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* This order and judgment is not binding precedent, except under the doctrines 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 it 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: 1
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_________________________________

Michael Harrell served as chief 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 secretary of public safety; and Jason Nelson, the former Oklahoma 

deputy secretary of public safety. Harrell alleged that defendants deprived him of a

constitutionally protected property interest in continued employment without due 

process of law. The district court denied defendants’ motion for summary judgment

based on qualified immunity, and defendants appeal. We conclude that Harrell cannot 

establish a procedural-due-process violation because he voluntarily elected to retire 

from the highway patrol. We 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 until 2019, Harrell served as chief 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 Trooper

Troy German about how Harrell had helped him. German recorded his conversation 

with Orr and then confronted Rhoades about Orr’s assertion. 

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After this confrontation, Harrell, Rhoades, and DPS general counsel Megan 

Simpson asked the Oklahoma County district attorney, David Prater, to file blackmail 

charges against German. Prater declined to bring such charges because he believed

that their blackmail allegations were unfounded and that they had lied to him about 

Rhoades’s interactions with German. Undeterred, Harrell, Rhoades, and Simpson

then took their allegations to the state attorney general, 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 attorney general 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 conduct. Nelson in turn relayed the 

information he learned from Prater to Keating, who then shared his concerns about 

the situation with the governor’s staff. 

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Shortly thereafter, in early September 2019, Stitt ordered the removal of

Harrell, Rhoades, and Simpson—all unclassified, at-will employees.

1 To this end, 

Stitt 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 informed each official that they 

could choose between resignation, retirement (if eligible), and termination. As 

relevant here, when 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 statutory 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 after his call with Nelson, Harrell 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)). Classified employees 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) (quoting McCrady, 122 P.3d at 475). Unclassified employees, by 

contrast, serve at will and have no right to continued employment. Id.

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retirement benefits and requested to begin receiving such benefits in December 2019; 

the Oklahoma Law Enforcement Retirement System granted his request. In the first 

three years of his retirement, Harrell received more than $370,000 in retirement 

benefits.

In July 2020, Harrell filed this action in state court, alleging a procedural-dueprocess claim against Stitt, 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 highway patrol without due process of 

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

statute providing the highway-patrol chief with “a right of return to the highest 

previously held classified commissioned position within the Oklahoma Highway 

Patrol . . . without any loss of rights, privileges[,] or benefits immediately upon 

completion of the duties in the unclassified commissioned position.” 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. The district court 

denied the summary-judgment motion. The district court first concluded 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 these due-process and wrongful-termination claims at the motion-todismiss stage, and it later dismissed the tortious-interference claims at summary 

judgment. Those claims are not at issue in this appeal.

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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 

defendants deprived 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”). And it determined a reasonable jury 

could find that Harrell’s decision to retire was involuntary under the constructivedischarge test set out in Parker. The district court thus rejected defendants’ qualifiedimmunity defense.

Defendants now appeal.

Analysis

I. Appellate Jurisdiction

Before 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 we 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. 

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Pelletier, 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 id. 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 under the terms of the 

governing legal test.” Walton v. Powell, 821 F.3d 1204, 1210 (10th Cir. 2016)

(Gorsuch, J.); see also Paugh, 47 F.4th at 1153 (explaining that on interlocutory 

appeal of qualified immunity, we may consider “whether the facts that the district 

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 legal issue, we have 

jurisdiction to address it. See id. at 1162–63 (reviewing district court’s holding that 

reasonable jury could find plaintiff’s resignation was involuntary in appeal from 

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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

“The 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) “the 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, we begin and end with the first prong: whether defendants violated 

Harrell’s rights 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 

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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, 954 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 individual [was] afforded an 

appropriate level of process.” Riggins, 572 F.3d at 1108 (quoting Montgomery, 365 

F.3d at 935). Public employees with a property interest in continued employment are

“entitled to oral or written notice of the charges against [them], 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, 546 (1985). But 

here, defendants argue that they did not terminate Harrell’s employment—he 

voluntarily retired and therefore waived any right to due process.

In Parker, we held that if an employee “resigned of [their] own free will, even 

though doing so due to actions of defendants, [the employee] voluntarily relinquished 

[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 this context.

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amounted to a constructive discharge, defendants 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 [they were] 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., 855 F.2d 167, 174 (4th Cir. 1988)).

Applying this framework here, we conclude that Harrell’s resignation was 

voluntary. On the first prong, recall that following the testing controversy and its 

aftermath, Nelson called Harrell and gave him three options: resign, retire, or face 

termination. 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 that the 

resignation was involuntary, unless the employer lacked good cause to believe that 

there were grounds for termination.” Id. And the undisputed record, viewed 

objectively, establishes that they did. Harrell admitted during his deposition that he 

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provided a trooper with specific areas of study on an 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 believed 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 

misconduct. Together, this 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”).

There is no question, 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 made that choice

immediately: when Nelson asked 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 

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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 System 

granted that request. These undisputed facts satisfy Parker’s fourth prong regarding 

choice of resignation date. See 981 F.2d at 1162. Thus, considered together, the 

Parker factors establish that Harrell voluntarily retired from the highway patrol.

4 See 

id.

4 The district court concluded otherwise, despite acknowledging that “certain 

of the [Parker] factors,” including the first two, “weigh[ed] in favor of”

voluntariness. App. vol. 6, 1636. In reaching this 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 why 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 “to 

believe that there were grounds for termination.” 981 F.2d at 1162. And 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 fact 

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, 

1007, 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 material” 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.

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We 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 1163. 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. We 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 constitutional violation, we need not reach 

the clearly established prong of the qualified-immunity analysis. 

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