376 P.3d 894
Okla.2016Background
- Donald D. Moore, a licensed practical nurse at Warr Acres Nursing Center, became acutely ill with influenza while working on Nov. 25, 2008; a supervisor observed him vomiting and sent him home.
- Moore sought treatment at the VA the same day; his physician issued a written note excusing him from work for three days.
- Moore notified the facility per its handbook procedures (called the on-call scheduler and the director of nursing) and later delivered the doctor’s note.
- When Moore returned to deliver the note, he found he had been removed from the work schedule and was discharged a few days later.
- Moore sued for wrongful discharge under the public-policy (Burk) exception to at-will employment; the trial court granted summary judgment for the employer, and the Supreme Court of Oklahoma retained review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether terminating an at-will nurse for missing work due to influenza violates Oklahoma public policy | Moore: termination for staying home with a physician‑diagnosed communicable disease violates public policy protecting residents from infectious transmission | Warr Acres: at‑will doctrine permits termination; no clear public‑policy mandate preventing discharge here | Court: Such a termination would violate clear Oklahoma public policy (Burk exception) — but material factual disputes about the actual reason for Moore’s firing preclude summary judgment |
| Whether administrative regulations (state/federal infection‑control rules) can articulate the public policy underlying a Burk claim | Moore: federal/state health regs and Dept. of Health infection‑control rules articulate a clear, compelling public policy | Warr Acres: public policy should be limited to statutes/decisional law; allowing administrative rules expands Burk too far | Court: Oklahoma and federal regulations implementing statutory mandates can articulate the public policy forbidding health‑care staff with communicable disease from resident contact |
| Whether an adequate statutory or administrative remedy precludes a Burk tort | Moore: no adequate statutory remedy exists to vindicate the identified policy | Warr Acres: (argued) existing regulatory schemes or other remedies might preclude a tort | Court: No adequate statutory remedy was shown that would preclude the Burk action in these circumstances |
| Appropriateness of summary judgment given the record | Moore: admitted facts for summary‑judgment purposes show violation of public policy; disputed reasons for termination require jury fact finding | Warr Acres: summary judgment appropriate because at‑will doctrine controls and facts do not show a public‑policy violation | Court: Summary judgment was improper — although public policy protects a nurse from discharge solely for missing work with influenza, disputed factual issues about the true reason for termination must be resolved by the trier of fact |
Key Cases Cited
- Burk v. K‑Mart Corp., 770 P.2d 24 (Okla. 1989) (establishes narrow public‑policy exception to at‑will employment)
- Silver v. CPC‑Sherwood Manor, Inc., 84 P.3d 728 (Okla. 2004) (nursing‑home employee stated Burk claim where public‑health statutes prohibit handling food when ill)
- Clinton v. State ex rel. Logan Cnty. Election Bd., 29 P.3d 543 (Okla. 2001) (clarifies elements of Burk tort)
- Vasek v. Board of County Commissioners, 186 P.3d 928 (Okla. 2008) (further summarizes Burk elements and remedy adequacy)
- Estes v. Conoco Phillips Co., 184 P.3d 518 (Okla. 2008) (administrative rules promulgated under legislative authority have force of law)