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Upton v. State ex rel Department of Corrections6/20/2000
CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I
APPEAL FROM THE DISTRICT COURT OF PITTSBURG COUNTY
HONORABLE STEVEN W. TAYLOR, JUDGE
While Upton, a state employee, was receiving temporary total disability for an on-the-job injury, State terminated his employment under the terms of 74 O.S.1994 § 840-2.21 because of excessive absenteeism. The Merit Protection Commission sustained the dismissal. On appeal the district court reversed, holding the discharge violated the Workers Compensation Act, 85 O.S.1994 § 5(B). The Court of Civil Appeals affirmed the district court's decision and State sought certiorari. Upon certiorari earlier granted,
THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND THE DISTRICT COURT'S DECISION IS AFFIRMED.
Today's cause presents a question of first impression, i.e., whether the Oklahoma Department of Corrections [State or DOC] can terminate Upton [employee or appellee] while he is receiving compensation (temporary total disability) for an on-the-job injury under the terms of the Workers Compensation Act, 85 O.S.1994 §§ 1 et seq.
I. FACTS AND PROCEDURAL HISTORY
The facts in the case are undisputed. Upton, a DOC employee, suffered an on-the-job injury on March 25, 1996 for which he was awarded temporary total disability under the terms of 85 O.S.1991 § 22. Due to the nature of his injury employee also received leave without pay from May 11, 1996 until September 8, 1997 under the provisions of the Oklahoma Personnel Act, specifically 74 O.S.1994 § 840-2.21(A). On the last mentioned date DOC terminated Upton for being absent from his work for more than one year. Although employee was receiving TTD when he was discharged, DOC contended his dismissal was justified under the authority of 74 O.S.1994 § 840-2.21(D).
Upton sought Merit Protection Commission [Commission] review of his termination. There he asserted his dismissal violated the terms of 85 O.S.1994 § 5(B), which proscribe absenteeism-based discharge of an employee who is receiving TTD. The Commission upheld Upton's dismissal by order dated December 24, 1997. Employee appealed to the district court which reversed the Commission's order, holding that § 5(B) of the Workers Compensation Act prohibited Upton's termination solely for absenteeism (in excess of one year) since he was receiving TTD. State next brought this appeal. The Court of Civil Appeals affirmed the district court's decision. Certiorari was sought and granted.
II. STATE CANNOT TERMINATE EMPLOYEES WHILE THEY ARE RECEIVING TEMPORARY TOTAL DISABILITY UNDER PROVISIONS OF THE WORKERS COMPENSATION ACT
Resolution of State's appeal requires the Court to construe the provisions of 85 O.S.1994 § 5(B) and 74 O.S.1994 § 840-2.21(D), which on first examination appear in conflict. Since today's cause implicates the meaning and intent of legislative enactments and there are no disputed facts, it poses only a question of law. Hence, the applicable standard of review is de novo.
The contested provision of the Oklahoma Personnel Act provides that State "may" terminate an employee absent from work for more than one year. The statutory language does not mandate termination but rather permits it under guidelines to be promulgated by the Office of Personnel Management - the agency legislatively commissioned to implement the Act. When the Legislature crafted the provisions of § 840-2.21(D) in issue, neither enacted legislation nor Oklahoma's extant jurisprudence condemned an employer's discharge of an employee who was receiving TTD, so long as the discharge was not retaliatory. In 1992 the Legislature amended the WCA [specifical
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