Young v. Station 27, Inc.

Citation404 P.3d 829
Decision Date12 September 2017
Docket NumberCase Number: 113334.
Parties Kim YOUNG, Plaintiff/Appellant, v. STATION 27, INC. and Go Mart, Inc., Defendants/Appellees.
CourtSupreme Court of Oklahoma

Bob Burke and Tom Cummings, Oklahoma City, Oklahoma, for Plaintiff/Appellant.

Jo Anne Deaton and Denelda R. Richardson, Rhodes, Hieronymus, Jones, Tucker & Gable, P.L.L.C., Tulsa, Oklahoma, for Defendants/Appellees.

Sarah A. Greenwalt, Assistant Solicitor General, Oklahoma City, Oklahoma, for the State of Oklahoma.

EDMONDSON, J.

¶ 1 Plaintiff was injured, sought workers' compensation benefits, and approximately thirteen months later her employment was terminated. Plaintiff filed a petition in the District Court and alleged she had been terminated from employment in retaliation for her workers' compensation claim. She alleged her termination violated public policy and she possessed a tort claim pursuant to Burk v. K-Mart Corp.,1 which entitled her to a jury trial in District Court. She alleged 85A O.S.Supp.2013 7 of the Administrative Workers' Compensation Act denied her a jury trial and violated Article 2 19 of the Oklahoma Constitution.2

¶ 2 We hold plaintiff's retaliatory discharge action is not a Burk tort, but a statutory action based upon 85 O.S.2011 341 which was the retaliatory discharge statute in effect when her workers' compensation injury occurred. Adjudicating the appeal does not require determining whether 85A O.S. 7 violates Okla. Const. Art. 2 19. However, our analysis assumes 85A O.S. 7 is constitutional and thereby expressesa statutory continuation of Oklahoma's long-recognized public policycreating an exception to the employment-at-will doctrine by condemning an employer's conduct taken to retaliate for an employee's statutorily-protected actions related to a workers' compensation claim. We also conclude plaintiff's 85 O.S.2011 341 retaliation claim does not violate 85A O.S.Supp.2013 7. The judgment granted to a party claiming to not be plaintiff's employer is affirmed on that ground, but the judgment is reversed as to the other defendant and reversed on all other issues adjudicated therein.

I. Trial Court Proceedings

¶ 3 Defendants filed motions to dismiss and argued plaintiff's remedy was before the Workers' Compensation Commission and not the District Court. Go Mart, Inc.'s motion additionally sought dismissal alleging it "was never Plaintiff's employer." The Oklahoma Attorney General appeared and argued 85A O.S.Supp. 2013 7 was constitutional. The trial judge granted the two motions to dismiss by two separate journal entries3 and determined (1) plaintiff's exclusive remedy was a proceeding before the Workers' Compensation Commission pursuant to 85A O.S. 7, (2) Go Mart was not plaintiff's employer and entitled to a dismissal, (3) plaintiff's Okla. Const. Art. 2 19 right to a jury trial is not violated by 85A O.S. 7, and (4) no common law right to a jury trial exists for a retaliatory discharge claim. Plaintiff brought an extraordinary writ proceeding in this Court which was recast to an appeal. The appeal was retained by this Court.4

¶ 4 Plaintiff's petition in error raises three arguments: (1) 85A O.S. 7 does not apply because her "original injury" occurred on January 29, 2013, prior to the effective date of that statute; (2) 85A O.S.Supp. 2013 7 is unconstitutional because it deprives her of a trial by jury and access to common law damages; and (3) 85A O.S.Supp.2013 7 is an unconstitutional special law that sanctions or creates disparate remedies for those who complain of employment discrimination. We conclude plaintiff's first assignment of error and associated argument is sufficient to show error requiring reversal as to one defendant, and we must affirm the dismissal as to another defendant. We need not address the other claims raised on appeal.

II. Judgment Granting Go Mart's Motion to Dismiss

¶ 5 The judgment granting Go Mart's motion to dismiss must be affirmed on appeal. The trial court used alternative grounds when granting Go Mart's motion to dismiss. One of these grounds was "the Court finds that Go Mart, Inc. was not Plaintiff's employer." This finding was based upon two documents attached to Go Mart's motion dismiss, "Exhibit 1," an affidavit and "Exhibit 2," a photocopied sheet of paper appearing to contain a "CompSource Oklahoma" mark with the designation of "Renewal Information" to insured "Go Mart, Inc." with "additional businesses" including "Station 27, Inc." The affidavit is given by a person identifying himself as the president of Station 27, Inc., and states "Plaintiff never worked for Go Mart, Inc." The affidavit states "Go Mart is a separate business corporation from Station 27." The affidavit states there is common ownership of the two corporations with a common worker's compensation policy covering both companies. The affidavit of the president does not identify or expressly refer to Exhibit 2, and it appears in the record as an exhibit with counsel, not a witness, arguing5 in the motion to dismiss what the exhibit is and what it contains.6 Go Mart's motion states plaintiff's allegations against Go Mart are based upon an alleged employer status as a necessary condition to establish legal liability. This allegation is not contradicted by plaintiff.

¶ 6 Go Mart's 2012(B)(1) motion to dismiss states the motion and its two exhibitsaddress subject matter jurisdiction. Go Mart did specifically raise subject matter jurisdiction when it argued plaintiff's sole remedy was against her employer before the Workers' Compensation Commission and not a District Court.7 Go Mart also states in a footnote in a subsequent filing it was seeking dismissal pursuant to 12 O.S. 2012(B)(6) because it had not been plaintiff's employer.8 A 2012 (B)(6) dismissal for failure to state a claim upon which relief may be granted will not be sustained on appeal unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief.9 Due to the issues raised by the parties, we need not address whether the exclusive reliance on 2012(B)(1) in the motion to dismiss improperly conflates the two concepts of a subject matter jurisdiction defense and a nonjurisdictional real party in interest defense when the exhibits attached to the motion to dismiss raise extra-record facts used to show who is a real party in interest.10

¶ 7 Alleged error must be raised in the trial court to preserve the issue as a ground urged as error on appeal.11 Plaintiff's trial court response to Go Mart was silent on the issue of Go Mart's status as an employer as well as Go Mart's use of its exhibits attached to the motion. Plaintiff's application for extraordinary relief does not raise these issues. The District Court's judgment dismissing Go Mart as a party is affirmed on the issue of Go Mart's status as not plaintiff's employer.

III. Judgment Granting Station 27's Motion to Dismiss

¶ 8 The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts.12 Station 27's motion to dismiss cited 12 O.S. 2012 (B)(1)13 and argued the District Court had no subject matter jurisdiction. When a District Court dismisses an action for lack of subject matter jurisdiction the judgment is reviewed on appeal using a de novostandard. 14

Further, this appeal involves a determination of legislatively expressed public policy for the purpose of applying 85 O.S.2011 341, 85A O.S.Supp. 2013 7, and potential application of a public policy Burk tort. The determination of public policy as it relates to a Burk tort and the construction and application of statutes relating to retaliatory discharge present questions of law for the Court.15 Our review is limited to taking all allegations in plaintiff's petition as true together with all reasonable inferences that may be drawn from them and applying such to the jurisdictional issue before us that is reviewed de novo.16 This standard applies to the order granting Station 27's motion to dismiss.

IV. 85A O.S.Supp.2013 7 and Plaintiff's Retaliation Claim

¶ 9 The statute challenged by plaintiff is 85A O.S. Supp.2013 7 (Laws 2013, c. 208, 7, eff. Feb. 1, 2014), which states as follows.

A. An employer may not discriminate or retaliate against an employee when the employee has in good faith:
1. Filed a claim under this act;
2. Retained a lawyer for representation regarding a claim under this act;
3. Instituted or caused to be instituted any proceeding under the provisions of this act; or
4. Testified or is about to testify in any proceeding under the provisions of this act.
B. The Commission shall have exclusive jurisdiction to hear and decide claims based on subsection A of this section.
C. If the Commission determines that the defendant violated subsection A of this section, the Commission may award the employee back pay up to a maximum of One Hundred Thousand Dollars ($100,000.00). Interim earnings or amounts earnable with reasonable diligence by the person discriminated against shall reduce the back pay otherwise allowable.
D. The prevailing party shall be entitled to recover costs and a reasonable attorney fee.
E. No employer may discharge an employee during a period of temporary total disability for the sole reason of being absent from work or for the purpose of avoiding payment of temporary total disability benefits to the injured employee.
F. Notwithstanding any other provision of this section, an employer shall not be required to rehire or retain an employee who, after temporary total disability has been exhausted, is determined by a physician to be physically unable to perform his or her assigned duties, or whose position is no longer available.
G. This section shall not be construed as establishing an exception to the employment at will doctrine.
H. The remedies provided for in this section shall be exclusive with respect to any claim arising out of the conduct described in subsection A of this section.

Emphasis added.

The effective date of this statute i...

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