Ervin v. Bobrick Washroom Equipment, Inc.

Filing 22

ORDER by Judge Ronald A. White denying motion of the defendant for partial dismissal ( 9 Motion to Dismiss) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
AUTUMN ERVIN,
Plaintiff,
v.
BOBRICK WASHROOM EQUIPMENT,
INC., d/b/a GAMCO COMMERCIAL
RESTROOM ACCESSORIES,
Defendants.

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Case No. CIV-14-329-RAW

ORDER
Before the court is the motion of the defendant for partial dismissal. Plaintiff was
employed by defendant from September 3, 2008 until August 8, 2012. The complaint alleges
that she suffered an on-the-job injury on or about May, 2010. She pursued a workers’
compensation claim through an attorney. On or about August 6, 2012, plaintiff allegedly
suffered another injury on the job when metal plates fell on her foot. She picked the plates
up from the floor (for the benefit of other employees) and then reported the injury to her
supervisor. Plaintiff alleges she was terminated for not “immediately” reporting the injury
and for picking up the plates.
Plaintiff brings four causes of action: (1) violations of the FMLA; (2) Workers’
Compensation retaliation; (3) Burk public policy tort, and (4) violation of Oklahoma wage
laws. The present motion is directed at the second and third of these claims.
Regarding plaintiff’s second claim, Oklahoma workers’ compensation law has
undergone a recent revision. As pertinent here, a Workers’ Compensation Commission has

been created. See 85A O.S. §19(A). The Commission has exclusive jurisdiction to hear and
decide retaliation claims.1 See 85A O.S. §§7(A) & (B). Defendant argues for dismissal of
plaintiff’s second claim on this basis. The court declines to do so. The Act providing the
revision (i..e, the “Administrative Workers’ Compensation Act,” according to 85A O.S. §1)
states that it only applies to claims for injuries which occur on or after the effective date of
the Act (i.e., February 1, 2014). See 85A O.S. §3(B). Otherwise, the former law applies.
See 85A O.S. §3(C). Even defining the “injury” as the date of plaintiff’s termination, the
alleged retaliation took place well before the effective date of the Act. The pending motion
is denied in this respect.2
Turning to plaintiff’s third claim, she asserts a “Burk tort” under Oklahoma law,
which arises where an employee is discharged for (1) refusing to violate an established and
well-defined public policy or (2) performing some act consistent with a clear and compelling
public policy. Hawkins v. Schwan’s Home Service, Inc., 778 F.3d 877, 882 n.3 (10 th
Cir.2015). See Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okla.1989). The tort applies in a
narrow class of cases. Potter v. Synerlink Corp., 562 Fed.Appx. 665, 678 (10 th Cir.2014).
Among the necessary elements to be alleged are (a) the public policy is found in Oklahoma’s

1

Previously, district courts had exclusive jurisdiction over such claims. See Bostwick v. Atlas Iron
Masters, Inc., 780 P.2d 1184, 1186 (Okla.Ct.App.1988). The anti-retaliation provisions were codified in 85
O.S. §5 and its successor, 85 O.S. §341.
2

Defendant has provided copies of orders from Oklahoma state district courts granting motions to
dismiss retaliation claims for lack of jurisdiction. Such orders are not binding precedent on this court and,
in any event, do not specify the date of injury. In other words, those decisions may well be distinguishable
from the facts of this case.

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constitutional, statutory, or decisional law or in a federal constitutional provision that
prescribes a norm of conduct for Oklahoma and (b) no statutory remedy exists that is
adequate to protect the Oklahoma policy goal. Id.
Plaintiff alleges that the public policy involved here is the right to a safe working
environment. By picking up the metal plates, plaintiff asserts, she was clearing a “slip and
fall trip hazard” and thereby acting consistently with this policy. In the complaint, plaintiff
cited 40 O.S. §§178 and 403 as reflecting such a policy. Both statutes present difficulties for
this contention, as the briefing indicates. Title 40, section 178 provides a cause of action for
personal injury to an employee caused by an employer in certain circumstances. The
difficulties, as related to a Burk claim, are that (1) the cause of action is limited to injuries
by reason of “any defect in the condition of the machinery or appliances” used in the
business; and (2) if the statute is somehow applicable to these facts,3 it appears to provide an
adequate remedy, thus obviating the need for a Burk tort.
As to 40 O.S. §403, which describes employer duties under the Oklahoma
Occupational Safety and Health Act, the Oklahoma Supreme Court has held that it does not
apply to private employers. See Griffin v. Mullinix, 947 P.2d 177 (Okla.1997).
On the other hand, as plaintiff notes in her response, Oklahoma court decisions do
recognize the common law doctrine that “[a]n employer has a duty to provide a safe
workplace for his employees.” Weber v. Armco, Inc., 663 P.2d 1221, 1226 (Okla.1983).
3

As defendant notes (#16 at 5), in her response (#15) “plaintiff appears to argue she was remedying
a defect when she picked up the metal plates that had fallen in the floor.”

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In the long term, the court has its doubts. Plaintiff does not contend that she refused
to perform an act in violation of public policy. Therefore, her asserted Burk claim is that she
was discharged for performing an act consistent with the public policy. She argues that she
moved the metal plates as an act of workplace safety. She continues: “It is hard to imagine
that an employer would argue that public policy permits it to knowingly permit a fall hazard
in the workplace.” (#15 at 7). On the contrary, an employer might not wish an “accident
scene” disturbed because its investigation into the accident would be impeded. In that sense,
plaintiff’s conduct was arguably inconsistent with public policy. Precisely what happened
with the “metal plates” initially and what plaintiff did with them afterwards is unclear.
This factual matter is not to be resolved at this stage, however. Rule 8(a)(2) requires
“a short and plain statement of the claim to show that the pleader is entitled to relief.” The
court must accept all the well-pleaded allegations of the complaint as true and construe the
allegations in the light most favorable to the plaintiff. Alvarado v. KOB-TV, LLC, 493 F.3d
1210, 1215 (10th Cir.2007). Granting a motion to dismiss “is a harsh remedy which must be
cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to
protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10 th
Cir.2009). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that a recovery is very remote and unlikely.’”
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Asking for plausible
grounds does not impose a probability requirement at the pleading stage; it simply calls for

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enough facts to raise a reasonable expectation that discovery will reveal evidence supporting
the claim.

Robinson v. St. John Medical Center, Inc., 2013 WL 5407592, *1

(N.D.Okla.2013). Plaintiff’s third claim survives the pleading stage.
It is the order of the court that the motion for partial dismissal of defendant (#9) is
hereby denied.
ORDERED THIS 13th DAY OF APRIL, 2015.

Dated this 13th day of April, 2015.

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