Date: 12-10-2013

Case Style: Chad Croom v. Hudsburg, Inc.

Case Number: CJ-2011-8603

Judge: Thomas E. Prince

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: E. Ed Bonzie and Robert William Haiges

Defendant's Attorney: J. Logan Johnson, Hilary Sullivan Allen, Jennifer K. Christian

Description: Chad Croom sued Hudsburg, Inc. on a wrongful termination theory claiming:

1. This action seeks declaratory, injunctive and equitable relief, actual, compensatory and punitive damages, and costs and attorneys’ fees for the tortious acts and discrimination suffered by Plaintiff in his employment with Defendant Hudiburg, Inc.

PARTIES

2. The Plaintiff is, and at all times hereinafter mentioned was, domiciled in, and a citizen of the State of Oklahoma.

3. Defendant corporation was, and is now, an Oklahoma Corporation, and employer of Plaintiff, which corporation engages in an industry affecting commerce, and employs more than fifteen (15) regular employees. Further, Defendant corporation was, and is now, an Oklahoma Corporation, duly licensed and existing under the laws of the State of Oklahoma, and is qualified to do, and was at all times hereinafter mentioned, transacting business in the City of Oklahoma City, State of Oklahoma.

FACTS COMMON TO ALL COUNTS

4. Plaintiff herein incorporates by reference all facts and allegations contained in his Petition.

5. Plaintiff was employed by Defendant corporation, and has been since May26, 2009.

6. Sometime between July 21, 2011, and August 2, 2011 while on medical treatment for work-related injuries, Plaintiff was terminated as an employee of the defendant.

7. The conduct of Defendant described above was in retaliation of, and motivated by Plaintiffs work-related injuries, and his disability.

8. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered, is suffering, and will continue to suffer, loss of employment and damages to her psychological wellbeing.

FIRST CAUSE OF ACTION

VIOLATION OF PUBLIC POLICY AND 85 O.S. 55 (ANTI-RETALIATION STATUTE)

9. For this, the first count of his Complaint, Plaintiff incorporates herein by reference all of the allegations heretofore made, and further alleges and states as follows:

10. Defendant corporation’s tennination of Plaintiff was performed in bad faith and is contrary to public policy founded in the State of Oklahoma’s Constitution, statutes, and case law. Specifically, Defendant’s conduct in terminating Plaintiff during the period of his temporary total disability of Ms workers compensation claim is in violation of the Oklahoma Anti-retaliation statute 25 O.S. § 5.

11. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered, is suffering, and will continue to suffer, loss of employment and damages to his psychological well-being.

12. Defendant’s conduct was malicious and in reckless disregard for Plaintiffs rights. Therefore Plaintiff is entitled to punitive damages.

SECOND CAUSE OF ACTION

BREACH OF EMPLOYMENT CONTRACT

13. For this, the second count of his Petition, Plaintiff incorporates herein by reference all of the allegations heretofore made, and further alleges and states as follows:

14. By failing to adhere to written provisions governing employment relations, as provided in the Defendant corporation’s personnel policy manual, which Plaintiff read and relied upon to his detriment, Defendant corporation has breached its express and implied contractual obligations to this Plaintiff.


15. As a direct and proximate result of Defendant corporation’s conduct, Plaintiff has suffered, is suffering, and will continue to suffer, loss of employment and damages to his psychological well-being.

16. Defendant corporation’s conduct was malicious and in reckless disregard for Plaintiffs rights. Therefore Plaintiff is entitled to punitive damages.

THIRD CAUSE OF ACTION

INTENTIONA± INFLICTION OF EMOTIONAL DISTRESS

17 For this, the third count of her Petition, Plaintiff incorporates herein by reference all of the allegations heretofore made, and further alleges and states as follows:

18. The conduct of Defendant, was performed in a manner outrageous in the extreme so that any reasonable person would have known that emotional distress would result. Defendant acted recklessly and is guilty of reckless disregard for the rights and feelings of Plaintiff, which, as a consequence, has caused Plaintiff severe emotional distress.

19. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered, is suffering, and will continue to suffer, loss of employment and damages to his psychological wellbeing.

20. Defendant’s conduct was malicious and in reckless disregard for Plaintiffs rights. Therefore Plaintiff is entitled to punitive damages.

FOURTH CAUSE OF ACTION

VIOLATION OF THE AMERICANS WITH DISABILITY ACT AND THE OKLAHOMA ANTI-HANDICAP ACT

21. For this, the fourth cause of action of her Petition, Plaintiff incorporates herein all the allegations heretofore made, and further alleges and states as follows:

22. The conduct of Defendant in tenninating Plaintiff from his position as a car salesman was in violation of the Oklahoma Anti- Handicap Act, 25 0.5. § 1301 (4), and the Americans with Disability Act, 42 U.s. §2000.

23. As a direct and proximate result of Defendant’s conduct Plaintiff has suffered, is suffering, and will continue to suffer, loss of employment and damages to his psychological well-being.

24. Defendant’s conduct was malicious, and in reckless disregard to Plaintiff’s rights. Therefore, Plaintiff is entitled to punitive damages.

WHEREFORE, Plaintiff prays for, and based on the above, is entitled to, a declaration that the conduct engaged in by Defendant was in violation of Plaintiffs rights; an injunction against Defendant from engaging in such conduct; restoration of Plaintiff to her rightful position, or, in lieu of reinstatement therein, an award to Plaintiff for equitable relief of back salary, front salary and fringe benefits; compensatory damages, including emotional distress, mental anguish, and humiliation; costs and expenses, including reasonable attorney’s fees, as provided by law; punitive damages, as provided for by applicable law; and for any such other legal or equitable relief this Honorable Court deems just and proper.

Defendant appeared and answered as follows:

1. It is admitted that Plaintiff is seeking the relief requested but Defendant denies that Plaintiff is entitled to the same and denies the substantive allegations of Plaintiff claimed within his Petition and within Paragraph 1 of Plaintiff’s Petition.

2. That Defendant admits the allegations contained in paragraph 2 of Plaintiffs Petition.

3. That Defendant admits the allegations contained in paragraph 3 of Plaintiffs Petition.

4. Defendant hereby adopts and incorporates by reference herein all material answers as contained in paragraphs 1 through 3 above as though fully set forth herein.

5. Denied as stated. Defendant employed Plaintiff beginning on or around December 20, 2010.

6. Denied as stated. Plaintiff was no longer on medical leave as of July 21, 2011, when his doctor released him back to work that day without restrictions. Plaintiff failed to report to work on this day or afterwards and then when advised to provide a medical note or medical documentation showing he was unable to return to work, Plaintiff failed to do so. Plaintiff was terminated on or around August 3, 2011, as a result of failing not to report to work or provide medical documentation as to why he could not return to work.

7. That Defendant denies the allegations contained in paragraph 7 of Plaintiffs Petition.

8. That Defendant denies the allegations contained in paragraph 8 of Plaintiff’s Petition.

9. Defendant hereby adopts and incorporate by reference herein all material answers as contained in paragraphs 1 through 8 above as though fully set forth herein.

10. That Defendant denies the allegations contained in paragraph 10 of Plaintiffs Petition.

11. That Defendant denies the allegations contained in paragraph 10 of Plaintiffs Petition.

12. That Defendant denies the allegations contained in paragraph 12 of Plaintiffs Petition.

13. Defendant hereby adopts and incorporate by reference herein all material answers as contained in paragraphs 1 through 12 above as though fully set forth herein.

14. Plaintiff was an at-will employee and there was no express or implied contractual obligations to Plaintiff

15. That Defendant denies the allegations contained in paragraph 15 of Plaintiffs Petition.

16. That Defendant denies the allegations contained in paragraph 16 of Plaintiffs Petition.

17. Defendant hereby adopts and incorporate by reference herein all material answers as contained in paragraphs 1 through 16 above as though fully set forth herein.

18. That Defendant denies the allegations contained in paragraph 18 of Plaintiffs Petition.

19, That Defendant denies the allegations contained in paragraph 19 of Plaintiffs Petition.

20. That Defendant denies the allegations contained in paragraph 20 of Plaintiffs Petition.

21. Defendant hereby adopts and incorporate by reference herein all material answers as contained in paragraphs 1 through 20 above as though fully set forth herein.

22.That Defendant denies the allegations contained in paragraph 22 of Plaintiffs Petition.

23. That Defendant denies the allegations contained in paragraph 23 of Plaintiffs Petition.

24. That Defendant denies the allegations contained in paragraph 24 of Plaintiffs Petition.

AFFIRMATIVE DEFENSES

1. Failure to state a claim upon which relief can be granted.

2. Plaintiff failed to exhaust his administrative remedies.

3. Defendant had a legitimate reason to terminate Plaintiff.

4. Plaintiff was an at-will employee.

5. Defendant had no implied or express employment contract with Plaintiff.

6. Plaintiff was not on temporary total disability at the time that Defendant terminated him.

7. Defendant denies generally and specifically Plaintiffs allegations.

8. As discovery is ongoing, Defendant reserves the right to supplement said response.

Hudsburg moved for summary judgment in its favor, stating the following, in part:

* * *

Plaintiff was employed at will with Hudiburg from approximately December 27, 2010 through approximately July 22, 2011. From December 27, 2010 through February 4, 2011, Plaintiff worked as a salesman in Hudiburg’s used car department, but elected to resign on February 4, 2011 due to his lack of sales. Prior to his resignation, Plaintiff submitted an internal application with Hudiburg for a position in its parts department. Approximately two weeks after his February 4,2011 resignation, 1-ludiburg offered Plaintiff a position in the receiving division of the parts department, which Plaintiff accepted and began his new position on February 14, 2011. On Friday, April 15, 2011, Plaintiff sustained an on the job injury while using improper techniques to remove a pallet from a truck. Plaintiff reported this injury to Hudiburg, who scheduled him for an appointment with a physician and Plaintiff received medical treatment for injuries to his shoulder, back, and leg on the same day. Plaintiffs physician placed him on medical restrictions of no lifting, pulling or pushing in excess often pounds.

The following Monday, April 18, 2011, Plaintiff returned to work at Hudiburg. Two days later, on April 20, 2011, Plaintiff decided to unload a truck containing parts that Plaintiff knew exceeded the weight limit set forth in his medical restriction. As a result, Plaintiff sustained an injury to his left arm. Plaintiff admits that no one at Hudiburg directed or told Plaintiff to unload parts from the truck in excess of ten pounds or otherwise to violate his medical restrictions. Nor did he ask for assistance from other employees. Plaintiff reported the injury to Hudiburg, who attempted to schedule him an appointment with a physician to no avail, so Plaintiff was permitted to go home. Plaintiff returned to work on April 21, 2011, and his supervisor assigned him the task of inventorying a pallet of parts. Plaintiff advised his supervisor that he believed this work would involve bending, twisting or stooping which were prohibited by his medical restrictions. Accordingly, Plaintiffs supervisor advised him that he could go home. This ultimately proved to be the last time Plaintiff reported to work at Hudiburg. Plaintiff thereafter filed a worker’s compensation claim and began receiving temporary total disability payments on or about April 29, 2011.

On July 21, 2011, Plaintiff’s physician released him to work full duty with no medical restrictions, thereby ending his temporary total disability status. However, Plaintiff did not report to work that day or on July 22, 2011. Plaintiff advised Hudiburg that he disagreed with the release by his physician and requested another position with the company. Hudiburg requested that Plaintiff provide documentation from his physician reflecting his medical status and restrictions. Plaintiff failed to do so and did not otherwise report back to work at Uudiburg. As such, Hudiburg sent Plaintiff a letter on August 3, 2011 - nearly two weeks after his period of temporary total disability had ended -advising Plaintiff that “Because you have decided not to return to work as designated by the physician, we accept your voluntary termination effective July 22, 2011.”

Plaintiffs Petition initially asserted causes of action for breach of contract and violations of the ADA and OAHA, both of which were dismissed by Agreed Order entered on April 27, 2012, and filed on May 18, 2012. Accordingly, Plaintiffs remaining causes of action include ongful termination in violation of 85 O.S. § 5 and intentional infliction of emotional distress. As the undisputed facts set forth below establish, Plaintiff cannot prevail on either of these claims as a matter of law and, therefore, summary judgment should be granted in favor of Hudiburg.

STATEMENT OF UNDISPUTED FACTS

1. Plaintiff was employed at will with Hudiburg from approximately December 27, 2010 through July 22, 2011. (Ex. A, Croom Depo. at 36.18-36.24; 220.1-220.6); Ex. B, Plaintiffs Response to Request for Admissions.)

2. Plaintiff worked in Hudiburg’s sales department from approximately December 27, 2010 until he voluntarily resigned on February 4, 2011. (Ex. A, Croom Depo. at 39.16-39.19; Ex. C, E-mail from Plaintiff to Marla Martin dated February 4,2011.)

3. Prior to his February 4, 2011 resignation, Plaintiff filled out an internal application for a position with Hudiburg’s parts department. (Ex. A, Croom Depo. at 40.7-40.15; Ex. D, Internal Application.) Two weeks later, Hudiburg offered Plaintiff a position in the receiving division of its parts department, which Plaintiff accepted and commenced on February 14, 2011. (Ex. A, Croom Depo. at 40.9-41.5; 43.15-43.18.)

4. In the interim, on February 3, 2011, Plaintiff began working part-time for H&H Gun Range (“H&H) from 5:00 p.m. to 9:30 p.m. on Monday, Wednesday, and Friday evenings and some Saturdays at an hourly wage of $7.25 per hour. (Ex. A, Croom Depo. at 15.22-17.1.)


5. While working in the parts department, Plaintiffs job duties included unloading parts off trucks and placing the parts where they needed to go in the warehouses. (Ex. A, Croom Depo at 78.15-79.1.)

6. Plaintiff worked in the parts department at Hudiburg Monday through Friday, from 6:00 am. to 3:00p.m. earning $8.00 per hour. (Ex. A, Croom Depo. at 16.15-16.19; 18.7-18.9.)

7. On Friday, April 15, 2011, Plaintiff injured his right shoulder, back and leg while unloading a pallet from a truck at Hudiburg. (Ex. A, Croom Depo. at 89.11-91.15.)

8. Typically, Plaintiff and the other employees in the parts department removed pallets from trucks using a forklift. (Ex. A, Croom Depo. at 90.3-90.5.) However, at the time of his injury, Plaintiff was attempting to manually pull the pallet off of the truck using straps. One of the straps came loose and caused Plaintiff to fall backwards, landing on his back. (Ex. A, Croom Depo. at 89.1 1-91.15.).

9. Following the accident, Plaintiff advised Hudiburg that he believed he needed to see a physician, and 1-ludiburg advised Plaintiff where to go to receive medical treatment. (Ex. A, Croom Depo. at 91.9-91.24.)

10. As a result of his injuries, Plaintiffs physician placed him on a medical restriction of no lifting, pushing, or pulling in excess of ten pounds. (Ex. A, Croom Depo. at 91.25-92.15; Ex. E, Progress Note dated April 15, 2011.)

11. On Monday, April 18, 2011, Plaintiff returned to work and provided the doctor’s note reflecting his work restrictions to Hudiburg. (Ex. A, Croom Depo. at 92.16-93.12.)

12. Five days following his April 15, 2011, injury, or April 20, 2011, Plaintiff arrived at work and began unloading a truck which Plaintiff knew contained items that weighed in excess of his ten pound weight restriction. (Ex. A, Croom Depo. at 93.16-97.81.) As a result, Plaintiff injured his left arm. (Ex. A, Croom Depo. at 107.3-107.18.)

13. Plaintiffs supervisor had not yet arrived at work on the morning of April 20, 2011 when Plaintiff sustained the injury to his left arm. No one at I-ludiburg instructed Plaintiff to unload the truck or violate his medical restrictions. (Ex. A, Croom Depo. at 95.2 -95.14; 97.24- 98.4.) Prior to his April 20, 2011 injury, Plaintiff never advised anyone at Hudiburg that he would not be able to perform at least some of his job functions within his medical restrictions. (Ex. A, Croom Depo. at 101.10-102.12.)

14. Plaintiff left work and went home following the April 20, 2011 incident. He reported back to work the next day, April 21, 2011, and was assigned the task of inventorying a pallet of parts. He advised his supervisor that this work did not fall within his medical restrictions of no bending, twisting or stooping and therefore Plaintiff was permitted to go home. (Ex. A, Croom Depo. at 119.10-119.15.)

15. On April 22,2011, Plaintiff emailed a letter to Hudiburg’s human resource department in the form of complaint regarding “problems [he had] encountered at 1-ludiburg as a whole.” The letter included allegations that occurred both during Plaintiffs employment with Hudiburg as a used car salesman as well as his work in the parts department. While in sales and prior to his on- the-job injury, Plaintiff claimed as follows: a. Plaintiff felt uncomfortable with the position that Hudiburg had taken with regard to a potential upside down vehicle trade-in;

b. Plaintiff felt that Hudiburg made misrepresentations to customers relating to the net profit of the dealership following vehicle sales;

c. Plaintiff believed the used car managers would report a higher price for a vehicle than that given to other salesmen;

d. Plaintiff felt that the used car managers would ignore him and his customers and address the needs of other salesmen first;

e. Plaintiff believed that there was a practice called “breaking” occurring at the dealership that was directed towards new employees and customers as ajoke;

I Plaintiff felt that Hudiburg was more interested in obtaining a doctor’s note from an employee who had just returned from a stay in the hospital than about that employee was doing;

g. Plaintiff believed that some salesman had access to manager leads from the internet and phone and that those leads were not fairly distributed between the salesmen;

h. Plaintiff felt that he was reprimanded for not following sale procedures but witnessed other employees do or fail to do the same thing and not get in trouble;

i. Plaintiff did not like that certain salesmen told inappropriate jokes and dipped tobacco quite often;’

j. Plaintiff felt he was singled out in being asked where he has been when he left the sales floor for his lunch break;

k. Plaintiff walked in on a new car manager looking at what he believed to be porn; With regard to complaints during his employment in the parts department, Plaintiff claimed as follows:

a. Plaintiff felt it was odd that he would not receive a raise after 90 days in his new position in the parts department;

b. Plaintiff felt uncomfortable that his supervisor’s wife and other relatives also worked at Hudiburg and that one time he witnessed his supervisor kiss his wife during working hours;

c. Plaintiff did not like that his supervisor in the parts department has friendships with certain employees outside of the dealership;

d. Plaintiff did not like how another employee, Craig, was treated at Hudiburg;

e. Plaintiff did not like how his co-worker, Kathy, was treated following her injury at Hudiburg;

I Plaintiff did not like that employees that smoke get more frequent breaks than nonsmoker employees like himself;

g. Plaintiff felt that he was underpaid for his job in the parts department; and,

h. Plaintiff did not like how his supervisor acted following his April 15, 2011, and April 20, 2011 injuries, including referring to the receiving department as the “handicap department,”2 (Ex. A, Croom Depo, at 47.17-69.14; 73.23-76.10; 88.7-88.20; 115.14-1 17.24; 202.21-239.20; Ex. F, Letter dated April 22, 2011.)

16. On April 25, 2011, Plaintiff reported to his physician that “he went back to work and there was a truck to unload and there was no one else to do it, so he did it, knowing that he had a 10 pound restriction, even though some of the items weighed over 50 pounds and he pushed and pulled them and claims he injured his left shoulder.” Plaintiff was given the “[sjame work restrictions of 10 pounds. No lifting, pushing, pulling over 10 pounds. No repetitive bending, twisting, stooping. No duties over the should with the right arm and no reaching with the right arm.” (Ex. 0, Progress Note dated April 25, 2011 and Return to Work Status Report.) 17. Plaintiff was placed on temporary total disability as of April 29, 2011. (Ex. H, Form 10.)

18. On May 10, 2011, Plaintiff’s physician expanded his medical restriction to no lifting, pushing, or pulling over twenty-five pounds and no repetitive duties above shoulder level. (Ex. I, Return to Work Status Report dated 5/10/2011.)

19. On July 21, 2011, Plaintiffs physician released him to work full duty without any restrictions, thereby ending his period of temporary total disability. (Ex. A, Croom Depo. at 151.22-152.7; Ex. J, Workers Compensation Progress Report dated July21, 2011; Ex. K, Form 5, Physician’s Report on Release and Restrictions.)

20. Although he was released without any restrictions, Plaintiff did not show up to work on July 22, 2011 or any time thereafter. (Ex. A, Croom Depo. at 140.17-140.19; 160.8-161 .6.)

21. On July 22, 2011, l-Iudiburg sent Plaintiff a letter advising of its receipt of notice that Plaintiff was released to return to work on July 21, 2011, and that his failure to report to work constituted a voluntary termination. (Ex. L, Letter dated July 22, 2011.)

22. In response, on July 23, 2011, Plaintiff sent Hudiburg a letter via e-mail claiming that although his doctor had released him to return to work, he disagreed with the doctor’s opinion and indicated that he would “come back to work if it is a job that is not interactive with the parts department or Tim. And will still allow me to work weekends and one evening at FI&H.” (Ex. M, Letter dated July 23, 2011.)

23. On July 29, 2011, Hudiburg responded to Plaintiff’s email, advising him that in order to consider him for any other positions, Hudiburg would need something from his doctor stating his limitations. Hudiburg further advised Croom that the workers compensation carrier had tried to contact him several times but had gotten no answer and requested that Plaintiff contact his care manager. (Ex. N, E-mail dated July 29, 2011 from Maria Martin to Chad Croom.)

24. On August 3, 2011, Fludiburg sent Plaintiff a letter informing him that it had not received any information from his physician regarding a change in his condition or any limitations. The letter further advised Plaintiff that Hudiburg had previously requested that Plaintiff contact his care manager so that they could evaluate his current status, but that, as of August 2, 2011, he had not contacted his care manager. (Ex. 0, Letter dated August 3, 2011 from Maria Martin to Chad Croom.) As such, Hudiburg informed Plaintiff that “Because you have decided not to return to work as designated by the physician, we accept your voluntary termination effective July 22, 2011.” (Ex. 0, Letter dated August 3, 2011 from Marla Martin to Chad Croom.)

25. Hudiburg completed a Termination Report on August 8, 2011, with an effective date of July 22, 2011, noting the type of separation to be “Resignation” and the reason for the separation to be “did not come back to work after doctor full release.” (Ex. P, Termination Report.)

26. Following his departure from Hudiburg in July 2011, Plaintiff started working at H&H as a hill-time range associate earning a salary of $1,500 per month plus one percent commission on gross sales, which amounted to an average of $300 to $350 per month in commissions. (Ex. A, Croom Depo. at 17.10-17.6; 24.18-24.21.) In July 2011, Plaintiff was earning more as a full-time associate at H&H than he was making working at Hudiburg. (Ex. A, Croom Depo. at 25.16- 25.2 1.)

27. By the end of 2011, Plaintiff had received a pay increase from H&H of $1,600 per month and ninety days thereafter received another pay increase to $1,800 per month. In addition to this salary, Plaintiff received a one percent commission on sales and was earning approximately $1,000 to $2,000 per month teaching Self-Defense Act classes and private firearms instruction. (Ex. A, CroomDepo. at 19.14-22.2; 27.20-28.2; 30.23-31.7.)

28. Plaintiff was terminated from H&H on January 9, 2013 due to absences and attitude. (Ex. A, Croom Depo. at 31.8-31.20.)

29. As of the date of his deposition on July 16, 2013, Plaintiff testified that he presently has work restrictions of “No more than 25 pounds, pushing, pulling, or lifting.” (Ex. A, Croom Depo. at 10.2-10.14.)

30. Plaintiff testified that he believes that his medical restrictions of not lifting, pushing, or pulling in excess of twenty-five pounds would have prevented Plaintiff from returning to his position in the receiving department at any time between April 20, 2011 through the present. (Ex. A, Croom Depo. at 12.5-13.7; 123.3-123.22; 139.5-139.13.)

31. Plaintiff is not aware of any job that he could have performed with his medical restrictions at Hudiburg from April 20, 2011 through the present. (Ex. A, Croom Depo. at 243.24- 244.7.)

ARGUMENT AND AUTHORITIES

STANDARD OF REVIEW

Pursuant to Rule 13 of the Rules for District Courts, summary judgment is appropriate where there is no substantial controversy as to any material fact and the prevailing party is entitled to judgment as a matter of law. Rule 13(a) of the Rules for District Courts; Brown v. Alliance Real Estate Group, 1999 OK 7, ¶7, 976 P.2d 1043. A material fact is one that “might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). If the party who bears the burden of proof at trial lacks sufficient evidence on an essential element of a claim, all other factual issues concerning the claim are immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the movant demonstrates the absence of a dispute of material fact warranting summary judgment, the non-moving party must then go beyond the pleadings and set forth specific facts that would be admissible in evidence and that present a genuine issue for trial. See Rule 13(b) of the Rules for District Courts; Anderson. 477 U.s. at 248. “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.” Celotex, 477 U.S. at 317. PROPOSITION I

* * *

In order to establish aprimafacie case of retaliation under 85 OS. § 5, now recodified at 85 O.S. § 341, a discharged employee has the burden to establish: 1) employment; 2) on the job injury; 3) receipt of treatment under circumstances which put the employer on notice that treatment had been rendered for a work-related injury, or that the employee in good faith instituted, or caused to be instituted, proceedings under the Workers Compensation Act (now the Workers Compensation Code), and 4) consequent termination of employment. Buckner v. Gen. Motors Corp., 1988 OK 73, ¶ 9, 760 P,2d 803, 806. If established, the employer may rebut the employee’s prima fade case by proffering relevant and credible evidence of a legitimate non- retaliatory reason for the discharge. M. The employer need not persuade the court that it was actually motivated by the proferred reasons, but only needs to produce relevant and credible evidence of its legitimate non-retaliatory reason for discharging the employee. Id. The employee may then demonstrate that the reason offered by the employer for terminating him was pretextual.

a at ¶ 10. The burden of proof remains at all times with the employee. Johnson v. St. Simeon’s Episcopal Home. Inc., 2012 OK CIV APP 6, ¶ 7,270 P.3d 197.

A. Plaintiff Cannot Establish A Prima Facie Case of Retaliation.

Paragraph 10 of Plaintiffs Petition alleges as follows:

Defendant corporation’s termination of Plaintiff was performed in bad faith and is contrary to public policy founded in the State of Oklahoma’s Constitution, statutes, and case law. Specifically, Defendant’s conduct in terminating Plaintiff during the period of his temporary total disability of his workers compensation claim is in violation of the Oklahoma Anti-retaliation statute 25[sic] O.S. § 5. (See Petition at ¶10.)

Based upon Plaintiffs Petition, it appears that Plaintiff alleges that Hudiburg violated Okla. Stat. tit. 85, § 5(B), which prohibits an employer from discharging an employee “during a period of temporary total disability solely on the basis of absence from work.” The undisputed facts in this case, however, establish that Plaintiff forfeited his employment with Hudiburg on July 22, 2011, by failing to return to work after being released without any restrictions by his physician on July 21, 2011. It is therefore undisputed that Plaintiffs period of temporary total disability ended on July 21, 2011. Accordingly, at the time Hudiburg notified Plaintiff of his voluntary termination by letter on August 3, 2011, Plaintiff was neither entitled to receive nor was he actually receiving temporary total disability payments. Thus, Plaintiff was clearly not discharged “during a period of temporary total disability” in violation of OkIa. Stat. tit. 85, § 5(B).

Further, OkIa. Stat. tit. 85, § 5(C) provides that “[a]fter an employee’s period of temporary total disability has ended”, the employer is p “required to rehire or retain any employee who is determined to be physically unable to perform assigned duties. The failure of an employer to rehire or retain any such employee shall in no manner be deemed a violation of this section.” While it is undisputed that Plaintiffs physician released him to full duty with no restrictions as of July 21, 2011, Plaintiff apparently disagreed with this opinion, believing instead that he was not capable of lifting, pulling, or pushing in excess of twenty-five pounds. However, even assuming, without conceding, that Plaintiffs position with regard to the limitation of his physical capabilities as of July 21, 2011 is accurate, it is undisputed that, according to Plaintiff himself, he was not physically able to perform the duties required of his position in the parts department at Hudiburg.

Similarly, Plaintiff cannot establish that his voluntary termination was the consequence of his worker’s compensation claim. To show “consequent termination,” a plaintiff must produce evidence that gives rise to “a legal inference [that] the discharge was significantly motivated by retaliation for exercising one’s statutory rights.” Wallace v. Halliburton Co., 1993 OK 24, fl 6,11, 850 P.2d 1056, 1058. While not required to meet a “but for” standard of causation, Plaintiff must present “evidence [thati do[esl more than show that the filing of the claim was only one of many possible factors resulting in his discharge.” jj at ¶ 10; Blackwell v. Shelter Mut. Ins. Co., 109 F.3d 1550, 1554 (10th Cir. 1997). Here, it is clear that the reason for Plaintiffs release from employment with 1-Iudiburg was not the fact that he had instituted a workers compensation claim, but rather that he failed to report to work for nearly two weeks after being released by his physician to return to work full duty and neglected to provide any documentation to support his claim that his restrictions should continue, despite multiple requests therefor, legitimate, non- retaliatory reasons.

In addition, while Plaintiffs period of temporary total disability had expired on July 21, 2011, Plaintiff admits that his medical restrictions to this day prohibit him from performing the work required at Hudiburg. In fact, when asked, Plaintiff could not name a single position at Hudiburg that he would be capable of performing due to his medical restrictions from April 20, 2011, to the present. Therefore, pursuant to Section 5(C), Defendant was under no obligation to retain Plaintiff and, as such, Defendant cannot be held liable for a violation of Okla. Stat. tit. 85, § 5W). See Keddington v. City of Bartlesville, 2002 OK CIV APP 31, ¶ 20, 42 P.3d 293; Cooper v. Ctrl. & Sw. Svcs., 271 F.3d 1247 (10th Cir. 2001).

B. Plaintiff Has Offered No Evidence that Plaintiffs Reason for His Release from Emnloyment Was Pretextual.

In order to avoid sunmary judgment, Plaintiff must demonstrate that a genuine issue of material fact exists as to whether (1) Defendant’s decision to terminate Plaintiff was significantly motivated by retaliation against Plaintiff instituting a workers’ compensation claim, or (2) that Defendants’ proffered explanation is unworthy of belief. Johnson v. St. Simeon’s Episcopal Home. Inc., 2012 OK CIV APP 6, ¶12, 270 P.3d 197. To do so, a plaintiff must show that Defendant’s reason has “such weaknesses, implausibilities, inconsistencies, ineoherencies, or contradictions. . . that a reasonable factfinder could rationally find them unworthy of credence....” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). However, “mere conjecture” that the employer’s explanation is pretextual is not a sufficient basis to deny a motion for summary judgment. Id.

Here, Plaintiff admits that he was released to return full duty to Hudiburg on July 21,2011, without any medical restrictions. Plaintiff further admits that although he personally disagreed with his physician as to his ability to return to work, Plaintiff never provided Hudiburg any documentation to support this claim nor did he ever report back to work at Hudiburg after April 21, 2011. Both Hudiburg’ s letter of August 3, 2011, and the termination report filled out by Hudiburg cited these reasons for Plaintiffs release of employment. Accordingly, the undisputed facts in this case establish that the basis for Hudiburg’s decision to release Plaintiff from employment was his failure to return to work, a legitimate, non-retaliatory, and non-pretextual reason. As such, summary judgment on Plaintiffs retaliation claim pursuant to 85 O.S. § 5 should be granted in favor of Hudiburg.

PROPOSITION III

PLAINTIFF’S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM FAILS AS A MATTER OF LAW

To prevail on his claim of intentional infliction of emotional distress, Plaintiff must establish each of the following elements: 1) Hudiburg acted intentionally or recklessly; 2) I-Iudiburg’s conduct was extreme and outrageous; 3) Hudiburg’s conduct caused Plaintiff emotional distress; and 4) Plaintiffs emotional distress was severe. See Breeden v. Leauue Services Corp., 1978 OK 27, ¶ 7, 575 P.2d 1374 (citing Restatement of Torts (Second), § 46); Anderson v. OkIa. Temporary Servs,, Inc., 1996 OK CIV APP 90, ¶ 2, 925 P.2d 574. In Breeden, the Oklahoma Supreme Court adopted a “two-tiered adjudicatory process” with regard to intentional infliction of emotional distress claims:

The court, in the first instance, must determine whether the defendant’s conduct may reasonably be regarded so extreme and outrageous as to permit recovery or whether it is necessarily so. Where, under the facts before the court, reasonable persons could differ, it is for the jury, subject to the control of the court, to determine whether the conduct in any given case has been significantly extreme and outrageous to result in liability. Likewise, it is for the court to determine, in the first instaRce, whether based on the evidence presented, severe emotional distress can be found. It is for the jury to determine whether, on the evidence, severe emotional distress in fact existed.

Breeden, 575 P.2d at 1377; Anderson, 1996 OK CIV APP 90, at ¶ 6 (emphasis added.) See also Eddy v. Brown, 715 P.2d 74 (“It is the trial court’s responsibility initially to determine whether the defendant’s conduct may reasonably be regarded as sufficiently extreme and outrageous to meet the § 46 standards. Only when it is found that reasonable men would differ in an assessment of this critical issue may the tort-of-outrage claim be submitted to a jury.”) Accordingly, “[t]o ensure that only valid claims reach a jury, the trial court must initially act as a gatekeeper to determine if an alleged tortfeasor’s conduct is sufficiently extreme and outrageous and if the plaintiff suffered several emotional distress.” Warren v. United States Specialty Sports Ass’n, 2006 OK CIV APP 78, ¶ 22, 138 P.3d 580. In Eddy, the Oklahoma Supreme Court upheld summary judgment in favor of an employer. The Court found that, despite evidence that the employer ridiculed the employee for collecting grievances and missing certain test requirements on a project, denied him vacation time following his return from sick leave, told the employee that, although he was overqualified for his position, he would never advance in his job, required the employee to read something out loud and mimicked him when the employer representatives knew the employee’s speech had been impaired as a result of post-surgery medication and multiple other similar complaints, that these actions were not sufficient to support an intentional infliction of emotional distress claim so as to meet the standards of extreme and outrageous conduct. Eddy, 715 P.2d at 76. In so holding, the Court reasoned as follows:

Liability for the tort of outrage does not extend “to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.. .“ Not every abusive outburst or offensive verbal encounter may be converted into a tort; on the contrary, it would be indeed unfortunate if the law were to close all the safety valves through which irascible tempers might legally blow off steam. The outrageous and extreme nature of the conduct to be examined should not be considered in a sterile setting, detached from the milieu in which it took place. The salon of Madame Pompadour is not to be likened to the rough-and- tumble atmosphere of the American oil refinery. ‘There is a difference between violent and vile profanity addressed to a lady, and the same language to a Butte miner and a United States marine.’ Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874, 887 [1939]. 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. Id. at77.

When confronted with a similar claim of intentional infliction of emotional distress against an employer, the Oklahoma Court of Civil Appeals, in Miner v. Mid-America Door Co., 2003 OK CIV APP 32, ¶ 42, 68 P.3d 212, noted: In recent years, Oklahoma courts have examined a variety of conduct claimed to be outrageous. To borrow a phrase from the Court of Civil Appeals’ recent decision in Gabler v. Holder & Smith, Inc., 2000 OK CIV APP 107, ¶ 64, 11 P.3d 1269, 1280, however, “[o]ur appellate courts have consistently found employment related facts similar to those here do not meet the [Restatement’sl § 46 criteria.” Id. Examples of conduct that was not sufficiently outrageous to meet the standard include: Eddy v. Brown, 1986 OK 3, 715 P.2d 74, involving a supervisor and foreman ridiculing the plaintiff in the workplace; Anderson v. OkIa. Temp. Sews., Inc., 1996 OK CIV APP 90, 925 P.2d 574, involving six events over a two-year period that included a supervisor making lewd remarks about the plaintiff and embarrassing her by discussing her faults with co-workers; and Mirzaie v. Smith Cogeneration. Inc., 1998 OK CIV APP 123, 962 P.2d 678, involving conduct that included an employer calling the plaintiff in the middle of the night and browbeating him for hours, requiring him to do unnecessary work, and making derogatory sexual comments about the plaintiffs fiancee. In all these cases, the reviewing court determined the conduct was no sufficiently outrageous to hold the defendants liable under the tort.

Miner v. Mid-Am. Door Co., 2003 OK CIV APP 32, ¶ 42, 68 P.3d 212. Likewise, the conduct for which Plaintiff complains of in this litigation does not rise to the level of extreme or outrageous as required to support his claim of intentional infliction of emotional distress. Plaintiff made no complaint at Hudiburg regarding any alleged inappropriate conduct or improper or unfair treatment until April 22, 2011, when he submitted a letter to Hudiburg’s human resources department complaining that:

1. Plaintiff felt uncomfortable with the position that Hudiburg had taken with regard to a potential upside down vehicle trade-in;

2. Plaintiff felt that 1-ludiburg made misrepresentations to customers relating to the net profit of the dealership following vehicle sales;

3. Plaintiff believed the used car managers would report a higher price for a vehicle than that given to other salesmen;

4. Plaintiff felt that the used car managers would ignore him and his customers and address the needs of other salesmen first;

5. Plaintiff believed that there was a practice called “breaking” occurring at the dealership that was directed towards new employees and customers as a joke;

6. Plaintiff felt that Hudiburg was more interested in obtaining a doctor’s note from an employee who had just retumed from a stay in the hospital than about that employee was doing;

7. Plaintiff believed that some salesman had access to manager leads from the internet and phone and that those leads were not fairly distributed between the salesmen;

8. Plaintiff felt that he was reprimanded for not following sale procedures but witnessed other employees do or fail to do the same thing and not get in trouble;

9. Plaintiff did not like that certain salesmen told inappropriate jokes and dipped tobacco quite often;

10. Plaintiff felt he was singled out in being asked where he has been when he left the sales floor for his lunch break;

11. Plaintiff walked in on a new car manager looking at what he believed to be porn;

12. Plaintiff felt it was odd that he would not receive a raise after 90 days in his new position in the parts department;

13. Plaintiff felt uncomfortable that his supervisor’s wife and other relatives also worked at Hudiburg and that one time he witnessed his supervisor kiss his wife during working hours;

14. Plaintiff did not like that his supervisor in the parts department has friendships with certain employees outside of the dealership;

15. Plaintiff did not like how another employee, Craig, was treated at Hudiburg;

16. Plaintiff did not like how his co-worker, Kathy, was treated following her injury at Hudiburg;

17. Plaintiff did not like that employees that smoke get more frequent breaks than nonsmoker employees like himself;

18. Plaintiff felt that he was underpaid for his job in the parts department; and,

19. Plaintiff did not like how his supervisor acted following his April 15, 2011, and April

20, 2011 injuries, including an alleged reference to the receiving department as the “handicapped department”. Under the standards enunciated by the Oklahoma courts in Breeden, Eddy, Anderson, Mirzaie, Gable, and Miner, the conduct of which Plaintiffs complains in this litigation - even if accepted as true - does not rise to the level of extreme and outrageous conduct required to support a claim of intentional infliction of emotional distress. In fact, in large part, much of the alleged conduct involves actions directed towards Plaintiffs co-workers, not Plaintiff himself. Further, while Plaintiff perceives that at times he was not treated fairly, was uncomfortable after witnessing his supervisor kissing the supervisor’s own wife, spoken to harshly, not compensated fairly and the like, at worst this type of purported conduct falls squarely within the “mere insults, indignities, threats, annoyances, petty oppressions or other trivialities” Oklahoma courts consistently recognize as not actionable as a matter of law. As such, Plaintiffs intentional infliction of emotional distress claim must be summarily denied.

PROPOSITION IV

PLAINTIFF’S DAMAGES CLAIM FOR LOST WAGES FAILS AS A MATTER OF LAW

With regard to both his retaliation claim pursuant to 85 O.S. § 5 and his intentional infliction of emotional distress claim, Plaintiff seeks damages in the form of back wages as a result of his release from employment with Hudiburg. However, it is undisputed that immediately upon termination of his employment with Hudiburg, Plaintiff began working full-time at H&H, earning $1,500 per month plus a one percent sales commission of $300 to $350 per month. Plaintiff himself admits that he earned more working at H&H upon his release from Hudiburg than he did working full time at Hudiburg and part-time at H&H:

Q: So in July of 2011, with your salary of 1,500, plus your 1 percent commissions, you were making more as a full-time associate at H&H than you were making doing part-time at H&H and part-time at Hudiburg, correct?

A: Correct.

(Ex. A, Croom Depo. at 25.16-25.21.)

Further, Plaintiff was terminated by H&H on January 9, 2013, due to absences and attitude. Such termination of subsequent employment tolls the back pay period for which Plaintiff can seek damages from Hudiburg. See Brady v. Thurston Motor Lines. Inc., 753 F.2d 1269, 1278- 79 (holding that “[tb permit claimants the freedom of substantially unrestrained conduct during interim employment, unfettered by the loss of back pay, would serve only to punish the employer for the misconduct of the claimant, and be inconsistent with the requirement of exercising reasonable diligence.”) Accordingly, Plaintiff should be wholly barred from recovering back wages as a result of the termination of his employment with Hudiburg.

CONCLUSION

Plaintiff cannot establish a claim of retaliation pursuant to Okla. Stat. tit. 85, § 5 because 1) he was not terminated during a period of temporary total disability solely on the basis of his absence from work; 2) Plaintiff himself admits that, to this day, he does not believe he is capable of physically performing his assigned job duties at Hudiburg; and 3) Hudiburg released Plaintiff based upon a legitimate, non-retaliatory, non-pretextual reason, i.e. Plaintiffs failure to report back to work following his release from his medical restrictions. Further, Plaintiffs claim of lost wages fails as a matter of law as he earned more compensation following his release from Hudiburg and his subsequent employment terminated based upon his own misconduct.

For these reasons, Defendant Hudiburg respectfully requests this Court grant this Motion for Summary Judgment and for such other and ffirther relief the Court deems Defendant entitled in the premises.

Outcome: NOW on this 1h day of November, 2013, Defendant Hudiburg’s Motion for Summary Judgment comes on before the undersigned Judge of the District Court. The Court having reviewed the pleadings and hearing arguments and being fully advised of the premises finds that Defendant’s Motion for Summary Judgment should be granted and finds that judgment should be entered in favor of Defendant Hudiburg.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant’s Motion for Summary Judgment is sustained and judgment is entered in favor of Defendant Hudiburg.

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