WHEAT v. STATE ex rel. TULSA COUNTY DISTRICT ATTORNEY

WHEAT v. STATE ex rel. TULSA COUNTY DISTRICT ATTORNEY
2010 OK CIV APP 119
Case Number: 107728
Decided: 06/30/2010
Mandate Issued: 10/22/2010
DIVISION IV
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

DEBBIE WHEAT, Plaintiff/Appellant,
v.
STATE OF OKLAHOMA ex rel. TULSA COUNTY DISTRICT ATTORNEY, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA

HONORABLE DAMAN CANTRELL, TRIAL JUDGE

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

N. Kay Bridger-Riley, BRIDGER-RILEY & ASSOCIATES, Tulsa, Oklahoma, for Plaintiff/Appellant
W. Kirk Turner, NEWTON, O'CONNOR, TURNER & KETCHUM, Tulsa, Oklahoma, for Defendant/Appellee

DOUG GABBARD II, PRESIDING JUDGE:

¶1 Plaintiff, Debbie Wheat, appeals the trial court's dismissal of her age discrimination lawsuit against Defendant, State of Oklahoma ex rel. Tulsa County District Attorney (State). We reverse and remand for further proceedings.

FACTS

¶2 Wheat was employed by the Tulsa County District Attorney's office (TCDA), a state agency. TCDA terminated her employment on May 14, 2003. Wheat asserted she was first told her services were no longer needed, and was later told she was being let go because of budget cuts.

¶3 Wheat asserted she had been replaced "by a less qualified younger male," and attempted to pursue a tort claim for age discrimination under the Oklahoma Governmental Tort Claims Act (GTCA). Her attorney mistakenly sent notice of her claim to Tulsa County rather than to State as required by the GTCA. Notice was received by a TCDA assistant district attorney, because TCDA was responsible for giving legal advice to Tulsa County.

¶4 Wheat later sued TCDA for age discrimination, initially under federal and state anti-discrimination statutes. Later, she asserted her claim was a common law public policy tort based on Burk v. K-Mart Corp.,

¶5 In 2007, another division of this Court reversed and remanded. In Appeal No. 103,599,

¶6 On remand, Wheat filed an amended petition, asserting two claims: "unlawful termination in violation of Oklahoma public policy," referring to

¶7 State filed a motion to dismiss, asserting Wheat had failed to state a cognizable Burk claim because (1) she was not an at-will employee; and (2) she had the same, adequate statutory remedy as the entire class of victims of discrimination in state employment. Both parties filed numerous briefs, focusing on the effect of recent Supreme Court decisions dealing with the requirements of Burk.

¶8 The trial court granted State's motion to dismiss. While the court disagreed with State's argument that Wheat was not an at-will employee, it found that the OPA created a "class of State employees that is distinct from the broader class of all Oklahoma employees" and that this class had "the same remedies under the OPA for alleged violations of the State RIF Act and for alleged discrimination in State employment on the basis of race, color, religion, sex, national origin, age, and handicap." Therefore, the court concluded, because Wheat had access to the same remedies as other victims of alleged RIF Act violations and State employment discrimination, she failed to state a legally cognizable Burk tort claim.

¶9 Wheat appeals.

STANDARD OF REVIEW

¶10 Motions to dismiss should not be granted "for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." Frazier v. Bryan Mem. Hosp. Auth.,

ANALYSIS

¶11 In general, "[a] viable Burk claim must allege (1) an actual or constructive discharge (2) of an at-will employee (3) in significant part for a reason that violates an Oklahoma public policy goal (4) that is found in Oklahoma's constitutional, statutory, or decisional law or in a federal constitutional provision that prescribes a norm of conduct for Oklahoma, and (5) no statutory remedy exists that is adequate to protect the Oklahoma policy goal."

1. The "at-will" requirement

¶12 The trial court correctly concluded that Wheat met the requirement of being an at-will employee. "At-will employment means the master may hire or discharge at will and the servant may work or refuse to work at will. The at-will employment doctrine applies to employment contracts that have no definite duration and recognizes that either the master or servant may end the employment at will." Glasco v. State ex rel. Okla. Dep't of Corr.,

¶13 Wheat's status fits the standard definition of an at-will employee. She did not agree to a contract or otherwise obligate herself to work for a certain period of time. Also, her employer, TCDA, did not obligate itself to employ her for a definite duration. Wheat's employment status is clearly different than that of the plaintiff in Dixon, who was hired one semester at a time, and, thus, was not an at-will employee.

¶14 However, in the trial court, State asserted that the RIF Act guarantees employees like Wheat "a minimum period of fixed employment of at least 60 days in duration by requiring the employer to provide at least 60 days advance notice of a discharge due to a reduction in force." Therefore, State concluded that Wheat "could not as a matter of law be terminated at any time at the will of TCDA," and was not an at-will employee. State argued that an at-will employee should be defined as one with respect to whom an employer enjoys "an unfettered right . . . to discharge . . . without notice . . . without incurring liability," and because TCDA had to give notice, Wheat was not at-will.

¶15 We disagree. Oklahoma law focuses on whether an employee is hired for an indefinite period, not whether the employee has to be given advance notice of termination. Here, while the RIF Act required 60 days' notice of termination, it did not limit TCDA's right to terminate Wheat at any time. Wheat's employment had no definite duration, and there is no indication the statute intended to alter the at-will status of the employees covered by it.

¶16 Alternatively, State relied on the often repeated language in Burk that, in an at-will relationship, an employer may discharge an employee for good cause, no cause, or even morally wrong cause.

¶17 The fact that Oklahoma law gives every employee, whether in government or the private sector, basic anti-discrimination rights does not change the at-will doctrine. Burk itself recognizes these rights, and states that they are simply a statutory exception to the at-will doctrine. Id. at ¶ 6 and n. 4, 770 P.2d at 26. To hold otherwise would effectively abolish the at-will doctrine in Oklahoma. Thus, the trial court properly concluded that Wheat was an at-will employee for purposes of the first requirement of the Burk test.

2. The "adequate statutory remedy" requirement

¶18 The trial court granted State's motion to dismiss based on the argument that Wheat failed to meet the fifth Burk requirement that "no statutory remedy exists that is adequate to protect the Oklahoma policy goal." Vasek v. Bd. of County Comm'rs,

¶19 As that case explains, Burk was followed by Tate v. Browning-Ferris, Inc.,

¶20 Next came List v. Anchor Paint Manufacturing Co.,

¶21 However, in 2006, the Court refocused its analysis on the equality of the remedy, rather than its adequacy. In Saint v. Data Exchange, Inc.,

[R]ather than discuss the adequacy of the remedies, we spoke [in Saint] in terms of disparate remedies and determined that, as required by the Constitution, the same remedies must be made available for everyone within the class of employment discrimination-handicap, race, sex and age.

Accordingly, pursuant to Saint v. Data Exchange, Inc.,

Id.

¶22 Recently, the Court has expressed its position more explicitly, acknowledging that it has "clearly abandon[ed] the adequacy of remedies test in cases of wrongful termination involving status based discrimination," i.e., "race, color, religion, sex, national origin, age, and handicap." Shephard v. CompSource Oklahoma,

¶23 Although the Supreme Court has not yet applied Kruchowski in an at-will government employee case, the constitutional basis of the Court's decision in Kruchowski compels that result in the case at bar. Therefore, Wheat is not barred from bringing a Burk claim, even though she is a member of a legislatively created class of employees (made up of state government employees) distinct from the broader class of all Oklahoma employees.

¶24 It is true that for some purposes, the state can create a separate class composed of its employees and still pass constitutional muster. For example, in Glasco v. State ex rel. Oklahoma Department of Corrections,

¶25 Any doubts about this conclusion were recently resolved in Smith v. Pioneer Masonry, Inc.,

CONCLUSION

¶26 In summary, State employees who allege age discrimination are part of a larger, single class composed of all victims of employment discrimination, and, because the remedies for the different forms of discrimination are disparate, "there is a Burk tort remedy for those who allege employment age discrimination." Kruchowski at ¶ 35, 202 P.3d at 154. For these reasons, Wheat is entitled to pursue her claim. The trial court's dismissal order is hereby reversed and this matter is remanded for further proceedings.

¶27 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GOODMAN, J., and FISCHER, J. (sitting by designation), concur.

FOOTNOTES

1 Burk is the landmark Oklahoma Supreme Court decision that carved out an exception to the employee at-will doctrine for instances of employee terminations that are contrary to a clear mandate of public policy. A Burk claim can be brought against the State, because the GTCA does not provide immunity to the State from common law tort liability for wrongful discharge under Burk. Gunn v. Consol. Rural Water and Sewer Dist. No. 1, 1992 OK 131, ¶ 12, 839 P.2d 1345, 1351.