Glasco v. State ex rel. Oklahoma Doc

• Decision Date: 01 July 2008
• Docket Number: No. 105,251.,105,251.
• Citation: 2008 OK 65,188 P.3d 177
• Parties: Michael GLASCO, an individual, Plaintiff/Appellant, v. STATE of Oklahoma ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS and State of Oklahoma ex rel. Oklahoma Department of Corrections, Southeast District Community Corrections, Defendants/Appellees.
• Court: Oklahoma Supreme Court

188 P.3d 177

2008 OK 65

Michael GLASCO, an individual, Plaintiff/Appellant, v. STATE of Oklahoma ex rel. OKLAHOMA DEPARTMENT OF CORRECTIONS and State of Oklahoma ex rel. Oklahoma Department of Corrections, Southeast District Community Corrections, Defendants/Appellees.

No. 105,251.

Supreme Court of Oklahoma.

July 1, 2008.

As Corrected July 7, 2008.

ON APPEAL FROM THE DISTRICT COURT IN OKLAHOMA COUNTY, STATE OF OKLAHOMA, THE HONORABLE DANIEL L. OWENS, PRESIDING

¶ 0 Michael Glasco worked as a security officer for the Department of Corrections. He suffered a work-related injury. The Department placed him on leave without pay, and he received temporary total disability benefits. After being on leave without pay for more than a year, the Department discharged Glasco pursuant to 74 O.S.Supp. 2002, § 840-2.21. Glasco initiated a tort claim against the Department, alleging retaliatory discharge under 85 O.S.2001, §§ 5-7. The Department moved for summary judgment, arguing Glasco's discharge is governed by the state personnel statute, § 840-2.21, and not by the workers' compensation statute, § 5. Glasco responded and moved for partial summary judgment, arguing § 840-2.21(D) is discriminatory and a special law prohibited by the Okla. Const., art. V, §§ 46 and 59, and it restricts access to the courts in violation of the Okla. Const., art. II, § 6. On October 16, 2007, the district court filed a journal entry denying Glasco's motion for partial summary judgment and granting the Department's motion for summary judgment. Glasco timely appealed, challenging the constitutionality of 74 O.S.Supp.2002, § 840-2.21(D) and the propriety of the summary judgment. This Court retained the appeal.

DISTRICT COURT'S JOURNAL ENTRY FILED OCTOBER 16, 2007, AFFIRMED.

Charles C. Vaught, Armstrong & Lowe, Tulsa, OK, for appellant.

Kevin L. McClure, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma City, OK, for appellee.

TAYLOR, J.

¶ 1 The dispositive issue in this appeal is whether the trial court erred in granting summary judgment in favor of the defendant/appellee, State of Oklahoma ex rel. Department of Corrections (DOC). The substantive legal contests concern the construction and constitutionality of a provision in 74 O.S.Supp.2002, § 840-2.21(D). Section 840-2.21(D) gives a state employee who has a work-related illness or injury the right to return to his or her original position, and the right exists for one year after the employee has been placed on leave without pay. Section 840-2.21(D) also permits the state employer to discharge the employee after having been on leave without pay for a year notwithstanding the workers compensation statutes. Plaintiff/appellant, Michael Glasco (Glasco), attacked the constitutionality of the provision allowing the state employer to discharge the employee after a year of leave without pay. Glasco argued the provision is a discriminatory special law prohibited by the Okla. Const., art. V, §§ 46 and 59, and it restricts a state employee's access to the courts contrary to the Okla. Const., art. II, § 6. We conclude the challenged provision in 74 O.S.Supp. 2002, § 840-2.21(D) is not discriminatory, it is not a special law prohibited by art. V, §§ 46 or 59, and it does not restrict access to the courts contrary to art. II, § 6. We also conclude the material facts that defeat Glasco's retaliatory discharge claim against DOC are undisputed and DOC is entitled to judgment as a matter of law. Accordingly, we affirm the district court's journal entry denying plaintiff's motion for partial summary judgment and sustaining defendant's motion for summary judgment.

I. FACTS AND PROCEDURAL BACKGROUND

¶ 2 The evidentiary material in the appellate record establishes the following undisputed facts. At all relevant times, Glasco was a full-time classified employee in the permanent workforce of DOC. Beginning in March of 2000, Glasco worked as a correctional security officer. In May of 2003, Glasco underwent hand surgery and was unable to use his left hand, wrist and arm for approximately six months. DOC placed Glasco on leave without pay during most of that six-month recovery period. Glasco returned to work on November 17, 2003. Glasco was driving a DOC bus on U.S. Highway 270 in Hughes County on November 17th when the bus was rear-ended. Glasco sustained a back injury and was unable to return to work. On November 21, 2003, DOC placed Glasco on leave without pay and filed the employer's first notice of injury with the Workers' Compensation Court. For more than a year thereafter, Glasco received workers' compensation temporary total disability (TTD) benefits, in accordance with 85 O.S.2001, § 22, and remained on leave without pay as authorized in 74 O.S.Supp.2002, § 840-2.21.

¶ 3 On November 23, 2004, DOC sent Glasco written notice of a pre-termination hearing scheduled for December 7, 2004, to determine if he should be terminated for failure to return to work. The notice advised that the evidence establishing the grounds for termination included 1) a November 11, 2004 physician's report from Dr. Hendrix stating Glasco was unable to return to work, 2) time and leave records, and 3) workers' compensation records. The notice specified the statute, Merit Rules, and DOC written policy authorizing the termination.¹ Glasco admitted he received the pre-termination hearing notice and he did not complain about any irregularity in the notice, the pre-termination hearing,² or other due process requirement.

¶ 4 On December 21, 2004, Glasco received DOC's termination letter dated December 17, 2004. The letter advised that Glasco's employment with DOC "is terminated effective January 3, 2005," for his "inability to perform the duties of the position in which employed" and cited Merit Rule 455:10-11-14 (causes for discharge) and quoted DOC's written policy on termination.³ The termination letter described the grounds for termination: "You were placed on worker's compensation leave without pay on November 21, 2003, and you have not returned to your original or alternate position. The agency has received no information which indicates whether or when you will be able to resume your duties." The letter advised the termination was based on the November 11, 2004 physician's report from Dr. Hendrix and a December 9, 2004 physician's report from Dr. Adham that stated Glasco was "not able to return to work as a correctional officer." It also advised of the right to appeal to the Oklahoma Merit Protection Commission within twenty calendar days from receipt of the letter.

¶ 5 Glasco received the termination letter on December 21, 2004. He did not appeal his termination to the Merit Protection Commission under 74 O.S.2001, § 840-6.5. In January and February of 2005, Glasco's treating physicians released him to return to work. In March of 2005, Glasco filed a notice of tort claim with DOC pursuant to the Governmental Tort Claims Act (GTCA), 51 O.S.2001, §§ 151 et seq. In April of 2005, Glasco's tort claim was denied. In May of 2005, Glasco filed suit against DOC in the district court,⁴ alleging retaliatory discharge and seeking actual and punitive damages.

¶ 6 DOC moved for summary judgment, arguing that 74 O.S.Supp.2002, § 840-2.21(D) clearly authorizes a state employer to discharge an employee who has been on leave without pay for a year or more notwithstanding the workers' compensation laws.⁵ Glasco responded and moved for partial summary judgment, arguing that the 2002 version of § 840-2.21(D) targets state employees for treatment different from the entire class of "injured workers receiving TTD benefits" and thus is a special law prohibited by the Okla. Const., art. V, §§ 46 and 59. Glasco also argued § 840-2.21(D) denies state employees access to the courts to pursue a retaliatory discharge remedy contrary to the Okla. Const., art. II, § 6.

¶ 7 The district court denied Glasco's motion for partial summary judgment and sustained DOC's motion for summary judgment. Glasco timely appealed, asserting error in the district court's denial of his motion for summary judgment and reasserting the constitutional issues. We granted Glasco's motion to retain the appeal.

II. STANDARD OF REVIEW

¶ 8 We review rulings on issues of law by a de novo standard pursuant to the plenary power of the appellate courts and without deference to the trial court. Gladstone v. Bartlesville Indep. School Dist. No. 30, 2003 OK 30, ¶ 5, 66 P.3d 442, 446. Summary judgment disposes solely of issues of law and is reviewed de novo. Murg, Jr. v Barnsdall Nursing Home, 2005 OK 73, ¶ 13, 123 P.3d 21, 25; Manley v. Brown, 1999 OK 79, ¶ 22, n. 30, 989 P.2d 448, 455, n. 30. Summary judgment is proper only when the pleadings and the evidentiary materials before the trial court establish every fact material to the merits of the movant's claim or defense and there is no dispute as to each and every material fact and any inference that may be drawn therefrom. Polymer Fabricating, Inc. v. Employers Workers' Compensation Ass'n, 1998 OK 113, ¶ 8, 980 P.2d 109, 113. In reviewing a summary judgment, the appellate court has an affirmative duty to test the legal sufficiency of all evidentiary material submitted on summary judgment and to view all the facts and inferences in the light most favorable to the non-movant. Id. A summary judgment will be affirmed where each and every material fact is undisputed and the law favors the movant's claim or defense. Id.

III. THE INTERACTION BETWEEN 85 O.S.2001, § 5(B) AND 74 O.S.SUPP.2002, § 840-2.21(D)

¶ 9 The legal issues in this appeal are grounded in two statutory regimes. One is the commonly-named retaliatory discharge law, 85 O.S.2001, §§ 5-7, in the Workers' Compensation Act (WCA), 85 O.S.2001, §§ 1 et seq. The other is the state personnel statute that provides for state employees with work-related illness or injury to be placed on leave without pay status, 74 O.S.Supp.2002, § 840-2.21, in the Oklahoma...