UPTON v. STATE ex. rel. OKLAHOMA DEPT. OF CORRECTIONS

UPTON v. STATE ex. rel. OKLAHOMA DEPT. OF CORRECTIONS
2000 OK 46
9 P.3d 84
71 OBJ 1744
Case Number: 91618
Decided: 06/20/2000
Mandate Issued: 07/21/2000
Supreme Court of Oklahoma

MARTIN UPTON, Plaintiff/Appellee,
v.
STATE OF OKLAHOMA ex rel. DEPARTMENT OF CORRECTIONS, and OKLAHOMA MERIT PROTECTION COMMISSION, Defendants/Appellants.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I.

APPEAL FROM THE DISTRICT COURT OF PITTSBURG COUNTY;
HONORABLE STEVEN W. TAYLOR, JUDGE.

¶0 While Upton, a state employee, was receiving temporary total disability for an on-the-job injury, State terminated his employment under the terms of 74 O.S.1994 § 840-2.21 because of excessive absenteeism. The Merit Protection Commission sustained the dismissal. On appeal the district court reversed, holding the discharge violated the Workers Compensation Act, 85 O.S.1994 § 5(B). The Court of Civil Appeals affirmed the district court's decision and State sought certiorari. Upon certiorari earlier granted,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND
THE DISTRICT COURT'S DECISION IS AFFIRMED.

Michael T. Oakley, Oklahoma Department of Corrections, Oklahoma City, OK, for the appellant.
Joseph L. McCormick, Oklahoma Merit Protection Commission, Oklahoma City, OK, for the appellant.
Michael R. Green of Stites and Green, Tulsa, OK, for the appellee.

Lavender, J.

¶1 Today's cause presents a question of first impression, i.e., whether the Oklahoma Department of Corrections [State or DOC] can terminate Upton [employee or appellee] while he is receiving compensation (temporary total disability) for an on-the-job injury under the terms of the Workers Compensation Act, 85 O.S.1994 §§ 1 et seq.

I
FACTS AND PROCEDURAL HISTORY

¶2 The facts in the case are undisputed. Upton, a DOC employee, suffered an on-the-job injury on March 25, 1996 for which he was awarded temporary total disability

II
STATE CANNOT TERMINATE EMPLOYEES WHILE THEY ARE
RECEIVING TEMPORARY TOTAL DISABILITY UNDER
PROVISIONS OF THE WORKERS COMPENSATION ACT

¶4 Resolution of State's appeal requires the Court to construe the provisions of 85 O.S.1994 § 5(B) and 74 O.S.1994 § 840-2.21(D), which on first examination appear in conflict. Since today's cause implicates the meaning and intent of legislative enactments and there are no disputed facts, it poses only a question of law. Hence, the applicable standard of review is de novo.

¶5 The contested provision of the Oklahoma Personnel Act provides that State "may"

¶6 It is fundamental that statutory construction begins with ascertainment of legislative intent which is often manifested in the law's stated purpose.

"It is . . . the general purpose of this act to establish for the state a system to recruit, select, develop and maintain an effective and responsive work force; . . .

to provide for adequate and reasonable protection and security for those who have entered and will enter into the service of the state. . . ."

¶9 As further evidence of the legislative intent encompassed within the two acts at issue here, we reviewed the process by which the OPM met its charge to prepare rules (and amendments thereof) to satisfy the mandate of § 840-2.21(D). OPM proposed guidelines - implementing § 840-2.21(D) - in 1993. Amended Rule 530:10-15-10(j)(2) & (3), Permanent Rules of the Office of Personnel Management, provides in pertinent part:

"(2) If an employee does not return to the original position or an alternate position within 1 year after the start of leave without pay, the Appointing Authority may terminate the employee under Section 840-7b(D).* An Appointing Authority that uses Section 840-7b(D)* as authority to terminate an employee shall give the employee a copy of (k) of this Section. Termination of permanent classified employee under this Section is subject to the pretermination hearing requirements of Section 840-6.4 of Title 74 of the Oklahoma Statutes.

(3) If Section 5(A)(2) [now 85 O.S. § 5(B)] of Title 85 of the Oklahoma Statutes prevents the Appointing Authority from terminating the employee, the Appointing Authority shall place the employee on leave without pay according to that law. The rights and benefits of this Section and Section 840-7b(D)* shall no longer apply." [Emphasis added.]

[* Section 840-7b(D) is now renumbered as § 840-2.21(D).]

The amended rule's text demonstrates cognizance of the 1992 amendment - which forbids termination of an employee who is receiving TTD - to 85 O.S.1991 § 5 .

¶10 It is within the ambit of the identified purposes and intent that the Court views the provisions of the two acts in issue. Also, we are mindful that because of the Workers Compensation Act's remedial nature, it should be accorded liberal construction in favor of those entitled to its benefits.

¶12 Today's holding does not render 74 O.S.1991 § 840-2.21(D) void of legal significance. Under its terms State may still terminate employees solely because they are absent from work for periods of time longer than one year when they are receiving forms of compensation - other than TTD - allowed under the terms of the WCA, e.g., temporary partial disability.

III
SUMMARY

¶13 Today's pronouncement addresses a conflict between two statutes governing State's right to terminate - solely because of absenteeism - an employee who is receiving temporary total disability . The later-in-time declaration of legislative intent is today given effect with the result that the provisions of 74 O.S.1994 § 840-2.21(D) are repealed to the limited extent they are inconsistent with the provisions of 85 O.S.1994 § 5(B). Section 840-2.21(D) remains efficacious insofar as it governs State's right to terminate absent employees who are receiving forms of compensation - other than TTD - authorized under the terms of the Workers Compensation Act.

¶14 Upon certiorari earlier granted,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND THE DISTRICT COURT'S DECISION IS AFFIRMED.

¶ 15 ALL JUSTICES CONCUR.

FOOTNOTES

1Temporary Total Disability is the "healing period or that period of time following accidental injury, when an employee is totally incapacitated for work due to illness resulting from injury." Oklahoma Natural Gas Co. v. Davis, 181 Okla. 530, 75 P.2d 435, 436 (1938).

2The pertinent terms of 74 O.S.1994 § 840-2.21 are:

"D. An employee on leave without pay pursuant to the provisions of this section shall have the right to be returned to his or her original position in accordance with rules promulgated by the Office of Personnel Management. If it is found necessary for the good of the state to fill the position during the period the employee is on leave without pay the employee filling the position shall vacate the position upon the return of the employee on leave without pay, subject to layoff, transfer or demotion rights earned under the Oklahoma Personnel Act, Section 840.1 et seq. of Title 74 of the Oklahoma Statutes and rules of the Office of Personnel Management. The right to return to the original position shall expire one (1) year from the date of the start of leave without pay. If the employee has not returned to the original position of the employee or some other position within the agency within one (1) year from the date of the start of leave without pay, the employee may be separated in accordance with the Oklahoma Personnel Act and rules of the Office of Personnel Management." [Emphasis added.]

3The pertinent terms of 85 O.S.1994 § 5 (B) are:

"No person, firm, partnership, corporation, or other entity may discharge any employee during a period of temporary total disability solely on the basis of absence from work." [Emphasis added.]

4State ex rel. Dept. of Human Services v. Baggett, 1999 OK 68, 990 P.2d 235, 238.

5"May" is permissive as contrasted with "shall" which is mandatory in nature. See Tate v. Browning-Ferris, 1992 OK 72, 833 P.2d 1218, 1229.

6Although § 840-2.21(D) was enacted in 1988 - the OPM rules effective when Upton was discharged - were adopted in 1993, the year after § 5(B) was first enacted.

7Pierce v. Franklin Electric Co., 1987 OK 34, 737 P.2d 921, 924. A "retaliatory" discharge is one based upon an employee's exercise of rights granted under the workers' compensation statutes. Id.. at 922.

8For the amended provisions of 85 O.S.1994 § 5 (B), see supra note .

9Wilson v. Wilson, 1999 OK 65, 987 P.2d 1210, Welch v. Simmons, 190 Okla. 611, 126 P.2d 89, 91 (1942).

10Sharp v. Tulsa County Election Bd., 1994 OK 104, 890 P.2d 836, 839.

11Ledbetter v. Okla. Alcoholic Bev. Laws Enforcement Com'n., 1988 OK 117, 764 P.2d 172, 179; Eason Oil Co. v. Corp. Com'n., 1975 OK 14, 535 P.2d 283, 286.

12Protest of Chicago, R. I. & P. Ry. Co., 127 Okla. 186, 279 P.2d 319, 322 (1929).

13Id.

1474 O.S.1991 § 840-1.2.

1574 O.S.1991 § 840-1.6.

16Fox v. Dunning, 1927 OK 79, 255 P. 582- 585-86.

17Wallace v. Haliburton Co., 1992 OK 24, 850 P.2d 1056,1058;Thompson v. Medley Material Handling, Inc., 1987 OK 2, 732 P.2d 461, 463.

18Galey & Molloy v. Belt, 1940 OK 271, 102 P.2d 868.

19For the amendment's terms see supra note .

20The adopted rule impliedly acknowledges the effect of Oklahoma's extant jurisprudence which holds that if State discharges an employee in violation of § 5 of the WCA, its conduct qualifies as a statutory tort from which the state has no immunity. Gunn v. Consol. Rural Water & Sewer Dist. No. 1, 1992 OK 131, 839 P.2d 1345, 1349-50; see also Jarvis v. City of Stillwater, 1983 OK 88, 669 P.2d 1108, 1110.

21The required gubernatorial approval of the proposed Rule 530:10-15-10(j) was secured on May 17, 1993 and legislative approval occurred on May 24, 1993, when no legislative disapproval was voiced.

22Tulsa Rig & Reel Mfg. Co. v. Pritchett, 176 Okla. 262, 55 P.2d 777 (1936).

23See City of Sand Springs v. Dept. of Public Welfare, 1980 OK 36, 608 P.2d 1139, 1151, which holds that when an irreconcilable conflict exists between statutes, the later modifies the earlier.

24For the scope of temporary total disability, see 85 O.S.1991 § 22(4).