McIntyre v. State ex rel. Okla. Dep't of Mental Health & Substance Abuse Servs., 120085

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
Writing for the CourtDEBORAH B. BARNES, PRESIDING JUDGE
PartiesDR. ROBERT MCINTYRE, M.D., Plaintiff/Appellant, v. STATE OF OKLAHOMA ex rel. OKLAHOMA DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES, Defendant/Appellee.
Docket Number120085
Decision Date22 July 2022

2022 OK CIV APP 32

DR. ROBERT MCINTYRE, M.D., Plaintiff/Appellant,
v.

STATE OF OKLAHOMA ex rel.
OKLAHOMA DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES, Defendant/Appellee.

No. 120085

Court of Appeals of Oklahoma, Division IV

July 22, 2022


Mandate Issued: 08/17/2022

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE NATALIE MAI, TRIAL JUDGE

AFFIRMED

Daniel J. Gamino, DANIEL J. GAMINO & ASSOCIATES, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant

Dixie L. Coffey, ASSISTANT ATTORNEY GENERAL, OKLAHOMA ATTORNEY GENERAL'S OFFICE, LITIGATION UNIT, Oklahoma City, Oklahoma, for Defendant/Appellee

DEBORAH B. BARNES, PRESIDING JUDGE

¶1 Plaintiff Robert McIntyre, M.D., appeals from the district court's grant of summary judgment in favor of Defendant State of Oklahoma ex rel. Oklahoma Department of Mental Health and Substance Abuse Services (DMHSAS) on its counterclaim for recovery of Dr. McIntyre's relocation expenses, as well as from the dismissal of Dr. McIntyre's claims against DMHSAS. Based on our review, we affirm.

BACKGROUND

I. Original Petition

¶2 Dr. McIntyre filed this action in the District Court of Oklahoma County in April 2016. Dr. McIntyre asserted the following theories of recovery against DMHSAS in his original petition: "fraudulent inducement to contract (15 O.S. 2011, § 51 and § 53)," "breach of implied covenants (15 O.S. 2011, § 171 and § 172)," and "constructive discharge." Dr. McIntyre alleged DMHSAS "actively recruited [him] for a staff psychiatrist position," and that he accepted DMHSAS's invitation to visit the Oklahoma Forensic Center (OFC), a subsidiary of DMHSAS, in Vinita, Oklahoma. Dr. McIntyre alleged: "During that visit and subsequent to that visit [DMHSAS] elected to not disclose to [Dr. McIntyre] certain drastic limitations imposed on the vacant position in question," including:

that Dr. McIntyre would not be "free to practice the full scope of psychiatric medicine," and his "critical judgments, prescriptions, orders, and ER referrals were all subject to change by a supervisor located 80 miles away" who had no contact with the patients
that "OFC [1] would violate the Fair Labor Standards Act on overtime pay and compensatory time" and that Dr. McIntyre "would be denied normal and lawful compensatory time off as earned"
that "Defendant would ignore obvious risks to staff and patient safety and to psychiatric malpractice liability," and "would make decisions to exacerbate the problems and the liabilities rather than to reduce the problem";
that "Defendant would continue its practice of admitting medically unstable patients that were far beyond the scope of psychiatry to OFC and posed a danger to staff and other patients";
that "Defendant would drastically cut and reduce the pharmacy formulary and thus deprive patients of required and necessary medications, prescribed for their condition by the treating psychiatrists";
that "Defendant would not address genuine staff medical concerns that arose over patient management, overcrowding, etc.," and that "any physician who raised questions about those issues would be labeled 'not a team player'";
that he would not be "allowed to discuss staff and patient safety concerns during the Joint Commission... 3-day inspection... during early 2016";
and that "[DMHSAS] executives in Oklahoma City would not enforce obvious and required remedial steps to correct problems at OFC reported by the medical staff."

¶3 Dr. McIntyre asserted that "on or around May 6, 2015[,] [he] accept[ed] the tendered OFC position," but that he "was purposefully, fraudulently uninformed of these matters by the Defendant[.]" He alleged he "discovered the nature and extent of the fraudulent inducement" only after relocating to Oklahoma from Arizona and only after he "began work on or around August 11, 2015." He asserted he "attempted in good faith to address those problems," but that the "fraudulent inducements and breach of implied covenants was so intolerable [that he] had no choice but to resign his position under that duress." Dr. McIntyre alleged that the implied covenants included:

that he "would be free to practice his full scope of medicine to insure patient health and safety, and not be subject to arbitrary and capricious changing without notice of [his] clinical judgments";
that he "would be allowed to accrue normal and lawful compensatory time off as earned and would be paid for that time";
that he would not "be expected to practice medicine where there were inordinate risks to staff and patient safety and psychiatric malpractice liability";
that he "would not be compelled to practice medicine in a workplace where medically unstable patients that are beyond the scope of psychiatry were routinely admitted and maintained";
and that he "would be allowed to prescribe, administer or dispense appropriate medication based on medical need from a full pharmaceutical formulary, not from a reduced formulary that eliminated necessary medications."

¶4 DMHSAS filed an answer in which it admitted Dr. McIntyre was offered a staff psychiatrist position with OFC in Vinita; that Dr. McIntyre accepted a position with OFC on or around May 7, 2015; and that Dr. McIntyre relocated from Arizona to Oklahoma and began work on or around August 11, 2015. DMHSAS otherwise denied Dr. McIntyre's allegations and asserted, among other things, that Dr. McIntyre "was an at will employee," that his "position was exempt from the [Fair Labor Standards Act]," and that he failed to meet "the prerequisites under the [Governmental Tort Claims Act (GTCA)]." DMHSAS also asserted a counterclaim against Dr. McIntyre, asserting he breached the parties' relocation repayment agreement by voluntarily resigning in February 2016. That is, DMHSAS asserted Dr. McIntyre agreed to reimburse DMHSAS by repayment of the relocation expenses if he left before two years of employment, that he left before the passage of two years, and that he should therefore be ordered to reimburse DMHSAS.

¶5 In May 2016, after filing its answer, DMHSAS removed the matter to the United States District Court for the Western District of Oklahoma. In an order filed in July 2016, the Western District Court stated that DMHSAS sought to "characterize[] [Dr. McIntyre's] causes as seeking relief under federal law[.]" The Western District Court summarized Dr. McIntyre's "claims in this action [as being] grounded on the State's alleged failure to disclose certain essential information when it recruited McIntyre for a staff position at [OFC]..., and on its alleged misrepresentations about the terms of McIntyre's employment." The Western District Court stated that "[w]hile McIntyre mentioned the Fair Labor Standards Act... in his first cause of action,... a single reference to federal law under these circumstances is not enough." Consequently, the federal district court remanded the matter to the District Court of Oklahoma County.

¶6 In August 2017, DMHSAS filed a motion to dismiss for failure to state a claim upon which relief can be granted. With regard to the theory of fraudulent inducement to contract and Dr. McIntyre's assertions that he "was purposefully, fraudulently uninformed" regarding the terms of his employment, DMHSAS stated that as a state agency it "cannot be held liable for fraud because (1) intentionally misrepresenting information about working conditions falls outside the scope of employment, and (2) fraud is specifically listed [in the GTCA] as a claim from which the state and its agencies are immune," citing 51 O.S. § 152 (12). [2] DMHSAS also stated that even if the fraud was alleged to be unintentional rather than purposeful, the GTCA provides that "[t]he state or a political subdivision shall not be liable if a loss or claim results from:... Misrepresentation, if unintentional[.]" 51 O.S.Supp. 2016 § 155 (17). Finally, DMHSAS stated that fraudulent inducement is an action in tort, and Dr. McIntyre, according to DMHSAS, failed to give the one-year notice required under the GTCA before filing the lawsuit and, therefore, the claim is "forever barred" as set forth in 51 O.S.Supp. 2012 § 156 (B). [3]

¶7 With regard to the theory of breach of implied covenants, DMHSAS asserted this theory should be dismissed because "Oklahoma courts do not recognize a cause of action for breach of implied covenants for an at-will employee," citing Burk v. K-Mart Corporation, 1989 OK 22, 770 P.2d 24. It stated that even though a public policy exception exists for a narrow class of cases in which a discharge is contrary to a clear mandate of public policy, [4] "this exception is inapplicable to the present case because [Dr. McIntyre] has not alleged his discharge was contrary to a clear mandate of public policy, nor would the facts support such a claim" because Dr. McIntyre "simply resigned because he was unhappy with the requirements of his job." Moreover, DMHSAS asserted that such a claim has been described by the Oklahoma Supreme Court as a "cause of action in tort," [5] and Dr. McIntyre, according to DMHSAS, failed to give the one-year notice required under the GTCA before filing the lawsuit.

¶8 With regard to the theory of constructive discharge, DMHSAS stated, "There is no recognized cause of action in Oklahoma, standing alone, for 'constructive discharge.'" DMHSAS further stated, "Constructive discharge, if proven, provides only one of the requisite elements of a wrongful discharge claim," and a plaintiff must also "allege and prove the discharge was wrongful, i.e. discriminatory, retaliatory, illegal, or in violation of public policy." DMHSAS stated that, "[i]n failing to allege any harassment, discrimination, or any type of public policy violation, Dr. McIntyre has not properly pled a constructive discharge...

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