Tulsa Lawyer

What Happens to Your Stuff if You Die Without a Will?

2011-04-27T11:31:00.000-07:00

Any competent adult who has a "Last Will and Testament" may leave their property in whatever manner they wish. A spouse can choose to take his share of the property regardless of what the Will leaves him. In other words, you can't cut out your spouse if he or she doesn't want to be cut out. The rules concerning Wills are complicated. It's not something you should cut corners on, and it isn't something most people should do for themselves.

If you don't have a Will, the State of Oklahoma has written one for you, designating who gets your property when you die. It's called "intestate succession." It is found in the Oklahoma Statutes, 84 Okla.Stat. § 213(B):

1. If the decedent leaves a surviving spouse, the share of the estate passing to said spouse is:

a. if there is no surviving issue, parent, brother or sister, the entire estate, or

b. if there is no surviving issue but the decedent is survived by a parent or parents, brother or sister:

(1) all the property acquired by the joint industry of the husband and wife during coverture, and

(2) an undivided one-third ( 1/3 ) interest in the remaining estate, or

c. if there are surviving issue, all of whom are also issue of the surviving spouse:

an undivided one-half ( 1/2 ) interest in all the property of the estate whether acquired by the joint industry of the husband and wife during coverture or otherwise, or

d. if there are surviving issue, one or more of whom are not also issue of the surviving spouse:
(1) an undivided one-half ( 1/2 ) interest in the property acquired by the joint industry of the husband and wife during coverture, and

(2) an undivided equal part in the property of the decedent not acquired by the joint industry of the husband and wife during coverture with each of the living children of the decedent and the lawful issue of any deceased child by right of representation;

2. The share of the estate not passing to the surviving spouse or if there is no surviving spouse, the estate is to be distributed as follows:

a. in undivided equal shares to the surviving children of the decedent and issue of any deceased child of the decedent by right of representation, or

b. if there is no surviving issue, to the surviving parent or parents of the decedent in undivided equal shares, or

c. if there is no surviving issue nor parent, in undivided equal shares to the issue of parents by right of representation, or

d. if there is no surviving issue, parent, nor issue of parents, but the decedent is survived by one or more grandparents or issue of any grandparent, half of the estate passes equally to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of any paternal grandparent if both paternal grandparents are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation and the other half passes to the maternal relatives in the same manner; but if the decedent is survived by one or more grandparents or issue of grandparents on only one side of the family, paternal or maternal, the entire estate shall pass to such survivors in the manner set forth in this subsection, or

e. if there is no surviving issue, parent, issue of parents, grandparent, nor issue of a grandparent, the estate passes to the next of kin in equal degree;

3. If the decedent leaves no spouse, issue, parent, issue of parents, grandparent, issue of a grandparent, nor kindred, then the estate shall escheat to the state for the support of the common schools; and

4. For the purpose of this section, the phrase “by right of representation” means the estate is to be divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one equal share and the equal share of each deceased person in the same degree being divided among his issue in the same manner. The word “issue” means lineal descendants.

Your best option is to have a Last Will and Testament, rather than leave it to the State to determine where your property should go. A Will can accomplish other tasks, such as appointing someone to handle your estate after you die, and you can also make specific bequests of property to persons you want to receive it. If you don't have a Will, you should have one prepared and properly executed. Then give a copy of it to the person you want to administer your estate.

Remember: this is a general statement of the law and it may or may not be applicable to your specific situation.

Fraud Under Oklahoma Law

2011-02-22T09:00:00.000-08:00

The elements of actionable fraud are: 1) a false material misrepresentation, 2) made as a positive assertion which is either known to be false or is made recklessly without knowledge of the truth, 3) with the intention that it be acted upon, and 4) which is relied on by the other party to his (or her) own detriment. Fraud is never presumed and each of its elements must be proved by clear and convincing evidence. Silver v. Slusher, 1988 OK 53, 770 P.2d 878; Bras v. First Bank & Trust Co., 1985 OK 60, 735 P.2d 329; Dawson v. Tindell, 1987 OK 10, 733 P.2d 407; Bowman v. Presley, 212 P.3d 1210, 1218 (Okla. 2009).
All the essential elements requisite to constitute actionable fraud need be present, and the absence of any one is fatal to recovery. Steiger v. Commerce Acceptance of Oklahoma City, Inc., Okla., 455 P.2d 81 (1969).

Actual fraud is defined by statute in 15 O.S. § 58:

Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true.

2. The positive assertion in a manner not warranted by the information of the person making it, of that which is not true, though he believe it to be true.

3. The suppression of that which is true, by one having knowledge or belief of the fact.

4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive.

Constructive fraud is defined in the statutes by 15 O.S. § 59:

Constructive fraud consists:

1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or,

2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.

Where a party with intent to induce another to enter into contract makes positive assertion, which is material, in a manner not warranted by his information, or where he is not shown to have reasonable grounds for believing it true where the assertion so made is not true, even though believed by the party making it, he is guilty of actual fraud. Farrar v. Chitwood, 282 P.2d 729 (Okla. 1955).

There is wide distinction between the nonperformance of a promise and a promise made mala fide, only the latter being actionable fraud. Citation Co. Realtors, Inc. v. Lyon, 610 P.2d 788 (1980). The mere fact that a contract was not performed does not establish actual fraud, since this does not establish an intent not to perform at the time the promise was made. Smith v. Roederer, 516 P.2d 257 (Okla. 1973).

As always, the facts of a paticular situation determine whether these principles are applicable. This is not legal advice, because if it was, you would have paid for it! Consult a lawyer in your jurisdiction if you think you've been defrauded, or if you are concerned that someone else might have a fraud claim against you.

Workers Compensation Death Benefits Not Subject to Insurer's Subrogation Claim

2011-01-03T14:33:00.000-08:00

In McBride v. Grand Island Express, 2010 WL 5080933, 2010 OK 93, the Oklahoma Supreme Court held that insurers have no right to subrogation for workers compensation insurance death benefits paid to a deceased employee’s beneficiaries. Insurers who paid workers compensation death benefits can no longer intervene in third-party actions to recover under principles of subrogation.

Plaintiff/Appellee McBride, Sr. as Personal Representative of his son’s estate sued for wrongful death/negligence after an accident where Eldon McBride, Jr. was killed. McBride Jr. worked for NES Rentals as a truck driver. McBride Jr. stopped his employer’s truck and trailer to investigate a minor accident on a bridge. He was standing in the roadway on the bridge when he was struck by a tractor/trailer owned by Grand Island Express, Inc, driven by Therance White, Jr. and a tractor/trailer owned by DCM Transport and driven by Kenneth Minter.

The workers compensation insurer paid wrongful death benefits to McBride Jr.’s widow and children. The employer paid for funeral and burial expenses. Additionally, the workers compensation insurer is obligated to pay weekly benefits to McBride Jr.’s widow and children for an indefinite time.

The employer and insurer intervened in the estate’s wrongful death suit against third parties, Grand Island and DCM, based on their interpretation of 85 O.S. § 44, to recover from the third parties death benefits paid and those anticipated to be paid in the future through subrogation. The Personal Representative moved for summary judgment against the insurer, arguing that only an employer and not an insurer had the right to pursue the third-party tortfeasor to recover death benefits under 85 O.S. § 44(d) and that the employer had not paid any death benefits. Plaintiff also sought severance of the intervenors’ claim from the main action. The trial court granted Plaintiff’s motions.

The statute, 85 O.S. § 44(d) allows an employer the right to recover death benefits, but does not allow the employer’s workers compensation insurance carrier the same right. The statute does not create a right for the insurer to pursue a third party. In contrast, 85 O.S. § 44(c) specifically gives an employer or his insurance carrier a right of subrogation in certain situations, not including death benefits. By specifically leaving out insurance companies in the language of § 44(d), the Oklahoma legislature intended for only employers to have a separate cause of action for the recovery of death benefits paid by the employers. The trial court, relying on this provision, granted summary judgment to the Personal Representative of the decedent’s estate and dismissed the insurer’s subrogation claim.

NES Rentals, McBride Jr.’s employer, and its workers compensation insurer, the Insurance Company of the State of Pennsylvania, sought appellate review of the trial court’s grant of summary judgment to the Personal Representative of the decedent’s estate.

On appeal, the Court of Civil Appeals reversed the trial court and allowed the insurer to intervene and allowed subrogation of death benefits. The Oklahoma Supreme Court granted certiorari and reversed, reinstating the trial court’s termination of the insurer’s intervention and subrogation action.

The Oklahoma Supreme Court noted in its opinion that the employer had the right to subrogation to recover the death benefits, but there was no right of subrogation for the insurer to recover death benefits from third persons. The Court said that the employer or insurer had no historical right to payment of death benefits because death benefits subrogation was unauthorized and was viewed as violative of Okla. Const. art. 23 § 7 which provides: "The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers' Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions."

The Court held that Section 44(d) grants to the employer but not the insurer an independent cause of action to recover from a third-party tortfeasor the money paid out in death benefits under the Workers’ Compensation Act and that Section 44(d) prohibits the employer or carrier from acquiring any interest in the death benefits received by the employee or the employee’s beneficiary, or in a life insurance policy owned by the employee. The Court stated that if the Legislature intended to create a right of recovery for the insurance carriers, it would have included them in the first sentence of Section 44(d). The Court held that the insurance carrier cannot stand in the shoes of the employer and the employer cannot vicariously seek damages for losses it did not incur.

The Court in McBride decided an issue of first impression, as no prior decisions had construed 44 O.S. § 44(d), regarding an “employer” the right to recover in subrogation death benefits paid by an insurer. In McBride the Court specifically held that the insurer could not “stand in the shoes” of its insured, the employer, to recover through subrogation death benefits the insurer paid.

Other theories of recovery still exist; the opinion cuts off only the right of subrogation.

Enforcing A Promise When There Is No Contract

2010-12-20T12:07:00.000-08:00

The Court in Russell v. Board of County Commissioners, 1997 OK 80, 952 P.2d 492 outlined the elements of the doctrine of promissory estoppel. The Court first noted that "Promissory estoppel, which is grounded in the Restatement (Second) of Contracts § 90, has been incorporated into Oklahoma common law." Id. at ¶ 27, citing Roxana Petroleum Co. v. Rice, 1924 OK 1042, 235 P. 502; Bickerstaff v. Gregston, 1979 OK CIV APP 64, 604 P.2d 382, 384. Section 90 of the Restatement states in part:

"(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. . . .”
Id. ¶ 27. In Russell the Court set forth what the proof that is necessary to establish promissory estoppel:

The elements necessary to establish promissory estoppel are: (1) a clear and unambiguous promise, (2) foreseeability by the promisor that the promisee would rely upon it, (3) reasonable reliance upon the promise to the promisee's detriment and (4) hardship or unfairness can be avoided only by the promise's enforcement.

Id. ¶ 27 (footnotes omitted)

“[S]o-called promissory estoppel . . . is based upon the same equitable principles as is estoppel by silence. In the one case a promise is made with the intention that it be acted upon by the promisee; in the other, a person has been silent on some occasion when he should have spoken. But in either case the party who is estopped has in effect stood by and, in violation of his duty in equity and good conscience to warn another of the real facts, permitted the latter to take some action detrimental to his own interest. . . . [T]there must be an intention that some action be taken thereon . . . ." Dixon v. Roberts, 1993 OK CIV APP 15 ¶13, 853 P.2d 235, citing Lacy v. Wozencraft, 1940 OK 383, 105 P.2d 781, 783.

"Our cases tend to use promissory estoppel as a substitute for bargained for consideration with the consequence that once it is found the parties are granted remedies as if agreement were reached and the promissor is held to his promise." Bickerstaff v. Gregston, 1979 OK CIV APP 64, 604 P.2d 382, 384 fn. 1.

Intentional Infliction of Emotional Distress Under Oklahoma Law

2010-10-07T06:54:00.000-07:00

Sometimes a person initating a lawsuit, who is called the "plaintiff," will sue another person for "intentional infliction of emotional distress." This type of claim is a tort, meaning wrongful conduct that damages another person. When a person has emotional distress to the point where he can sue the person that caused it, this is much more than being simply upset.

To establish a prima facie case of intentional infliction of emotional distress in Oklahoma, a plaintiff must demonstrate: (1) that the tortfeasor acted intentionally or recklessly; (2) that the tortfeasor's conduct was extreme and outrageous; (3) that plaintiff actually experienced emotional distress; and (4) that the emotional distress was severe. Ishmael v. Andrew, 2006 OK CIV APP 82, ¶19, 137 P.3d 1271, 1277; Breeden v. League Services Corp., 1978 OK 27, ¶7, 575 P.2d 1374, 1376. Whether an actor's conduct is so extreme and outrageous as to permit recovery constitutes a question of law. Breeden, 1978 OK 27, ¶12, 575 P.2d at 1377-1378. Questions of law are resolved by the court, not by the jury. That is, the court would have to decide if the evidence supported a claim for intentional infliction of emotional distress before the question can be submitted to a jury for decision.
Unlike a cause of action for intentional infliction of emotional distress, negligent infliction of emotional distress is not an independent tort. Kraszewski v. Baptist Medical Center of Oklahoma, Inc., 1996 OK 141, ¶1, 916 P.2d 241, 243, fn. 1. (Citation omitted.) That is to say, "[u]nder Oklahoma's jurisprudence the negligent causing of emotional distress is not an independent tort, but is in effect the tort of negligence." Lockhart v. Loosen, 1997 OK 103, ¶16, 943 P.2d 1074, 1081.

What is negligence? The essential elements of a negligence claim are: (1) a duty owed by defendant to protect plaintiff from injury, (2) a failure to properly exercise or perform that duty, and (3) injuries to plaintiff proximately caused by defendant's failure to exercise his duty of care. McKellips v. St. Francis Hospital Inc., 1987 OK 69, 741 P.2d 467, 470. Duty is the threshold question in any negligence action. Haas v. Firestone Tire & Rubber Co., 1976 OK 178, 563 P.2d 620, 625; Kraszewski, 1996 OK 141, ¶1, 916 P.2d at 243, fn. 1. (Citation omitted.)

Duty can be established by law, or by the parties' relationship with each other. For example, you have a duty to stop at a red light, because that is what the law requires. That would be a duty imposed by law. You may owe a duty to your elderly grandmother not to clean out her bank account behind her back because she trusts you with taking care of her finances. This duty arises because of your relationship with your grandmother.

In Breeden, the court held that the tort of intentional infliction of emotional distress is governed by the narrow standard of Restatement (Second) of Torts § 46. That section provides, in part, that “one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress,....” The court in Breeden further explained: “The court, in the first instance, must determine whether the defendant's conduct may reasonably be regarded so extreme and outrageous as to permit recovery ...” Id. at 1377. The Restatement provides guidance for the trial court's determination in the comments following § 46. Comment d indicates “liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” That comment further recites that the conduct must be such that, upon hearing of it, a reasonable member of the community might exclaim “outrageous!”

The tort of negligence, and the tort of infliction of emotional distress, arise only rarely and are highly dependent on the situation.

Medical Malpractice Basics

2010-09-29T11:26:00.000-07:00

If a doctor, hospital, dentist, or other health care provider makes a mistake, can you sue him or her? Not necessarily.

Medical malpractice involves matters of medical science and occurs when “those engag[ed] in the practice of the healing arts,” 76 O.S.2001, § 20.1, fail to “exercise ordinary care in delivery of professional services” when a duty is owed the plaintiff. Franklin v. Toal, 2000 OK 79, ¶ 14, 19 P.3d 834, 837.

In Oklahoma, the elements of a medical malpractice claim are: (1) a duty of care owed by the defendant to the plaintiff, (2) breach of that duty, (3) an injury, and (4) causation. Jennings v. Badgett, 2010 OK 7, 230 P.3d 861.

1. Duty of Care. The element of duty requires a physician-patient relationship. Jennings, supra. An action for malpractice is based on an employment contract. Funnell v. Jones, 1985 OK 73, ¶ 5, 737 P.2d 105, 107, cert. denied, 484 U.S. 853, 108 S.Ct. 158, 98 L.Ed.2d 113 (1987). To receive the professional services, the patient agrees to be treated, Scott v. Bradford, 1979 OK 165, ¶ 8-12, 606 P.2d 554, 556-557, and if the patient is unable to give consent, the consent may be implied. Rolater v. Strain, 1913 OK 634, 39 Okla. 572, 137 P. 96. Otherwise, a physician may be liable for assault and battery. Scott, 1979 OK 165 at ¶ 8-12, 606 P.2d at 556-557. Because in Oklahoma a physician is not under a general duty to provide professional services to others, see Jackson v. Mercy Health Ctr., Inc., 1993 OK 155, ¶ 5, 864 P.2d 839, 842, the physician must consent to provide the services. The agreement of the physician to treat and the patient to receive treatment is the basis of the employment contract.

2. Breach of Duty of Care. Generally, expert testimony that a doctor or hospital deviated from the standard of care is necessary to establish causation in a professional liability case. See White v. Burton, 1937 OK 381, 71 P.2d 694; Harder v. F.C. Clinton, Inc., 1997 OK 137, 948 P.2d 298. The rationale for this rule is that a trier of fact must have sufficient technical and scientific evidence at his or her disposal to answer scientific or technical questions of fact. However, when a doctor or a hospital's lack of care has been such that common knowledge or the experience of laymen is extensive enough to recognize or infer negligence from the facts, expert medical testimony is not required. Boxberger v. Martin, 1976 OK 78, 552 P.2d 370. Expert medical evidence is not required to establish the cause of an objective injury where there is competent evidence, without such testimony, to establish the cause with reasonable certainty.

3. An Injury. This is self-explanatory; the plaintiff must have been damaged by the defendant's negligence. As a practical matter, a trivial injury may not be worth pursuing because the damages may not justify the expenditure of money for court costs, expert witness fees, and the like.

4. Causation. Plaintiff cannot recover for negligence unless it was the proximate cause of the injuries for which the plaintiff seeks compensation. Jones v. Mercy Health Center, Inc., 2006 OK 83, 155 P.3d 9.The issue of causation involves whether a reasonable person could believe that the defendant's negligent conduct was a cause of the plaintiff's injury. McKellips v. St. Francis Hosp., Inc., 1987 OK 69, ¶ 10, 741 P.2d 467, 471. “Absolute certainty is not required.” McKellips, 1987 OK 69, ¶ 11, 741 P.2d at 471. It must be established by expert testimony. Jones, supra.

Remember, this is not legal advice. We probably don't even know you, and besides that, we generally charge for legal advice.

Courts get bored, too

2010-08-25T08:58:00.000-07:00

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.

So begins Chief Justice Roberts' dissent in Pennsylvania v. Dunlap, 129 S. Ct. 448, 172 L. Ed. 2d 321 (2008).

The courts are not as humorless as some legal writers might suppose. Take, for example, a footnote in a 5th Circuit opinion in Easter Seal Society for Crippled Children v. Playboy Enterprises, 815 F.2d 323 (5th Cir. 1987). See footnotes on p. 325.

Thus, this most delightful of case names: Easter Seal Society for Crippled Children v. Playboy Enterprises; seriously rivaled, in our judgment, only by United States v. 11 1/4 Dozen Packages of Article Labeled in Part Mrs. Moffat's Shoo Fly Powders for Drunkenness.

Another case in point is In re United States Brass Corp., No. 96-2952 (7th Cir. 1997). The esteemed Judge Posner, the finest judicial mind of this century, is famous for his wry comments and well-written, common-sense, yet scholarly opinions. The government should name a major continent, or at least an ocean, after him.

This case involved several consolidated bankruptcies of affiliated corporations who, Judge Posner noted, had been sued for the "Qest System," the judge noting that it was "a plumbing system that turned out to be defective (which goes to prove that if you can't spell, you're liable to make other mistakes as well)."

Yet another example may be seen in Smith v. Colonial Penn Insurance Co., 943 F. Supp. 782 (S.D. Tex. 1996). The request for a change of venue was centered around the fact that Galveston does not have a commercial airport into which Defendant's representatives may fly and "out of which they may be expediently whisked to the federal courthouse in Galveston. Rather, Defendant contends that it will be faced with the huge 'inconvenience' of flying into Houston and driving less than forty miles to the Galveston courthouse, an act that will 'encumber' it with 'unnecessary driving time and expenses.'" The Court refused to move the location of the trial, since the Texas federal courthouse "got lights, indoor plummin', 'lectric doors, and all sorts of new stuff, almost like them big courthouses back East." The Court said, "it is not this Court's concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time." The Court pointed out that traveling to the federal courthouse in Galveston does not involve a trip by covered wagon.

For additional interesting court opinions, check our website under the tab, "Strange But True."

Teacher Due Process Act

2010-08-09T10:21:00.000-07:00

Due process for Oklahoma teachers is governed by the Teacher Due Process Act of 1990, 70 O.S. § 6-101.20 et seq.

The State Board of Education promulgates standards of performance and conduct for teachers. 70 O.S.§ 6-101.21. The Act provides:

A. Subject to the provisions of the Teacher Due Process Act of 1990, a career teacher may be dismissed or not reemployed for:

1. Willful neglect of duty;
2. Repeated negligence in performance of duty;
3. Mental or physical abuse to a child;
4. Incompetency;
5. Instructional ineffectiveness;
6. Unsatisfactory teaching performance;
7. Commission of an act of moral turpitude; or8. Abandonment of contract.

70 O.S. §6-101.22(A). Teachers "who are employed on contracts shall be afforded all substantive and procedural rights set forth in the Teacher Due Process Act of 1990 including the dismissal, suspension, and nonreemployment provisions applicable to probationary or career teachers as defined in Section 6-101.3." 70 O.S. § 6-101.23.

The Act requires that an administrator identify in writing a teacher's poor performance or conduct and allow the teacher time to correct it. 70 O.S. § 6-101.24. Additionally, a recommendation to dismiss or not reemploy a teacher is to be in writing, submitted to the board of education, specifying the statutory grounds on which the recommendation is based. 70 O.S. § 6-101.25. The teacher is entitled to a hearing prior to his termination. 70 O.S. §6-101.26. A career teacher is entitled to a trial de novo in the district court of the county in which the school district is located. 70 O.S. § 6-101.27.

The Act exempts certain teachers from its requirements:

A. The dismissal, suspension and nonreemployment provisions of the Teacher Due Process Act of 1990 shall not apply to:

1. Substitute teachers;

2. Adult education teachers; and

3. Teachers who are employed on temporary contracts.

B. The dismissal and suspension provisions of the Teacher Due Process Act of 1990 shall apply to teachers who are employed on temporary contracts for a complete school year and to teachers who are employed in positions fully funded by federal or private categorical grants, except that such teachers shall be employed only for the duration of the temporary contract or the grant.

C. The evaluation provisions in Sections 6-101.10 and 6-101.11 of this title and in the Teacher Due Process Act of 1990 shall apply to teachers who are employed on temporary contracts for a complete school year and to teachers who are employed in positions fully funded by federal or private categorical grants, except that such teachers shall be employed only for the duration of the temporary contract or the grant.

D. Teachers other than those specifically excepted in subsection A of this section who are employed on contracts shall be afforded all substantive and procedural rights set forth in the Teacher Due Process Act of 1990 including the dismissal, suspension, and nonreemployment provisions applicable to probationary or career teachers as defined in Section 6-101.3 of this title.

E. On and after the effective date of this act any teacher who has worked a complete school year under a temporary contract in a school district shall be granted a year of service credit toward career status in that district.

F. No teacher shall be hired on a temporary contract by a school district for more than three semesters, except for a:

1. Teacher hired to replace a teacher who is on an approved leave of absence and who is expected to return to employment with the school district; or

2. Teacher who is a retired member of the Teachers' Retirement System of Oklahoma.

G. No teacher shall be offered a temporary contract with a school district without a full written disclosure at the time a position is offered by the administration of the school district which sets forth the terms and conditions of the temporary contract. In the event the school district fails to provide such written disclosure, the teacher shall be considered as employed on a continuing contract basis.

H. On and after the effective date of this act no teacher who is employed on a continuing contract basis by a school district shall be reemployed on a temporary contract in that school district.

70 O.S. § 6-101.23.

Tenure provides special rights. As noted in Weston v. Independent School Dist. No. 35 of Cherokee County, 170 P.3d 539 (Okla. 2007):

We have said that the teacher tenure law, 70 O.S. § 6-101, et seq., was intended to give job security to competent and qualified teachers and to protect them from dismissal or non-renewal for political, personal, arbitrary or discriminatory reasons. Babb v. Independent School District, 1992 OK 46, 829 P.2d 973, 975. Tenure status, which is statutorily conferred upon teachers who have been in employment of the school district the required number of years, demonstrates legislative intent to grant teachers substantive rights in their continued position, which are not possessed by those in a temporary or probationary status. Id. Under this regime, teacher contracts are automatically renewed on a continuing basis unless a school board or a teacher acts to prevent the employment's renewal. Once attained, tenure status cannot be lost except on the grounds sanctioned by law. 829 P.2d at 976.

This general discussion of the law may not contain all the legal principles applicable to your specific situation. Therefore, it is important to obtain custom legal advice for yourself.

Constructive Discharge of Employees: Q&A

2010-08-04T09:44:00.000-07:00

An employee who voluntarily quits a job will sometimes file suit against his or her employer, alleging that he was "constructively discharged" from the job. In other words, conditions were intolerable and the employee was forced to resign. The following are questions concerning constructive discharge claims. This is general information, not legal advice, and it may not be specific to your situation. Consult a lawyer for application of the law to actual facts

What is the basis for a constructive discharge claim? Such a claim must be based on a violation of the law. For example, Title VII prohibits employers from making employment decisions which adversely affect an employee or applicant because of that individual's race, color, religion, sex, or national origin. 42 U.S.C. § 20003-2(a).

What is constructive discharge? “Constructive discharge occurs when the employer, by its illegal discriminatory acts, has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign.” Sandoval v. City of Boulder, 388 F.3d 1312, 1325 (10th Cir. 2004) (quotation omitted). In evaluating whether the employee's working conditions would cause such a feeling in a reasonable person, the court has said that “we apply an objective test under which neither the employee's subjective views of the situation, nor her employer's subjective intent... are relevant.” Tran v. Trs. of State Coils., in Colo., 355 F.3d 1263, 1270 (10th Cir. 2004).

The Supreme Court has held that, to establish constructive discharge, a plaintiff must show that her working conditions, from an objective standpoint, “became so intolerable that her resignation qualified as a fitting response.” Penn. State Police v. Suders, 542 U.S. 129, 133-34, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).

An isolated discriminatory act may not be sufficient to sustain a claim, because “a finding of constructive discharge may not be based solely on a discriminatory act; there must also be aggravating factors that make staying on the job intolerable.” Bennett v. Quark, Inc., 258 F.3d 1220, 1229 (10th Cir. 2001), overruled on other grounds by Boyer v. Cordant Tech., Inc., 316 F.3d 1137, 1140 (10th Cir. 2003). Such aggravating factors would include being “subjected to harsher working conditions than [similarly situated employees], excluded from meetings regarding work matters, subjected to [gender-based] comments and slurs, belittled by coworkers who repeatedly criticized her work, physically and verbally assaulted by a coworker who called her incompetent, assigned additional job duties when she complained, and denied training afforded to others.” Bankruptcy Estate of Elliott v. Oklahoma Dep't of Corrections, No. CIV-06-65-D, 2008 WL 462406, *2 (W.D. Okla. Oct. 16, 2008). See also Acrey v. Am. Sheep Indus. Ass'n, 981 F.2d 1569, 1574 (10th Cir. 1992) (constructive discharge found upon evidence that plaintiff's supervisor repeatedly asked her to quit, repeatedly barraged her with performance shortcomings, took away responsibilities, and gave the employee inadequate information and training to perform duties).

How do you prove constructive discharge? The plaintiff’s burden in a constructive discharge case is substantial and showing that the employer's conduct meets the definition of “tangible employment action” or “adverse employment action” is “not necessarily sufficient to establish a constructive discharge because a constructive discharge requires a showing that the working conditions imposed by the employer are not only tangible or adverse, but intolerable.” Id. at 1270-71; see also Penn. State Police v. Suders, 542 U.S. 129; 147 (2004) (“A hostile-environment constructive discharge claim entails something more [than conduct that amounts to actionable harassment]; see also Tutman v. WBBM-TV, Inc/CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) (“Working conditions for constructive discharge must be even more egregious than the high standard for hostile work environment because in the ordinary case, and employee is expected to remain employed while seeking redress.” (quotations omitted)). A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.”); Garrett v. Hewlett-Packard Co., 305 F.3d 1210,1221 (10th Cir. 2002) (stating that “[t]he bar is quite high in such cases”). Importantly, in constructive discharge cases “[t]he question is not whether the employee's resignation resulted from the employer's actions, but whether the employee had any other reasonable choice but to resign in light of those actions.” Tran, 355 F.3d at 1270.

The court in Thompson v. McDonnell Douglas Corp., 416 F.Supp. 972, 983 (E.D. Mo. 1976), aff'd, 552 F.2d 220 (8th Cir. 1977) required that an assertion of constructive discharge be supported by evidence of the employer's specific intent to cause the employee to quit. Id. The discussion of constructive discharge by the Court in Muller v. U.S. Steel, 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975) indicates that the employer must be proven to have "schemed" to make conditions such that the employee would resign.

What if an employee just can't tolerate the job or the co-employees, or the boss? Normal job stress is not an abusive work environment, nor are personality conflicts between employees actionable in court. Bateman v. United Parcel Service, 2002 WL 241200 (10th Cir. 2002) (construing Oklahoma law).

What if an employee quits because he knows he's going to be fired? Is this a constructive discharge? This can be a constructive discharge. “When an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns, the employer's conduct may amount to constructive discharge. In other words, constructive discharge also occurs where, based on an employer's actions, ‘the handwriting [was] on the wall’ and the axe was about to fall.” Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir.2008) (internal citations omitted). Merely predicting that one might be fired is not enough; “the prospect of being fired at the conclusion of an extended process,” without more, does not meet this standard. Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333-34 (7th Cir.2004).

Summary Judgment

2010-08-02T10:25:00.000-07:00

Summary judgment often saves time and money.

Often lawyers recommend filing a motion for summary judgment, which terminates the lawsuit in favor of the client -- or a motion for partial summary judgment, which can narrow the scope of the lawsuit and thus save time and money for everyone.

If certain facts are not in dispute, the Judge may apply the law applicable to those facts and rule as to who wins. The filing of a motion for summary forces the opposing party to present his best case, along with supporting evidence. Summary judgment “is the put up or shut up moment in a lawsuit when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Industry, Inc., 325 F.3d 892, 901 (7th Cir. 2003).

For example, perhaps a plaintiff (the person who files the lawsuit) has a legimate complaint against a defendant (the person who has been sued) -- but the lawsuit was not filed on a timely basis. There is a "statute of limitations" for most claims, a time within which it must be filed. If the statute of limitations has run, the plaintiff's claim cannot succeed. The fact that the suit was filed too late is brought to the court's attention through a motion for summary judgment.

The reason for the summary judgment procedure is that the trier of fact (usually a jury, and sometimes a judge) has nothing to try when the facts are not in dispute. As noted in Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Id. at 1356.

In writing briefs to support a summary judgment motion, the parties must attach evidence, usually documents, transcripts of deposition testimony, or affidavits. That's why lawyers like to serve discovery requests and ask the other party to produce documents or appear for a deposition -- so that the evidence can be discovered before trial. In summary judgment proceedings, “conclusory allegations will not suffice to create a genuine issue” requiring trial. Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990). The party opposing summary judgment “cannot ‘escape summary judgment merely by vaguely asserting the existing of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.’ ” Westernworld Insurance Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir.1990), citing and quoting Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir.1989).

Another interesting aspect of the summary judgment process is that witnesses cannot offer to the court an affidavit that contradicts their prior deposition testimony, in order to defeat a motion for summary judgment. Where an affidavit attempts to create a sham fact issue by contradicting sworn deposition testimony, it may be properly disregarded by the court for summary judgment purposes. Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir.1995); Wiley v. Brown, 164 F.R.D. 547 (D. Kan. 1996) (Plaintiff is not permitted to virtually rewrite portions of a deposition, particularly after defendant has filed a summary judgment motion.); Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir.1999)(a subsequent affidavit may not be used to contradict the witness’s deposition). In Cities Service Co. v. Gulf Oil Corp., 1999 OK 14, 980 P.2d 116, the Oklahoma Supreme Court affirmed the trial court’s ruling which precluded a witness from testifying at trial since the testimony at trial was materially different than that offered in deposition. As a result of the change, the opposing party was deprived of any meaningful way to probe the basis of the opinion.

Summary judgment is an important tool in the litigator's arsenal. A lawsuit should be prosecuted or defended in such a way as to shorten the amount of time and effort required to finish it. Finishing it early through an order where the court grants summary judgment to our client is always our primary goal. Cutting the scope of the lawsuit by obtaining a partial summary judgment, where a full summary judgment cannot be obtained, is also beneficial in many cases. Where neither is successful, you have still accomplished an important goal of exposing any weaknesses in a case or defense, which can contribute to a favorable settlement. At the very least, the research can be used in trial briefs, jury instructions, and other motions.

Summary judgment should always be considered as part of an overall litigation strategy.