Glasco v. Advanced Dental Implant & Denture Center LLC et al

Filing 13

MEMORANDUM OPINION AND ORDER Dfts' Partial Mtn Dism State Law Public Policy Tort Claims 10 is DENIED. Signed by Honorable Robin J. Cauthron on 3/28/13. (ap)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VICKI L. GLASCO,
Plaintiff,
vs.
ADVANCED DENTAL IMPLANT &
DENTURE CENTER, LLC, d/b/a MY
DENTIST; ADVANCED DENTAL
IMPLANT AND DENTURE, INC.;
and MY DENTIST HOLDINGS, LLC,
Defendants.

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Case Number CIV-13-0130-C

MEMORANDUM OPINION AND ORDER
Following her termination from her employment with Defendants, Plaintiff brought
the present action asserting claims for retaliation in violation of Title VII of the Civil Rights
Act of 1964, state law claims for violation of the Oklahoma Workers’ Compensation Code,
and Burk* based public policy claims arising from Defendants’ alleged violation of clearly
established Oklahoma public policy. In response to Plaintiff’s filing, Defendants filed a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), stating that Plaintiff had failed to state
a claim for relief. In particular, Defendants’ motion challenges Plaintiff’s public policy Burk
tort claims, asserting that she has failed to demonstrate the existence of a clearly established
public policy.
Review of Plaintiff’s state court petition notes that she asserted two specific public
policy claims. First, that Defendants retaliated against her for her complaints regarding

*

See Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24.

Defendants’ failure to pay their employees all wages due. Plaintiff’s second public policy
claim states that Defendants terminated her in retaliation for assisting another employee in
filing a worker’s compensation claim. As noted, Defendants attack each of these claims,
asserting that Plaintiff has failed to establish the existence of a clear public policy.
To establish a Burk tort, Plaintiff must establish the following three elements of a
prima facie case: “1) the plaintiff and defendant had a terminable-at-will employment
relationship; 2) the employment relationship was terminated contrary to an identified
compelling Oklahoma public policy that is clearly articulated in constitutional, statutory, or
decisional law; and 3) there is no other adequate remedy to protect the identified public
policy.” Reynolds v. Advance Alarms, Inc., 2009 OK 97, ¶ 7, 232 P.3d 907, 909 (citing
McCrady v. Okla. Dep’t of Pub. Safety, 2005 OK 67, ¶ 9, 122 P.3d 473, 475).
The only element disputed between the parties is the second element; that is, the
existence of a clearly identified public policy. In her state court petition, Plaintiff relied on
Reynolds and 40 Okla Stat. § 165.1 et seq. as establishing the public policy requiring
payment of wages for hours worked. In their Motion to Dismiss, Defendants attempt to limit
Plaintiff’s stated public policy claim to “a requirement to pay for overtime wages,” noting
that in Reynolds, the Oklahoma Supreme Court held there was no public policy requiring an
employer to pay an employee for working during lunch time. Defendants also direct the
Court to McKenzie v. Renberg’s, Inc., 94 F.3d 1478, 1487 (10th Cir. 1996), stating that in
McKenzie the Tenth Circuit recognized that Oklahoma has no public policy requiring
payment of overtime wages. On these grounds, Defendants assert that Plaintiff has failed to
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set forth a clearly articulated public policy. However, Defendants’ arguments misstate the
scope of Plaintiff’s public policy claim and improperly attempt to broaden the Oklahoma
Supreme Court’s holding in Reynolds.
As noted above, the public policy asserted by Plaintiff is a requirement that an
employer pay an employee the wages due for all hours worked. As the Oklahoma Supreme
Court recognized in Reynolds, the Oklahoma Labor Act, 40 Okla. Stat. § 165.1 et seq., sets
forth a clear statutory scheme which requires covered employers to pay wages due their
employees, including overtime pay, when applicable. Reynolds, 2009 OK 97, ¶ 12, 232 P.3d
907, 911. Contrary to Defendants’ broad arguments, the holding in Reynolds is fairly
limited. The Oklahoma Supreme Court held there is no statutory or decisional law for
requiring an employer to pay an employee for working through the employee’s lunch break
when the employer’s policy requires the employee to take a lunch break. Put simply, the
Oklahoma Supreme Court in Reynolds affirmed the unremarkable proposition that if an
employee works hours he or she is not permitted to work, the employer has no obligation to
pay for those hours. Nothing in Reynolds suggests, as Defendants argue, that an employer
is relieved from its statutorily imposed obligation to pay an employee for all hours worked.
Further, because Plaintiff’s asserted public policy is broader than paying overtime, McKenzie
is inapplicable. The Court finds that Oklahoma has a clearly established public policy
requiring an employer to pay an employee for all hours worked.
Defendants also argue that even were the Court to find the existence of a public
policy, Plaintiff’s claim cannot prevail, as she is bringing the claim based on an alleged
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failure to pay another employee. Again, Defendants misstate the scope of Plaintiff’s claim.
Plaintiff’s allegation is that she was retaliated against for complaining of Defendants’
violation of a clearly established public policy. 40 Okla. Stat. § 199 clearly establishes a
“whistleblower” provision for the Oklahoma Protection of Labor Act.

That section

criminalizes the discharge of an employee for taking actions or exercising rights provided
by the Act. Thus, the Court finds that Plaintiff’s claims for retaliation for her complaints
regarding alleged violation of the Act state a claim for relief as a public policy Burk tort.
Defendants’ second challenge is to Plaintiff’s worker’s compensation related claim.
Plaintiff alleges that she was terminated, in part, for assisting another employee in filing a
worker’s compensation claim against Defendants. Plaintiff alleges that she is entitled to
maintain a wrongful termination claim, as Defendants’ termination of her in this regard
violated Oklahoma’s clearly established public policy. In support of her claim, Plaintiff
directs the Court to 85 Okla. Stat. § 341(A)(3), which prohibits the discharge of any
employee because the employee instituted or caused to be instituted any proceeding under
the provisions of this Act. As Plaintiff notes, the allegations in her state court petition assert
that she was terminated in part because she had filed a form, which is an employer’s first
notice of injury, after an employee of Defendants notified Plaintiff that she had been injured
on the job. Certainly § 341 can be read to provide protection for an individual acting as
Plaintiff did. Further, given the clear statutory intent of the anti-retaliation provisions of
Oklahoma Workers’ Compensation Code, it would be disingenuous to find that Oklahoma
had a public policy protecting an employee who filed a worker’s compensation claim for her
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own injury, but would not protect retaliation against another employee who assisted in filing
the same claim.
Accordingly, the Court finds that Plaintiff has articulated a clearly established public
policy against retaliation for filing or assisting in filing a worker’s compensation claim. On
this basis Defendants’ Motion to Dismiss will be denied.
For the reasons set forth herein, Defendants’ Partial Motion to Dismiss State Law
Public Policy Tort Claims (Dkt. No. 10) is DENIED.
IT IS SO ORDERED this 28th day of March, 2013.

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