Opinion
Case Number: 117019
07-22-2020
TRACY A. PEUPLIE, Appellant/Plaintiff, v. OAKWOOD RETIREMENT VILLAGE, INC., d/b/a GOLDEN OAKS NURSING HOME, Appellee/Defendant.
Mark Hammons, Amber L. Hurst and Kristin E. Richards, Oklahoma City, Oklahoma, for Appellant, Douglas L. Jackson, Julia Christina Rieman, Patrick L. Neville, Jr., Enid, Oklahoma, for Appellee.
APPEAL FROM THE DISTRICT COURT OF
GARFIELD COUNTY, OKLAHOMA
HONORABLE DENNIS HLADIK, JUDGE
AFFIRMED
Mark Hammons, Amber L. Hurst and Kristin E. Richards, Oklahoma City, Oklahoma, for Appellant,
Douglas L. Jackson, Julia Christina Rieman, Patrick L. Neville, Jr., Enid, Oklahoma, for Appellee.
Larry Joplin, Presiding Judge:
¶1 Plaintiff/Appellant, Tracy Peuplie, seeks review of the district court's April 19, 2018 order granting Defendant/Appellee's, Oakwood Retirement Village, Inc., d/b/a Golden Oaks Nursing Home, motion for summary judgment, upon Peuplie's wrongful termination claim, alleging her employer fired her in violation of a clearly established public policy.
¶2 Peuplie began working for the Defendant nursing home as a CNA (certified nursing assistant) on March 5, 2016 and her employment was terminated on February 2, 2017, for what Defendant said was a violation of its social media policy. On January 23, 2017, Peuplie posted two entries on her Facebook account, making negative comments about her employer and fellow employees, although neither Golden Oaks Nursing Home, Oakwood Retirement Village, nor any fellow employees were mentioned by name within the text of the posts. The posts read as follows:
The Defendant's multi-page social media policy reads in part as follows:
Procedure:
1. Acknowledgement (sic):
When using Social Media, employees must adhere to the same Federal and State compliance requirements that the company follows. For example, employees must maintain resident privacy and comply with all HIPPA (sic) regulations. Employees must take into consideration and follow all Golden Oaks policies when utilizing social media.
2. As an employee of Golden Oaks the use of social media to voice any concerns or issues with the company, supervisors, co-workers, etc. is not acceptable and is not the proper place to do so. If employee has a concern they should go through the proper chain of command. Golden Oaks expects their employees to be respectful to fellow employees, business partners, competitors and residents.
10:33am: It's just amazing in 30 years I have never in my life worked with an administration staff or a nursing crew that just don't give a shit!!!! God I wish I could find another place to work weekend doubles with my copilot!!!!!Peuplie did not deny making the Facebook posts.
12:34pm: I FEEL SORRY FOR THE ELDERLY AND THE NEXT GENERATION TO TAKE CARE OF THEM THEY HAVE NO WORK ETHICS OR EVEN CARE!!! ITS VERY SAD YOUR BETTER OFF LIVING UNDER A BRIDGE IN A BOX THE HOMELESS TAKE BETTER CARE OF EACH OTHER!!!!! IM JUST REALLY DISAPPOINTED IN WHAT I HAVE SEEN AND WORKED WITH LATELY ITS VERY SAD AND HEARTBREAKING ANYWAY THANK YOU TO ALL OF YOU WHO DO MAKE A DIFFERENCE KEEP IT UP!!!!!
¶3 The district court found Peuplie was an at-will employee and was required to demonstrate that her termination from employment was in violation of public policy, an exception to the termination of an at-will employee rule as articulated in Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24. The district court found Peuplie's Facebook comments were not protected under the rationale of Burk and characterized the posts as "grousing." The court found Defendant was permitted to implement and enforce a social media policy and Peuplie violated that policy, her comments having failed to rise to the level of whistleblower complaints or public policy goals.
¶4 Appeal of the district court's grant of summary judgment is reviewed using a de novo standard of review. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053; Bank of America, NA v. Kabba, 2012 OK 23, ¶2, 276 P.3d 1006, 1007-08. All inferences and conclusions from the underlying facts in the record are to be considered in the light most favorable to the party opposing summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 631 P.2d 752; Bank of America v. Kabba, 2012 OK 23, ¶2, 276 P.3d at 1007-08.
¶5 In Burk v. K-Mart, the Oklahoma Supreme Court adopted a "public policy exception to the at-will termination rule" in which "[a]n employer's termination of an at-will employee in contravention of a clear mandate of public policy is a tortious breach of contractual obligations." Burk, 770 P.2d at 28. A Burk claim must allege 1) an actual or constructive discharge, 2) of an at-will employee, 3) for a reason that violates an Oklahoma public policy goal, 4) the public policy goal is found in the Oklahoma constitution, statutes, 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 otherwise adequate to protect the public policy goal. Vasek v. Bd. of County Comm'rs of Noble County, 2008 OK 35, ¶14, 186 P.3d 928, 932.
¶6 Peuplie has not presented allegations which support a Burk claim, because she has not been able to "articulate a specific, well established, clear and compelling Oklahoma public policy" which applies to nursing home employees complaining on social media about "administration staff or a nursing crew that just don't give a s***!!!!" or Peuplie's sadness and disappointment "in what I have seen and worked with lately[.]" Barker v. State Ins. Fund, 2001 OK 94, ¶26, 40 P.3d 463, 470. These complaints lack any specifics about the nature of the conduct she is criticizing, whether the conduct violated a statutory or otherwise articulated duty of care, such as outlined in the Oklahoma Nursing Home Care Act, or the Nursing Practice Act, or whether conduct she observed rose to the level of a crime or neglect against the elderly people in Defendant's care. 64 O.S. 2001 §1-1900.1 (Nursing Home Care Long-Term Care Reform and Accountability Act of 2001); 59 O.S. 2001 §567.1 (Nursing Practice Act).
¶7 Peuplie claimed in her petition that her "report of unlawful neglect and/or abuse of patients is protected by Oklahoma's clearly established public policy." However, posting to Facebook about witnessing nursing and administrative staff that simply do not "give a s***," "feel[ing] sorry for the elderly," being "really disappointed" and witnessing "very sad and heartbreaking" situations at the nursing home does not rise to the level of reporting by an employee who is acting in furtherance of a "clear mandate of public policy." Burk, 770 P.2d at 28. Burk states specifically, "the public policy exception must be tightly circumscribed." Id. at 29. Peuplie's rambling and generalized complaints do not address the public policy of protecting the elderly or disabled in nursing facilities. Any finding that these vague Facebook posts rose to the level of protected whistleblower conduct as imagined in Burk, would mark a failure to "tightly circumscribe" the Burk exception to the employment at-will rule. This court will not disturb the district court's April 19, 2018 order finding Peuplie's "Facebook postings do not meet the requirements of Burk v. K-Mart Corp."
¶8 Peuplie argues Defendant's stated reason for her termination, violation of the nursing home's social media policy, was a pretext and she was actually fired for reporting patient abuse, which included reporting a nurse's inadequate treatment for a patient's leaking feeding tube on January 28 or 29, 2017. Peuplie then reported the duty nurse's unprofessional conduct regarding the feeding tube leak to the assistant director of nursing. During this same weekend, Peuplie sought medication for a patient with sores, but a nurse refused to provide Peuplie with the medication. Peuplie stated in her petition that she told both the nurse at issue and the assistant director of nursing that she would be making a report of the incident to the state ombudsman regarding patient neglect or abuse; Peuplie stated in her petition that she called the ombudsman's office on or around January 30, 2017 (Monday) and reported her observations of abuse and neglect. Peuplie's employment was terminated on February 2, 2017 (Thursday).
¶9 Demonstrating a pretext can take the terminated employee (plaintiff) "over the hurdle of summary judgment." Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1120 (10th Cir. 2001).
Pretext can be shown by " 'such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.' " Olson v. General Elec. Astrospace, 101 F.3d 947, 951--52 (3d Cir.1996) (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994) (further citation omitted)).Bausman, 252 F.3d at 1120.
Id. Of course, " '[M]ere conjecture that [the] employer's explanation is a pretext ... is an insufficient basis for denial of summary judgment.' Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988)." Id.
¶10 In support of her pretext claims, Peuplie offers the following: a) she argued Defendant offered contradictory testimony regarding who made the termination decision; b) she argued Defendant denied Peuplie made internal complaints; c) she argued Defendant claimed it did not learn of the Facebook posts until February 1st or 2nd; d) she claimed Defendant denied an obligation to care for its patients; e) she asserted Defendant treated other employees who violated the social media policy differently than it treated her; f) Defendant later added an allegation of a violation of the cell phone policy as a reason to terminate Peuplie's employment. Peuplie argued the shifting rationale for her termination was evidence of a pretextual firing. However, the record does not support Peuplie's pretext argument. Peuplie's attempts to offer record facts in support of her pretext claims are not sufficient to elevate her argument beyond mere conjecture that a pretext existed and provide an insufficient basis to deny summary judgment for the Defendant. The contradictions Peuplie claimed existed were not evident from the record and Defendant's social media reasoning for her termination from employment was not weak, implausible or inconsistent with the record. Peuplie was wholly unable to demonstrate she was terminated from her at-will employment for any reason other than the Facebook posts at issue.
¶11 Appellant/Peuplie also appealed the district court's order, filed May 11, 2018, granting Appellee's Motion to Strike Witness, Debbie Addington Maxey. Appellant attempted to add Maxey as a witness outside the parameters of the scheduling order, which directed final witness and exhibit lists be exchanged by January 15, 2018 and discovery completed by February 1, 2018. Appellant issued a supplemental witness list on February 27, 2018 listing Maxey as a witness. Maxey is the daughter and sister of two former residents of Appellee's nursing center; Maxey alleged her family members suffered neglect as a result of improper care in Appellee's nursing facility. Neither Maxey's mother, nor her sister, are the patients at issue in Appellant's Petition. Appellant claims Maxey should have been identified by Appellee as a witness with material knowledge of issues in the case; and had Appellee responded properly to Appellant/Peuplie's discovery, Maxey's identity as a witness would have been known to Appellant and she could have provided the name within the scheduling order deadlines, but any delay is the result of Appellee's gamesmanship.
¶12 We do not find the district court erred in excluding Maxey from the witness list, as the name and proposed testimony regarding neglect and abuse of other residents at the Appellant's facility was not presented in accordance with the scheduling order. Middlebrook v. Imler, Tenny & Kugler, M.D.'s Inc., 1985 OK 66, 713 P.2d 572, 582 ("These witnesses were not listed on the pretrial order. In Short v. Jones, 613 P.2d 452 (Okl.1980), this Court upheld the District Court's refusal to allow an unlisted witness to testify, noting that the District Court has the power to enforce its own pretrial order. Rule 5(c)(3) of the District Court is specifically designed to prevent surprise testimony."). Maxey's testimony also operated outside the parameters of Appellant's Petition, as Maxey's relatives were not those at issue in the Petition. The district court has broad discretion in addressing discovery issues and the court's decision will not be disturbed absent an abuse of discretion or a decision contrary to law. State ex rel. Protective Health Serv. v. Billings Fairchild Center, Inc., 2007 OK CIV APP 24, ¶8, 158 P.3d 484, 488. This witness's name was provided outside of the discovery deadlines and pertained to residents or patients who were not at issue in Appellant's Petition, as a result, we do not find the district court abused its discretion or acted contrary to law in excluding this witness's testimony.
¶13 The district court's grant of summary judgment to Defendant/Appellee, Oakwood Retirement Village, Inc., d/b/a Golden Oaks Nursing Home, is AFFIRMED.
BUETTNER, J., concurs.
GOREE, C.J., dissents.
¶1 Tracy Peuplie testified at her deposition that she told the assistant director of nursing on January 30, 2017 that she was going to report patient neglect to the state ombudsman's office. On January 31, 2017 she made that report by telephone and Defedant fired her three days later. An employee has an actionable claim when she is discharged for performing an act consistent with a clear and compelling public policy, Burk v. K-Mart, 1989 OK 22, ¶19, 770 P.2d 24, 29. Reporting patient neglect is consistent with the state's policy to protect residents of nursing homes from abuse and neglect. 63 O.S. §1-1901 et seq. See Morgan v. Galilean, 1998 OK 130, 977 P.2d 357.
¶2 I agree with the majority that Peuplie's social media posts do not fall within the public policy exception to Oklahoma's terminable-at-will rule. However reasonable minds could reach different conclusions as to whether her report to the state ombudsman was a significant factor in her discharge. See Vasek v. Board of County Commissioners of Noble County, 2008 OK 35, ¶30, 186 P.3d 928, 934. Retaliatory intent is a jury question. id. Summary judgment was improper.