Decision Date17 May 2010
Docket Number675. Released for Publication by Order of the Court of Civil Appeals of Oklahoma,Division No. 1.,No. 106,106
Citation2010 OK CIV APP 84,241 P.3d 255
PartiesBrenda FULTON, Plaintiff/Appellant, v. PEOPLE LEASE CORPORATION and Mark Findley, Defendants/Appellees, and Ervin Findley Trucking, Inc., Defendant.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma




Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Carolyn R. Ricks, Judge.


Mark Hammons, Tamara L. Gowens, Hammons, Gowens & Associates, Oklahoma City, Oklahoma, for Plaintiff/Appellant.

Debra W. McCormick, Kyle L. Buchanan, Rubenstein, McCormick & Pitts, PLLC, Edmond, Oklahoma, for Defendant/Appellee PeopLease Corporation.

David P. Hartwell, Oklahoma City, Oklahoma, and Patricia A. Kirch, Oklahoma City, Oklahoma, for Defendant/Appellee Mark Findley.


¶ 1 Brenda Fulton (Plaintiff) appeals two trial court orders entered in her hostile work environment and retaliatory discharge action against Ervin Findley Trucking, Inc. (EFI), Mark Findley, and PeopLease Corporation (PeopLease). 1 The first order sustained Findley's separate motions to dismiss. The second order granted PeopLease's motion of summary judgment, after which Plaintiff dismissed her claims against EFI. The two orders and dismissal, taken together, effectively disposed of all of her claims against all of the parties.

¶ 2 We reverse the trial court's dismissal of Findley as to Plaintiff's theory of tortious interference of economic relations and affirm the order in all other respects. Because our review of the record reveals disputed material facts which preclude summary judgment, the trial court's summary judgment order in favor of PeopLease is also reversed and the case is remanded for further proceedings.


¶ 3 On March 16, 2008, Plaintiff filed a petition in Oklahoma County District Court against Mark Findley, “the operations manager of [EFI],” and EFI and PeopLease, corporations “doing business in [Oklahoma].” Under the paragraph entitled “Jurisdiction,” she alleged “gender discrimination, sexual harassment, hostile work environment, and retaliation in employment which conduct also constitutes for Burk tort for (sic) a violation of Oklahoma's public policy against gender discrimination, sexual harassment and retaliation.” (Emphasis in original.) In the same paragraph, she further alleged [a]ll of [her] gender related claims are prohibited by the Fourteenth Amendment of the United States Constitution, Title VII and Oklahoma Public Policy.” 2 ¶ 4 Plaintiff specifically alleges she was “hired for Defendants during which employment she was sexually harassed on a daily basis by Jimmy Thames (Thames) a male co-worker, who made sexual threats and subjected her to internet pornography and made inappropriate, offensive and sexual comments about other women in her presence. When Thames ignored her requests to stop, she reported his behavior to Findley during the first week of her employment.

¶ 5 Plaintiff claims she reported Thames' behavior to Findley two weeks and one week before her termination on May 12, 2006. A few days after a third complaint, Findley retaliated with allegations that she had failed to dock her pay for one day of sick leave, which “claimed reason was pretextual” according to Plaintiff. Plaintiff was terminated a few days later without an explanation.

¶ 6 EFI and PeopLease filed separate answers, in which each defendant specifically denied Plaintiff's allegations and raised identical affirmative defenses, including Plaintiff was employed at will.” Findley filed a Special Appearance and Motion To Dismiss, arguing there is no individual liability in Title VII cases. Plaintiff opposed his motion, claiming federal law does not control her state common law tort claim based on public policy. Findley replied, 3 arguing Plaintiff's state tort claim is precluded by an adequate federal statutory remedy for wrongful discharge. The trial court apparently sustained Findley's motion by minute order. 4 Prior to entry of a formal order, the court gave Plaintiff leave to amend her petition, which she did by adding two alternative theories of recovery against Findley, interference with economic relations and malicious wrong, and alleging his actions “were not in good faith, were for the intention to cause harm, were contrary to Oklahoma's public policy and were not for any legitimate purpose of the business enterprise.” 5

¶ 7 Findley specially appeared and moved to dismiss the amended petition, arguing the new theories of recovery require rights or relations which an at-will employee does not possess. After Plaintiff opposed the motion and Findley filed a reply brief, the trial court filed a Journal Entry of Judgment sustaining Findley's motions to dismiss.

¶ 8 Discovery after these dismissals revealed the following undisputed facts. Mark Findley is the general manager/vice president for EFI, a trucking company owned by his father, Ervin Findley. PeopLease is a personnel leasing company based in South Carolina which has a “Service Agreement” to lease its employees to EFI, executed by Ervin Findley, as President of EFI. Pursuant to the EFI-PeopLease Service Agreement, PeopLease leased Plaintiff to EFI to work as an office assistant on February 27, 2006, which position she held until terminated on May 12, 2006.

¶ 9 PeopLease later moved for summary judgment, denying liability because it was not Plaintiff's single employer under Title VII. Even if it were, PeopLease argued it had no notice of Plaintiff's harassment complaints because she failed to report directly to PeopLease as required by its rules and procedures. Plaintiff responded with additional evidentiary material to support her argument, inter alia, PeopLease qualified as an employer under Title VII because it had retained control over her employment with EFI. Based on the briefs and relevant law, the trial court entered summary judgment in favor of PeopLease, without specifying the bases for its decision. Following the filing of the trial court's order and dismissal of EFI, Plaintiff filed this appeal. 6




[1] [2] [3] [4] ¶ 10 Appellate review of a trial court order dismissing a case for failure to state a claim upon which relief can be granted is de novo. Fanning v. Brown, 2004 OK 7, 85 P.3d 841. Reviewing a motion to dismiss to determine whether a petition is legally sufficient requires that we take as true all of the challenged pleading's allegations and all reasonable inferences which may be drawn from them. Id. “A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the plaintiff can prove no set of facts which would entitle him or her to relief.” Frazier v. Bryan Memorial Hospital, 1989 OK 73, ¶ 13, 775 P.2d 281, 287. A plaintiff is required neither to identify a specific theory of recovery nor to set out the correct remedy or relief to which he may be entitled. May v. Mid-Century Ins. Co., 2006 OK 100, ¶ 10, 151 P.3d 132, 136. If relief is possible under any set of facts which can be established and is consistent with the allegations, a motion to dismiss should be denied. Id. The party moving for dismissal pursuant to 12 O.S.2001 § 2012(B)(6) has the burden to show the legal insufficiency of the petition. Indiana National Bank v. State of Oklahoma, Dept. of Human Services, 1994 OK 98, 880 P.2d 371.

Lack of Individual Liability

¶ 11 Findley argues he should be dismissed because individual liability suits are not permitted in Title VII cases. Plaintiff expressly agrees as to this dismissal, but states “at present, [her] claims arise solely under the public policy announced in Oklahoma's Anti-Discrimination Act (OADA), 25 O.S.2001 § 1101 et seq. (Emphasis added.) Her claim is a common-law Burk tort arising out of OADA. 7

[5] ¶ 12 Plaintiff's sole argument against Findley's dismissal is, unlike the federal law, the OADA does permit suits against individuals, because § 1301(1) defines “employer” as “a person who has fifteen or more employees ... [including] an agent of such a person” 8 and “person,” as defined in § 1201(5), includes “an individual.” Without addressing these definitions, Findley replies he can not be Plaintiff's “employer” for purposes of the OADA “since he was her supervisor and fellow employee of one of the corporate Defendants.”

¶ 13 A similar argument against individual liability in a Burk tort claim has been addressed by another panel of the same division of the Court of Civil Appeals in Eapen v. McMillan, 2008 OK CIV APP 95, 196 P.3d 995. The plaintiff in Eapen filed a petition in state court alleging racial and national origin discrimination, hostile work environment, disparate treatment and wrongful termination against his supervisor at Dell Marketing L.P. The defendant moved to dismiss, arguing the plaintiff's public policy Burk tort claim did not extend to include individual liability.

¶ 14 The Eapen Court reviewed the supervisor's argument under the standard of review for a motion for summary judgment and held:

We glean no “clear mandate” of public policy imposing individual liability for tort discharge under § 1301(1) and Saint. Contrary to Eapen's position, § 1301(1) does not provide the “clear mandate” required to extend Burk to the point that a co-worker or supervisor in the workplace would be individually liable for a public policy tort. At present, nothing in Burk or its progeny seems to extend the concept of “employer” that far. The trial court's decision dismissing Eapen's Burk-tort claim is affirmed. Id., 2008 OK CIV APP 95, ¶ 11, 196 P.3d at 998.

Because § 1201(5), as argued by Plaintiff, was not discussed in Eapen, we will consider it in...

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