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Wrongful discharge — alive and well in Oklahoma

published in McAfee & Taft EmployerLINC | May 2, 2016

By Charlie Plumb

It’s been awhile since Oklahoma’s Supreme Court weighed in on the ability of fired employees to sue their employers for wrongful discharge. Now a vomiting nurse gets to take a shot at the nursing center that terminated his employment.

Not exactly ‘Employee of the Month’

Donald Dewayne Moore worked as a licensed practical nurse at the Warr Acres Nursing Center. Moore’s employment history was tumultuous; the nursing center job was his seventh employer in seven years. During the 11 months he worked there, Moore received at least five written reprimands for failing to follow a supervisor’s instructions, spreading rumors, not completing work, and “rebellious behavior.”

Let the vomiting (and firing) begin

Moore contracted influenza and became violently ill. In fact, the nursing center’s director of nursing overheard him vomiting at work, observed Moore “did not look good,” and sent him home. On his way home, Moore stopped to be examined by his doctor. The doctor treated him for the flu and gave him a written note stating that Moore needed to miss three days of work on account of his illness.

As required by the nursing center’s handbook, Moore called the employer’s scheduler to report his illness and his doctor’s directions. Although he was not scheduled to work, Moore offered to work the upcoming weekend, assuming he felt well at that time. If he was not needed on the weekend, Moore told the scheduler that he would report to work as scheduled on Monday and bring his doctor’s note.

Moore decided to drop-off his doctor’s note on Sunday. When he arrived at the nursing center, Moore discovered he had been removed from the work schedule for the coming week. Three days later, he was fired. That caused Moore to sue his employer for wrongful discharge in Oklahoma County District Court, claiming he was fired for missing work because he suffered from a virus. The nursing center denied Moore’s accusations, saying his firing had nothing to do with his absence because he had the flu.

Moore can pursue wrongful discharge claim

First, a refresher on Oklahoma wrongful discharge claims. Oklahoma law recognizes an exception to employment-at-will in situations where an employer fires an employee “contrary to the clear mandate of public policy.” To bring a wrongful discharge claim against an employer, the former employee must:

  1. Identify a public policy recognized by Oklahoma constitutional, statutory or case law;
  2. Show that there is no statutory remedy available to the former employee to protect the identified public policy; and
  3. Demonstrate the reason for the discharge violated the public policy.

 

The Supreme Court noted that more than 100 people died in Oklahoma from the flu last year. Oklahoma’s Nursing Home Care Act authorizes the Oklahoma Department of Health to issue regulations addressing infection control for nursing home facilities such as the Warr Acres Nursing Center. Several of these regulations require nursing home operators to exclude personnel and visitors with infections. The Supreme Court concluded Oklahoma’s public policy would be violated if a nurse was fired for not working while infected with the flu. Now, Moore has the chance to try to convince a jury that his absence on account of the flu was the real reason the nursing center fired him.

Employees wanting to sue a former employer for wrongful discharge must meet some well-established requirements. But, if like Moore they can identify an Oklahoma public policy that was allegedly violated when they were fired, a former employee may have a shot at pursuing an Oklahoma wrongful discharge claim.

  • Moore v. Warr Acres Nursing Center, LLC, 2016 OK 28