Date: 08-02-2013

Case Style: Jeff Edward Woods v. The City of Norman

Case Number: CJ-2011-1994

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Stanley M. Ward, Woodrow K. Glass, Scott F. Brockman, R. Ben Houston and Barrett T. Bowers

Defendant's Attorney: Rickey Joe Knighton

Description: Jeff Edward Woods sued The City of Norman on a wrongful termination theory claiming:

1. At all relevant times herein, Plaintiff was and now is a resident of the City of Norman, Cleveland County, State of Oklahoma.

2. At all relevant times herein, Defendant The City of Norman was and now is a municipal corporation located in Cleveland County, State of Oklahoma. Jurisdiction and Venue

3. This Court has jurisdiction over the subject matter as well as personal jurisdiction over the parties.

4. Venue is properly laid in Cleveland County, State of Oklahoma as all of the acts complained of herein occurred in the City of Norman, Cleveland County, State of Oklahoma and Defendant is situated and can be served therein. Fact Allegations

5. Plaintiff was employed by the City of Norman (“City”) in February 2007 as a Worker I.

6. On May 3, 2007, Plaintiff was injured while perfomiing his job duties when the driver of a sanitation vehicle carelessly drove the vehicle and threw Plaintiff and another City employee from the moving vehicle.

7. As a result of that accident and resulting on-the-job injury to Plaintiffs shoulder, Plaintiff was off work for several months before returning to work.

8. On March 20, 2008, Plaintiff, while performing his work duties, stepped into an improperly guarded drain hole and injured his left knee.

9. As a result of that incident and resulting on-the-job injury to his left knee, Plaintiff was off work for several months before returning to his job duties.

10. Because of the injury to Plaintiffs left knee and the earlier injury to his shoulder, Plaintifffiled a combined worker’s compensation action in April2008 and received a compensation award.

11. On July 6, 2010, Plaintiff was injured when another City sanitation truck dumped a heavy load of debris on Plaintiff who was standing next to the City vehicle to which he was assigned to perform his job duties.

12. As a result of that on-the-job incident and the resulting injury to Plaintiff, Plaintiff was off work for several weeks and Plaintiff filed a worker’s compensation claim that resulted in a worker’s compensation award.

13. Even though Plaintiff was injured by the negligence of others, he was written up and unjustly reprimanded in that the reprimand effectively denied Plaintiff a promotion to the position of Worker II.

14. The City then sent Plaintiff to its designated physician who examined Plaintiff and determined that Plaintiff was fit for duty without restrictions and Plaintiff returned to work.

15. In September 2010, Plaintiff was coerced into signing a form stating that he had totally recovered from all his job-related injuries and was further told that if he failed to sign the form, he would be terminated.

16. Because Plaintiff supports four (4) minor children, his job was very important to him, and under coercion and duress, Plaintiff signed the form.

17. Defendant denied Plaintiff light duty and further rejected his last worker’s compensation claim and subsequently terminated Plaintiff on November 19, 2010 as a direct result of Plaintiff filing for the benefits of the Worker’s Compensation Act.

18. Defendant was negligent by retaliating against Plaintiff and terminating his employment for engaging in his statutorily and protected rights as an injured worker pursuant to 85 O.S. § 1.

19. As a direct and proximate result of Defendant’s negligence as aforesaid violating Plaintiff’s statutorily guaranteed rights as set forth in 85 0.S. § 1 et seq,, Plaintiff has suffered economic loss, mental pain and suffering, mental anguish and emotional distress, embarrassment, humiliation, injury to his professional reputation, and loss of enjoyment of life, all to his injury in a sum in excess of Seventy-Five Thousand Dollars ($75,000.00).

19. Plaintiff has satisfied the requirements of the Oklahoma Governmental Tort Claims Act by filing and serving a Notice ofTort Claim on Defendant on May 3,2011 which said claim was deemed rejected by the failure and reffisal of Defendant to accept that claim and more than ninety (90) days have expired since that date. This action has been brought timely as required by 51 O.S. § 151 et sq.

WHEREFORE, Plaintiff prays for judgment against Defendant as follows:

(1) For his actual damages in a sum in excess of $75,000.00, and in accordance with the proof at the time of trial;

(2) For interest, pre-judgment and post-judgment, as allowed by law;

(3) For his costs;

(4) For such other and fUrther relief as the Court deems just and proper.

The City of Norman appeared and answered as follows:

1. The City is without sufficient knowledge to either admit or deny the allegation set forth in paragraph 1 of Plaintiffs Petition.

2. Admitted. Jurisdiction and Venue

3. Admitted.

4. Admitted.

Factual Alle2ations

5. The City admits that it hired Plaintiff as a Sanitation Worker I on February 5, 2007.

6. The City admits that Plaintiff claims to have injured his shoulder while perfonning his job duties on May 3, 2007. The City denies the remaining allegations set forth in paragraph 6 of Plaintiffs Petition.

7. The City admits that Plaintiff was placed on on-the-job injury leave after the May 3, 2007 incident.

8. The City admits that Plaintiff claims to have injured his left knee on March 20, 2008. The City denies the remaining allegations set forth in paragraph 8 of Plaintiffs Petition.

9. The City admits that Plaintiff was placed on on-the-job injury leave after the March 20, 2008 incident.

10. The City admits that Plaintiff filed workers compensations cases regarding his left knee and his shoulder in 2008 and that Plaintiff was awarded compensation. The City denies the remaining allegations set forth in paragraph 10 of Plaintiff’s Petition.

11. The City admits that Plaintiff claims that he was injured on July 6, 2010 when another City sanitation truck dumped a heavy load of debris on Plaintiff.

12. The City admits that Plaintiff was placed on on-the-job injury leave as a result of the July 6, 2010 incident and that Plaintiff filed a workers’ compensation case. The City denies the remaining allegations set forth in paragraph 11 of Plaintiff’s Petition.

13. Denied.

14. Denied.

15. Denied.

16. The City is without sufficient knowledge to either admit or deny whether Plaintiff supports four (4) minor children. The City denies the remaining allegations set forth in paragraph 16 of Plaintiffs Petition.

17. The City admits that it contests whether the workers’ compensation claim filed by Plaintiff regarding the July 6, 2010 incident is a result of an injury which occurred while Plaintiff was performing his job duties for the City. The City denies the remaining allegations set forth in paragraph 17 of Plaintiffs Petition.

18. Denied.

19. Denied.

20. Admitted.

Affirmative Defenses

1. Defendant is exempt from liability under the provisions of the Governmental Tort Claims Act, 51 OS. § 151 et seq.

2. Defendant’s liability, if any, is limited by the provisions of the Governmental Tort Claims Act 51 O.S. § 151 et seq.

3. Defendant reserves the right to add additional defenses as discovery continues.

WHEREFORE, having fully answered, Defendant, City of Norman, prays that Plaintiff take nothing by virtue of his Petition filed herein and that the Court grant this Defendant its costs and attorney’s fees and any other relief it deems equitable and proper.

The City of Norman filed a motion for summary judgment asserting:

1. Plaintiff began his employment with the City as a Sanitation Worker I on February 5, 2007. Exhibit I — Personnel Action Form Prepared on February 15, 2007.

2. The major responsibilities and duties of a Sanitation Worker I include: riding on the back of a truck and picking up trash on an assigned route; manually lifling residential containers and emptying the contents into larger containers for transporting refuse to truck; emptying container contents into back of truck. The physical abilities for Sanitation Worker I include: “[ajbility to lift and carry moderately heavy (25-50 lb.) and heavy (50-75 lb.) trash containers and debris frequently. Exhibit 2 — Class Specification for Sanitation Worker I.

B. Plaintiffs Non-Job Related Injury

3. In March of 2010, Plaintiff suffered a non-job related injury to his left shoulder. Exhibit 3 — April 21, 2010 Medical Report from Orthopedic and Arthritis Center McBride Clinic, Inc.

4. On May 26, 2010, a Fitness for Duty hearing was held regarding the injury to Plaintiff’s left shoulder. Exhibit 4 - Affidavit of Larry Heiklcila. At this meeting, Plaintiff submitted a Physician’s Statement from “Adam Vascellaro D.O.” which states that Plaintiff, “[i]s able to perform all the duties as of 5/19/10, fully without restrictions.” Exhibit 5 — May 19, 2010 Physician’s Statement.

C. Plaintiff’s Job Related Injury

5. On July 6, 2010, Plaintiff was injured when another City sanitation truck dumped a load of debris on him. Exhibit 6 — July 14, 2010 Written Reprimand to Jeff Woods.

6. The City paid Plaintiff temporary total disability (TTD) compensation from July 10, 2010 to July 14, 2010. Exhibit 7 — Temporary Total Disability Schedule for Jeff Woods.

7. Plaintiff returned to work on July 15, 2010. Exhibit 8 — Hours History Detail for Jeff Woods from July 6,2010 through November 16, 2010.

8. Plaintiff requested and was granted short term disability leave from August 26, 2010 through October 18, 2010. Exhibit 9—Undated Letter from Jeff Woods.

9. On September 1, 2010, Plaintiff filed a workers’ compensation claim, WCC 2010-10063 J, alleging injuries to his left shoulder, neck, and body, with resulting depression, as a result of the July 6, 2010 incident. Exhibit 10 — Form 3 filed to Initiate WCC-2010-10063 J.

B. Plaintiffs Separation from City Employment

10. In November 2010, Plaintiff claimed that he was not having any problems with his left shoulder and wanted to return to work. He was referred to Norman Regional Occupational Medicine for a fitness for duty evaluation. In his fitness for duty medical report, Dr. Kevin Penwell concluded:

“Mr. Woods and we discussed at length today is going to continue to have problems with this left shoulder until it’s repaired and he verbalized understanding of that. Due to the preexisting nature of this injury and the lack of repair and now the frozen shoulder and significant restricted range of motion in this left shoulder, my recommendation for return to duty would be based on his job description as a sanitary worker level 1, would be that he have permanent limited use of this left arm until repair due to his restricted range of motion and the high likelihood that he will aggravate and re-injure this due to the physical nature of his job. This information is conveyed to Mr. Woods today and a copy of his work status and fitness for duty statement is given to him. All questions are answered.” Exhibit Ii — November 2, 2010 Medical Report from Norman Regional Occupational Medicine.

11. A fitness for duty hearing was held on November 16, 2010 regarding Plaintiffs desire to return to work. In order to determine Plaintiff’s fitness for duty, the November 2, 2010 medical report provided by Dr. Penwell was reviewed. At this meeting, Plaintiff reaffirmed his decision not to have his shoulder repaired. Because this choice made the hmited use of Plaintiff’s left arm permanent and because permanent limited use of Plaintiffs left arm precluded him from meeting the minimum physical requirements of his position, Plaintiff was separated from City employment effective November 16, 2010. Exhibit 12 — November 16, 2010 Letter to Jeff Woods. See also Exhibit 13 - December 1, 2010 Letter to Jeff Woods.

II. STANDARD OF REVIEW

“Summary process — a special pretrial procedural track pursued with the aid of acceptable probative substitutes — is a search for undisputed material facts which, sans forensic combat, may be utilized in the judicial decision-making process. Summary process is applied where neither the material facts nor any inferences that may be drawn from undisputed facts are in dispute, and the law favors the movant’s claim or liability-defeating defense. To that end, the court may consider, in addition to the pleadings, items such as depositions, affidavits, admissions, answers to interrogatories, as well as other evidentiary materials which are offered by the parties in acceptable form. Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nisi pius resort to summary adjudication.” Iglehart v. Board of County Com’rs of Rogers County, 2002 OK 76, ¶6, 60 P.3d 497, 501 (footnotes omitted).

“Oklahoma’s summary adjudication process is similar, but not identical, to that followed in the federal judicial system. In Oklahoma, the focus of summary process is not on facts a plaintiff might be able to prove at trial — i.e., the legal sufficiency of evidence that could be adduced, but rather on whether the evidentiary material, viewed as a whole, (a) shows undisputed facts on some or all material issues and whether such facts (b) support but a single inference that favors the movant’s quest for relief” Id. (footnotes omitted).

III. ARGUMENT AND AUTHORITY

PROPOSITION

THE CITY WAS NOT REQUIRED TO RETAIN PLAINTIFF.

Under the Oklahoma Workers Compensation Act, 85 O.S. § 1, et seq.,1 “[n]o employer may discharge ... any employee because the employee has in good faith: “[fjiled a claim; [r]etained a lawyer for representation regarding a claim; [i]nstituted or caused to be instituted any proceeding under the provisions of this act; [t]estified or is about to testify in any proceeding under the provisions of this act; or [e]lected to participate or not to participate in a certified workplace medical plan as provided in Section 14 of this title.” However, “[a]fter an employee’s period of temporary total disability has ended, no person, firm, partnership, corporation, or other entity shall be required to rehire or retain any employee who is determined to be physically unable to perform assigned duties.” 85 O.S. § 5(C). See also Keddington v. City of Bartlesville, 2002 OK CIV APP 31, ¶ 18, 42 P.3d 293, 297-98 (“once the employee’s lTD healing period has ended, and the employee is determined to suffer some permanent physical disability which prevents the discharge of assigned duties for the employer, the employer bears no § 5 liability for then terminating the employee under § 5(C).”).

In the case before this Court, the undisputed facts show that the City was not required to retain Plaintiff under 85 0.5. § 5(C). In particular, the undisputed facts show: (1) Plaintiff’s period of temporary total disability for the July 6, 2010 job related injury ended on July 15, 2010— i.e., Plaintiff returned to work; (2) Dr. Penwell determined that Plaintiff had “permanent limited use of this left arm until repair”; and (3) Plaintiff chose not to have his left shoulder repaired. These undisputed facts show that after Plaintiffs period of temporary total disability ended, it was determined that he was physically unable to perform his assigned duties. Under 85 O.S. § 5(C), the City was not required to retain Plaintiff Because the City was not required to retain Plaintiff under 85 OS. § 5(C), it cannot be held liable for separating him from employment. Because the City cannot be held liable for separating Plaintiff from employment, the law favors the City’s liability-defeating defense. Because the law favors the City’s liability defeating defense, this Court should grant summary judgment in favor of the City.

IV. CONCLUSION

WHEREFORE the above and foregoing, the City prays that this Court grant summary judgment in the City’s favor and award the City all other relief deemed just and equitable.

The motion was overruled.

The Pre-Trial Order provided in part:

2. General Statement of Facts:

Plaintiff Jeff E. Woods was employed as a Sanitation Worker with the City of Norman from 2007 until his termination in November 2010. During the course of Woods’ employment with City, he suffered multiple on-the-job injuries. Particularly, in July 2010, Woods suffered an on-the-job injury for which he instituted proceedings and filed a claim under the Workers’ Compensation Act. Woods was off of work for a brief period of time and then released by Dr. Kevin Penwell to return to work without any restrictions.

Later in 2010, Woods requested time off due to his on-the-job injury. City rejected Woods’ request, claiming the injury was not suffered on the job. City allowed Woods to take time off through its short-term disability policy. When Woods was ready to return to work, he presented City with a doctor’s note clearing him to return to duty with no restrictions. City required Woods to be re-evaluated by Dr. Penwell, who concluded, contrary to his earlier returnto-work authorization, that Woods could not return to work without restrictions. City held a Fitness for Duty hearing in November 2010 and ultimately terminated Woods’ employment.

3. Plaintiff’s Contentions:

A. List All Theories of Recovery and the Applicable Statutes, Ordinances, and Common Law Rules Relied Upon. Retaliatory discharge for good faith 85 O.S. § 5; common law institution of proceeding and filing a claim under Oklahoma Workers’ Compensation Act

B. List Damages or Relief Sought.

(i) For actual damages in a sum in excess of $75,000.00

(ii) For pre-judgment and post-judgment interest as allowed by law;

(iii) For his costs;

(iv) For such other and further relief as the Court deems just and proper.

4. Defendant’s Contentions:

The City denies that it discharged Plaintiff in retaliation for filing a workers’ compensation claim. Plaintiff was discharged from City employment after it was determined that he is physically unable to perform his assigned duties. See 85 O.S. § 5(C).

The City further contends that Plaintiff has failed to mitigate his damages. See Jones v. Eppler, 1953 OK 364, 266 P.2d 451, 455

Outcome: COMES NOW the Plaintiff in this matter, by and through his counsel of record, Scott F. Brockman of the firm Ward & Glass, L.L.P., and hereby dismiss his claims against the Defendant in the above-captioned cause WITH PREJUDICE to any future filings of the same action.

Plaintiff's Experts:

Defendant's Experts:

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