Donadl Dewayne Moore v. Warr Acres Nursing Center, LLC

¶1 We retained this cause to address the dispositive issue of whether terminating a licensed practical nurse for missing work in a nursing center based on vomiting on the job and a doctor's note admitting that he should not work for three days due to an infection with influenza would violate public policy.1 We hold that it would. The public policy behind precluding a nursing home employee from working while infected with influenza is manifested in the Oklahoma Constitution, the Oklahoma statutes, Oklahoma and Federal regulations and caselaw. To hold otherwise would exacerbate communicable disease and expose the most vulnerable people. However, the reason for termination of this employee may have had nothing to do with whether he missed work with the flu.



¶2 At-will employment is not in jeopardy or threatened under these facts. Under the alleged facts, this at-will employee could have been legally terminated by the employer. The employee's disciplinary record at the nursing center shows he was written up at least five times for disregarding and failing to follow supervisor's instructions, spreading rumors, failing to complete tasks, and rebellious behavior. One employee stated that he was belligerent when he found out he was not on the work schedule. The employee's employment history appears to show a pattern of constantly moving from one job to another. This job appears to have been his seventh in seven years. These facts may reflect that the termination was neither pretextual, post hoc rationalization, nor a violation of public policy. Nevertheless, that issue is for the jury to decide.



FACTS



¶3 The plaintiff/appellant, Donald Dewayne Moore (Moore/employee) worked for the defendant/appellee Warr Acres Nursing Center (employer/Nursing Center) as a licensed practical nurse. Moore began employment around January 17, 2008. Moore, became acutely ill with the influenza while working on November 25, 2008. The Nursing Center's assistant director of nursing overheard Moore vomiting at the Nursing Center. She stated that he did not look good and that he must have a virus or the flu and she told him to go home. After continuing to experience symptoms on the way home, he went directly to his physician at the Department of Veterans Affairs for treatment. His physician treated him and issued a written notice taking him off work for three days due to his illness.2



¶4 According to Moore, he followed the Nursing Center's handbook procedures3 and called the on-call scheduler and reported his illness and his doctor's directive, even though he was not scheduled, he also offered to work the upcoming weekend providing that he had recovered. Otherwise, Moore informed the scheduler that he would report to work Monday, and that he would bring his doctor's note. On November 26, 2008, the Nursing Center's director of nursing called Moore and he repeated the information he had previously given the scheduler.







¶5 When the employee arrived at the Nursing Center on Sunday, November 30, 2008, to deliver his doctor's note, he discovered that he had been crossed off of the work schedule for the week of December 1, 2008 and he was subsequently discharged on December 3, 3008. On April 15, 2010, the employee filed a lawsuit against the nursing center alleging that he was discharged for not being at work while suffering from influenza. He insisted that his discharge was unlawful and wrongful as against public policy and against the Workers Compensation Act (the Act).4



¶6 On May 6, 2010, the employer filed a motion to dismiss the employee's lawsuit. The employer sought dismissal for failure to state a claim under the Act for which relief could be granted and failure to articulate a clear public policy which the employer violated. After a hearing on June 18, 2010, the trial court granted the employer's motion to dismiss for failure to state a claim upon which relief can be granted and the order of dismissal was filed on July 13, 2010.



¶7 The employee appealed, and the Court of Civil Appeals, in an unpublished opinion filed on December 8, 2010, reversed and remanded with instructions. It upheld the trial judge's dismissal of the workers compensation claim. However, it stated that a number of statutes, Acts, and regulations of this State that may well articulate a public policy of prohibiting a health care worker from interacting with nursing home patients while having a communicable disease such as influenza. Nevertheless, the court noted that the employee had neglected to provide the specific legal authorities which would support such a public policy.



¶8 The Court of Civil Appeals remanded the matter to the trial court, holding that the employee should have been given the opportunity to amend his petition and be afforded the opportunity to show with particularity the public policies upon which he relied and which he contended were violated by his termination. We denied certiorari in that appeal on February 14, 2011. The employee filed his first amended petition on March 13, 2011.



¶9 Pursuant to the Court of Civil Appeals instructions, the employee referenced Silver v. CPC-Sherwood Manor, Inc. 2004 OK 1, 84 P.3d, 728, 63 O.S. 2011 §§1-1900.1 et seq (the Nursing Care Act; 63 O.S. 2011 §§ 1-819 et seq. (The Residential Care Act); Infection Control Regulations from the Department of Health, 310:675-7-17.1 as well as federal regulations 42 CFR Ch. V., Pt. 483, §483 (Infection Control) and §483.65, §483.75, and Oklahoma Regulations, 9 OK Reg 3163, 10 OK Reg 1639, 24 OK Reg. 2030, 25 OK Reg. 2382.



¶10 The employer, on March 23, 2011, again attempted to have the lawsuit dismissed and on April 18, 2011, the employee submitted 17 supplemental exhibits in opposition to the employer's motion to dismiss. These exhibits included copies of specific statutes, state and federal regulations and guidelines as well as caselaw, all of which will be discussed herein.5 The exhibits were not merely broad references to whole acts, but rather were specific sections with the applicable provisions underlined, so that the trial court could easily identify them. The trial court again dismissed the case for failure to state a claim upon which relief could be granted on May 12, 2011. The employee again appealed.



¶11 The Court of Civil Appeals, in another unpublished opinion filed April 10, 2012, again reversed and remanded for further proceedings. It held that unquestionably, the employee shouldered the initial burden of proof by providing a well-pled cause of action sufficient to withstand a motion to dismiss. However, once he submitted evidentiary material to the trial court, the analysis should have proceeded as one for summary judgment, placing the burden on the employer to prove no material facts were in dispute and only a pure question of law remained. We denied certiorari on May 29, 2012.



¶12 By December 5, 2013, after various pleadings and discovery requests were filed, the employee filed a motion to set the case for a jury trial. Discovery and depositions continued until the employer filed a motion for summary judgment on April 10, 2014, arguing that there is no clear violation of a compelling public policy. For purposes of the summary judgment motion, the employer admitted all of the facts that the employee alleged and accepted them as true, but still insisted no cause of action existed. The trial court held a hearing on the motion for summary judgment on May 2, and June 13, 2014. At the June 13, 2014, hearing, the trial court said:



All right. Given that we've had the discovery of the key witness that had the authority to develop policy for the defendant, and because the defendant, Warr Acres Nursing Center, no longer is a ongoing facility I'll find that there is no public policy to prevent the termination of Mr. Moore, or a violation of public policy upon the termination of Mr. Moore and sustain the summary judgment.



The journal entry reflecting the June 13, 2014, ruling was filed July 3, 2014. The employee appealed on August 1, 2014, and we retained the cause on October 2, 2014, addressing the public policy exception to at-will employment. (It should be noted that the fact that Warr Acres Nursing Center, L.L.C., is no longer in operation does not preclude the employee from seeking a remedy, although it may affect what Moore would be able to recover.6)



I.



BECAUSE THE RECORD REFLECTS DISPUTED FACTS EXIST AS TO

THE REASONS FOR TERMINATION WHICH WERE NEITHER

PRETEXTUAL, POST HOC RATIONALIZATIONS, NOR VIOLATIONS

OF PUBLIC POLICY SUMMARY JUDGMENT WAS INAPPROPRIATE.



¶13 Pursuant to Rule 13, 12 O.S.2011, Ch. 2 App., Rules for the District Courts, a motion for summary judgment may be filed if the pleadings, depositions, interrogatories, affidavits, and other exhibits reflect that there is no substantial controversy pertaining to any material fact.7 A party opposing the motion may file a written statement showing that a genuine controversy exists. Affidavits and other evidentiary materials which are admissible at trial may be attached in support of these facts. Even when basic facts are undisputed, motions for summary judgment should be denied, if under the evidence, reasonable persons might reach different inferences or conclusions from the undisputed facts.8 Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.9 All conclusions drawn from the evidentiary material submitted to the trial court are viewed in the light most favorable to the party opposing the motion.10



¶14 The alleged facts show that this at-will employee could certainly have been legally terminated by the employer. Given the employee's disciplinary record at the nursing center, failure to follow supervisor's instructions, spreading rumors, failure to complete tasks, and rebellious behavior, the termination likely was neither pretextual, post hoc rationalization, nor a violation of public policy. Oklahoma follows the at-will employment doctrine which allows an employer to discharge an employee for good cause, for no cause without being guilty of legal wrong.11 However, summary judgment was granted based on finding there was no violation of public policy not on the employee's employment history or for no cause. Instead, for the purpose of summary judgment, the employer insisted that no cause of action existed. There are material questions of fact for the jury to decide.







II.



OKLAHOMA PUBLIC POLICY CLEARLY ARTICULATES THAT A

NURSE CANNOT BE FIRED SOLELY FOR MISSING WORK DUE TO

AN INFLUENZA INFECTION.



¶15 For summary judgment purposes, the employer admits and accepts the employee's version of the facts. The Nursing Center argues, that as a matter of law, the employee has no claim against it because the employee was an at-will employee. The employee insists that he was fired solely for not working with the flu and that this is an exception to at-will employment as articulated by Burk v. K-Mart Corp., 1989 OK 22, ¶17, 770 P.2d 24 and its progeny.



¶16 Burk involved a federal certified question concerning an alleged "implied obligation of good faith and fair dealing" in reference to termination of any employment-at-will contract. The Burk employee sued her employer in contract and in tort, alleging that she was prevented from performing her job duties and was, consequently, constructively discharged. She further asserted that her employer's agent told her he would not recommend her for a promotion because of her sex.



¶17 Although the Court rejected the implication of a duty of good faith and fair dealing in every employment-at-will contract, Burk was the landmark case wherein the Court adopted a public policy exception to the at-will termination rule in a narrow class of cases in which the discharge of an employee is contrary to the clear mandate of public policy as articulated by constitutional, statutory, or decisional law. We recognized, for the first time, that the action was a tort. We also noted that because the term "public policy" was vague, the exception had to be tightly circumscribed.12



¶18 In Clinton v. State of Oklahoma ex rel. Logan County Election Board, 2001 OK 52, ¶10, 29 P.3d 543, the Court also clarified the parameters of the Burk tort remedy, noting that:







1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law;



2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma public policy goal precludes a Burk tort;



3) the plaintiff must establish he or she is an at-will employee and the reason for discharge violates the identified Oklahoma public policy goal;



4) a discharge for purposes of the Burk tort may be either actual or constructive.



¶19 We again addressed the elements of a Burk tort in Vasek v. Board of County Commissioners, 2008 OK 35, ¶¶27-28, 186 P.3d 928. It involved a plaintiff who alleged wrongful termination for making a complaint to the Department of Labor (DOL) concerning mold at the courthouse. The plaintiff's action was based on the fact that she alleged she was fired for reporting her employer's violation of the law. We reiterated the elements of a Burk tort in such circumstances, stating:



The elements of a claim for wrongful discharge of an at-will employee articulated in Burk and its progeny can be summarized. A viable Burk claim must allege (1) an actual or constructive discharge (2) of an at-will employee (3) in significant part for a reason that violates an Oklahoma public policy goal (4) that is found in Oklahoma's constitutional, statutory, or decisional law or in a federal constitutional provision that prescribes a norm of conduct for Oklahoma and (5) no statutory remedy exists that is adequate to protect the Oklahoma policy goal.



¶20 In Vasek, we equated "adequacy" of remedies with "sufficiency," in other words: Were the remedies available to the plaintiff sufficient to protect Oklahoma's public policy goals? In this cause, the precise question of law is not the employee's sufficiency of remedies, but rather whether Oklahoma's constitutional, statutory, or decisional law or in a federal constitutional provision even prescribes a norm of conduct for Oklahoma that was violated. The answer is overwhelmingly and clearly yes.



¶21 In Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728, we recognized that a cook for a nursing home who was fired for going to the emergency room with diarrhea and throwing up stated a cause of action by showing a public policy violation of the Oklahoma Administrative Code provisions of the Oklahoma State Department of Health. We noted that the public health codes "in a clear and compelling fashion," articulate a well-defined, firmly established, state public policy prohibiting the holding, preparing, or delivering of food prepared under conditions whereby it may have been rendered diseased, unwholesome, or injurious to health.



¶22 The nursing home's alleged failure to follow this policy stated a cause of action under Burk sufficient to survive a motion to dismiss for failure to state a claim. Yet, we expressed no opinion as to the sufficiency or quality of the plaintiff's evidence, yet to be presented, concerning the nursing home's reason for dismissing the cook. The dissenters in Silver, did not join the majority opinion because there was no doctor's diagnosis of a communicable disease. There is such a note in the present case.



¶23 Similar public health codes in a clear and compelling fashion, also articulate a well-defined, firmly established, state public policy prohibiting a nurse from working while infected with the influenza. The Okla. Const. art. 5 §39 directs the legislature to create the Board of Health13 and art. 5 vests the Legislature the power to establish agencies such as the Oklahoma Health Department and to designate agency functions.14 The Legislature delegates rule making authority to facilitate administration of legislative policy and such delegation is intended to eliminate the necessity of establishing every administrative aspect of general public policy by legislation.15 Administrative agencies create rules which are binding similar to a statute and are only created within legislatively-granted authority and approval. Such rules are necessary in order to make a statutory scheme fully operative.16



¶24 In Estes v. Conoco Phillips Co., 2008 OK 21, ¶10, 184 P.3d 518 we recognized that: 1) pursuant to the Administrative Procedures Act, 75 O.S. 2011 §§250-323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy; and 2) Administrative rules are valid expressions of lawmaking powers having the force and effect of law.



¶25 The Oklahoma Department of Health Regulations §310:675-7-17-1, which were statutorily mandated17 to implement the Nursing Home Care Act,18 to cover infection control and require nursing home facilities to have an infection control policy to provide a safe and sanitary environment. This policy is required to include provisions excluding personnel and visitors with communicable infections19 as well as to ensure the health of its residents.20 A nurse's license may be withdrawn for failing to follow minimum quality of care standards.21



¶26 In addition to the Oklahoma statutory directives, Federal law regulates the states, including Oklahoma, when it comes to infectious disease control. For example, the regulation governing medicare & medicaid services requires facilities to control infectious diseases by prohibiting employees with communicable disease to come in direct contact with residents.22 Federal quality of care standards also require development of policy and procedures to ensure that residents in a nursing home are protected from influenza and pneumonia.23 Nursing facilities must comply with all Federal, State, and local laws regarding regulations and professional standards of care.24



¶27 Clearly, it cannot be said the there are not constitutional, statutory or caselaw public policy manifestations which would prohibit a registered nurse from working with the flu. The present cause is just like Silver, supra. In Silver, a nursing home cook was fired for missing work because he suffered with a virus, even though statutes prohibited nursing home food to be prepared under conditions whereby it may have been unwholesome or injurious to health.25 Here, a nurse was fired for missing work because he suffered with a virus even though health codes prohibited nurses from working while infected with influenza.







¶28 Title 63 O.S. 2011 §1-1102 and §1-10926 prohibit the handling of food which may have been rendered diseased, unwholesome, or injurious to health. The Oklahoma Department of Health Regulations §310: 675-17-1 require the exclusion of personnel and visitors with communicable infections in nursing homes.27 The Nursing Center provided the employee's job description in its motion for summary judgment. It required him to check foods brought into the facility, make sure they were appropriate according to order and allowances, report dietary changes, and assist in infection control to ensure that tasks in which there is a potential exposure were properly identified.28 The statutes, coupled with his job description, put this employee in a better position than Silver. The only difference between this cause and Silver is that in this cause, the employee suffered from a communicable disease diagnosed by a doctor. The reason for the dissenting opinion in Silver was because the employee was not diagnosed by a doctor as having a communicable disease. Stare decisis and consistent jurisprudence compel this conclusion. Otherwise, we must overrule Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728,



¶29 There were over 100 people who died in Oklahoma from the flu last year. Obviously precautions must be taken to prevent the transfer of such a communicable and potentially deadly disease. A recap of Clinton v. State of Oklahoma ex rel. Logan County Election Board, 2001 OK 52, ¶10, 29 P.3d 543, which sets the parameters of the Burk tort remedy is compelling. It requires that:



1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law;



[The employee furnished a plethora of legal authorities delineating public policy goals.]



2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma public policy goal precludes a Burk tort;



[There is no federal or state remedy. The public policy exception was recognized in Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728.]



3) the plaintiff must establish he or she is an at-will employee and the reason for discharge violates the identified Oklahoma public policy goal;



[The employee has established that he is an at-will employee. If, it were to be found by the trier of facts that his absence due to influenza was the reason for his termination, it would violate Oklahoma public policy.]



4) a discharge for purposes of the Burk tort may be either actual or constructive.



[It was undisputed that he was discharged.]



¶30 Accordingly, based on the constitution, the statutes, the regulations approved by Congress and the Oklahoma Legislature, and the Nursing Center's rules, regulations and handbook, a public policy exception exists which would prohibit a nurse from being fired solely for not working while infected with influenza. This is an exception to at-will employment as articulated by Burk v. K-Mart Corp., 1989 OK 22, ¶17, 770 P.2d and its progeny. This holding, however does not end the inquiry of this cause because disputed facts are alleged which show that the firing had nothing to do with not working with the flu.

¶30 Summary judgment was inappropriate. Oklahoma as well as federal law clearly shows that a nurse in a nursing center cannot be fired for not working with the flu. However, the disputed facts show that this employee's firing may have had very little to do with his three-day absence from work with the flu.