Adair v. Muskogee, City of, Oklahoma

Filing 28

ORDER by Judge Ronald A. White denying defendant's motion to dismiss ( 10 Motion to Dismiss Case for Failure to State a Claim ) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
ROBERT E. ADAIR,
Plaintiff,
v.
CITY OF MUSKOGEE, OKLAHOMA,

Defendant.

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Case No. CIV-15-53-RAW

ORDER
Before the court is the motion of the defendant to dismiss. Plaintiff filed a petition
in state court, which the defendant has removed to this court. Plaintiff alleges that he
suffered an on-the-job injury as defendant’s employee on March 12, 2012, and that he
pursued his rights under the Oklahoma Workers’ Compensation Act (“the Act”). He alleges
that he was constructively discharged on or about March 21, 2014, in retaliation for that
conduct. Additionally, he alleges defendant violated the Americans with Disabilities Act
(“ADA”).
Defendant seeks to dismiss the first claim based upon recent revisions to the Act.
Specifically, a Workers’ Compensation Commission has been created. See 85A O.S. §19(A).
This Commission has exclusive jurisdiction to hear and decide retaliation claims. See 85A
O.S. §§7(A) and (B). The Act further states that it “shall apply only to claims for injuries and
death based on accidents which occur on or after the effective date of [the Act]”. See 85A

O.S. §3(B). Otherwise, the former law applies, according to §3(C). The effective date of the
Act is February 1, 2014.
Defendant, understandably, argues that plaintiff’s alleged constructive discharge took
place on March 21, 2014 and therefore comes under the revised Act, giving jurisdiction over
all retaliation claims to the Commission. Plaintiff in turn argues that he suffered the injury
for which he pursued a Workers’ Compensation claim on March 12, 2012 and therefore the
former Act governs and this court has jurisdiction.
“The substantive rights and obligations of the parties in a workers’ compensation
proceeding are based upon the statutes in effect on the date of the worker’s injury.” Carbajal
v. Precision Builders, Inc., 333 P.3d 258, 259 (Okla.2014)(footnote omitted). Defendant’s
argument, that the “injury” as to plaintiff’s first claim is the alleged retaliatory discharge, is
not unreasonable.1 The statutory language, however, seems to base the structure of the Act
on “injury” being defined as the on-the-job injury. Section 3(B) states that the revised Act
applies “only to claims for injuries and death based on accidents which occur on or after the
effective date of this act.” A “claim” for “injuries and death” based upon an “accident” is
clearly a standard workers’ compensation claim. The substantive right to be free from

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“The retaliation claim is a completely different type of claim than a claim for physical injury on the
job.” (#14 at 2). This is true, but no alternative definition for “injury” appears in the Act. Likewise, it is
the obligation of the defendant not to retaliate against a claimant. Under the sentence quoted from Carbajal,
this obligation is based upon the statutes in effect on the date of the worker’s injury, not those in effect on
the date of the alleged retaliation.

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retaliation, however, is provided by the act as well. See §7(A).2 Therefore, this court
concludes that this court retains jurisdiction over plaintiff’s retaliation claim.
As to plaintiff’s second claim under the ADA, defendant contends the allegations are
insufficient as a matter of law. To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its
face. Williams v. Allred, 2015 WL 2117261, *2 (10th Cir.2015). In response to the motion,
plaintiff acknowledges the skimpy allegations in the complaint itself, but directs the court to
the Charge of Discrimination which plaintiff filed with the EEOC and the subsequent rightto-sue letter he received. The right-to-sue letter itself has no bearing on the sufficiency of
the complaint, but the Charge of Discrimination does provide additional factual allegations.
This is an unorthodox approach, but other courts have accepted it. See Morris v. David
Lerner Associates, 680 F.Supp.2d 430, 435-36 (E.D.N.Y.2010). The court declines to
dismiss plaintiff’s second claim under Rule 12(b)(6) F.R.Cv.P.
It is the order of the court that the defendant’s motion to dismiss (#10) is hereby
denied.
ORDERED THIS 27th DAY OF JULY, 2015.

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There were anti-retaliation provisions in previous versions of the Act. Specifically, 85 O.S. §5 and
its successor, 85 O.S. §341.

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