Volume 96 — No. 7 — September 2025 ALSO INSIDE: Apply To Join the 2026 OBA Leadership Academy Is Your Law Firm Compliant With Title III of the Americans With Disabilities Act? Women in Law • 2026 YLD Leadership Elections • Annual Meeting Torts
contents September 2025 • Vol. 96 • No. 7 PLUS 50 Is Your Law Firm Compliant With Title III of the Americans With Disabilities Act? By Angie Barker 58 Shape the Future of the Bar: Apply To Join the 2026 OBA Leadership Academy By Gigi McCormick 61 Annual Meeting 70 Women in Law 75 2026 Committee Sign-Up THEME: Torts Editor: Magdalena Way FEATURES 8 Beyond the Injury: Identifying Employment Cases in Personal Injury and Workers’ Compensation Law By Patricia A. Podolec 16 The Punitive Paradox: Scope of Employment, Punitive Damages and the Oklahoma Governmental Tort Claims Act By Pete G. Serrata III 24 A Century of Tort Law Related to Emotional Distress Claims in Oklahoma By Kindra N. Dotson 34 Property Owners Beware! ‘Not My Dog’ Defense Loses Its Bite By Keith F. Givens 40 Diagnosing Discovery: A Primer on Discovery in Medical Malpractice Cases By S. Shea Bracken DEPARTMENTS 4 From the President 6 Bar News in a Minute 80 From the Executive Director 84 Law Practice Tips 88 Oklahoma Bar Foundation News 92 Young Lawyers Division 98 Bench & Bar Briefs 102 In Memoriam 107 Editorial Calendar 108 Classified Ads 112 The Back Page PAGE 92 – 2026 YLD Leadership Elections
THE OKLAHOMA BAR JOURNAL 4 | SEPTEMBER 2025 More Serious Decline Decreasing accuracy, often along with slowing; Memory decline that is noticeable by others; Difficulty with learning new things in general; Forgetting how to do familiar activities, use appliances or electronics, etc.; Lack of insight into changes and the impact they are having on yourself and others; or Changes in personality Why is all this significant? For several years, OBA leaders have been concerned that Oklahoma attorneys have been headed for a severe drop in population (the cliff) as a result of the baby boomer generation aging out. The number of older attorneys still practicing has also been a topic of discussion. By my rough analysis, the mean age of active members in good standing is 55. At the 2025 Judicial Conference, recently held contemporaneously with the very successful OBA Solo & Small Firm Conference, I was honored to report to Oklahoma’s judges on the “State of the OBA.” One of the observations I provided was that, according to OBA records as of Jan. 1, 2025, more of our active members in good standing are over the age of 80 than under the age of 30. Let that sink in for a moment, and it becomes obvious that Oklahoma is not replacing our aging active members with new members. This is not a new topic. In 2014, then-OBA President Renee DeMoss initiated the OBA Attorney Contingency Plans and Transitions “I CAME INTO THIS ROOM FOR A REASON” is a comment we have all made to ourselves from time to time (go ahead, admit it; you know you have!). You leave one room on a mission and find yourself in another room with no clue about the original mission – until you go back to your starting point and the memory of the mission is triggered, or you still cannot remember why. And no, this is not a sign that your faculties are failing. According to a 2011 University of Notre Dame study, “Walking Through Doorways Causes Forgetting,” it is the act of walking through the doorway into a different venue that “purges” our memory, as if our brain interprets the change of venue as completion of an event, rendering the old memory irrelevant. At least that is the conclusion of that study. But just imagine if this happened to you constantly and randomly throughout your day, which is just one of the many signs of dementia or other neurocognitive impairment. And no, I am not suggesting that you are suffering from either just because you forgot why you came into the room! What I am referring to is the challenging task of distinguishing between signs of normal aging and signs of more serious cognitive decline. The following are just a few examples. Normal Aging Accurate but slower than typical; Memory lapses the individual notices; Difficulty remembering names and familiar words; Forgetting what you are looking for in the other room; Awareness of changing capacity and ability to use adaptive strategies to compensate; or A tendency to become less flexible ‘I Came Into This Room for a Reason ...’ From the President By D. Kenyon “Ken” Williams Jr. D. Kenyon “Ken” Williams Jr. is a shareholder and director at Hall Estill in Tulsa. 918-594-0519 kwilliams@hallestill.com (continued on page 83)
SEPTEMBER 2025 | 5 THE OKLAHOMA BAR JOURNAL JOURNAL STAFF JANET K. JOHNSON Editor-in-Chief janetj@okbar.org LORI RASMUSSEN Managing Editor lorir@okbar.org EMILY BUCHANAN HART Assistant Editor emilyh@okbar.org LAUREN DAVIS Advertising Manager advertising@okbar.org HAILEY BOYD Communications Specialist haileyb@okbar.org Volume 96 — No. 7 — September 2025 D. KENYON WILLIAMS JR., President, Sperry; AMBER PECKIO, President-Elect, Tulsa; RICHARD D. WHITE JR., Vice President, Tulsa; MILES PRINGLE, Immediate Past President, Oklahoma City; JOHN E. BARBUSH, Durant; BENJAMIN J. BARKER, Enid; CODY J. COOPER, Oklahoma City; KATE N. DODOO, Oklahoma City; PHILIP D. HIXON, Tulsa; JANA L. KNOTT, El Reno; CHAD A. LOCKE, Muskogee; WILLIAM LADD OLDFIELD, Ponca City; TIMOTHY L. ROGERS, Tulsa; NICHOLAS E. THURMAN, Ada; JEFF D. TREVILLION, Oklahoma City; LUCAS M. WEST, Norman; TAYLOR C. VENUS, Chairperson, OBA Young Lawyers Division, Enid The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. and at additional mailing offices. Subscriptions $85 per year. Law students registered with the OBA and senior members may subscribe for $45; all active members included in dues. Single copies: $8.50 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2025 Oklahoma Bar Association. Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR CENTER STAFF Janet K. Johnson, Executive Director; Gina L. Hendryx, General Counsel; Julie A. Bays, Director of Management Assistance Program; Chris Brumit, Director of Administration; Beverly Petry Lewis, Administrator MCLE Commission; Gigi McCormick, Director of Educational Programs; Lori Rasmussen, Director of Communications; Richard Stevens, Ethics Counsel; Robbin Watson, Director of Information Technology; John Morris Williams, Executive Consultant; Loraine Dillinder Farabow, Jana Harris, Tracy Pierce Nester, Katherine Ogden, Steve Sullins, Assistant General Counsels Barbara Acosta, Taylor Anderson, Les Arnold, Allison Beahan, Gary Berger, Hailey Boyd, Cassie Brickman, Cheryl Corey, Lauren Davis, Nickie Day, Ben Douglas, Melody Florence, Matt Gayle, Emily Buchanan Hart, Steve Jagosh, Debra Jenkins, LaRica Krischel, Rhonda Langley, Durrel Lattimore, Renee Montgomery, Jaycee Moseley, Tracy Sanders, Mark Schneidewent, Ben Stokes, Krystal Willis, Laura Willis & Roberta Yarbrough Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAX 405-416-7001 Continuing Legal Education 405-416-7029 Ethics Counsel 405-416-7055 General Counsel 405-416-7007 Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070 www.okbar.org OFFICERS & BOARD OF GOVERNORS BOARD OF EDITORS MELISSA DELACERDA, Stillwater, Chair BECKY R. BAIRD, Miami MARTHA RUPP CARTER, Tulsa NORMA G. COSSIO, Enid MELANIE WILSON RUGHANI, Oklahoma City EVAN A. TAYLOR, Norman ROY TUCKER, Muskogee MAGDALENA A. WAY, El Reno DAVID E. YOUNGBLOOD, Atoka
THE OKLAHOMA BAR JOURNAL 6 | SEPTEMBER 2025 Bar News in a Minute MEET THE NEW OBA MANAGEMENT ASSISTANCE PROGRAM DIRECTOR, JULIE BAYS The Oklahoma Bar Association welcomes Julie Bays into her new role as director of the OBA Management Assistance Program. Ms. Bays was recently promoted to this position, succeeding longtime MAP Director Jim Calloway, who retired in May. Ms. Bays said, "As someone who’s always been passionate about using technology to solve problems, I’m excited to modernize the OBA Management Assistance Program and make it easier for our members to find the tools and guidance they need to manage their practices with confidence." Ms. Bays has served as the OBA’s practice management advisor since November 2018, providing assistance and counsel to attorneys using technology and other tools to manage their offices efficiently. She plays a key role in planning the OBA Solo & Small Firm Conference. She is also involved with the OBA’s access to justice initiatives, such as Oklahoma Free Legal Answers. She was co-chair of the Planning Board for ABA TECHSHOW 2025 and continues to serve as a board member for TECHSHOW 2026. Prior to joining the OBA, she served in the Office of the Oklahoma Attorney General beginning in 2002, where she was responsible for prosecuting antitrust and consumer protection cases. She was appointed chief assistant attorney general of the Consumer Protection Unit in 2013. In this role, she traveled the state to educate consumers about identity theft and other types of consumer and internet fraud. SAVE THE DATE FOR THE OBA ANNUAL MEETING The 2025 OBA Annual Meeting will be held Nov. 6-7 at the Sheraton Oklahoma City Downtown Hotel. During this year’s meeting, bar business will be conducted, and the annual OBA Awards will be presented. Read more information about this year's meeting on page 61 of this issue. REGISTRATION IS OPEN FOR THE OBA WOMEN IN LAW CONFERENCE The OBA Women in Law Conference and Mona Salyer Lambird Spotlight Awards Luncheon will be held Friday, Sept. 19, at the Petroleum Club of Oklahoma City. This year’s guest speaker is artist DG Smalling, who will present Operation Lady Justice. Register now at www.okbar.org/wil. Learn more about this year's conference on page 70 of this issue. LET US FEATURE YOUR WORK We want to feature your work on “The Back Page” and the Oklahoma Bar Journal cover! Submit articles related to the practice of law, or send us something humorous, transforming or intriguing. Poetry, photography and artwork are options, too. Photographs and artwork relating to featured topics may also be featured on the cover! Email submissions of about 500 words or high-resolution images to OBA Communications Director Lori Rasmussen at lorir@okbar.org.
SEPTEMBER 2025 | 7 THE OKLAHOMA BAR JOURNAL CONNECT WITH THE OBA THROUGH SOCIAL MEDIA Are you following the OBA on social media? Keep up to date on future CLE, upcoming events and the latest information about the Oklahoma legal community. Connect with us on LinkedIn, Facebook and Instagram. ERIN JONES-SLATEV APPOINTED SPECIAL JUDGE IN CANADIAN COUNTY Erin Jones-Slatev has been appointed as a new Canadian County special judge. The selection process began in late May, following the addition of a new special judge position in Canadian County created by the Oklahoma Legislature in response to the county’s population growth and increasing number of case filings. Ms. Jones-Slatev has served as a court referee in the juvenile division of the Canadian County District Court since 2019. During her tenure, she presided over the family treatment court program and was responsible for both delinquent and deprived child cases. She also held supervisory and administrative responsibilities at the Juvenile Justice Center, overseeing a variety of court-related programs. Before her appointment as a referee, she practiced law in El Reno for nearly a decade and in Kansas for four years. Her legal background includes civil litigation, family law, juvenile law and service as a municipal prosecutor. She is a fifth-generation attorney, and she will be following in her father’s footsteps, who served as a district judge in the western part of the state from 1988 to 1995. She is married, and the couple has two school-aged children. LHL DISCUSSION GROUP HOSTS OCTOBER MEETINGS The Lawyers Helping Lawyers monthly discussion group will meet Oct. 2 in Oklahoma City at the office of Tom Cummings, 701 NW 13th St. The group will also meet Oct. 9 in Tulsa at the office of Scott Goode, 1437 S. Boulder Ave., Ste. 1200. The Oklahoma City women’s discussion group will meet Oct. 23 at the first-floor conference room of the Oil Center, 2601 NW Expressway. Each meeting is facilitated by committee members and a licensed mental health professional. The small group discussions are intended to give group leaders and participants the opportunity to ask questions, provide support and share information with fellow bar members to improve their lives – professionally and personally. Visit www.okbar.org/lhl for more information, and keep an eye on the OBA events calendar at www.okbar.org/events for upcoming discussion group meeting dates. LAUNCHING YOUR LAW PRACTICE On Tuesday, Oct. 21, join the OBA Management Assistance Program for Launching Your Law Practice: A Hands-On Workshop. This is a no-cost, semiannual event for new lawyers, those returning to private practice or those venturing out on their own. This day-long workshop will address resources for designing a client-centered firm, improving workflows using AI, business planning and more. Learn more at www.okbar.org/oylp.
SEPTEMBER 2025 | 9 THE OKLAHOMA BAR JOURNAL Torts Beyond the Injury: Identifying Employment Cases in Personal Injury and Workers’ Compensation Law By Patricia A. Podolec EMPLOYMENT LAW ENCOMPASSES THE LEGAL FRAMEWORK governing the relationship between employers and employees. It covers a wide range of issues, including hiring, workplace conditions, compensation and termination. For non-employment law attorneys, understanding the basics of employment law is crucial, as these issues often intersect with other areas of legal practice. Whether advising a business client or representing an individual, a foundational knowledge of employment law can help you identify potential legal issues and guide clients effectively. This article is not intended to be a comprehensive primer on employment law but rather an overview of potential employment cases that non-employment lawyers may encounter. If you have an employee who was discharged, please reach out to an employment lawyer. The Oklahoma Employment Lawyers Association has a list of attorneys who practice plaintiff’s employment law (www.oela.org), as does the National Employment Lawyers Association (www.nela.org). To begin, one overriding issue for clients with potential wrongful termination cases is that employees in Oklahoma, just as most employees in the United States, are employed at will.1 This means that an employer can fire an employee for a good reason, a bad reason, no reason and, as the Oklahoma Supreme Court states, even a morally wrong reason.2 An employer cannot, however, fire an employee for an illegal reason. There are exceptions to employment-at-will. Oklahoma recognizes a wrongful termination action as a violation of an Oklahoma public policy. An employer cannot terminate an employee for a reason that is against “a clear mandate of public policy articulated by constitutional, statutory, or decisional law.”3 This is commonly referred to as a Burk tort.4 This means that general bullying, termination or other adverse treatment not based on a protected characteristic or a violation of Oklahoma public policy is not unlawful, and no cause of action against the employer is available.5 Put simply, an employer cannot fire an employee for an illegal reason, such as a violation of employment laws, including the Americans with Disabilities Act and the Oklahoma Administrative Workers’ Compensation Act. In short, many attorneys who practice in the areas of personal Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
THE OKLAHOMA BAR JOURNAL 10 | SEPTEMBER 2025 injury or workers’ compensation have clients who have been terminated or retaliated against because of their injuries. These clients may have a cause of action under the Americans with Disabilities Act, the workers’ compensation statutes or both. THE AMERICANS WITH DISABILITIES ACT, AS AMENDED The Americans with Disabilities Act (ADA) serves as a crucial legal framework designed to protect individuals with disabilities from discrimination in the workplace. Under Title I of the ADA, employers are prohibited from treating qualified employees or job applicants unfavorably due to their disabilities. This protection extends to all facets of employment, including but not limited to hiring, termination, compensation, job assignments, promotions, layoffs, training, fringe benefits and other employment terms or conditions.6 The ADA emphasizes a broad interpretation of what constitutes a disability, ensuring comprehensive coverage. An individual is deemed to have a disability if they possess a physical or mental condition that significantly restricts a major life activity, have a history of such a condition or experience negative employment actions due to a perceived or actual impairment, provided that it is not transitory and minor. Importantly, a medical condition does not need to be long term, permanent or severe to be considered substantially limiting. The primary focus is on the limitation of symptoms when they are active.7 Under the ADA, employers must make a “reasonable accommodation” for an employee’s disability to allow the employee to perform the “essential functions” of their position. Employers are required to enter into an “interactive discussion” with an employee who is asking for a reasonable accommodation, unless the employer can show “undue hardship.” This begins with the employee requesting a reasonable accommodation, which then “triggers the employer’s responsibility to engage in the interactive process where both parties must communicate in good-faith.”8 What Is a ‘Reasonable Accommodation’? The ADA requires covered employers to provide reasonable accommodations to disabled employees. These accommodations enable employees to perform the essential functions of their jobs. This definition encompasses modifications or adjustments to the work environment or the manner in which a job is customarily performed. The ADA defines “reasonable accommodation” to include job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modifications of examinations, training materials or policies; and other similar accommodations for individuals with disabilities.9 The term relates to those accommodations that enable the employee to perform the essential functions of their job.10 An accommodation must be reasonable. The 10th Circuit does not recognize indefinite Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. IDENTIFYING AN EMPLOYMENT LAW CASE My first step is to determine if the employee was fired for an illegal reason, which would override the employment-at-will doctrine. I ask the employee what the employer said was the reason for the adverse action and then ask what they thought the “real reason” was. Often, an employee says something along the lines of “my boss just didn’t like me.” So I then dig deeper as to why the employer did not like the employee. Was it because of a protected characteristic, such as a disability? Or was it because the employee questioned internal policies or procedures? If so, this is probably not a violation of the law. Moreover, some employers do not appreciate the difference in the requirements under the AWCA and the requirements under the ADA and fail to fully explore the accommodations required by the ADA. For example, I still observe employers telling employees that they can apply for alternate positions rather than placing them in that position. I also still see employers that maintain that marginal duties are essential and that no accommodations are available. For attorneys who represent injured employees, it is crucial to become informed about these laws, as there are time limits to pursuing disability-related causes of action, and ensure clients do their part in the “interactive process” to determine what reasonable accommodations are available.
SEPTEMBER 2025 | 11 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. leave, however, as a reasonable accommodation.11 Further, if it is an “undue hardship” for the employer, it is not considered a reasonable accommodation. The statute defines undue hardship as “an action requiring significant difficulty or expense,” considering several factors, such as the nature and cost of the accommodation, the overall financial resources of the facility, the number of persons employed and the impact on the operation of the facility.12 The 10th Circuit has emphasized that the hardship must be real rather than speculative, and the employer is on stronger ground when it has attempted various methods of accommodation and can point to actual hardships that resulted.13 What Is an ‘Essential Function’? Under the ADA, only essential functions must be accommodated. If the function is not essential, no accommodation is necessary. First, an employee must be qualified for the position. To be qualified, an employee must be able to perform the essential functions of their job, or the job desired, with or without accommodations.14 The definition of an “essential function” under the ADA is primarily derived from the regulations and case law interpreting the statute. The term “essential functions” is defined as “the fundamental job duties of the employment position the individual with a disability holds or desires.”15 This definition explicitly excludes marginal functions of the position.16 The determination of whether a particular job function is essential involves a factual inquiry that considers several factors. These factors include but are not necessarily limited to: 1) the employer’s judgment as to which functions are essential,17 2) written job descriptions prepared before advertising or interviewing applicants for the job,18 3) the amount of time spent on the job performing the function,19 4) the consequences of not requiring the incumbent to perform the function,20 5) the work experience of past incumbents in the job21 and 6) the current work experience of incumbents in similar jobs.22 Courts evaluate an employer’s identification of essential functions under the ADA by giving considerable weight to the employer’s judgment, especially when supported by a written job description.23 However, this deference is not absolute, and courts may question or reject an employer’s determination if it appears to be inconsistent with business necessity or if the function is deemed marginal rather than essential.24 The 10th Circuit places considerable weight on the employer’s judgment concerning what functions are essential, provided that the employer’s description is job-related, uniformly enforced and consistent with business necessity.25 Courts are generally reluctant to second-guess the employer’s business judgments in defining essential functions.26 However, this deference is not limitless, as an employer cannot arbitrarily designate every condition of employment as an essential function, and courts may question or reject an employer’s determination if it appears to be inconsistent with business necessity or if the function is deemed marginal rather than essential.27 In summary, the definition of an “essential function” under the ADA in the 10th Circuit is the fundamental job duties of the employment position the individual with a disability holds or desires, excluding marginal functions. The determination involves a factual inquiry considering the employer’s judgment, written job descriptions, time spent on the function, consequences of not performing the function and the work experience of incumbents. Courts generally defer to the employer’s judgment, provided it is job-related, uniformly enforced and consistent with business necessity.28 What Is an ‘Interactive Discussion’? The interactive process required to determine a reasonable accommodation under the ADA involves a collaborative effort between the employer and the employee. The 10th Circuit has consistently emphasized that this process necessitates good faith communications from both parties to identify the employee’s limitations and explore potential accommodations, as each side possesses different information critical to determining whether there is a reasonable accommodation that might permit the disabled employee to perform the essential functions of their job.29 The employer’s obligation to engage in this process is triggered when the employee provides notice of their disability and any resulting limitations.30 As noted, both the employer and the employee must participate in this interactive discussion. The employer has an affirmative obligation to undertake a good faith back-and-forth process with the employee, aiming to identify the employee’s precise limitations and attempting to find a reasonable accommodation for those limitations.31 This duty includes meeting with the employee, requesting information about the employee’s
THE OKLAHOMA BAR JOURNAL 12 | SEPTEMBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. condition and limitations, indicating to the employee that the employer is considering the request and offering and discussing reasonable alternatives.32 The employee also has a duty to engage reasonably in the interactive process. This includes providing necessary medical information and clarifying the scope of their accommodation needs.33 Failure to provide such information precludes the employee from claiming the employer violated the ADA by failing to provide reasonable accommodation.34 In short, the interactive process under the ADA requires both the employer and employee to engage in good faith communications to identify the employee’s limitations and explore potential accommodations. The process is triggered by the employee’s notice of their disability, and both parties must participate actively to fulfill their respective obligations. Failure to engage in this process can have significant legal consequences, particularly in summary judgment proceedings. RETALIATION AND DISCRIMINATION UNDER THE OKLAHOMA ADMINISTRATIVE WORKERS’ COMPENSATION ACT So how does the ADA relate to or impact Oklahoma’s workers’ compensation statutes? Discriminating and/or retaliating against an employee for a claim under the Oklahoma Administrative Workers’ Compensation Act (AWCA) is against the law. Essentially, an employer cannot retaliate against an employee when the employee has, in good faith, 1) filed a claim, 2) retained an attorney, 3) instituted any proceeding under the act or 4) testified in any proceeding.35 In addition, an employee cannot be discharged while on temporary total disability for the sole reason of being absent from work.36 How Does the ADA Impact the AWCA? In what way does the ADA come into play in a work-related injury? The AWCA also states, “Notwithstanding any other provision of this section, an employer shall not be required to rehire or retain an employee who, after temporary total disability has been exhausted, is determined by a physician to be physically unable to perform his or her assigned duties or whose position is no longer available.”37 Thus, under the AWCA, an employer can refuse to keep an employee who is unable to perform their assigned duties. Most employees who are represented in a workers’ compensation case come out of workers’ compensation with some kind of restrictions. This, however, can violate the ADA because it does not consider the reasonable accommodation process provided in the ADA. If an employee has restrictions, as described above, the employer must enter the interactive process to determine if there is a reasonable accommodation available. Under the ADA, with few exceptions, a reasonable accommodation includes transferring an employee to an open position, which is not a promotion, where an employee either needs no accommodations or reasonable accommodations are available. The ADA, however, does not obligate employers to create new positions or reassign disabled employees to nonvacant roles. Employers are not required to promote or find alternative jobs for employees who cannot perform their current job’s essential functions.38 Discriminating and/or retaliating against an employee for a claim under the Oklahoma Administrative Workers’ Compensation Act (AWCA) is against the law.
SEPTEMBER 2025 | 13 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. How Is ‘Light Duty’ Different From a ‘Reasonable Accommodation’? Under the AWCA, an employer can provide an employee who cannot perform their regular job a “light duty” position.39 Light duty generally refers to tasks an injured employee can perform, despite physical restrictions resulting from a work-related injury. The availability and offer of light duty can impact the employee’s eligibility for temporary total disability (TTD) benefits.40 Under the ADA, a “light duty” position may not be considered a reasonable accommodation, as it is a job that was created specifically for workers’ compensation injuries. An employer is not required to create a job for an employee as an accommodation.41 The employee can also be placed on TTD for a period of time that would not be considered a reasonable accommodation under the ADA.42 After the employee reaches maximum medical improvement under the AWCA43 and receives a disability rating, some employers will not return the employee to work with restrictions, as given in their workers’ compensation case. While this may be allowed under the workers’ compensation statutes, it is not allowed under the ADA without the required “interactive discussion.” Furthermore, the 10th Circuit case law specifies a reasonable accommodation to include transferring the employee to an open position that is not a promotion.44 With few exceptions, such as a bona fide seniority system or a union contract,45 it is the employer’s duty to find the employee an open position and transfer the employee to it without the necessity for the employee to apply for the position.46 Some employers may tell employees they should search for open positions and apply for them, and it is up to the hiring official whether they get the job.47 Except for the limited exceptions noted above, it is my opinion that this policy violates the ADA. THE OKLAHOMA ANTIDISCRIMINATION ACT Oklahoma basically recognizes the same types of discrimination recognized in federal law.48 While the ADA only covers employers with at least 15 employees,49 the Oklahoma Anti-Discrimination Act (OADA) covers employers with only one employee.50 Generally, if the employer has over 15 employees (20 employees for an age discrimination violation), the employee can file either with the Equal Employment Opportunity Commission (EEOC) or the Oklahoma Office of Civil Rights Enforcement (OCRE). Under the OADA, however, the charge must be filed within 180 days.51 Because the OCRE and the EEOC have a work-sharing agreement, the charge for violation of federal law must be filed within 300 days.52 If the charge is filed under state law and the employer is an Oklahoma political subdivision, a tort claim under the Oklahoma Governmental Tort Claims Act must be filed.53 RELEVANT FILING DEADLINES As noted previously, an employee has either 180 days to file a charge if the employer has fewer than 15 employees or 300 days if the employer has over that amount, and these administrative filings must be exhausted prior to filing in court. Under both the ADA and the OADA, exhaustion of administrative remedies is required, and the EEOC (or the OCRE) must issue a notice of right to sue before a lawsuit can be filed.54 However, another statute also regulates disability discrimination in employment – Section 504 of the Rehabilitation Act of 1973. This statute covers any employer that receives federal funds, no matter how many employees the employer has.55 Section 504 in Oklahoma has a two-year statute of limitations.56 Further, Section 504 does not require any administrative exhaustion, so employees are not required to file a charge with the EEOC.57 Bottom line, employers are required to accommodate employees with disabilities unless they can show undue hardship. Therefore, every employee injured, whether on or off the job, is likely to be covered by at least one of these statutes. CONCLUSION Employment law is a complex and dynamic field that intersects with many other areas of legal practice. By understanding the basics, non-employment law attorneys can better serve their clients and identify potential legal issues. However, given the intricacies of employment law, seeking specialized advice when needed is always advisable. This ensures that clients receive the most accurate and effective legal guidance. ABOUT THE AUTHOR Patricia A. Podolec practices employment law, representing employees. She is certified as a senior professional in human resources by the Human Resource Certification Institute. Prior to attending law school, Ms. Podolec worked in human resources. She is also a member of the Federal
THE OKLAHOMA BAR JOURNAL 14 | SEPTEMBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Bar Association, the American Bar Association, the Oklahoma Employment Lawyers Association and the National Employment Lawyers Association. She graduated magna cum laude from the OCU School of Law. ENDNOTES 1. Virtually every state and Washington, D.C., recognize at-will employment. See http://bit.ly/41wlxpy (last visited May 8, 2025). 2. “Such indefinite employment contracts are deemed terminable-at-will. The classic statement of the at-will rule was that an employer may discharge an employee for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.” Burk v. K-Mart Corp., 1989 OK 22, ¶5, 770 P.2d 24, 26. 3. Gilmore v. Enogex, Inc., 1994 OK 76, ¶6, 878 P.2d 360, 362-63 (“Employers can discharge at-will employees without recourse, in good or bad faith, with or without cause. There is no implied covenant of good faith and fair dealing that protects an at-will employment relationship from termination. At-will employees do not have a cognizable cause of action for wrongful discharge unless the claim falls within the narrow class of complaints in which the discharge is contrary to a clear mandate of public policy articulated by constitutional, statutory or decisional law.”). 4. A Burk tort does not protect an employee from the employer’s “poor business judgment, or corporate foolishness.” Shero v. Grand Savings Bank, 2007 OK 24, ¶12, 161 P.3d 298, 302. 5. Hayes v. Eateries, Inc., 1995 OK 108, ¶32, 905 P.2d 778, 789-90 (No public policy Burk tort claim is stated “where an employee claims his discharge was motivated by his reporting either externally (to appropriate law enforcement officials) or internally (to appropriate company officials), criminal conduct of a co-employee perpetrated against the interest of the employer”; McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1481 (10th Cir. 1996) (“We hold that McKenzie did not engage in protected activity under §215(a)(3) when, in her capacity as personnel director, she undertook to advise Renberg’s that its wage and hour policies were in violation of the FLSA.”); Shero, 2007 OK 24, ¶13, 161 P.3d at 303 (“Employer/Bank did not violate public policy when it conditioned Employee’s employment upon Employee’s abandonment of his counterclaim pursuant to the Open Records Act, 51 O.S.2001, §24A.1, against the Employer/Bank’s customer.”). 6. “Disability Discrimination and Employment Decisions,” U.S. Equal Employment Opportunity Commission. http://bit.ly/4ouyDxt (last visited May 26, 2025). 7. Id. 8. Dansie v. Union Pacific Railroad Co., 42 F.4th 1184, 1193 (10th Cir. 2022). 9. Lincoln, 900 F.3d at 1204-05 (2018) (“The ADA defines “reasonable accommodation” to “include ... job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, ... and other similar accommodations for individuals with disabilities.” 42 U.S.C. §12111(9) (emphasis added)). 10. Id. (“This is because a reasonable accommodation ‘refers to those accommodations which presently, or in the near future, enable the employee to perform the essential functions of his job.’”) (emphasis removed). 11. Herrmann v. Salt Lake City Corp., 21 F.4th 666, 676 (10th Cir. 2021) (“But a request for indefinite leave is not reasonable as a matter of law.”). 12. 42 U.S.C.A. §12111(10); see also Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154 (10th Cir. 1999); Aubrey v. Koppes, 975 F.3d 995 (10th Cir. 2020). 13. Equal Employment Opportunity Comm’n v. JBS USA, LLC, 115 F. Supp. 3d 1203, 1232 (D. Colo. 2015). 14. 42 U.S.C.A. §12111. 15. Burnett v. Pizza Hut of Am., Inc., 92 F. Supp. 2d 1142 (D. Kan. 2000). 16. 29 C.F.R. §1630.2. 17. Hinson v. U.S.D. No. 500, 187 F.Supp.2d 1297, 1304 (2002); Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1192 (10th Cir. 2018). 18. Lincoln, 900 F.3d at 1192; Mason v. Avaya Commc’ns, Inc., 357 F.3d 1 at 1119 (10th Cir. 2004). 19. Mason, 357 at 1119; Mathews v. Denver Post, 263 F.3d 1164, 1167 (10th Cir. 2001). 20. Id. 21. Hinson, 187 F. Supp. 2d at 1305; Mason, supra note 20. 22. Hinson, supra note 23. 23. Unrein v. PHC-Fort Morgan, Inc., 993 F.3d 873, 877 (10th Cir. 2021) (“Indeed, ‘[w]e will not second guess the employer’s judgment when its description is job-related, uniformly enforced, and consistent with business necessity.’”) Mason, supra note 20. 24. The deference provided to employers regarding what functions are essential, however, is not limitless, as “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.” Hawkins, 778 F.3d at 889 (quotation marks omitted); see 29 C.F.R. §1630.2(n)(1) (“The term ‘essential functions’ does not include the marginal functions of the position.”). Lincoln, 900 F.3d at 1192 (10th Cir. 2018). 25. Id., supra note 26; Mannan v. Colorado, 841 Fed. Appx. 61, 66-67 (10th Cir. 2020). 26. Mason, supra note 20 at 1122 (“In cases arising under the ADA, we do not sit as a ‘super personnel department’ that second guesses employers’ business judgments.”). 27. Lincoln, 900 F.3d at 1192 (“The deference provided to employers regarding what functions are essential, however, is not limitless, as ‘an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.’”). 28. Mason, supra note 20 at 1119. 29. Norwood v. United Parcel Serv., Inc., 19-2496-DDC-JPO, 2021 WL 3022315, at *11 (D. Kan. July 16, 2021), aff’d, Norwood v. United Parcel Serv., Inc., 57 F.4th 779 (10th Cir. 2023); Aubrey v. Koppes, 975 F.3d 995, 1007 (10th Cir. 2020). 30. Dansie, 42 F.4th at 1193; Norwood, 57 F.4th at 786 (10th Cir. 2023). 31. Id. 32. Williams v. Prison Health Servs., Inc., 159 F. Supp. 2d 1301, 1310 (D. Kan. 2001), aff’d, Williams v. Prison Health Servs., Inc., 35 Fed. Appx. 774 (10th Cir. 2002). 33. Norwood, supra note 31 at *20, (“Courts have repeatedly ruled in favor of employers in ADA claims where the employee failed to participate in good faith during the interactive process.”). 34. Hurt v. Sch. Dist. No. 1 in Cnty. of Denver Colorado, 664 F. Supp. 3d 1227, 1240 (D. Colo. 2023), appeal dismissed sub nom. Hurt v. Sch. Dist. No. 1 in Cnty. of Denver, 23-1136, 2023 WL 7215340 (10th Cir. June 1, 2023). 35. 85A O.S. §7. 36. Id. 37. Id. 38. Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154 (10th Cir. 1999). 39. 85A O.S. §45. 40. Williams v. Hormel Foods Corp., 2003 OK CIV APP 37, 67 P.3d 375. 41. Smith, supra note 40. 42. Herrmann, supra note 13 at 676 (“But a request for indefinite leave is not reasonable as a matter of law.”). 43. 85A O.S. §2(28) (“‘Maximum medical improvement’ means that no further material improvement would reasonably be expected from medical treatment or the passage of time.”). 44. Smith, supra note 40. 45. US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). 46. Smith, supra note 40. 47. Lincoln, 900 F.3d at 1205 (“Under BNSF’s logic, every employer could adopt a policy in favor of hiring the most qualified candidate such that a disabled employee could never rely on reassignment to establish the existence of a reasonable accommodation for purposes of his prima facie case. Such a result would effectively and improperly read ‘reassignment to a vacant position’ out of the ADA’s definition of ‘reasonable accommodation.’”). 48. 25 O.S. §1350. 49. 42 U.S.C.A. §12111(5)(A). 50. 25 O.S. §1301(1). 51. 25 O.S. §1350(B). 52. E.E.O.C. v. Commercial Office Products Co., 486 U.S. 107, 108 S. Ct. 1666, 100 L. Ed. 2d 96 (1988). 53. Conner v. State, 2025 OK 12. 54. 29 C.F.R. §1601.28. 55. Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 969 (10th Cir. 2002) (“Employers with fewer than fifteen employees are subject to the Rehabilitation Act’s requirements so long as they are recipients of federal assistance.”). 56. Levy v. Kansas Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164, 1172 (10th Cir. 2015) (“Because a section 504 claim is closely analogous to section 1983, we find that section 504 claims are best characterized as claims for personal injuries.”). While this case is based on Kansas law, Oklahoma’s personal injury statute is also two years. See 12 O.S. §95. 57. Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 986 (10th Cir. 2021) (“The applicability of the Rehabilitation Act is significant here because it, unlike the ADA, does not require the exhaustion of administrative remedies.”).
THE OKLAHOMA BAR JOURNAL 16 | SEPTEMBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. IN OKLAHOMA, AN EMPLOYER CAN BE HELD VICARIOUSLY LIABLE for the tortious acts committed by its employee if the act is “fairly and naturally incident to the business” and is done “while the servant was engaged upon the master’s business ... although mistakenly or ill advisedly ... or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master’s business.”1 On this issue, the Oklahoma Supreme Court has made it clear that vicarious liability can be imposed even if the employee’s actions are found to “evince a wanton or reckless disregard for the rights of another, oppression, fraud or malice” for the purposes of awarding punitive damages.2 The passage of the Political Subdivision Tort Claims Act in 1978, the predecessor to the Oklahoma Governmental Tort Claims Act (the GTCA or collectively “the act”), established a legislative framework for recognizing and limiting sovereign immunity in Oklahoma. The GTCA limits the imposition of vicarious liability on governmental entities to acts committed by public employees that are within the “scope of employment” as defined by the act.3 The effect of the GTCA is twofold: First, the act defines the full extent of the state’s waiver of sovereign immunity when it comes to claims for tort damages, whether the claims arise from common law, statute or constitutional violations.4 Second, the GTCA abrogates the common law and limits vicarious liability to actions performed by an employee “acting in good faith within the duties of the employee’s office or employment.”5 Thus, the question arises whether a jury can find that a public employee was acting within the “scope of employment” and still award punitive damages based on a finding that the employee’s conduct was in “reckless disregard” or “malicious.” Like all good law school professors, the Oklahoma Supreme Court has answered this question with the truism, “It depends.” The Oklahoma Supreme Court’s seminal case on the issue, DeCorte v. Robinson, builds upon prior Torts The Punitive Paradox: Scope of Employment, Punitive Damages and the Oklahoma Governmental Tort Claims Act By Pete G. Serrata III
SEPTEMBER 2025 | 17 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Oklahoma case law and draws from the Florida Supreme Court.6 The decisional framework presented in DeCorte and its underpinnings illustrate how and when a jury can find that a public employee acted within the “scope of employment” and award punitive damages for the same conduct. SOVEREIGN IMMUNITY The doctrine of sovereign immunity was first recognized in early English law and established that the sovereign could not be sued without his permission. Although there is some debate as to whether the doctrine is based upon the theory that “the king can do no wrong,” the doctrine is believed to have more likely resulted from the practicality that the courts were an extension of the realm and could not be used to enforce claims against it.7 Federal Sovereign Immunity When the Constitution was ratified, the crown could not be sued in its own courts without its consent.8 The ratification of the U.S. Constitution included significant assurances by such figures as Alexander Hamilton, James Madison and John Marshall that the doctrine of sovereign immunity would not be thrown out with the British.9 Before long, however, a growing chorus of dissent began to gnaw at the edges of the sovereign’s immunity.10 Writing for the court in U.S. v. Lee, Justice Samuel Miller expressed the court’s misgivings when he wrote: No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.11 Although the court did not disturb the immunity provided to the government, it declined to extend that immunity to individual officers of the United States acting on its behalf.12 Rejecting the argument that sovereign immunity
THE OKLAHOMA BAR JOURNAL 18 | SEPTEMBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. precluded judicial scrutiny over federal officers, the court in Lee held: It is not pretended, as the case now stands, that the president had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power.13 Thus, by 1882, the power of absolute sovereign immunity began to retreat as the judicial branch assumed the role of guarding individual rights from the abuse of power by its coequal branches of government. In 1946, Congress passed the Federal Tort Claims Act, which statutorily allowed the United States to be sued in the district courts and waived its governmental immunity “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”14 Thus began the genesis of the modern tort claims acts among the states. Sovereign Immunity in Oklahoma In 1978, the Oklahoma Legislature enacted the Political Subdivision Tort Claims Act (codified at Okla. Stat. Tit. 51 §151, et seq.), extending political subdivision tort liability for loss resulting from its torts or the torts of its employees acting within the scope of their employment or duties, subject to the limitations specified in the act. At that time, the doctrine of sovereign immunity in Oklahoma was no longer premised upon absolute immunity from suit but rather stemmed from the dichotomy of the state as either sovereign or proprietor.15 In Hershel v. University Hospital Foundation, the Oklahoma Supreme Court limited common law immunity to functions of the state that were inherently governmental rather than merely proprietary.16 Under this view, the state and its political subdivisions enjoyed immunity when acting in a legislative or judicial/quasi-judicial capacity. However, in Vanderpool v. State, the Oklahoma Supreme Court would hold that the state could be sued without regard to whether the Legislature had given such consent, express or implied.17 In the court’s opinion, the role of sovereign immunity began to wither upon the “re-examination of the soundness of the concept ... in the light of the expanded role of government in today’s society ... [resulting in] a retreat from the concept both legislatively and by case law.”18 Following Vanderpool, the Legislature enacted the GTCA, abrogated common law sovereign immunity once and for all and replaced it with statute.19 Although the GTCA codified the doctrine of sovereign immunity in Oklahoma, it simultaneously waived that immunity for a wide swath of tort claims. Thus, the state and its political subdivisions are statutorily immune from tort claims unless the Legislature has expressly waived that immunity.20 Scope of Employment The GTCA serves as a waiver of immunity in certain instances.21 Specifically, the act provides that the state or political subdivision “shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment.”22 The GTCA distinguishes between a government employee acting within the “scope of employment” and one who was not to determine whether sovereign immunity attaches.23 “Scope of employment” is defined by the GTCA as “performance by an employee acting in good faith within the duties of the employee’s office or employment or of tasks lawfully assigned by competent authority.”24 The Oklahoma The GTCA distinguishes between a government employee acting within the ‘scope of employment’ and one who was not to determine whether sovereign immunity attaches.23
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