Date: 06-05-2013

Case Style: Paul D. Duncan v. Oklahoma Military Department

Case Number: CJ-2011-5303

Judge: Mark Barcus

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Brice W. Bisel and Katherine R. Mazaheni

Defendant's Attorney: Susan B. Werner and Nancy Zerr

Description: Paul D. Duncan sued the Oklahoma Military Department on discrimination theory, intentional infliction of emotional distress, wrongful termination and retaliation for filing a worker's compensation claim.

1. Plaintiff alleges a claim of wrongful discharge, harassment, discrimination and retaliation based upon his disability, in violation of Oklahoma laws against discrimination, 25 O.S. §1101 et. seq.

2. Plaintiff also alleges a claim of illegal retaliatory discharge in retaliation for his worker’s compensation proceeding, in violation of 85 O.S. §341.

JURISDICTION AND VENUE

3. The jurisdiction of this Court is invoked pursuant to 25 O.S. § 1302, as this claim is brought due to violations of the Oklahoma Laws Against Discrimination.

4. Venue in this Court is proper as the actions described herein that led to Plaintiff’s injuries occurred in this county.

5. Declaratory, injunctive, and equitable relief is sought pursuant to 25 U.S. § 1350(G) and 85 O.S. §341(E). Compensatory and punitive damages are sought pursuant to 25 0.5. § 1350(G) and 85 O.S. §341(E).

6. Costs and attorney’s fees may be awarded pursuant to 25 O.S. §1350(H). PARTIES

7. Plaintiff, Paul Duncan, is an individual citizen and resident of the United States and the State of Oklahoma. At all times relevant herein, Plaintiff was a resident of Claremore, Oklahoma.

8. Plaintiff is a former employee of the Oklahoma Adjutant General and the Oklahoma Military Department, formerly employed as a state police officer.

9. Defendant, the Oklahoma Military Department, has at all relevant times operated in the State of Oklahoma. Defendant employed Plaintiff out of its Tulsa office(s), located at 9100 E. 46th Street North Suite 125A, Tulsa, OK 74145.

CONDITIONS PRECEDENT

10. Plaintiff timely filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on or about February 23, 2011. This charge of discrimination is also known as EEOC Charge No.: 564-2011-00626.

11. The EEOC scheduled mediation between the parties to this complaint on May 24,
2011.

12. The mediation scheduled for May 24, 2011 was unsuccessful in resolving this charge of discrimination made by Plaintiff.

13. On June 23, 2011, the EEOC issued a right to suit for the charge number 564-201 1-
00626. This lawsuit is filed within ninety (90) days of the receipt of notice of the right to suit.

14. Plaintiff has exhausted all administrative remedies under state and federal law.

GENERAL ALLEGATIONS

15. Plaintiff was employed as a state police office in Defendant’s Tulsa station(s) from
2005 until early 2011. At all times relevant hereto, he adequately performed his duties in that position.

16. During his term of employment as a state police officer, Plaintiff was injured in the line of duty. This injury resulted in a documented permanent disability due to the back injury sustained by Plaintiff.

17. Plaintiff also filed a worker’s compensation claim against Defendant.

18. Upon receiving a doctor’s release, Plaintiff returned to his position as a state police officer. Accompanying his return to work was a doctor-mandated workplace accommodation that Plaintiff not be required to stand for more than four (4) hours of an eight (8) hour shift.

19. Even with this accommodation and/or restriction, Plaintiff was, and still is, able to perform his job duties.

20. Upon this return to work, Plaintiff began to experience multiple discriminatory, retaliatory, and hostile reactions from multiple supervisors.

21. The requested accommodation was initially granted by the Chief of Police, despite objection from Lieutenant Janice Whalen. For a period of time, the accommodation worked well for Plaintiff.

22. However, Sergeant R. McAtee began denying the requested accommodation by forcing Plaintiff to stand for approximately seven (7) hours out of each shift by refusing to share the duties assigned on each patrol.

23. Other officers allowed Plaintiff to spend a portion of his shift while seated by sharing duties, yet Sgt. McAtee failed to do so, while frequently ignoring his duties and playing games on his laptop.

24. As a result of this failure to accommodate Plaintiff, Plaintiff suffered injuries that led to additional doctor visits and lost wages.

25. After Sgt. McAtee’s continued failure to follow the accommodation, Plaintiff reported these actions to Lieutenant Janice Whalen and Chief Mark Copeland. Instead of speaking with Sgt. McAtee regarding the accommodation, Defendant immediately removed Plaintiff from his street duties and placed him in a desk job.

26. Plaintiff protested this transfer, as it led to less hours and less pay, yet was told by his supervisors that the transfer occurred because of his disability.

27. After a period of time, Plaintiff returned to his street duties, retaining his original daytime shift, preferential days off, pay rate, and seniority. Once again, Sgt. McAtee failed to follow the accommodation and Plaintiff was injured as a result..

28. Plaintiff once again complained of Sgt. McAtee’s actions of failing to adhere to the workplace accommodation to his supervisors. Once again, instead of requiring Sgt. McAtee to conform to the granted accommodation for Plaintiff, the supervisors decided to immediately transfer Plaintiff to the night shift, despite his seniority.

29. Additionally, Defendant removed Plaintiff from three supervisory positions that he had earned through years of service. Plaintiff’s supervisors once again informed him that the transfer and loss of duties stemmed from his disability.

30. Upon transfer, Plaintiff was informed that he had lost his seniority. He was then denied a request for return to the day shift, while officers with less seniority had similar requests granted. Plaintiff also did not receive the pay differential that other officers received for working the night shift.

31. When Plaintiff complained of this demotion to his supervisors, Lt. Whalen stated: “I guess you just don’t get it.”

32. Plaintiff was also informed that he no longer would receive his preferential days off.

33. Plaintiff’s nighttime supervisor, Sgt. Alderson, complained to the Chief and Lt. Whalen regarding the discriminatory treatment of Plaintiff. Lt. Whalen stated that “she had bent over backwards babying Plaintiff’s back injury and was sick of Plaintiff and wouldn’t lift a finger to help him.”

34. After repeated requests to his supervisors to end this discriminatory treatment, Plaintiff still continued to suffer discriminatory treatment due to his disability, as well as suffer from illegal retaliation for his complaints regarding the discrimination.

35. Defendant, as the employer of Sgt. McAtee, Lt. Whalen, and Chief Copeland, is vicariously liable for the discriminatory actions taken against Plaintiff. See generally Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775 (1998); Baker v. Saint Francis Hosp., 2005 OK 36, 126 P.3d
602.

36. Defendant’s harassment, discrimination, retaliation, and hostile work environment caused Plaintiff to suffer great humiliation, discomfort, and fear for his safety in the workplace, as well as suffer losses of hours and pay.

37. As a result of this continued harassment, discrimination, and retaliation, Plaintiff was forced to resign from his position, resulting in a constructive discharge due to the hostile work environment stemming from the attitudes regarding his disability.

38. Adverse actions taken against Plaintiff were motivated by one or more of the following impermissible factors: Plaintiff’s disability, retaliation for complaining of discrimination, and or in retaliation for Plaintiff’s worker’s compensation claim; in clear violation of Oklahoma Public Policy and Oklahoma Laws Against Discrimination, 25 O.S. § 1101 et. seq. and 85 0.S. §341.

39. At the time of Plaintiff’s constructive discharge, he was receiving salary and fringe benefits beyond his salary.

40. As a result of Defendant’s actions, Plaintiff has sustained loss of employment, loss of seniority, loss of career path and opportunity, loss of wages, loss of fringe benefits, and other compensation; and consequential and compensatory damages including, but not limited to, those for humiliation, loss of dignity, loss of enjoyment of life, worry, stress, intentional infliction of emotional distress, and anxiety.

41. As a result, Plaintiff has been damaged well in excess of $10,000.00.

42. All adverse actions taken by Defendant against Plaintiff were intentional, willful, malicious, and/or reckless disregard for the legal rights of Plaintiff.

COUNT I

Discrimination Based Upon Disability in Violation of Oklahoma Law Against
Discrimination., 25 O.S. 13O2 et. seq.

43. Paragraphs 1-42 are incorporated herein by reference.

44. The acts and omissions described above also violate the Oklahoma Law against Discrimination.

45. As a result of Defendant’s discriminatory and retaliatory actions against Plaintiff, he has suffered the losses and damages described in paragraphs 39-42, above.

46. As such, Plaintiff is entitled to recover from Defendant all actual and compensatory damages, including, but not limited to, damages for back pay, front pay, humiliation, loss of dignity, loss of enjoyment of life, worry, stress, intentional infliction of emotional distress, and anxiety resulting from his wrongful discharge, as well as punitive damages.

47. Plaintiff is also entitled, under 25 O.S. § 1506.8 and 25 O.S. § 1350(H), to recover court costs and attorney fees incurred in pursuing this action.

COUNT H

Illegal Retaliation and Wrongful Dischar2e in Violation of Oklahoma Law
Ajainst Discrimination. 25 O.S. l3O2 et. seq.

48. Paragraphs 1-47 are incorporated herein by reference.

49. The retaliation against Plaintiff by Defendant through further harassment and discrimination are in clear violation of 25 O.S. § 1302.

50. Defendant took adverse employment actions against Plaintiff due to his complaints of discrimination, including, but not limited to: removing him from his daytime shifts, transferring him to a desk job, removing his seniority, relieving him of supervisory duties, and failing to pay him the deferential pay due.

51. As a result of Defendant’s unlawful discriminatory and retaliatory actions, Plaintiff was forced to endure an extremely hostile working environment. As a result, he was forced to resign from his position and seek other employment.

52. Due to the hostile working environment that necessitated Plaintiff’s leaving his former place of employment, he was constructively discharged from his job, in clear violation of Oklahoma public policy prohibiting discrimination.

53. An employee is constructively discharged in violation of State and Federal law when
working conditions have become so intolerable as to render the employee compelled
to resign. Pennsylvania State Police v. Suders, 542 U.S. 129, 130, 124 S. Ct. 2342,
2344-45 (2004); Marshall v. OK Rental & Leasing, Inc., 1997 OK 34, 939 P.2d 1116,
1119. A constructive discharge amounts to a wrongful discharge/termination in
violation of 25 O.S. § 1302 et. seq.

54. As a result of Defendant’s retaliation against and subsequent constructive discharge and wrongful termination of Plaintiff, he suffered the losses and damages described paragraphs 39-42 above.

55. Defendant’s unlawful action in discharging Plaintiff in violation of public policy was intentional, willful, malicious, or in reckless disregard for Plaintiff’s rights.

56. Plaintiff is entitled to recover from Defendant all actual and compensatory damages, including, but not limited to, damages for back pay, front pay, humiliation, loss of dignity, loss of enjoyment of life, worry, stress, and anxiety resulting from his wrongful discharge, as well as punitive damages.

57. Plaintiff is also entitled, under 25 O.S. § 1506.8 and 25 O.S. § 1350(H), to recover court costs and attorney fees incurred in pursuing this action.

COUNT III

Retaliation for Fiin a Worker’s Compensation Claim in Violation of 85 O.S.
34 1

58. Paragraphs 1-57 are incorporated herein by reference.

59. The retaliation against Plaintiff by Defendant through further harassment and ultimately his wrongful termination are in clear violation of 85 O.S. §341 which prohibits such retaliation and retaliatory discharge due to the filing of a worker’s compensation claim.

60. Defendant took adverse employment actions against Plaintiff due to his worker’s compensation claim, including, but not limited to: removing him from his daytime shifts, transferring him to a desk job, removing his seniority, relieving him of supervisory duties, and failing to pay him the deferential pay due.

61. As a result of Defendant’s unlawful discriminatory and retaliatory actions, Plaintiff was forced to endure an extremely hostile working environment. As a result, he was forced to resign from his position and seek other employment.

62. Due to the hostile working environment that necessitated Plaintiff’s leaving his former place of employment, he was constructively discharged from his job.

63. An employee is constructively discharged in violation of State and Federal law when
working conditions have become so intolerable as to render the employee compelled
to resign. Pennsylvania State Police v. Suders, 542 U.S. 129, 130, 124 S. Ct. 2342,
2344-45 (2004); Marshall v. OKRental & Leasing, Inc., 1997 OK 34, 939 P.2d 1116,
1119. A constructive discharge amounts to a wrongful discharge/termination in violation of 85 O.S. §34 1.

64. As a result of Defendant’s retaliation against and subsequent constructive discharge and wrongful termination of Plaintiff, he suffered the losses and damages described paragraphs 39-42 above.

65. Defendant’s unlawful action in discharging Plaintiff in violation of public policy was intentional, willful, malicious, or in reckless disregard for Plaintiff’s rights.

66. Plaintiff is entitled to recover from Defendant all actual and compensatory damages, including, but not limited to, damages for back pay, front pay, humiliation, loss of dignity, loss of enjoyment of life, worry, stress, and anxiety resulting from his wrongful discharge, as well as punitive damages.

PRAYER FOR RELIEF

WHEREFORE, it is respectfully prayed that this Court grants to the Plaintiff the following relief:

a. Back pay, in amounts to be determined at trial;

b. Front pay, in amounts to be determined at trial;

c. Emotional distress and punitive damages;

d. Compensatory and consequential damages;

e. Injunctive and/or declaratory relief;

f. Pre-judgment and post-judgment interest at the highest lawful rate;

g. Attorneys’ fees and costs of this action, including expert witness fees, as appropriate;

h. That Defendant be enjoined and restrained from engaging in further discriminatory conduct; and

i. Any such further relief as justice allows.

DEMAND FOR JURY TRIAL

Plaintiff hereby requests trial by jury of all issues triable by jury under Oklahoma law.

Defendant Oklahoma Military Department appeared and answered as follows:

Plaintiff’s First Amended Petition ¶ 1-2

Plaintiff sues claiming discrimination and retaliation in violation of Oklahomi law. Eitie 25 O.S. §1101 and Title 85 O.S. § 341. Defendant states that while under certain circumstances a cause of action may arise under these statutes, Defendant denies any such circumstances are present in this case.

JURISDICTION AND VENUE

Plaintiffs First Amended Petition ¶ 3-4.

Defendant admits the Court has subject matter jurisdiction and that the venue is proper in Tulsa County; however, Defendant denies Plaintiff is entitled to any relief.

PARTIES

Plaintiff’s First Amended Petition ¶ 7-9.

Defendant admits Plaintiff is a resident of Oklahoma and that he was employed by the Oklahoma Military Department in Tulsa.

CONDITIONS PRECEDENT

Plaintiff’s First Amended Petition ¶ 10-14.

Defendant denies Plaintiff has met the pre-requisites for filing suit and/or exhausted the necessary administrative procedures in a timely manner. Defendant denies Plaintiff has timely filed suit.

GENERAL ALLEGATIONS

Plaintiffs First Amended Petition ¶ 15-42.

Defendant denies the allegations included in these paragraphs with the following exception:

1. Plaintiff was employed at Defendant’s Tulsa office until early 2011.

COUNT I

Plaintiffs First Amended Petition ¶ 43-47.

Defendant denies it discriminated against Plaintiff.

COUNT II

Plaintiffs First Amended Petition ¶ 48-57.

Defendant denies it retaliated against Plaintiff.

COUNT III

Plaintiffs First Amended Petition ¶ 5 8-66.

Defendant further denies any retaliation against the Plaintiff.

PRAYER FOR RELIEF

Plaintiff’s First Amended Petition ¶ a-I

Defendant denies Plaintiff is entitled to any relief.

DEFENDANT’S AFFIRMATIVE DEFENSES

Defendant denies it discriminated or retaliated against the Plaintiff. Defendant denies it negligently or intentionally injured Plaintiff. Defendant asserts any actions taken in connection with Plaintiff were free of discriminatory/retaliatory intent and would have been taken regardless of any discriminatory intent. Defendant asserts no challenged action or practice of which the Plaintiff complains was caused by or resulted from illegal discrimination/retaliation and all such actions were job related and reasonably related to governmental/military operations. Defendant asserts it had in place policies prohibiting discrimination/retaliation and that prompt remedial action was taken in response to complaints of discrimination or retaliation. Defendant denies Plaintiff has exhausted all administrative remedies or done so in a timely manner. Defendant asserts it is entitled to sovereign immunity. Defendant asserts Plaintiff failed to mitigate his damages and that Defendant is entitled to all statutory damage limitations including exemplary damage limitations. Defendant denies Plaintiff is entitled to any damages or relief.

DEFENDANT’S JURY DEMAND

Defendant request a trial by jury.

WHEREFORE, PREMISES CONSIDERED, Defendant prays the above styled cause of action will be dismissed, Plaintiff will take nothing as to all elements, and Defendant will be awarded fees and costs and such other relief as it is justly entitled.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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