HO v. TULSA SPINE & SPECIALTY HOSPITAL

¶1 We retained this cause to address the first impression question of whether the Governor's temporary emergency COVID-19 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 authorized the Governor to issue temporary emergency orders, and the orders expressed established public policy of curtailing an infectious disease, the exception to at-will employment as articulated by Burk v. K-Mart Corp. 1989 OK, ¶17, 770 P.2d 24, and its progeny is applicable from March 24, 2020, until April 30, 2020.

ALLEGED FACTS

¶2 The defendant/appellee, Tulsa Spine & Specialty Hospital, L.L.C, (hospital/employer) hired the plaintiff/appellant, Kristie Ho (employee/nurse) in December of 2012. She insists that she was an exemplary at-will employee with positive performance reviews. On February 20, 2020, a little more than two months before she was terminated, the nurse's reviewing manager gave her a glowing "Excellent Performance" review. It identified her as an asset who was responsive, positive, respectful, accountable, dependable, a great mentor and teacher, with a strong work ethic.

¶3 On March 15, 2020, Oklahoma's Governor, J. Kevin Stitt, declared a state-wide emergency due to the coronavirus pandemic and the impending threat of the spread of COVID-19 to the people of this State and their peace, health, and safety.¹ On March 24, 2020, the Governor, in a fourth amendment to his executive order, provided that medical providers in Oklahoma "shall postpone all elective surgeries, minor medical procedures, and non-emergency dental procedures until April 7, 2020."²

¶4 Notwithstanding the Governor's order, the nurse contends that the hospital continued to perform elective surgeries, and that it did so without the availability and usage of personal protective equipment during pre-operative and post-operative care. On April 1, 2020, the Governor issued a seventh amended executive order extending the required postponement of all elective surgeries to April 30, 2020,³ which resulted in a temporary, moratorium on elective surgeries. During the week of April 6, 2020, the hospital furloughed all the employees in the nurse's assigned outpatient pre-operative unit, with the exception of the nurse.

¶5 The nurse asserts that on April 10, 2020, the hospital performed elective surgeries and required the nurse to render services without adequate availability and usage of personal protective equipment. On April 12, 2020, the nurse contacted her manager, Nikki Gripe, to discuss her concerns about unsafe working conditions, and to report that a fellow employee who had tested positive for COVID-19 had been hospitalized. According to the nurse, she:

1) expressed her safety concerns and complained about having to work long hours on the 10th without adequate and appropriate personal protective equipment;
2) questioned why the hospital was doing elective surgeries in violation of the Governor's order;
3) requested to be furloughed like all of the other employees; and
4) informed her manager that she would not come to work on April 13 because of her safety concerns coupled with the ban on surgeries.

The manager advised the nurse to contact the hospital's Human Resources Director, Natasha Hnizdo. She did. She repeated her concerns to the director, and the director told her if she did not return to work, her absence would be regarded as a resignation. The nurse contends she told her she was not resigning, but that she would not return to work until the ban on elective surgeries was lifted. The nurse sent her manager and the human resources manager various follow-up texts trying to determine what to do next.

¶6 The director sent the nurse a letter by certified mail on April 21, 2020, to her private mailbox at the UPS Store in the Tulsa Hills Shopping Center. The nurse, who was abiding by the City of Tulsa Mayor's Safer at Home executive order, did not pick up the letter. On April 27, 2020, the hospital terminated the nurse from employment.

¶7 On June 2, 2020, the nurse filed an action for wrongful discharge in the District Court of Tulsa County. She alleged that the employer terminated her in violation of the public policy of the State of Oklahoma because she declined to come to work without adequate and appropriate personal protective equipment or to provide nursing services for elective surgeries when, to do so, was a violation of the Governor's executive order banning such surgeries.⁴

¶8 The hospital filed a motion to dismiss on July 13, 2020, arguing that the nurse failed to state a claim for wrongful discharge under Oklahoma law. In an Amended Journal Entry of Judgment filed on July 20, 2021, the trial court granted the hospital's motion to dismiss. It determined that the nurse's wrongful termination claim, premised on a violation of the public policy of Oklahoma, does not exist. The nurse appealed, and the Court retained the appeal on August 4, 2021. The cause was assigned on August 26, 2021.

I.

BECAUSE THE LEGISLATURE EXPRESSLY AUTHORIZED THE
GOVERNOR TO ISSUE TEMPORARY EMERGENCY ORDERS WHICH
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.

A.

Standard of Review/Motion to Dismiss.

¶9 This cause was dismissed pursuant to a motion to dismiss. Consequently, the facts have not been determined and are mere allegations. An order dismissing a case for failure to state a claim upon which relief can be granted is subject to de novo review.⁵ 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.⁶

¶10 The purpose of a motion to dismiss is to test the law that governs the claim in litigation, not the underlying facts.⁷ A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle the plaintiff to relief.⁸

B.

Employment-at-Will and the Public Policy Exception.

¶11 This Court has long recognized the basic principle that an employment contract of indefinite duration may be terminated without cause at any time without incurring liability for breach of contract.⁹ Such indefinite employment contracts are deemed terminable-at-will a/k/a employment-at-will. The classic statement of the at-will rule is that an employer may discharge an employee for good cause, for no cause or even for cause morally wrong, without being guilty of a legal wrong.¹⁰

¶12 Principles of freedom of contract and the importance of economic growth are attributed to the development of the terminable-at-will doctrine.¹¹ Nevertheless, this Court has observed the terminable-at-will doctrine is not absolute. The Oklahoma Legislature, not unlike Congress and other state legislatures, has enacted various statutory exceptions to the doctrine to accommodate the competing interests of the employee and employer. Similarly the courts have created exceptions to the employment-at-will rule.¹²

¶13 The nurse argues that because the Governor's emergency orders were an expression of Oklahoma public policy, they must also support an exception to at-will employment as articulated by Burk v. K-Mart Corp, 1989 OK 22, ¶17, 770 P.2d 24. The hospital argues that the orders are not the well-defined, firmly established state public policy required to support such a tort claim. We agree with the nurse.

¶14 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 also further asserted that her employer's agent told her he would not recommend her for a promotion because of her sex.

¶15 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. It confined the exception to 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.

¶16 Three years after Burk, supra, we promulgated Tate v. Browning Ferris, Inc, 1992 OK 72, 833 P.2d 1218. Tate involved the question of whether a Burk tort could be asserted for racial discrimination, to which we answered -- yes.¹³ 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.

¶17 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. (Emphasis supplied.)

Accordingly, the question here is whether Oklahoma's constitutional, statutory, or decisional law or federal constitutional provision prescribes a norm of conduct for Oklahoma in which no statutory remedy exists to adequately protect the Oklahoma policy goal.

C.

The Legislature Expressly Authorized the Governor to Issue Temporary Emergency Orders, and the Orders Expressed Established Public Policy of Curtailing Infectious Disease.

¶18 In Treat v. Stitt, 2020 OK 64, ¶¶4-5, 473 P.3d 43 we explained that the legislative branch sets the public policy of the State of Oklahoma by enacting law which does not conflict with the Oklahoma Constitution. The Governor has a role in setting that public policy through his function to execute the law. However, the Governor only has the power and authority which is specifically granted by the Legislature through statutory law, or power conferred upon the Chief Executive by the Constitution.¹⁴ The Okla. Const. art. 6, §8 provides:

The Governor shall cause the laws of the State to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the State with other states and with the United States, and he shall be a conservator of the peace throughout the State.

¶19 As far as the Governor's general authority goes, it is recognized that the drafters of the Oklahoma Constitution placed provisions to protect the people of the State of Oklahoma against excessive political and economic power.¹⁵ Oklahoma's historical underpinnings were extremely economically conservative.¹⁶ Fearing excessive power in the hands of one individual, the framers of the Oklahoma Constitution intentionally created a weak state chief executive.¹⁷ The Governor's authority is limited by the Constitution, because the Chief Executive may exercise only the power specifically granted by it or by the Legislature.¹⁸

¶20 The Governor is without authority to exercise a discretion not validly and specifically granted by the statutory law and not within the power conferred upon the Chief Executive by the Constitution.¹⁹ The Legislature is free to repeal any authority that it has granted. Even though the COVID crisis was a novel emergency crisis, the likes of which had not been seen for over a hundred years, the Governor's authority to issue emergency executive orders relating to such an emergency was expressly delegated by the Legislature. It is well grounded in Oklahoma's statutory authority. Title 63 O.S. 2011 §6403 provides in pertinent part:

. . . B. During a state of catastrophic health emergency, the Governor may:

1. Suspend the provisions of any regulatory statute prescribing procedures, for conducting state business, or the orders and rules of any state agency, to the extent that strict compliance with the same would prevent, hinder, or delay necessary action (including emergency purchases) by the public health authority to respond to the catastrophic health emergency, or increase the health threat to the population;

2. Utilize all available resources of the state government and its political subdivisions, as reasonably necessary to respond to the catastrophic health emergency;

3. Transfer the direction, personnel, or functions of state departments and agencies in order to perform or facilitate response and recovery programs regarding the catastrophic health emergency;

4. Mobilize all or any part of the National Guard into service of the state. . . .

5. Provide aid to and seek aid from other states during the catastrophic health emergency in accordance with any interstate emergency compact made with this state; and

6. Seek aid from the federal government . . .

¶21 Title 63 O.S. 2011 §683.1, the Oklahoma Emergency Management Act of 2003. Section 683.2 of the Act provides in pertinent part:

A. Because of the existing and increasing possibility of the occurrence of disasters of unprecedented size and destructiveness resulting from natural and man-made causes, in order to ensure that preparations of this state will adequately deal with such disasters and emergencies, to generally provide for the common defense and to protect the public peace, health, and safety, to preserve the lives and property of the people of this state, and to carry out the objectives of state and national survival and recovery in the event of a disaster or emergency, it is hereby found and declared to be necessary to: . . .

4. Confer upon the Governor and upon the executive heads or governing bodies of the political subdivisions of the state the emergency powers provided by the Oklahoma Emergency Management Act of 2003; . . .

Title 63 O.S. 2011 §683.9 provides in pertinent part:

The provisions of this section shall be operative only during the existence of a natural or man-made emergency. The existence of such emergency may be proclaimed by the Governor or by concurrent resolution of the Legislature if the Governor in such proclamation, or the Legislature in such resolution, finds that an emergency or disaster has occurred or is anticipated in the immediate future. Any such emergency, whether proclaimed by the Governor or by the Legislature, shall terminate upon the proclamation of the termination thereof by the Governor, or by passage by the Legislature of a concurrent resolution terminating such emergency. During such period as such state of emergency exists or continues, the Governor shall have and may exercise the following additional emergency powers: . . .²⁰

¶22 Likewise, the necessity of curtailing the spread of such a contagious virus is also well grounded and authorized by Oklahoma's statutory authority.²¹ So much so that nurses may lose their license for neglecting to do their part in curtailing the spread of infectious disease.²² Even though they are by their nature temporary and of limited duration, emergency orders are designed to address the immediate public policy health crisis at hand. ²³ Moore v. Warr Acres Nursing Center, 2016 OK 28, 376 P.2d 894 and Silver v. CPC-Sherwood Manor, Inc. 2004 OK 1, 84 P.3d, 728, involved nurses who were fired for not coming to work while they had contagious infections. In both causes, we reviewed the public policy exceptions which support a Burk, supra, tort. In Moore, supra, we explained that the precise question of law was not the employee's sufficiency of remedies, but rather whether Oklahoma's constitutional, statutory, decisional law, or a federal constitutional provision even prescribes a norm of conduct for Oklahoma that was violated. The answer was clearly yes.

¶23 In both Moore, supra, and Silver, supra, we explained:

1. health codes disseminated by the boards of health, as directed by the Legislature, are clear and compelling, articulated, well-defined, firmly established expressions of public policy which satisfy the public policy exception to at-will employment;

2. health care facilities are required to have infection control policies to provide a safe and sanitary environment to ensure the health of its patients;

3. The Okla. Const. art. 5 §39 directs the legislature to create the Board of Health, and art. 5 vests the Legislature the power to establish agencies such as the Oklahoma Health Department and to designate agency functions. 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. 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. Public health codes "in a clear and compelling fashion," articulate a well-defined, firmly established, state public policy . . .²⁴

¶24 In a similar manner in which the Oklahoma Department of Health Regulations §310:675-7-17-1, were statutorily mandated to implement the Nursing Home Care Act, control infections, and provide a safe and sanitary environment, the Governor's temporary orders were Legislatively mandated in a health crisis. They were designed to control infections, and provide a safe and sanitary environment for Oklahomans.

¶25 The critical purpose of the temporary emergency orders was to protect the public, patients, and hospital staffs, and to reduce the chances of contracting and spreading the unprecedented contagious disease. The ban on elective surgeries was only in effect for March 24, 2020 to April 30, 2020. At the time that the Governor issued the emergency orders, he did so within the full authority statutorily granted by the Legislature pursuant to 63 O.S. 2011 §6403, and §§683.1 and 683.9. The orders were limited to the time of a catastrophic health emergency. The orders expressed the public policy of the State of Oklahoma for the period the orders were effective, pursuant to the exception of Burk v. K-Mart Corp., 1989 OK, ¶17, 770 P.2d 24, and its progeny.

¶26 Although the orders were short-lived, they expressed public policy at the time. Accordingly, we hold that because the Legislature expressly granted the Governor authority to issue temporary emergency orders, and the orders expressed 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 in this cause from March 24, 2020, until April 30, 2020.

CONCLUSION

¶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.

APPEAL PREVIOUSLY RETAINED;
TRIAL COURT REVERSED;
CAUSE REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION.

KAUGER, EDMONDSON, COMBS, GURICH, KUEHN (by separate writing), JJ., concur.

DARBY, C.J., KANE, V.C.J. (by separate writing), WINCHESTER (by separate writing), ROWE (by separate writing), JJ., dissent.

¶1 I agree with the Majority opinion and write separately to emphasize its narrow scope. The opinion answers two questions of law: can an executive order ever provide the basis for a public polic