Date: 07-05-2013

Case Style: James Ronald Smith v. Sheridan Trucking Company

Case Number: CJ-2012-2951

Judge: Dana Kuehn

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: James E. Frasier, Frank W. Frasier and Sara K. Bryning

Defendant's Attorney: Douglas M. Borchoff and Charles Anthony McSoud

Description: James Ronald Smith sued Sheridan Trucking Company on a wrongful termination theory claiming:

I

Plaintiff, James Ronald Smith, is a resident of Tulsa County, Oklahoma.

II

Sheridan Trucking Company is a domestic business corporation organized and
existing under laws of the State of Oklahoma licensed to do business throughout the
State

II

For some time prior to the 18t day of January, 2011, Plaintiff was employed by Defendant. Prior to the 1 81h day of January, 2011, Plaintiff suffered an on the job injury for which he pursued his rights under Oklahoma’s Worker’s Compensation laws. In retaliation for such pursuit, defendant discharged Plaintiff on or about the l8tul of January, 2011, in violation of 85 O.S. § 5.

IV

As a result of the discharge, Plaintiff suffered and continues to suffer lost earnings, employment benefits, damages from mental and emotional distress and other damages.

V

The actions of the Defendant were willful, wanton, reckless and Defendant should be punished therefore and made an example to others.

WHEREFORE, premises considered, the Plaintiff prays for judgment against the Defendant for actual damages in excess of Ten Thousand Dollars ($10,000.00) and punitive damages in excess of Ten Thousand Dollars ($10,000.00). In addition, Plaintiff prays for any interest, cost, reinstatement and other such and further relief to which he is deemed entitled.

Defendant appeared and answered as follows:

1. Defendant has insufficient information to admit or deny the allegations stained
in Paragraph I of Plaintiffs Petition and therefore denies the same.

2. Defendant admits the allegations in Paragraph II of Plaintiffs Petition.

3. Defendant admits that Plaintiff was employed by Sheridan Trucking C4pan7 before January 18, 201 t. Defendant further admits that Plaintiff suffered an injury rn JTh?uary 2011. Defendant has insufficient information to admit or deny that Plaintiffs injuries were subject to the provisions of the Oklahoma Workers’ Compensation laws as such a response requires a legal conclusion this Defendant is unqualified to provide. Defendant denies that Plaintiff was terminated in retaliation for pursuing any rights under the Oklahoma Workers’ Compensation laws.

4. Defendant expressly denies the allegations contained in Paragraph IV of Plaintiffs Petition and strict proof thereof is demanded.

5. Defendant expressly denies the allegations contained in Paragraph V of Plaintiffs Petition and strict proof thereof is demanded.

AFFIRMATVE DEFENSES

By way of affirmative defenses, this Defendant alleges and states as follows:

1. Defendant states that Plaintiff was not Defendant’s employee as articulated and contemplated under the relevant state statutes,

2. Plaintiff suffered no adverse job consequences as a result of any act, or failure to act by Defendant.

3. Any actions taken by the Defendant with regard to Plaintiffs alleged employment were for legitimate reasons.

4. To the extent that Plaintiff was Defendant’s employee, Plaintiff failed to utilize any preventative or corrective opportunities as articulated within the Defendant’s mechanisms for reporting any alleged negligent conduct.

5. To the extent that it was warned of any improper conduct by one of its employees, Defendant took reasonable care to prevent and correct promptly any such behavior.

6. Plaintiff’s claims are barred by the statute of limitations and doctrine of laches.

7. Plaintiff’s claims for actual and!or compensatory damages or any other damages are limited by the applicable state and federal statutes.

8. Plaintiff has failed to state any claim for which relief can be granted.

9. Plaintiff has failed to exhaust her administrative remedies as is required under the relevant state and federal statutes.

10. Plaintiff failed to conform with relevant policies and procedures of Defendant.

11. Defendant denies that Plaintiffs injuries, if any, were caused by Defendant’s employees acting within the course and scope of their employment.

12. Defendant denies that Plaintiff states a claim for punitive damages, and further asserts that any instruction awarding punitive damages or an actual award of punitive damages, is in violation of the Constitution of the United States and the Constitution of the State of Oklahoma,

13. Plaintiffs injuries and/or damages, if any, were due to the acts of a third party outside the control of Defendant.

14. Plaintiffs injuries, if any, were a result of his comparative negligence.

15. Plaintiff has named a non-existent and/or improper party.

16. All allegations not expressly admitted herein are denied.

17. In answering Plaintiff’s Petition, Defendant’s investigation and discovery have not yet been completed, and therefore, Defendant reserves the right to amend this answer herein to allege any other further defenses, affirmative defenses, or third party claims which said investigation and discovery may reveal, and reserves the right to raise the same by dispositive motion upon discovery.

WHEREFORE, Defendant Sheridan Trucking Company denies any liability as alleged in Plaintiffs Petition and prays that the Plaintiff take nothing. Defendant further requests any and all attorney fees, costs and damages to which it is entitled under equity and law in responding to Plaintiffs frivolous claims.

Defendant filed a motion for summary judgment asserting the following in support thereof:

1. Plaintiff contends that he was wrongfully terminated from his employment and made that exquisitely clear to counsel for the Defendant during his deposition. Please see Page 12, Lines 4-11 of Plaintiff’s deposition attached hereto as Exhibit “A”. The Defendant omits this testimony from its motion as this clearly disputes Defendant’s “undisputed” fact numbers 3, 7, 8, and 10.

2. Exhibit No. 6 to Defendant’s motion outlines the basis of Plaintiff’s claims. Plaintiff testified on Page 31, Lines 8 through 25 and Line 1 of Page 32 (attached hereto
as Exhibit “B’) that he was terminated due to a work-related injury and during a time of temporary total disability with full intention of returning to work once being released. This is in complete contravention to portions of Title 85 that the Defendant omits from its motion in hopes that it may hoodwink this Court into granting summary adjudication by not providing all Plaintiff’s testimony.
Plaintiff’s testimony and the accompanying Exhibit No. 6 to Defendant’s motion dispute the Defendant’s “undisputed” fact numbers 3- 10.

3. Exhibit No. 6 is an admission by Defendant that Plaintiff was terminated during a period of temporary total disability as outlined in Defendant’s Exhibit No. 3. Paragraph of Defendant’s Exhibit No. 3 outlines that this Defendant “was temporarily totally disabled from January 18, 2011, for which time is entitled to 16 weeks of compensation in the total amount of.. .“ Plaintiff alleges in his Petition that he was fired in contravention of 85 O.S. § 5. That statute outlines that “no employer may discharge any employee during a period of temporary total disability solely on the basis of absence from work. 85 O.S. § 5 [now known as 85 O.S. § 341(B)]. This disputes all of the Defendant’s “undisputed” facts so completely that the Defendant’s Motion for Summary Judgment shouid not be considered, but the Court should grant Summary Judgment to this Plaintiff. It is abundantly clear that this Defendant terminated Plaintiff solely on the basis of absence from work during a period that a court of competent jurisdiction in this State awarded temporary total disability.

4. Lusetta Dean Underwood, the manager and corporate representative for the Defendant testified in her deposition on the 25th of September, 2012, Page 30, Lines 15-21, that Plaintiff was terminated from his employment due to absence from work.
Please see Exhibit “C” attached hereto, Deposition Page 30, Lines 15-21. This disputes all of the Defendant’s “undisputed” facts in its motion. It is obvious from this testimony that the Defendant terminated Plaintiff solely on his absence from work in contravention to 85 O.S. § 5.

5. Later at Page 38 (attached hereto as Exhibit “C”), Lusetta Dean Underwood testified as corporate representative at Line 5-15 that the Plaintiff was terminated during his period of temporary total disability in contravention to his 85 O.S. § 5. This not only disputes all of Defendant’s “undisputed” facts in numerated in its motion, but is proof that this Defendant violated the requirements of 85 Q.S. § 5 that make illegal an employer terminating an employee during the period of temporary total disability.

As such, this testimony provides this Court all of the evidence it needs to sustain Plaintiff’s motion for partial adjudication in the matter.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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