Mann v. City of Norman , 782 P.2d 152 ( 1989 )

MEMORANDUM OPINION

REYNOLDS, Judge:

The following facts are dispositive of this case.

Nathan Mann (Plaintiff below) initially filed a claim in the Office of the Norman City Clerk against City on February 20, 1987, requesting damages for wrongful termination under the Governmental Tort Claims Act, 51 O.S. Supp.1985, § 151 et seq., Plaintiff’s claim was denied on May 21, 1987, and pursuant to 51 O.S.Supp.1985, § 157, his right to file a lawsuit was barred by the Statute of Limitations on November 17, 1987. Nevertheless, Plaintiff filed suit against City in District Court on February 12, 1988, alleging he was discharged as a retaliatory measure for filing a workers’ compensation claim.

A hearing was held on April 5, 1988, upon City’s Motion to Dismiss, and the District Judge held:

1. An action brought pursuant to 85 O.S. Supp.1981, § 5 through 7 (wrongful termination) is an action in tort,

2. City is a political subdivision to which the provisions of the Governmental Tort Claims Act, 51 O.S. § 151, et. seq., apply,

3. The time limitations set out in 51 O.S. Supp.1985, § 157 are applicable to the case herein,

4. The undisputed facts show that Plaintiff’s petition was filed outside the time limitation of the Act and therefore fails to state a claim upon which relief can be granted.

The Court then sustained City’s Motion to Dismiss.

The only issue on appeal is the applicability of 51 O.S. Supp.1985, § 151 et seq. to a wrongful termination tort action based on 85 O.S. §§ 5 through 7. 51 O.S.Supp.1985, § 157 states, in part:

A. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days ...

B. No action for any cause arising under this act shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section ...

In the case at bar, the initial claim was filed February 20, 1987. The claim was statutorily denied on May 21, 1987 (ninety days later). On November 17, 1987, the right to file a lawsuit was effectively barred. (180 days).

Wrongful termination in violation of 85 O.S. §§ 5-7 is an action sounding in tort. The City of Norman is a Political Subdivision governed by the Governmental Tort Claims Act codified at 51 O.S. Supp. 1985, § 151 et seq. A claim of Wrongful Termination against a Political Subdivision must be asserted like any other tort claim pursuant to the Act. There is no dispute that notice of Plaintiffs Claim was filed within the time limit prescribed by the Act, however, Plaintiffs lawsuit was not timely filed within the Statute of Limitations prescribed in 51 O.S. Supp.1985, § 157.B.

The trial court is AFFIRMED.

BAILEY, C.J., specially concurs with separate opinion. HANSEN, P.J. dissents with separate opinion.