Ho v. Tulsa Spine & Specialty Hosp., L.L.C.

• Decision Date: 14 December 2021
• Docket Number: 119,752
• Citation: 507 P.3d 673
• Parties: Kristie HO, Plaintiff/Appellant, v. TULSA SPINE & SPECIALTY HOSPITAL, L.L.C., a domestic limited liability company, Defendant/Appellee.
• Court: Oklahoma Supreme Court

507 P.3d 673

Kristie HO, Plaintiff/Appellant,

v.TULSA SPINE & SPECIALTY HOSPITAL, L.L.C., a domestic limited liability company, Defendant/Appellee.

No. 119,752

Supreme Court of Oklahoma.

FILED DECEMBER 14, 2021

Jonathan E. Shook, Tulsa, Oklahoma, for Plaintiff/Appellant.

Jacob S. Crawford, W. Kirk Turner, Tulsa, Oklahoma, for Defendant/Appellee.

KAUGER, J.:

¶1 We retained this cause to address the first impression question of whether the Governor's temporary emergency COVID-19 orders expressed public policy necessary to apply an exception to at-will employment which would support an action for wrongful discharge. We hold that because the Legislature expressly authorized the Governor to issue temporary emergency orders, and the orders expressed established public policy of curtailing an infectious disease, the exception to at-will employment as articulated by Burk v. K-Mart Corp. 1989 OK 22, ¶17, 770 P.2d 24, and its progeny is applicable from March 24, 2020, until April 30, 2020.

ALLEGED FACTS

¶2 The defendant/appellee, Tulsa Spine & Specialty Hospital, L.L.C, (hospital/employer) hired the plaintiff/appellant, Kristie Ho (employee/nurse) in December of 2012. She insists that she was an exemplary at-will employee with positive performance reviews. On February 20, 2020, a little more than two months before she was terminated, the nurse's reviewing manager gave her a glowing "Excellent Performance" review. It identified her as an asset who was responsive, positive, respectful, accountable, dependable, a great mentor and teacher, with a strong work ethic.

¶3 On March 15, 2020, Oklahoma's Governor, J. Kevin Stitt, declared a state-wide emergency due to the coronavirus pandemic and the impending threat of the spread of COVID-19 to the people of this State and their peace, health, and safety.¹ On March 24, 2020, the Governor, in a fourth amendment to his executive order, provided that medical providers in Oklahoma "shall postpone all elective surgeries, minor medical procedures, and non-emergency dental procedures until April 7, 2020."²

¶4 Notwithstanding the Governor's order, the nurse contends that the hospital continued to perform elective surgeries, and that it did so without the availability and usage of personal protective equipment during pre-operative and post-operative care. On April 1, 2020, the Governor issued a seventh amended executive order extending the required postponement of all elective surgeries to April 30, 2020,³ which resulted in a temporary, moratorium on elective surgeries. During the week of April 6, 2020, the hospital furloughed all the employees in the nurse's assigned outpatient pre-operative unit, with the exception of the nurse.

¶5 The nurse asserts that on April 10, 2020, the hospital performed elective surgeries and required the nurse to render services without adequate availability and usage of personal protective equipment. On April 12, 2020, the nurse contacted her manager, Nikki Gripe, to discuss her concerns about unsafe working conditions, and to report that a fellow employee who had tested positive for COVID-19 had been hospitalized. According to the nurse, she:

1) expressed her safety concerns and complained about having to work long hours on the 10^th without adequate and appropriate personal protective equipment;

2) questioned why the hospital was doing elective surgeries in violation of the Governor's order;

3) requested to be furloughed like all of the other employees; and

4) informed her manager that she would not come to work on April 13 because of her safety concerns coupled with the ban on surgeries.

The manager advised the nurse to contact the hospital's Human Resources Director, Natasha Hnizdo. She did. She repeated her concerns to the director, and the director told her if she did not return to work, her absence would be regarded as a resignation. The nurse contends she told her she was not resigning, but that she would not return to work until the ban on elective surgeries was lifted. The nurse sent her manager and the human resources manager various follow-up texts trying to determine what to do next.

¶6 The director sent the nurse a letter by certified mail on April 21, 2020, to her private mailbox at the UPS Store in the Tulsa Hills Shopping Center. The nurse, who was abiding by the City of Tulsa Mayor's Safer at Home executive order, did not pick up the letter. On April 27, 2020, the hospital terminated the nurse from employment.

¶7 On June 2, 2020, the nurse filed an action for wrongful discharge in the District Court of Tulsa County. She alleged that the employer terminated her in violation of the public policy of the State of Oklahoma because she declined to come to work without adequate and appropriate personal protective equipment or to provide nursing services for elective surgeries when, to do so, was a violation of the Governor's executive order banning such surgeries.⁴

¶8 The hospital filed a motion to dismiss on July 13, 2020, arguing that the nurse failed to state a claim for wrongful discharge under Oklahoma law. In an Amended Journal Entry of Judgment filed on July 20, 2021, the trial court granted the hospital's motion to dismiss. It determined that the nurse's wrongful termination claim, premised on a violation of the public policy of Oklahoma, does not exist. The nurse appealed, and the Court retained the appeal on August 4, 2021. The cause was assigned on August 26, 2021.

I.

BECAUSE THE LEGISLATURE EXPRESSLY AUTHORIZED THE GOVERNOR TO ISSUE TEMPORARY EMERGENCY ORDERS WHICH EXPRESSED THE ESTABLISHED PUBLIC POLICY OF CURTAILING AN INFECTIOUS DISEASE THE EXCEPTION TO AT-WILL EMPLOYMENT AS ARTICULATED BY Burk v. K-Mart Corp. 1989 OK 22, ¶17, 770 P.2d 24 AND ITS PROGENY IS APPLICABLE FROM MARCH 24, 2020, UNTIL APRIL 30, 2020.

A.Standard of Review/Motion to Dismiss.

¶9 This cause was dismissed pursuant to a motion to dismiss. Consequently, the facts have not been determined and are mere allegations. An order dismissing a case for failure to state a claim upon which relief can be granted is subject to de novo review.⁵ When reviewing a motion to dismiss, the Court must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them .⁶

¶10 The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts.⁷ 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 the plaintiff to relief.⁸

B.Employment-at-Will and the Public Policy Exception.

¶11 This Court has long recognized the basic principle that an employment contract of indefinite duration may be terminated without cause at any time without incurring liability for breach of contract.⁹ Such indefinite employment contracts are deemed terminable-at-will a/k/a employment-at-will. The classic statement of the at-will rule is that an employer may discharge an employee for good cause, for no cause or even for cause morally wrong, without being guilty of a legal wrong.¹⁰

¶12 Principles of freedom of contract and the importance of economic growth are attributed to the development of the terminable-at-will doctrine.¹¹ Nevertheless, this Court has observed the terminable-at-will doctrine is not absolute. The Oklahoma Legislature, not unlike Congress and other state legislatures, has enacted various statutory exceptions to the doctrine to accommodate the competing interests of the employee and employer. Similarly the courts have created exceptions to the employment-at-will rule.¹²

¶13 The nurse argues that because the Governor's emergency orders were an expression of Oklahoma public policy, they must also support an exception to at-will employment as articulated by Burk v. K-Mart Corp, 1989 OK 22, ¶17, 770 P.2d 24. The hospital argues that the orders are not the well-defined, firmly established state public policy required to support such a tort claim. We agree with the nurse.

¶14 Burk involved a federal certified question concerning an alleged "implied obligation of good faith and fair dealing" in reference to termination of any employment-at-will contract. The Burk employee sued her employer in contract and in tort, alleging that she was prevented from performing her job duties and was, consequently, constructively discharged. She also further asserted that her employer's agent told her he would not recommend her for a promotion because of her sex.

¶15 Although the Court rejected the implication of a duty of good faith and fair dealing in every employment-at-will contract, Burk was the landmark case wherein the Court adopted a public policy exception to the at-will termination rule. It confined the exception to a narrow class of cases in which the discharge of an employee is contrary to the clear mandate of public policy as articulated by constitutional, statutory, or decisional law. We recognized, for the first time, that the action was a tort. We also noted that because the term "public policy" was vague, the exception had to be tightly circumscribed.

¶16 Three years after Burk, supra, we promulgated Tate v. Browning-Ferris, Inc, 1992 OK 72, 833 P.2d 1218. Tate involved the question of whether a Burk tort could be asserted for racial discrimination, to which we answered -- yes.¹³ In Clinton v. State of Oklahoma ex rel . Logan County Election Board, 2001 OK 52, ¶10, 29 P.3d 543, the Court also clarified the parameters of the Burk tort remedy, noting that:

1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law;

2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma public policy goal precludes a Burk tort;

3) the plaintiff must establish he or she is an at-will employee and the

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