Date: 10-27-2013

Case Style: Maria Lokey Tackett v. Henry Huhges II Corporation d/b/a Full Moon Cafe

Case Number: CJ-2012-4415

Judge: Carlos Chappelle

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney:

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Defendant's Attorney: James E. Weger and Bradley Joseph Brown

Description: Maria Lokey Tackett sued Henry Huhges II Corporation d/b/a Full Moon Cafe on a wrongful termination theory claiming:

1. Plaintiff is a resident of Tulsa County, Oklahoma.

2. The Defendant is a domestic corporation doing business in Tulsa County,
Oklahoma.

3. The acts and injuries that give rise to this action occurred in Tulsa County,
Oklahoma.

4. This Court has jurisdiction and venue is proper in Tulsa County,
Oklahoma.

STATEMENT OF FACTS

5. Paragraphs 1-4 are incorporated herein by reference.

6. Plaintiff sustained an accidental injury arising out of and in the coifirse of
her employment while working for and employed by Defendant,

7. Plaintiff notified her supervisor of this injury and sought medical
treatment.

8. Plaintiff filed a workers compensation claim as a result of her injury.

9. Plaintiff was subsequently discriminated against and terminated frm her
position of employment with Defendant on or about March 27, 2012.

CAUSE OF ACTION

COUNT I

WRONGFUL TERMINATION

10. Paragraphs 1-9 are incorporated herein by reference.

11. Plaintiff sustained an accidental injury arising out of and in the course of
her employment while working for Defendant.

12. Defendant subsequently discrithinated against Plaintiff and terminated her
from her position of employment for exercising the rights afforded to her under
the Oklahoma Workers’ Compensation Act, OKLA. STAT. Tit. 85, § 1 et seq.

13. The discrimination against and termination of Plaintiff was in direct
violation of Oklahoma law. More specifically, said policy and act of termination
violates the Oklahoma Workers’ Compensation Act, OKLA. STAT. Tit. 85 § 5.

14. As a result of this wrongful termination, Plaintiff has suffered
considerable damages including, but not limited to loss wages and other actual
damages in excess of $75,000.00.

COUNT II

PUNITIVE DAMAGES

15. Paragraphs 1-14 are incorporated herein by reference.

16. Defendant acted in reckless disregard of the rights of Plaintiff and all
employees. Furthermore, by enacting and implementing an employment policy in
such violation of the Oklahoma Workers’ Compensation Act, Defendant acted
intentionally and with malice towards others.

17. This conduct was conducted with full knowledge where the Defendant
knew, or should have known, of the severe adverse consequences of their actions
upon Plaintiff and all other employees of Defendant.

18. Such a policy was not only detrimental to Plaintiff, but detrimental to the
public in general, and punitive damages are appropriate under OKLA. STAT. Tit.
85, § 6.

WHEREFORE, based on the foregoing, Plaintiff prays that this Court grant her the relief sought including, but not limited to, actual damages in excess of Seventy-Five Thousand Dollars ($75,000.00), punitive damages in excess of Seventy-Five Thousand Dollars ($75,000.00), with interest accruing from date of filing of suit, reasonable attorncys fees, and aH other relief which is deemed appropriate by this Court.

Defendant appeared and moved to dismiss, asserting:

1 Plaintiff filed the Petition on August 21, 2012 See Petition at ¶ 1.

2 Plaintiff purports to state a claim for wrongful termination against jefendt See
Petition at ¶J 10-14

3. Plaintiff purports to state a claim for punitive damages arising out of thlleged wrongful termination against Defendant. See Petition at ¶J 15-18.

4. As the basis of her claims, Plaintiff cites authorities that were repealed by the Oklahoma Legislature in 2011. See Petition at ¶J12-13, and 18; Okla. Stat. Tit. 85 § 1 et seq., Okla. Stat. Tit. 85 § 5 and Okia. Stat. Tit. 85, § 6.

ARGUMENT AND AUTHORITIES

Plaintiff’s Petition must be dismissed as a matter of law for failure to state a claim upon which relief can be granted. Pursuant to Okla. Stat. Ann. tit. 12, § 2012(B)(6), a party may assert through a motion the defense of a failure to state a claim upon which relief can be granted:

B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

6. Failure to state a claim upon which relief can be granted; Okia. Stat. Ann. tit. 12, § 2012 (West)

In the case at bar, Plaintiff asserts as authority for her claims in the Petition, Okia. Stat. Tit. 85 § 1 et seq., Okia. Stat. Tit. 85 § 5 and Okla. Stat. Tit. 85, § 6. These specific statutes were repealed by the Oklahoma legislature in 2011. There being no statutory basis under the cited authorities for this action in the Petition, Defendant’s Motion To Dismiss For Failure To State A Claim must be granted as a matter of law.

WHEREFORE, premises considered, the Defendant requests that this Court grant its Motion To Dismiss for Failure To State A Claim, award the Defendant its attorney’s fees, costs of the action, and for such other and further relief that the Court deems just and proper in the premises.

Plaintiff responded by amending her Petition, as follows:

1. Plaintiff is a resident of Tulsa County, Oklahoma.

2. The Defendant is a domestic corporation doing business in Tulsa County,
Oklahoma.

3. The acts and injuries that give rise to this action occurred in Tulsa County,
Oklahoma.

4. This Court has jurisdiction and venue is proper in Tulsa County,
Oklahoma.

STATEMENT OF FACTS

5. Paragraphs 1-4 are incorporated herein by reference.

6. Plaintiff sustained an accidental injury arising out of and in the course of
her employment while working for and employed by Defendant.

7. Plaintiff notified her supervisor of this injury and sought medical
treatment.

8. Plaintiff filed a workers compensation claim as a result of her injury.

9. Plaintiff was subsequently discriminated against and terminated from her
position of employment with Defendant on or about March 27, 2012.

CAUSE OF ACTION

COUNT I

WRONGFUL TERMINATION

10. Paragraphs 1-9 are incorporated herein by reference.

11. Plaintiff sustained an accidental injury arising out of and in the course of
her employment while working for Defendant.

12. Defendant subsequently discriminated against Plaintiff and terminated her
from her position of employment for exercising the rights afforded to her under
the Oklahoma Workers’ Compensation Code, OKLA. STAT. Tit. 85, § 301 et
seq.

13. The discrimination against and termination of Plaintiff was in direct
violation of Oklahoma law. More specifically, said policy and act of termination
violates the Oklahoma Workers’ Compensation Code, OKLA. STAT. Tit. 85, §
341.

14. As a result of this wrongful termination, Plaintiff has suffered considerable damages including, but not limited to loss wages and other actual damages in excess of $75,000.00.

COUNT II

PUNITIVE DAMAGES

15. Paragraphs 1-14 are incorporated herein by reference.

16. Defendant acted in reckless disregard of the rights of Plaintiff and all
employees. Furthermore, by enacting and implementing an employment policy in
such violation of the Oklahoma Workers’ Compensation Code, Defendant acted
intentionally and with malice towards others.

17. This conduct was conducted with full knowledge where the Defendant
knew, or should have known, of the severe adverse consequences of their actions
upon Plaintiff and all other employees of Defendant.

18. Such a policy was not only detrimental to Plaintiff, but detrimental to the
public in general, and punitive damages are appropriate under OKLA. STAT. Tit.
85, § 341.

WHEREFORE, based on the foregoing, Plaintiff prays that this Court grant her the relief sought including, but not limited to, actual damages in excess of Seventy-Five Thousand Dollars ($75,000.00), punitive damages in excess of Seventy-Five Thousand Dollars ($75,000.00), with interest accruing from date of filing of suit, reasonable attorneys fees, and all other relief which is deemed appropriate by this Court.

Defendant answered, as follows:

1. The Full Moon admits the allegations contained in Paragraphs 1, 2, 3 and 4 of Plaintiff’s Amended Petition.

2. Paragraph 5 does not require a response.

3. The Full Moon would admit the Plaintiff sustained an injury, but would deny that the injury arose out of and in the course of her employment as alleged in Paragraph 6.

4. The Full Moon admits the allegations contained in Paragraph 7, but would deny the injury arose out of and in the course of her employment.

5. The Full Moon admits the allegations contained in Paragraph 8, but would deny the injury arose out of and in the course of her employment.

6. The Full Moon denies the allegations contained in Paragraph 9 of Plaintiff’s Amended Petition, and demands strict proof thereof.

7. Paragraph 10 does not require a response.

8. The Full Moon admits allegations contained in Paragraph 11 of Plaintiffs Amended Petition.

9. The Full Moon denies the allegations contained in Paragraph 12 of Plaintiffs Amended Petition, and demands strict proof thereof.

10. The Full Moon denies the allegations contained in Paragraph 13 of Plaintiffs Amended Petition, and demands strict proof thereof.

11. The Full Moon denies the allegations contained in Paragraph 14 of Plaintiffs Amended Petition, and demands strict proof thereof.

12. Paragraph 15 does not require a response.

13. The Full Moon denies the allegations contained in Paragraph 16 of Plaintiffs Amended Petition, and demands strict proof thereof.

14. The Full Moon denies the allegations contained in Paragraph 17 of Plaintiffs Amended Petition, and demands strict proof thereof.

15. The Full Moon denies the allegations contained in Paragraph 18 of Plaintiff’s Amended Petition, and demands strict proof thereof.

AFFIRMATIVE DEFENSES

1. Plaintiffs employment was never terminated because Plaintiff voluntarily quit;

2. Punitive damages are unconstitutional and limited by provisions of Oklahoma law; and

3. All other affirmative defenses as are discovered during the course of this litigation which the Full Moon reserves the right to amend and assert.

WHEREFORE, premises considered, the Full Moon requests that this Court deny the Amended Petition of the Plaintiff, award the Full Moon its attorney’s fees, costs of the action, and for such other and further relief that the Court deems just and proper in the premises.

Plaintiff filed a motion for partial summary judgment, asserting:

This case arises out of the Plaintiffs wrongful termination by Defendant, in violation of 85 0.5. § 341 of the Oklahoma Workers’ Compensation Act. Plaintiff was employed by Defendant for seventeen (17) years, the last eight (8) of which she worked as a bartender. In March of 2012, Plaintiff suffered an injury to her back and neck while on the job. She was sent for treatment by her manager to the MedCenter. In April of 2012, approximately four (4) weeks after her initial injury, following medical treatment and physical therapy, Plaintiff returned to the MedCenter and was released from care. Plaintiff immediately sought to return to work but was informed she could not return to
her position because Defendant considered her “too frail” to perform the duties of a
bartender, despite the fact that Plaintiff had perfonned such duties for eight(8) years, had performed similar duties for Defendant for seventeen (17) years and despite the fact that a doctor had released her without restriction to return to her position as bartender.

While there are several facts relevant to this case that are in dispute, the material facts entitling Plaintiff to judgment are not and Plaintiffs motion should be granted.

PLAINTIFF’S STATEMENT OF MATERIAL UNDISPUTED FACTS

1. Plaintiff began working for Full Moon Café when she was eighteen (18) years old, approximately 17 years ago. Depo. of Pltf., Ex. 1, p. 8:10-15; Depo. of Susan Butcher, Ex. 2, p. 15:6-10. Plaintiff was promoted to the position of bartender approximately eight (8) years ago. Ex. 2 at 15:16-21.

2. The position of bartender requires some lifting. Ex. 2 at 21:22-23:11. Liquor bottles weigh approximately four (4) pounds. Id. While kegs are heavier (approximately 54 pounds), it is not Defendant’s policy for bartenders to lift and place kegs by themselves, teamwork is advised. Id. (bartenders do not have to lift kegs; they can roll them); Depo. of Clayton Partney, Ex. 3, p. 31:17-20 (the bar manager, Clayton Partney, trains bartenders to ask for kitchen staff to help if they need assistance bringing out full kegs); Ex. 3 at 29:22-25 (cooks, other servers and dishwashers are all available to help bartenders to lift kegs; it is not the expectation of management at Full Moon that bartenders be able to gather their own keg and set it up by themselves).

3. Plaintiffs supervisor during her employment was Susan Butcher, the general manager at Full Moon Café. Ex. 2 at 10:17-19. Mrs. Butcher is the only general manager at Full Moon Café and there is no other employee in a supervisory capacity above her. Id. at 11:4-6. Plaintiff was employed as a server when Mrs. Butcher took the position of general manager; Plaintiff was employed at Full Moon several years before

Mrs. Butcher. Id. 15:11-16.
4. Clayton Partney was the bar manager during the time Plaintiff was employed as a bartender and he was officially her supervisor, although he did not work with Plaintiff very ofien and Plaintiff was generally be supervised by Mrs. Butcher, who Plaintiff worked with every day. Depo. of Clayton Partney, Ex. 3, p. 11:16; Ex. 1 at 29:25-30:3.
5. In the weeks leading up to March 27, 2012, Plaintiff had been performing additional work duties due to the absence of a busser, including moving extra catering boxes around the restaurant, clearing her own tables and moving glassware and ice, duties requiring additional lifting she normally was not required to perform. Ex. 1 at
30:11-3 1:16.
6. On March 27, 2012, Plaintiff suffered sudden and intense pain in her neck and shoulder while stocking a tray of cherries when she turned her neck to speak to a customer at the bar. Ex. 1 at 32:19-33:14.
7. When the pain persisted, Plaintiff notified Mrs. Butcher, consistent with Defendant’s policy. Ex. 1 at 38:19-25; Ex. 2 at 19:18-22, 14:3-7. Mrs. Butcher believed that Plaintiff was injured and needed medical treatment. Ex. 2 at 19:3-11; 26:11-18.
8. Plaintiff went to the MedCenter on March 27, 2012 and was diagnosed with “acute cervical trapezius and rhomboid strain.” MedCenter Work/Activity Status Report dated 3/27/12, Ex. 4. She was taken off of work entirely for a couple of days. Id.
9. Mrs. Butcher told Mr. Partney that Plaintiff hurt herself “opening cherries,” to which Mr. Partney responded, “are you serious?” Ex. 3 at 17:12-20.
10. Mrs. Butcher and Mr. Partney began discussing “other options” for

Plaintiff immediately after her injury because “apparently cherries are heavy,” indicating their belief that Plaintiff could not perfonn the job of bartender without injuring herself. Lx. 3 at 24:16-24. They began discussing not allowing Plaintiff to return to her position of bartender without knowing what permanent restrictions, f any, Plaintiff would have when she was done with her medical treatment. Ex. 3 at 44:10-45:1. Mr. Partney reasoned that if Plaintiff hurt herself putting cherries in a fruit tray, she was likely to hurt herself again because “a bottle of alcohol is going to weigh more [than cherries].” Ex. 3 at 26:14-19.

11. Plaintiff never complained about being unable to lift a bottle of alcohol or beer. Lx. 3 at 16:14-19. Plaintiff never complained about the physical demands of being a bartender other than maybe the weight of the kegs. Ex. 3 at 25:12-25.

12. For the eight (8) years Plaintiff worked as a bartender prior to her March
2012 injury, Mrs. Butcher and Mr. Partney considered Plaintiff to be a good, dependable employee andahardworker. Ex.2at18:17-19:2;Ex.3at 11:7-11.

13. Plaintiff followed up at the MedCenter several times over the next month and was released to return to work subject to restrictions; said restrictions decreased each time Plaintiff returned to the MedCenter. See MedCenter Work/Activity Status Reports dated 3/29/12 (no repetitive stooping, bending, twisting or lifting; no lifting, carrying, pushing or pulling 10 pounds; no work with aims overhead, no climbing and no kneeling or squatting), 4/3/2012 (no lifting, carrying, pushing or pulling 10 pounds, no work with arms over head, no gripping, twisting or forceflul turning with her left hand), 4/10/12 (no lifting, carrying, pushing or pulling 10 pounds, no work with arms over head, no gripping, twisting or forceful turning with her left hand), and 4/17/2012 (no lifting, carrying, pushing or pulling 10 pounds and no work with arms over head), Ex. 5. During this time, Plaintiff also underwent several sessions of physical therapy and practiced the exercises she was shown at her physical therapy sessions at home. Ex. 1 at 48:10-49:19; Medcenter physical therapy notes for dates 4/1 9/1 2, 4/16/1 2, 4/23112, 4/17/12, Lx. 6.

14. Mrs. Butcher notified Defendant’s workers’ compensation carrier of Plaintiffs injury and treatment and said carrier approved Plaintiffs treatment. Lx. 2 at 35:17-21; 36:13-37:2; MedCenter Progress Note, Ex. 7.

15. During the month following her injury, Defendant’s insurance carrier requested Mrs. Butcher offer Plaintiff light duty and Mrs. Butcher had Plaintiff work a couple of shifts as a hostess. Lx. 2 at 35:17-21; 36:13-37:2; 20:5-10.

16. On April 24, 2012, Plaintiff returned to the MedCenter for the final time, and was released to return to work without restrictions. Medcenter Work/Activity Status Report dated 4/24/2012, Ex. 8.

17. Plaintiff brought said release to Mrs. Butcher on April 24, 2012, which said Plaintiff was free to return to work. Lx. 2 at 25:3-10.

18. After allegedly reviewing said release, Mrs. Butcher and Mr. Partney determined Plaintiff could not return to her position because they considered the job “too strenuous” for Plaintiff and Mrs. Butcher was “afraid [Plaintiff] was going to reinjure herself.” Ex. 2 at 25:11-15; 26:4-10; Lx. 3 at 33:3-11. Mr. Partney thought Plaintiff “walked slow” and “looked like she was in pain” when she brought them the release. Lx. 3 at 33:12-22.
19. Defendant did not send Plaintiff to another doctor for a second opinion. Lx. 3 at 33:23-25.

20. Mrs. Butcher knew Plaintiff desperately wanted to continue in her position as a bartender. Ex. 2 at 30:15-16.

21. In the time Plaintiff had been employed as a bartender, the “strenuousness” of the job had never bothered her any more than it had any of the other bartenders.’ Ex. 2 at 28:21-29:16. Prior to Plaintiff’s injury, Mrs. Butcher did not consider the position of bartender too strenuous a position for Plaintiff. Ex. 2 at 32:16-23 (noting that even thought the position was strenuous for everyone, Plaintiff did her job and there were no pertinent conflicts arising out of Plaintiff’s performance during the entire time she held the position).

22. Mrs. Butcher is not a doctor and cannot say whether Plaintiff’s injury could have been caused by a cumulative trauma and heavy lifting, but nonetheless felt that “picking up a cherry shouldn’t hurt that much,” and that because Plaintiff was injured, Mrs. Butcher determined that Plaintiff was too frail to return to her position as bartender. Ex. 2 at 26:11-18. Prior to her injury in March of 2012, Plaintiff had never before been injured on the job. Id. at 27:8-11; Ex. 3 at 36:1-10.

23. Mrs. Butcher could not provide any reason why the position of bartender was not too strenuous for the Plaintiff prior to her injury, but was too strenuous for her following her injury, given her full release by Dr. CaIdwell. Ex. 2 at 32:24-33:18 (stating only that while she was not certain Plaintiff would reinjure herself as a bartender, she “wanted to protect” the Plaintiff from the possibility ofreinjury).

24. Mr. Partney and Mrs. Butcher never discussed the extent of Plaintiff’s injury and Mr. Partney does not even know what part of her back was injured. Ex. 3 at if no substantial controversy exists as to the material facts, and one party is entitled to judgment as a matter of law, the court shall grant a motion for summary judgment in favor of that party. Rule 13(e) of the Rules for District Court; Schmidt v. OG&E Electric Services, Inc., 2012 OK CIV APP 102, if 7, 292 P.3d 55, 57; First Nat ‘1 Bank and Trust Co. of Vinita v. Kissee, 1993 OK 96, if 7, 859 P.2d 502, 505. “When a party moves for entry of summary judgment in its favor, and supports the motion with proper evidentiary materials, an adverse party must serve on the movant and file with the trial court a responsive brief with evidentiary materials to show why summary judgment should not be granted. The response to a motion for summary judgment must be supported by affidavits and other (evidentiary) materials containing facts that would be admissible in evidence.’ Strong v. Oklahoma City Public Schools, Independent School Dist. No. 89, 1997 OK CIV APP 21, if 9, 941 P.2d 538, 541 (internal quotations and citations omitted). “A party may not rely on the allegations of his pleadings or the bald contention that facts exist to defeat a motion for summary judgment.” Beck v. Phillips Colleges, Inc., 1994 OK CIV APP 84, ¶ 9, 883 P.2d 1283, 1286 (footnote omitted).

ARGUMENT AND AUTHORITY

Under Oklahoma law, an employee may not be retaliated against because of the exercise of rights under the Workers’ Compensation Act (“OWCA”). 85 OS. § 341; see also Thompson v. Medley Material Handling, Inc., 732 P.2d 461, 463 (Okla. 1987) (interpreting the previous enactment of § 341, § 5). Retaliation does not have to be the sole motivation for termination, but if retaliation is even a significant factor, a claim under the Act will lie. See, e.g. Mosley v. Truckstops Corp. of Am., 891 P.2d 577, 584 (Okla. 1994) (emphasis added). What is important in a claim for wrongful termination under the OWCA, is the employer’s motivation or reasoning behind the termination. See Thompson, 732 P.2d at 463, see also Elzey v. Forrest, 739 P.2d 999, 1001 (Okia. 1987); Buckner v. General Motors Corp., 760 P.2d 803, 806 (Okia. 1988).

As the Oklahoma Supreme Court has recognized, the Legislature has made the burden of establishing a prima facia case for retaliatory discharge under the OWCA relatively easy. Buckner, 760 P.2d at 806. “The discharged employee must show employment, on the job injury, 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 Act, and consequent termination of employment.” Id. (emphasis omitted). After a prima fade case has been made, the burden shifts to the employer to articulate a non-retaliatory reason for the discharge. Id. To accomplish this, the employer must set forth clearly, through the introduction of admissible evidence, the reasons for the employee’s termination. Id. at 807. The reasons must be legally sufficient to justUj’ entering judgment for the employer. Id. (emphasis added).

Here, it is undisputed that Plaintiff was employed by Defendant and that she was sent for treatment for a work-related injury by her supervisor, Mrs. Butcher, to the MedCenter on March 27, 2012. The fact that Plaintiff did not hire a lawyer to file a formal workers’ compensation until after her termination is irrelevant. Defendant sent Plaintiff for treatment several times over the course of a month, notified its workers compensation insurance carrier of the injury and need for treatment, and provided Plaintiff with a couple of light duty shifts at the request of its insurance carrier. See, e.g., Buckner, 760 P.2d at 811 (“[T]he provision of medical treatment by the employer, when
accompanied by circumstances (including, e.g., sending the employee home to recuperate from an on-the-job-injury) which would lead a reasonable employer to infer that a workers compensation claim would in all probability ensue, constitutes the institution of proceedings [under the OWCA].”). Thus, the first two (2) prongs of Plaintiffs prima facie case are easily satisfied.

The third prong, consequent termination, requires two (2) separate inquires. The first inquiry involves whether or not Plaintiff was discharged in the context of the OWCA. The second inquiry involves whether or not such discharge was “consequent.” It is undisputed that Plaintiff was prohibited from returning to her former position as bartender.2 Clayton Partney, Plaintiffs supervisor, testified that Plaintiff was terminated as a bartender. In order for termination to be “consequent,” an employee must produce evidence that gives rise to a legal inference that her firing was significantly motivated by retaliation. Wallace v. Halliburton Co., 850 P.2d 1056 (Okla. 1993) (finding evidence that an employee with a positive work history was fired 37 days after initiating

proceedings under the Act satisfied his burden where there was no evidence he could not perform his job upon returning to work and there was evidence other employees worried about being fired for filing claims). Here, Mrs. Butcher and Mr. Partney determined that Plaintiff was unable to perform her job despite medical evidence to the con trary without sending her for a second opinion. In fact, they never even discussed the extent of Plaintiffs injury or the precise part of her body that was affected. The only explanation offered by Mrs. Butcher for Plaintiffs termination is that the position was “too strenuous” and she was afraid Plaintiff would reinjure herself. She testified that she had no reason to believe that Plaintiff would not fully recover from her injuries. There is absolutely no evidence that Plaintiff was unable to perform the job duties of a bartender. Additionally, Plaintiffs supervisors were derisive about the manner of her injury, repeatedly stating their disbelief that she hurt herself “opening cherries,” despite the medical diagnosis that Plaintiff suffered an acute cervical trapezius and rhomboid strain and her explanation that she had been having to perform additional lifting duties in the weeks leading up to March 27, 2012. See, e.g., Estrada v. Port City Properties, Inc., 158 P.3d 495, 499-500 (Okla. Ct. App. 2007) (employer’s response to its employee’s institution of proceedings under the Act is evidence of retaliation). Finally, Plaintiff was treated vastly different following her work-related injury than following her non-work- related injury. When her injury was not work-related, Plaintiff was given as much help as she needed. She was allowed to recuperate and fully heal. Then, when she had fully healed, she was allowed to return to her position of bartender. When her injury was work-related, Plaintiff was not offered any help and she was prohibited from returning to her position of bartender when she was released by her doctor to return to work.

Defendant’s reason for terminating Plaintiff is not a legitimate, non-retaliatory business reasons and it is not legally sufficient. Defendant admits that it terminated Plaintiff because of her workers compensation claim and their fear that it would happen again. Thompson v. Medley Material Handling, Inc., 1987 OK 2, 732 P.2d 461, 463 (“The statute creating the cause of action for retaliatory discharge, 85 O.S.198l § 5, provides that an employee may not be discharged because of the exercise of rights under the Workers’ Compensation Act.”) (emphasis in original). Neither Mrs. Butcher nor Mr. Partney are medical doctors. They admittedly do not understand either the nature or extent of Plaintiffs injury. They admitted making comments about the manner of Plaintiffs injury indicating their incredulity that she could have been injured “opening cherries.” Despite their complete lack of a medical background, they testified that they were concerned about an alleged and unsubstantiated propensity for Plaintiff to reinjure herself.

By Defendant’s own admissions, Plaint[f’s termination was motivated in retaliation for her work-related injury. There was no evidence Plaintiff could not perform the job duties she had faithfully performed for years, or that she was destined to reinjure herself doing a job she had performed without injury for years; her termination was allegedly based on a subjective belief that reinjury was possible. Defendant’s very reason for terminating Plaintiff is because of the fact she suffered an on-the-job injury, in violation of the OWCA. Thompson, 732 P.2d at 463. Because Defendant has admitted that Plaintiff was terminated because of her on-the-job injury, Plaintiff is entitled to summary judgment on the issue of liability.

CONCLUSION

Plaintiff worked without incident for Defendant for 17 years, 8 of which she worked as a bartender. She never complained of the “strenuousness” of the job or its physical requirement, at least not more than any other bartender. Plaintiff was injured on the job and sent for treatment by her supervisor who determined, based solely on the fact that Plainq[f suffered an on-the-job injury and sought treatment, that Plaintiff could not return to work. Such discharge flies in the face of the OWCA, which is intended to encourage injured employees to seek treatment for injuries and return to their jobs as quickly as possible. Because Defendant’s admitted reason for terminating Plaintiff is because of the fact she sought treatment for a work-related injury, Plaintiff is entitled to summary judgment pursuant to Okia. Stat. tit. 85, § 341.

Outcome: Settled and dismissed with prejudice.

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Defendant's Experts:

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