Kristie Ho v. Tulsa Spine & Speciality Hospital, LLC

Tulsa, Oklahoma employment law lawyer represented Plaintiff, who sued Defendant wrongful termination theory.



"The appellant, Kristi Ho, a nurse, sued her employer, the appellee, Tulsa Spine & Specialty Hosptial, L.L.C., alleging that the Hospital fired her because she would not come to work. She refused to go to work because of concern for her health and safety. She alleged the Hospital violated the Governor's directive to discontinue elective surgeries for a short time during a COVID-19 pandemic, and it did so without providing her proper personal protective equipment. The Hospital filed a motion to dismiss, arguing that the nurse was an employee-at-will, and that she failed to state a claim for wrongful discharge under Oklahoma law. The trial court agreed, and dismissed the lawsuit. The nurse appealed, and we retained the cause to address the first impression question of whether the Governor's temporary emergency COVID orders expressed public policy necessary to apply an exception to at-will employment which would support an action for wrongful discharge. We hold that because the Legislature expressly granted the Governor authority to issue temporary emergency orders, and the orders expressed the established public policy of curtailing an infectious disease, the exception to at-will employment as articulated by Burk v. K-Mart Corp. 1989 OK 22, ¶17, 770 P.2d 24 and its progeny is applicable from March 24, 2020, until April 30, 2020."

¶27 When reviewing a motion to dismiss, the Court must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them.25 The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts.26 The doctrine of at-will employment is not in jeopardy or threatened under the facts alleged by the nurse. The employee could have been legally terminated by the employer for any reason which did not violate public policy ---- and those exceptions are extremely rare.



¶28 However, there are operative facts left to be determined. Here, the hospital denies that it was providing elective surgeries, or inadequate equipment to provide a healthy and safe work environment under the conditions which existed at the time. We express no opinion concerning the hospital's possible liability in this cause. The hospital disputes whether the nurse's firings had anything to do with her allegations. The facts regarding what equipment was provided, whether equipment was available, what surgeries were performed, what surgeries were elective, what is an elective surgery, and what the nurse might have been exposed to, have not yet been fully presented because of the dismissal for failure to state a claim.



¶29 Reducing the spread of infectious, contagious, and potentially deadly diseases has always been a priority and concern of the State of Oklahoma, and Federal government regardless of the novelty of the disease. Pursuant to 63 O.S. 2011 §6403, and §§683.1 and 683.9, the Oklahoma Legislature expressly authorized the Governor to issue temporary health orders during a catastrophic outbreak. He did so, and the orders which were only effective from March 24, 2020, to April 30, 2020. We express no opinion on the likelihood of a successful outcome for the nurse. Our jurisprudence requires that in a motion to dismiss her allegations must be taken as true and the reasonable inferences drawn from them. A motion to dismiss tests the law, not the facts. Accordingly, dismissal was premature. The cause is reversed and remanded for proceedings consistent with this opinion.