Eapen v. McMillan

• Decision Date: 12 September 2008
• Docket Number: No. 105324. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,105324. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
• Parties: Titus EAPEN, Plaintiff/Appellant, v. Dallas McMILLAN, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

196 P.3d 995

2008 OK CIV APP 95

Titus EAPEN, Plaintiff/Appellant, v. Dallas McMILLAN, Defendant/Appellee.

No. 105324. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

September 12, 2008.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Barbara G. Swinton, Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Mark Hammons, Amber L. Hurst, Oklahoma City, OK, for Appellant,

Sam R. Fulkerson, Oklahoma City, OK, for Appellee.

LARRY JOPLIN, Judge.

¶ 1 Appellant, Titus Eapen, filed a petition alleging race and national origin discrimination under a public policy tort theory against Appellee, Dallas McMillan, in violation of 25 O.S.2001 §§ 1101, et seq., a Burk-tort, and a claim for tortious interference. McMillan filed a motion to dismiss, which the trial court granted with prejudice and without leave to amend.¹ Eapen seeks review of the trial court's order which granted McMillan's motion to dismiss.

¶ 2 Eapen filed a petition against McMillan, claiming race and national origin discrimination, hostile work environment, disparate treatment and wrongful termination. McMillan was Eapen's supervisor at Dell Marketing L.P. (Dell). Eapen's allegations included various things, such as racial slurs and discriminatory references to Eapen's East Indian decent, lesser transfer bonus, interference with receiving promotions, and ultimately termination for complaining of the discriminatory manner in which he was treated. Eapen also filed a claim against Dell in federal court, alleging essentially the same facts.

¶ 3 McMillan filed a motion to dismiss. He first asserted the district court did not have jurisdiction over the public policy tort, because Eapen failed to exhaust administrative remedies and was out of time to do so. McMillan asserted he was Eapen's co-worker, not Eapen's employer, and argued only an employer can breach a public policy tort like the one alleged. McMillan also argued Eapen was judicially estopped from asserting inconsistent positions with respect to his relationship to McMillan, namely that McMillan acted within the scope of his position as a manager at Dell for purposes of Eapen's federal case against Dell and then arguing that McMillan was the employer for purposes of his state cause of action. McMillan further claimed an adequate statutory remedy prevented Eapen from also bringing a Burk-tort action; and Eapen's tortious interference claim was impermissible, because such a claim arises when a party outside the contract interferes with the contract, and Eapen's Burk-tort allegations depend on McMillan's posture as Eapen's employer, which would place McMillan inside the contract relationship and therefore not subject to a tortious interference claim.

¶ 4 Plaintiff responded, arguing that an opportunity for him to amend can only be denied when it is certain no claim can be maintained under the facts alleged. Eapen also maintained exhaustion of administrative remedies was not required and in the event it was required, he exhausted his administrative remedies. Eapen argued that a plaintiff filing suit for discrimination based on a disability may sue an individual acting as an agent of the employer and Oklahoma law requires victims of race and national origin discrimination have the same remedial regime as disability law would provide. Eapen asserted he could maintain a tortious interference cause of action against an agent of the employer if that agent acted in bad faith or attempted to further the agent's own purpose with the discriminatory acts. Finally, Eapen argued judicial estoppel does not preclude use of inconsistent theories of recovery during the initial phases of a proceeding.

¶ 5 The court reviews an order granting a motion to dismiss de novo. Fanning v. Brown, 2004 OK 7, 85 P.3d 841, 844. "A pleading must not be dismissed 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., 1989 OK 73, 13, 775 P.2d 281, 287. (emphasis in original). The appellate court must consider whether a plaintiff's petition is legally sufficient. Fanning v. Brown, 2004 OK 7, 85 P.3d 841, 844 (citations omitted).

¶ 6 However, if in a motion to dismiss, parties submit materials outside the pleadings, the motion to dismiss is treated and reviewed as a motion for summary judgment. Bittle v. Oklahoma City University, 2000 OK CIV APP 66, 6 P.3d 509, 512. We review the grant of a motion for summary judgment also by a de novo standard. Id. at 513. The Court will examine the pleadings and evidentiary materials to determine whether there is substantial controversy as to any material fact. Id. If such a controversy exists, then summary judgment is improper. Id.

¶ 7 In this case, both parties submitted additional exhibits in the motion to dismiss and the response to the motion to dismiss. Because the parties submitted materials beyond the pleadings, we review this cause under the summary judgment standard.

Individual Liability for a Public Policy Burk-tort?

¶ 8 McMillan asserts Eapen's public policy Burk-tort claim cannot extend to include individual liability under Burk. According to McMillan, the public policy tort can only be asserted against the employer, which in this case was Dell.

¶ 9 Eapen argues that Oklahoma's Anti-Discrimination Act expressly provides for individual liability:

"Employer" means a person who has fifteen or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, or a person who as a contractor or subcontractor is furnishing the material or performing work for the state or a governmental entity or agency of the state and includes an agent of such a person but does not include an Indian tribe or a bona fide membership club not organized for profit[.]

25 O.S.2001 § 1301(1) (emphasis added). Eapen then bootstrapped the "agent of such a person," language in the Oklahoma Anti-Discrimination Act (OADA) with the Oklahoma Supreme Court's pronouncement in Saint v. Data Exch., Inc., 2006 OK 59, 145 P.3d 1037, for the proposition that all persons covered under the OADA must have uniform remedial measures available to them. Therefore, according to Eapen, race and national origin plaintiffs must be able to sue individuals under the authority provided in the OADA.

¶ 10 Any consideration of the reach of Burk must be done with the understanding that Burk itself demands the public policy exception be "narrowly circumscribed[.]" Burk, 770 P.2d at 29. In the present case, the parties cite and we find no guidance with respect to individual liability and how such liability might correspond to the exception outlined in Burk. Application of the Burk exception demands violation of "a clear mandate of public policy[,]" otherwise no exception to the employment-at-will doctrine will lie. "When [the Oklahoma Supreme Court] created this unique tort [the court] cautioned that it applies to only a narrow class of cases and must be tightly circumscribed." Clinton v. State, ex rel. Logan County Election Bd., 2001 OK 52, 29 P.3d 543, 545. The court has repeated this warning often. Id.

¶ 11 We glean no "clear mandate" of public policy imposing individual liability for tort discharge under § 1301 and Saint. Contrary to Eapen's position, § 1301(1) does not provide the "clear mandate" required to extend Burk to the...