DEE ANN HELM, formerly known as Dee Ann Cramer, Plaintiff/Appellant,
BOARD OF COUNTY COMMISSIONERS OF ROGERS COUNTY, OKLAHOMA, Defendant/Appellee.
Mandate Issued: 11/14/2019
FROM THE DISTRICT COURT OF ROGERS COUNTY, OKLAHOMA HONORABLE
SHEILA A. CONDREN, JUDGE
Stanley D. Monroe, Ann E. Keele, MONROE & KEELE, PC,
Tulsa, Oklahoma, for Plaintiff/Appellant,
A. LeBlanc, Matthew B. Free, Jessica L. Johnson, BEST &
SHARP, Tulsa, Oklahoma, for Defendant/Appellee.
Dee Ann Helm (Plaintiff/Appellant) was employed by Rogers
County as an administrative assistant. Rogers County
terminated her employment and she filed a petition to recover
unpaid wages and a penalty pursuant to 40 O.S.Supp. 2005
§165.3 of the Protection of Labor Act. The Board of
County Commissioners of Rogers County (Defendant/Appellee)
filed a motion to dismiss.
The County argued Helm's claim is barred by the Oklahoma
Governmental Tort Claims Act because she did not comply with
its notice provisions. The trial court agreed and granted the
County's motion to dismiss for failure to state a claim.
12 O.S. §2012 (B)(6). Helm appealed. She argues the
dismissal was erroneous because her action is contractual and
the GTCA does not apply. We review the order de novo
because a motion to dismiss tests the law governing a claim.
Dani v. Miller, 2016 OK 35, ¶10, 374 P.3d 779,
785-86. The legal question is whether Plaintiff's claim
is a tort within the meaning of 51 O.S.Supp. 2014 §152
"Tort" is defined by the GTCA as:
A legal wrong, independent of contract, involving
violation of a duty imposed by general law, statute,
the Constitution of the State of Oklahoma, or otherwise,
resulting in a loss to any person, association or corporation
as the proximate result of an act or omission of a political
subdivision or the state or an employee acting within the
scope of employment.
(§152(14), emphasis added.) Accordingly, we must examine
the petition and analyze whether Helm is requesting relief,
independent of contract, involving violation of a duty
imposed by statute and within the meaning of the Governmental
Tort Claims Act.
Helm's petition states, (1) she was an employee of the
County, (2) her employment was terminated, (3) she had
accrued unpaid personal and vacation leave for which she was
not paid, and (4) pursuant to 40 O.S. §165.3, she is
entitled to past-due wages and a statutory penalty of 2% per
day. The action seeks damages based on statute. If
§165.3 is a statutory tort within the meaning of
§152(14) then the action could be governed by the GTCA.
The County correctly points out that the Legislature
broadened the scope of the GTCA by adding torts that derive
from statutes. A statutory tort is a legislatively-crafted,
non-contractual duty, unknown to the common law, for the
breach of which an action ex delicto, will lie.
Morgan v. Galilean Health Enterprises, Inc., 1998 OK
130, ¶8, 977 P.2d 357, 361. A liability created by
statute, however, is not necessarily a tort. Sweeten v.
Lawson, 2017 OK CIV APP 51, ¶24, 404 P.3d 885,
892-93 (a claim for statutory replevin is not a tort pursuant
to the GTCA); Barton v. City of Midwest City, 2011
OK CIV APP 71, ¶¶23-24, 257 P.3d 422, 426 (a
statutory proceeding for inverse condemnation is not a tort
as defined by 51 O.S. §152 (14).
Section 165.3(A) of the Protection of Labor Act requires an
employer to pay the employee's wages after the employment
terminates at the next regular pay period. An exception
exists for a bona fide disagreement. If an employer fails to
pay the wages, then the employer is liable for liquidated
damages of two percent per day up to the amount of the unpaid
wages. §165.3(B).  County's position is that the
statute imposes an implied duty to pay undisputed
wages at a designated time, and liability for breach
of that duty. But these statutory rights directly relate to
the employer-employee relationship and are not
"independent of contract."
The employer-employee relationship is created by contract,
either express or implied. Cherokee Lines, Inc. v.
Bailey, 1993 OK 111, ¶13, 859 P.2d 1106, 1110. A
claim for unpaid wages is a debt arising out of contract.
Hamrick v. State ex rel. Office of the Chief Medical
Examiner, 2011 OK 60, ¶12, 258 P.3d 509, 513