipsis in original) (quo ting McCrady , 122 P.3d at 475 ). U nclassified employees , by contrast, serve at will and have no right to continued employment. Id. Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 45 retirement benefits and requested to begin r eceiving such benefits in December 2019 ;
t he Oklahoma Law Enforcement Retirement System granted his request

. In the first three years of his retirement, Harrell received more than $370,0 00 in retirement benefits. In July 2020 , Harrell filed this action in state court , alleging a procedural

- due

process claim against S t itt, Keating , and Nelson in their individual capacities

. 2
Harrell asserted that they deprived him of a constitutionally protected property interest in continued employment with the h ighway p atrol without due process of law

. As support for his asserted property interest , Harrell invoked an Oklahoma

s tatute providing the highway

- patrol chief with “a right of return to the highest previously held classified commission ed position within the Oklahoma Highway Patrol

. . . without any loss of rights, privileges [,] or benefits immediately upon completion of the duties in the unclassified commissioned positi on.” Okla. Stat. tit. 47, § 2

- 105 (A)(1) (2017) (amended 2022)

. Defendants removed the action to federal court and , following discovery, moved for summary judgment based in part on qualified immunity

. T he district court denied the summary - judgment motion

. The district court first conclud ed that “it was clearly established at the time of .

. . Harrell’s separation that he had a statutory right

2 The complaint also named Rhoades and Simpson as plaintiffs , and it asserted additional claims against various defendants for due

- process violations , wrongful termination , and tortious interference with an employment contract

. The district court dismissed th e se due

- process and wrongful

- termination claims at the motion

- to

dismiss stage, and it later dismissed the tortious

- interference claims at summary judgment

. Th o se claims are not at issue in this appeal. Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 56 of reversion[,] thereby creating a property interest in his continued employment” with the highway patrol. App. vol. 6, 1637. The district court then explained that whether de fendants de prived Harrell of that interest without due process turned on the voluntariness of his decision to retire. See Parker v. Bd. of Regents , 981 F.2d 1159,
1162 (10th Cir. 1992) (holding that if employee “ resigned of [their] own free will ,” then they “ voluntarily relinquished [their] property interest and [were] not deprived of [their] property interest without due process ”). A nd it determined a reasonable jury

co uld find that Harrell’s decision to retire was in voluntar y under the constructive

discharge test set out in Parker

. The district court thus rejected defendants’ qualified

immunity defense

. Defendants now appeal

. Analysis
I. Appellate Jurisdiction
B efore addressing the merits of this interlocutory appeal, we must first ensure that we have jurisdiction over it

. Ordinarily, we lack jurisdiction to review orders denying summary judgment

. Wise v. Caffey , 72 F.4th 1199, 1205 (10th Cir. 2023)

. “[T] he denial of qualified immunity to a public official ,” however, is generally

“ immediately appealable.” Id. (quoting Cox v. Glanz , 800 F.3d 1231, 1242 (10th Cir. 2015) ). And w e review such a denial de novo. Id. But in so doing , we must usually accept as true the facts the district court determined a reasonable jury could find at trial and focus only on “abstract issues of law relating to qualified immunity .” Paugh v. Uintah County , 47 F.4th 1139, 1152

– 53 (10th Cir. 2022) (quoting Behrens v. Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 67 Pel letier , 516 U.S. 299, 313 (1996) ). Invoking this jurisdictional limitation, Harrell argues we may not review the district court’s holding that a genuine issue of material fact exists as to whether his retirement was involuntary. Harrell is mistaken. To be sure, we should take as true the facts the district court held a reasonable jury could find. See i d. But it is our responsibility to say whether those facts , along with the undisputed facts, “fall in or out of legal bounds ”

— that is, “ whether they are or are not enough as a matter of law to permit a reasonable jury to issue a verdict for the plaintiff unde r the terms of the governing legal test.” Walton v. Powell , 821 F.3d 1204, 1210 (10th Cir. 2016) (Gorsuch, J.) ; see also Paugh , 4 7 F. 4th at 1153 (explaining that on interlocutory appeal of qualified immunity, we may consider “whether the facts that the dis trict court ruled a reasonable jury could find would suffice to show a legal violation” (quoting Finch v. Rapp , 38 F.4th 1234, 1240

– 41 (10th Cir. 2022) ))

. And here, defendants ask us to do just that: decide whether such facts are sufficient as a matter of law to permit a favorable judgment on the voluntariness of Harrell’s decision to retire under the Parker test , which “is determinative of whether qualified immunity would bar this action

. ” Parker , 981 F.2d at 1162 ; see also id. at 1162

– 63 (explaining that there is no constitutional “violation of due process” if plaintiff voluntarily “ chose to end [their] employment without a hearing and not to avail [themselves] of the available due[

- ]process procedures ” ) . Because this is an abstract le gal issue, we have jurisdiction to address it. S ee id. at 1162

– 63 (reviewing district court’s holding that reasonable jury could find plaintiff’s resignation was involuntary in appeal from Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 78 summary - judgment denial based on qualified immunity ); Walton , 821 F .3d at 1207

– 10 ( rejecting argument that we lacked jurisdiction to review “ district court’s holding that a reasonable jury could find [plaintiff’s] dismissal was the result of (caused by) her political affiliation” in appeal from summary - judgment denial based on qualified immunity).
II. Merits

“ T he doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan , 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) ). To overcome a qualified

- immunity defense , a plaintiff must establish that (1) “ th e defendant violated a constitutional or statutory right ” and (2) “ the right was clearly established at the time of the defendant’s conduct.” Arnold v. City of Olathe , 35 F.4th 778, 788 (10th Cir. 2022)

. Courts may address these two prongs in any order , and “if the plaintiff fails to establish either prong .

. . , the defendant prevails on the defense.” A.M. v. Holmes , 830 F.3d 1123, 1134

– 35 (10th Cir. 2016)

. Here, w e begin and end with the first prong: whether defendants violated Harrell’s right s to procedural due process. To “ assess whether an individual was denied procedural due process, ” we engage in a familiar “two

- step inquiry .” Riggins v. Goodman , 572 F.3d 1101, 1108 (10th Cir. 2009 ) (quoting Montgomery v . City of Ardmore , 365 F.3d 926, 935 (10th Cir. 2004) ). At the first step, we ask whether “the individual possess[ed] a protected Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 89 interest such that the due[

- ]process protections were applicable .” Id. (quoting Montgomery , 365 F.3d at 935 ). “A public employee has a property interest in his continued employment where ‘state or local law creates a sufficient expectancy of continued employment.’” McDonald v. Wise , 769 F.3d 1202, 1210 (10th Cir. 2014) (quoting Driggins v. City of Oklahoma City , 9 54 F.2d 1511, 1513 (10th Cir. 1992) ).
For the sake of argument , we will assume that Harrell had a constitutionally protected property interest in his continued employment with the highway patrol under Oklahoma law

. At the second step, we ask whether “the i ndividual [was] afforded an appropriate level of process.” Riggins , 572 F.3d at 1108 (quoting Montgomery , 365 F.3d at 935 ). Public employee s with a property interest in continued employment are “entitled to oral or written notice of the charges against [th em] , an explanation of the employer’s evidence, and an opportunity to present [their] side of the story” prior to termination

. Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 54 6 (1985)

. But here, d efendants argue that they did not terminate Harrell’s employment

— he voluntarily retired and therefore waived any right to due process

. In Parker , w e held that if an employee “ resign ed of [ their ] own free will, even though doing so due to actions of defendants , [the employee] voluntarily relinquishe d [ their ] property interest and was not deprived of [ that ] property interest without due
process. ” 3 981 F.2d at 1162

. But if the “resignation was so involuntary [ that ] it

3 Harrell chose to retire rather than resign , but the parties agree that Parker applies equally in t his context

. Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 910 amounted to a constructive discharge, defendant s did deprive [ the employee] of [ such ] property interest without due process.” Id. “ A resignation will be [deemed] involuntary and coerced when the totality of the circumstances indicate [s] the employee did not have the opportunity to make a free choice

. ” Id. In conducting this inquiry, we look at “the totality of the circumstances under an objective standard.” Yearous v. Niobrara Cnty. Mem’l Hosp. , 128 F.3d 1351, 1356 (10th Cir. 1997) . And

we consider four factors : whether the employee (1) “ was given some alternative to resignation ” ; (2) “ understood the nature of the choice [t he y w ere] given ” ; (3) “ was given a reasonable time in which to choose ” ; and (4) “ was permitted to select the effective date of resignation. ” Parker , 981 F.2d at 1162 (quoting Stone v. Univ

. of Md. Med

. Sys. Corp. , 85 5 F.2d 167, 174 (4th Cir

. 1988) ). Applying this framework here, we conclude that Harrell’s resignation was voluntary. On the first prong, r ecall that following the testing controversy and its aftermath , Nelson called Harrell and gave him th re e option s: resign , retire , or face terminat ion. Although Harrell chose retirement , he now argues that this was a “forced choice , ” regardless of whether he engaged in any misconduct . Aplee. Br. 17. In other words, he asserts that he had no “alternative to resignation.” Parker , 981 F.2d at 1162 (quoting Stone , 855 F.2d at 174). But Harrell’s position ignores Parker ’s instruction that “ [a] choice between resignation or termination does not establish th at the resignation was involuntary, unless the employer lacked good cause to believe that there were grounds for termination.” Id. And t he undisputed record , viewed objectively, establishes that they did. Harrel l admitted during his deposition that he Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 1011 prov ided a trooper with specific areas of study on a n upcoming promotional exam but
gave no such assistance to any other trooper. And there is no dispute that after German confronted Rhoades about this unfair treatment , Harrell, Rhoades, and Simpson sought to have German charged with blackmail. Prater , who declined to bring such charges, later told Nelson he belie ved that the blackmail allegations were unfounded ; that Harrell, Rhoades, and Simpson had lied to him about Rhoades’s interactions with German ; and that the three officials should be investigated for their mis conduct

. Together, t his undisputed evidence shows that defendants had good
cause to believe there were grounds for termination

. See id. ( concluding that choice between resignation and termination did not render plaintiff’s resignation involuntary where “ [t] he evidence indicate [d] that there were adequate reasons

. . . for defendants to threaten plaintiff with termination ”)

. T here is no ques tion , at Parker ’s second prong , that Harrell “ understood the nature of the choice he was given.” Id. (quoting Stone , 855 F.2d at 174 )

. During his deposition, Harrell testified that he chose retirement as “the least intrusive of the three options that were given [ to him] , knowing full well that [he] had the statutory ability to go back ” to his former classified position as a major , though defendants

“ never offered that.” App . vol. 4, 1007

– 08. And Harrell ma de that choice immediately : when Nelson ask ed during the call if he “kn [ e ] w at this time what [he] would prefer to do , ” Harrell said without hesitation that he would retire. App. vol. 2,
480. There was no reason , then, for Nelson to give Harrell more time to reach a decision , satisfying Parker ’s third prong

. See 981 F.2d at 1162 (noting Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 1112 reasonableness of time to decide). Additionally , two days after the call, Harrell sent DPS a letter expressing his “intention to retire

. . . on November 30, 2019 .” App. vol. 2, 489

. Harrell then formally requested to begin receiving monthly retirement benefits in December 2019, and the Oklahoma Law Enforcement Retirement Syste m granted that request. These undisputed facts satisfy Parker ’s fourth prong regarding choice of resignation date. See 981 F.2d at 1162. Thus, co nsidered together, the Parker factors establish that Harrell voluntarily retired from the highway patrol

. 4 See id.

4 The district court concluded otherwise, despite acknowledg ing that “certain of the [ Parker ] factors,” including the first two, “weigh [ed] in favor of ” voluntar iness

. App. vol. 6, 1636. In reaching th is conclusion, the district court made two primary observations. First, it noted that the record lacked “ evidence as to why [Stitt,] the actual decision [

- ] maker[,]

. . . decided to terminate ” Harrell ’s employment

. Id. But the district court did not explain w hy such subjective evidence would be relevant to whether Harrell’s decision to retire was voluntary under Parker

— which requires only an objective determination that good cause existed “t o believe that there were grounds for termination

. ” 981 F.2d at 1162 . A nd Harrell does not argue on appeal that the omission of such evidence matters

. Second, the district court noted (and Harrell echoes on appeal) that Nelson failed to advise Harrell “ of any opportunity for a hearing ” or “ of any opportunity to retain employment in any capacity with the [h]ighway [p]atrol. ” App. vol. 6, 1636

. To be sure, courts have recognized that “a resignation may be found involuntary if induced by an employee’s reasonable reliance upon an employer’s misrepresentation of a material f act concerning the resignation,” including “the alternative to resignation.” Stone , 855 F.2d at 174. But again, Harrell testified that he knew “full well” that he had a statutory right to return to his former classified position as a major , App. vol. 4, 10 07, and employees in classified positions may be removed only in accordance with the due

- process procedures provided by Oklahoma law, see McCrady , 122 P.3d at 475. Thus, “in the absence of [any] reasonable reliance” on the omission, “it is simply not mater ial” that Nelson did not inform Harrell that he could return to his former position and receive a pre

- termination hearing. Stone , 855 F.2d at 176. Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 1213 W e accordingly conclude that no reasonable jury could find Harrell was constructively discharged

. 5 Harrell voluntarily retired from the highway patrol, and that means “[t]here is no violation of [procedural] due process. ” 6 Id. at 116 3

. We thus hold that defendants are entitled to qualified immunity

. Conclusion
Because Harrell cannot establish a procedural

- due

- process violation, the district court erred in denying qualified immunity to defendants

. W e therefore reverse and remand with directions to enter summary judgment in defendants’ favor.

Entered for the Court
Nancy L. Moritz Circuit Judge

5 We reach this conclusion without relying on defendants’ additional argument that Harrell’s conduct following his retirement

— including his acceptance of hundreds of thousands of dollars in retirement benefits

— “confirms his decision [to retire] was voluntary.” Aplt. Br. 28

. 6 Because Harrell cannot establish a constitutio nal violation , we need not reach the clearly established prong of the qualified

- immunity analysis

. Appellate Case: 23-6048 Document: 010111078048 Date Filed: 07/11/2024 Page: 13