Venable v. Panther Creek Ranch LLC et al
Filing
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ORDER granting in part and denying in part 7 Defendants' Motion to Dismiss. Signed by Honorable Robin J. Cauthron on 11/9/15. (lg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JENNIFER VENABLE,
Plaintiff,
v.
PANTHER CREEK RANCH, LLC,
BIG IRON OILFIELD SERVICES, INC.,
JOHN FERRIS, and JAKE FERRIS,
Defendants.
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Case No. CIV-15-0814-C
MEMORANDUM OPINION AND ORDER
According to Plaintiff, she was promised “long term employment” for a specified
salary. Plaintiff states she moved from California to Oklahoma on the basis of this promise.
After beginning her employment, Plaintiff asserts she was not paid the amount agreed upon.
Plaintiff voiced her complaints to Defendants. According to the allegations in Plaintiff’s
Complaint, eventually the relationship between Plaintiff and Defendants failed and she was
terminated from her employment. Plaintiff filed the present action asserting a number of
claims arising from her employment and subsequent termination. Defendants filed a Motion
to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) arguing that Plaintiff has failed to state a
claim for relief.
Defendants’ request for dismissal requires the Court to examine the “specific
allegations in the complaint to determine whether they plausibly support a legal claim for
relief.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (citing Bell
Atl.Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), and Erickson v. Pardus, 551 U.S. 89,
93-94 (2007)). “[T]he mere metaphysical possibility that some plaintiff could prove some
set of facts in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual support
for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1247 (10th Cir.
2007). Applying these standards, the Court will consider Defendants’ challenges to
Plaintiff’s claims.
1. FLSA
Plaintiff asserts Defendants violated the Fair Labor Standards Act, 29 U.S.C. § 201,
et seq. (“FLSA”), by “failing to pay the Plaintiff the wages due for services provided . . . .”
Dkt. No. 1. ¶ 37. Defendants argue Plaintiff cannot state a claim under this law because her
allegations assert only that she was to be paid an agreed-upon salary and that she was paid
less than that amount. Defendants assert Plaintiff has failed to argue that she was paid less
than the minimum wage or that she worked hours for which she should have been paid
overtime but was not. Defendants argue these are the only two possible claims under the
FLSA.
In response, Plaintiff argues that because of Defendants’ actions it is unclear whether
she was an exempt or non-exempt employee. Plaintiff argues that if she is non-exempt her
allegations are sufficient to support a claim for unpaid overtime or a failure to pay minimum
wage. In the event she was an exempt employee her claim for failure to pay wages due states
a claim pursuant to 29 C.F.R. § 541.602.
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Despite Plaintiff’s argument to the contrary, her Complaint does not adequately plead
a claim for relief in the event she was a non-exempt employee. The Supreme Court has set
the standard of proof required for proving a failure-to-pay-overtime claim as follows: “an
employee has carried out his burden if he proves that he has in fact performed work for
which he was improperly compensated and if he produces sufficient evidence to show the
amount and extent of that work as a matter of just and reasonable inference.” Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946) (superseded in part by 29 U.S.C. § 251
et seq.); see also Albanil v. Coast 2 Coast, Inc., 444 F. App’x 788 (5th Cir. 2011) (applying
same standard to claim for failure to pay minimum wage). The allegations in Plaintiff’s
Complaint, if proven, would not satisfy this standard. Plaintiff offers no factual allegation
of the hours worked and the compensation paid. Rather, she offers only a conclusory
allegation that Defendants acted wrongfully. Plaintiff’s action is insufficient to survive a
Motion to Dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).
Plaintiff’s reliance in her Response on § 541.602 of the CFR to salvage her claim is
likewise unavailing. That regulation does not create the cause of action alleged by Plaintiff.
It does not, as Plaintiff suggests, require a defendant to pay a contract-based wage amount.
Rather, the regulation governs the permissible deductions from an exempt employee’s wages.
If Defendants made improper deductions from Plaintiff’s salary, as outlined in the regulation,
that fact would impact Plaintiff’s status as an exempt employee. Again, without additional
nonconlusory allegations, Plaintiff’s claim must fail.
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For these reasons, Defendants’ Motion to Dismiss Plaintiff’s claim for violation of the
FLSA will be granted.
2. Retaliatory Discharge
Defendants also challenge Plaintiff’s claim for retaliatory discharge under the FLSA
arguing the governing statute, 29 U.S.C. § 215(a)(3), creates a claim only if the retaliation
arises from complaints by an employee related to the FLSA. According to Defendants,
because Plaintiff has not stated a valid FLSA violation, she cannot state a retaliatory
discharge claim under the FLSA.
The Tenth Circuit has set forth the element for a prima facie case of FSLA retaliation:
a plaintiff must show that: (1) he or she engaged in activity protected by the
FLSA; (2) he or she suffered adverse action by the employer subsequent to or
contemporaneous with such employee activity; and (3) a causal connection
existed between the employee’s activity and the employer’s adverse action.
Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1394 (10th Cir. 1997). As noted above,
Plaintiff has failed to state a claim for an FLSA violation. Thus, she cannot meet the first
element of a retaliation claim. Plaintiff’s retaliatory discharge claim under the FLSA will be
dismissed.
3. Public Policy
According to Defendants, Plaintiff cannot bring a public policy wrongful termination
claim because she was not an at-will employee. Defendants note that Plaintiff alleges she
had a contract for employment and thus was not an at-will employee. In response, Plaintiff
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argues that an at-will employment is viewed and considered to be in the nature of a
contractual relationship and the existence of a contract is not fatal to her claim.
Defendants’ argument ignores the allegations in Plaintiff’s Complaint. Certainly,
Plaintiff pleads that she had an agreement with Defendants for employment. However,
neither party has specified the terms of that agreement, including whether or not it was for
a definite term. The general rule in Oklahoma is that an employment contract of indefinite
duration is terminable at will, without cause, by either party without incurring liability for
breach of contract. Miner v. Mid-America Door Co., 2003 OK CIV APP 32, ¶ 32, 68 P.3d
212, 221, citing Burk v. K-Mart Corp., 1989 OK 22, ¶ 5, 770 P.2d 24, 26. Thus, even if
Plaintiff was operating under a contract of employment, she may still be determined to have
been an at-will employee and may still state a claim for a Burk-based tort.
Alternatively, Defendants argue that Plaintiff has failed to identify the public policy
or policies which give rise to her claim. In response Plaintiff argues her termination violated
the Oklahoma Protection of Labor Act which requires employers to pay employees properly
and timely all wages due and owed, citing 40 Okla. Stat. §§ 160, 165.2, 165.3, and 165.8.
Alternatively, Plaintiff notes she has alleged her complaints about Defendants’ violations of
the Oklahoma liquor licensing statutes led to her termination.
The public policy exception to Oklahoma’s terminable at-will employment doctrine
is commonly referred to as a Burk tort. The doctrine was recognized in Burk v. K-Mart
Corp., 1989 OK 22, 770 P.2d 24. The Oklahoma Supreme Court has recognized the
parameters of the doctrine.
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Burk adopted the public policy exception to the terminable-at-will
employment doctrine for “a narrow class of cases in which the discharge is
contrary to a clear mandate of public policy as articulated by constitutional,
statutory or decisional law.” 1989 OK 22 at ¶ 17, 770 P.2d at 28. Burk
created a tort remedy limited to those situations “where an employee is
discharged for refusing to act in violation of an established and well-defined
public policy or for performing an act consistent with a clear and compelling
public policy.” 1989 OK 22 at ¶ 19, 770 P.2d at 29. Burk cautioned that the
public policy exception must be strictly applied: “In light of the vague
meaning of the term public policy we believe the public policy exception must
be tightly circumscribed.” 1989 OK 22 at ¶ 18, 770 P.2d at 28-29.
Reynolds v. Advance Alarms, Inc., 2009 OK 97, ¶6, 232 P.3d 907, 909, as corrected (Dec.
16, 2009). To assert a viable Burk tort claim Plaintiff must allege:
(1) an actual or constructive discharge (2) of an at-will employee (3) in
significant part for a reason that violates an Oklahoma public policy goal
(4) that is found in Oklahoma’s constitutional, statutory, or decisional law or
in a federal constitutional provision that prescribes a norm of conduct for
Oklahoma and (5) no statutory remedy exists that is adequate to protect the
Oklahoma policy goal.
Vasek v. Bd. of Cnty. Comm’rs of Noble Cnty., 2008 OK 35, ¶ 14, 186 P.3d 928, 932.
First, the Court notes that for the reasons noted above regarding Plaintiff’s FLSA
claims, she has failed to offer anything other than conclusory allegations in support of her
Burk tort claim. Second, her Response brief fails to offer any authority for determining that
the statutes on which she relies set forth the required tightly circumscribed, clear and
compelling public policy to give rise to a claim. Indeed, Plaintiff has failed to allege any
facts or law demonstrating that Oklahoma has ever recognized any portion of the Oklahoma
Protection of Labor Act as establishing a public policy which would give rise to a claim for
relief under the Burk doctrine. To the contrary, as Plaintiff notes in her Response, there are
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numerous instances where Oklahoma courts or courts relying on Oklahoma law have refused
to find other provisions of the Oklahoma Protection of Labor Act would create the requisite
public policy. She offers no argument to suggest that a different conclusion would arise
under her specific claims. The same is true of her reliance on the liquor licensing laws.
In order to state a Burk tort, the Plaintiff must articulate a constitutional, statutory, or
decisional law basis for the Oklahoma public policy prohibiting discharge. See Darrow v.
Integris Health, Inc., 2008 OK 1, ¶ 9, 176 P.3d 1204, 1210. Whether or not Plaintiff has
implicated a sufficiently discernable public policy presents a question of law to be resolved
by the trial court. Vasek, 2008 OK 35, ¶ 20, 186 P.3d at 933. Plaintiff has failed these two
requirements. Accordingly, the Court finds that Plaintiff has failed to state a wrongful
termination Burk tort claim.
4. Breach of Contract
Defendants argue that Plaintiff cannot state a claim for breach of employment
contract, as she has failed to set out the terms and conditions of that contract. Defendants
assert that as a result it is not clear whether or not Plaintiff’s term of employment was for a
length greater than a year. Thus, Defendants argue, any contract may violate the statute of
frauds. In response, Plaintiff argues that because she performed under the contract, the
statute of frauds has no applicability. Defendants do not refute this argument in their Reply,
but argue Plaintiff’s claim is still impermissibly vague.
After consideration of the allegations in Plaintiff’s Complaint, the Court finds
Defendants’ arguments without support. While Plaintiff’s Complaint could have been
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clearer, she has set forth sufficient grounds which apprise Defendants of the nature of her
claim and pled facts which nudge her claim of breach of contract across the line from
conceivable to plausible. Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008).
Defendants’ Motion will be denied on this issue.
5. Promissory Estoppel
Defendants argue that Plaintiff’s claim for promissory estoppel must fail as the alleged
promise of long-term employment is vague and ambiguous. According to Defendants, this
promise, even if made, is vague as it does not specify what “long-term” means. Defendants
also argue that Plaintiff has failed to specify other aspects of the employmnet relationship
such as job duties, or the terms and conditions under which she could be dismissed or quit.
To make a claim for promissory estoppel, Plaintiff must establish: “(1) a clear and
unambiguous promise, (2) foreseeability by the promisor that the promisee would rely upon
it, (3) reasonable reliance upon the promise to the promisee’s detriment and (4) hardship or
unfairness can be avoided only by the promise’s enforcement.” Russell v. Bd. of Cnty.
Comm’rs, Carter Cnty., 1997 OK 80, ¶ 27, 952 P.2d 492, 503. Plaintiff’s Complaint
provides allegations which, if proven, are sufficient to meet these elements. Defendants’
argument may eventually be sufficient to defeat Plaintiff’s claim, but they are not grounds
for dismissal. Defendants’ Motion will be denied on this issue.
6. Fraud
Defendants argue that Plaintiff cannot prove her fraud in the inducement claim.
According to Defendants, because the allegedly fraudulent statements were made after her
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employment began, she could not have been fraudulently induced into beginning
employment. However, as Plaintiff asserts in her Response, her fraud claim is much broader
than argued by Defendants. Plaintiff does not bring a fraud in the inducement claim but a
fraud claim.
Under Oklahoma law, the elements of actionable fraud are (1) a false
misrepresentation, (2) made as a positive assertion which is either known to be false or is
made recklessly without knowledge of the truth, (3) with the intention that it be acted upon,
and (4) which is relied upon by the other party to her own detriment. Silver v. Slusher, 1988
OK 53, ¶ 6, n.8, 770 P.2d 878, 881 n.8. As Plaintiff notes, ¶ 17 of her Complaint states, in
relation to the promises made by Defendants, that “[a]t the time Defendants made such
promises to Plaintiff, they knew, or should have known, that such promises were false or that
such promises were not possible and/or not likely to be fulfilled.” (Compl, Dkt. No. 1, p. 4.)
If Plaintiff were to prove these facts, she would have established a valid claim for fraud.
Defendants’ Motion will be denied on this issue.
7. Intentional Interference
Defendants argue that Plaintiff cannot prevail on her claim against Jake Ferris for
interference with contractual relationship because she has not alleged that Jake Ferris did
anything maliciously or wrongfully or that he was not justified or privileged to make
employment decisions. In addition, Defendants note that Plaintiff alleges that Jake Ferris
acted on behalf of Plaintiff’s employer in firing her. Indeed, the allegations of Plaintiff’s
Complaint would seem to foreclose a claim for tortious interference with contract. Paragraph
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31 of the Complaint sets forth that Jake Ferris had input in the decision or had made the
decision to terminate Plaintiff. Paragraph 32 asserts that Jake Ferris was acting on behalf of
Big Iron Oilfield Service, which Plaintiff had identified as her employer. As Defendants
note, one who is acting in a representative capacity for a party to a contract cannot be held
liable for wrongfully interfering with that contract. Voiles v. Santa Fe Minerals, Inc., 1996
OK 13, ¶ 18, 911 P.2d 1205, 1210. As currently pled, Plaintiff simply cannot state a claim
for interference with a contractual relationship. Plaintiff’s claim for interference with
contractual relationship will be dismissed.
8. Intentional Infliction of Emotional Distress
Defendants argue Plaintiff’s claim for intentional infliction of emotional distress must
fail. According to Defendants, even accepting the allegations of Plaintiff’s Complaint as
true, the wrongs alleged there do not rise to the standard necessary to support the claim.
After consideration of the allegations in Plaintiff’s Complaint, the Court finds that
Plaintiff has failed to offer any evidence of outrageous conduct. While many of Defendants’
actions may have been in poor taste, or even distasteful or boorish, it simply was not so
extreme and outrageous as to go beyond all possible bounds of decency. See Eddy v. Brown,
1986 OK 3, ¶ 7, 715 P.2d 74, 77:
Conduct which, though unreasonable, is neither “beyond all possible bounds
of decency” in the setting in which it occurred, nor is one that can be “regarded
as utterly intolerable in a civilized community,” falls short of having
actionable quality. Hurt feelings do not make a cause of action under the
tort-of-outrage rubric.
Therefore, Plaintiff’s claim for intentional infliction of emotional distress will be dismissed.
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CONCLUSION
As set forth more fully herein, Defendants’ Motion to Dismiss (Dkt. No. 7) is
GRANTED in part and DENIED in part. Plaintiff’s claims for violation of the Fair Labor
Standards Act, retaliatory discharge claim under the FLSA, wrongful termination Burk tort
claim, interference with contractual relationship claim, and intentional infliction of emotional
distress claim are DISMISSED without prejudice.
IT IS SO ORDERED this 9th day of November, 2015.
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