Opinion by
KEITH RAPP, Vice Chief Judge.
{1 The trial court plaintiff, Ronald More-house (Morehouse), appeals an order dismissing his action against the trial court defendants, State of Oklahoms, Oklahoma City Community College (OCCC).
This appeal proceeds under the accelerated appeal provisions of Okla. Sup.Ct. R. 1.36, 12 O.S. Supp., ch. 15, app.
BACKGROUND
12 Morehouse was employed by OCCC as a security officer. OCCC terminated the employment.
Morehouse alleged that his termination by OCCC was the result of age discrimination and thus a wrongful termination.
T3 OCCC moved to dismiss the action for failure to state a claim. Both parties acknowledge the public policy exception to the termination-at-will rule as recognized in Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24 (Burk tort). However, OCCC's motion argued that Morehouse cannot state a claim for wrongful discharge because he had a statutory remedy under the Oklahoma Personnel Act (OPA), 74 §§ 840-1.1 et seq.
14 Morehouse responded that he had no action under the federal Age Discrimination in Employment Act by virtue of United States Supreme Court decision.
He argued further that he had no state statutory remedy on the premise that OCCC was not covered by the OPA because it is an institution of higher learning.
As additional support for this argument, Morehouse argued that OCCC relied on it being an institution of higher learning to prevail in dismissing Morehouse's federal lawsuit against it. He further maintained that he was an unclassified employee under the OPA and thus not subject to its provisions.
15 The trial court dismissed the action. Morehouse appeals.
STANDARD OF REVIEW
¶ 6 A trial court's dismissal for failure to state a claim upon which relief can be granted involves a de movo review to ascertain whether the petition, including its exhibits, is legally sufficient. Indiana Nat'l Bank v. State Dept. of Human Servs., 1994 OK 98, ¶ 2, 880 P.2d 371, 375. The petition is a short and plain statement of the claim and a demand for judgment. 12 O.S.2001, § 2008. The Court must take as true all of the chal
lenged pleading's allegations, together with all reasonable inferences which may be drawn from them. Indiana Nat'l Bank, 1994 OK 98 at ¶ 3, 880 P.2d at 375. Moreover, such motions are not favored. Id., 1994 OK 98 at ¶ 4, 880 P.2d at 375.
17 Therefore, a pleading must not be dismissed for failure to state a claim unless the allegations show beyond any doubt that the litigant can prove no set of facts which would entitle him to relief. Id., at 13, 880 P.2d at 375. The burden is upon the movant to demonstrate legal insufficiency and the motion must comply with the statutory format. 12 O.S. Supp.2005, § 2012(B); Indiana Nat'l Bank, 1994 OK 98 at ¶ 3, 880 P.2d at 375. A plaintiff need not identify cither a specific theory or set out the correct remedy in order to prevail on the motion to dismiss. The trial court's task is to inquire whether relief is possible under any set of facts that could be established consistent with the allegations. Generally a motion to dismiss may be sustained for two reasons: (1) lack of any cognizable legal theory, or, (2) insufficient facts under a cognizable legal theory. Id., 1994 OK 98 at ¶ 4, 880 P.2d at 375-76.
ANALYSIS AND REVIEW
¶ 8 A plaintiff, to bring himself within the ambit of a Burk tort claim, must establish: (1) a clear, compelling public policy goal that is established, existing law by virtue of statute or judicial decision; (2) no statutory remedy exists to protect that policy goal; (8) at-will employment; and, (4) the reason for termination violated the identified public policy goal. McCrady, 2005 OK 67 at ¶ 9, 122 P.3d at 475. It is undisputed that age discrimination constitutes a public policy goal, the violation of which would give rise to a Burk tort if the other elements are present. Next, for purposes of the motion to dismiss, elements three and four are taken as true.
¶ 9 Thus, if Morehouse has a remedy under the OPA, his action fails as a matter of law. -It is clear that the OPA does provide a remedy which will preclude existence of the Burk tort in those instances where the OPA applies. McCrady, 2005 OK 67 at ¶¶ 11-12, 122 P.3d at 475-76. Morehouse argues that the OPA does not apply to him because he is an unclassified employee. Next, he maintains that the OPA does not apply to OCCC, and thus not to him.
A. Application of OPA to Morehouse
10 The sole function here of McCra-dy is to establish that the OPA provides a remedy which precludes a Burk tort. Otherwise, the case is distinguishable on its facts and does not resolve the issues here. The plaintiff, McCrady, was a classified employee and thus not an employee-at-will, so McCra-dy lacked this element of his claim. Here, there is no dispute that Morehouse is an unclassified employee-at-will.
¶ 11 In addition, McCrady did come under the OPA as a classified employee. The OPA provides that unclassified employees are not covered by the Act "unless otherwise provided." 74 0.98.2001, § 840-5.1.
The statutes do make provision for OPA application to unclassified employees in matters involving age discrimination. 74 . 0.8.2001, § 954.
Moreover, an Attorney General Opinion concludes that the anti-discrimination and whistle blower provisions of the OPA apply to the unclassified employee. 1999 OK AG 44.
¶ 12 Therefore, this Court holds that the OPA provides a statutory remedy for claims of age discrimination.
The "no statutory remedy" element of the Burk tort is not present here as a matter of law.
B. Application of OPA to OCCC
¶ 13 Morehouse argues then that the OPA does not apply to OCCC. He cites State ex rel. Board of Regents v. Oklahoma Merit Protection Commussion, 2001 OK 17, 19 P.3d 865. There, the Supreme Court granted a writ of prohibition directing the Commission to cease exercising jurisdiction over the Board and other petitioners because they are constitutional entities. As such, they are "empowered by Art. 18-A §§ 1 and 2 as well as Art. 18-B §§ 1 and 2, OKkl. Const., to conduct the internal affairs of their subordinate institutions of higher learning free of any interference by the Oklahoma Merit Protection Commission. The Legislature is powerless to delegate the petitioners' constitutional control over the management of their institutions to any department, commission or agency of state government." State ex rel.
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Opinion by
KEITH RAPP, Vice Chief Judge.
{1 The trial court plaintiff, Ronald More-house (Morehouse), appeals an order dismissing his action against the trial court defendants, State of Oklahoms, Oklahoma City Community College (OCCC).
This appeal proceeds under the accelerated appeal provisions of Okla. Sup.Ct. R. 1.36, 12 O.S. Supp., ch. 15, app.
BACKGROUND
12 Morehouse was employed by OCCC as a security officer. OCCC terminated the employment.
Morehouse alleged that his termination by OCCC was the result of age discrimination and thus a wrongful termination.
T3 OCCC moved to dismiss the action for failure to state a claim. Both parties acknowledge the public policy exception to the termination-at-will rule as recognized in Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24 (Burk tort). However, OCCC's motion argued that Morehouse cannot state a claim for wrongful discharge because he had a statutory remedy under the Oklahoma Personnel Act (OPA), 74 §§ 840-1.1 et seq.
14 Morehouse responded that he had no action under the federal Age Discrimination in Employment Act by virtue of United States Supreme Court decision.
He argued further that he had no state statutory remedy on the premise that OCCC was not covered by the OPA because it is an institution of higher learning.
As additional support for this argument, Morehouse argued that OCCC relied on it being an institution of higher learning to prevail in dismissing Morehouse's federal lawsuit against it. He further maintained that he was an unclassified employee under the OPA and thus not subject to its provisions.
15 The trial court dismissed the action. Morehouse appeals.
STANDARD OF REVIEW
¶ 6 A trial court's dismissal for failure to state a claim upon which relief can be granted involves a de movo review to ascertain whether the petition, including its exhibits, is legally sufficient. Indiana Nat'l Bank v. State Dept. of Human Servs., 1994 OK 98, ¶ 2, 880 P.2d 371, 375. The petition is a short and plain statement of the claim and a demand for judgment. 12 O.S.2001, § 2008. The Court must take as true all of the chal
lenged pleading's allegations, together with all reasonable inferences which may be drawn from them. Indiana Nat'l Bank, 1994 OK 98 at ¶ 3, 880 P.2d at 375. Moreover, such motions are not favored. Id., 1994 OK 98 at ¶ 4, 880 P.2d at 375.
17 Therefore, a pleading must not be dismissed for failure to state a claim unless the allegations show beyond any doubt that the litigant can prove no set of facts which would entitle him to relief. Id., at 13, 880 P.2d at 375. The burden is upon the movant to demonstrate legal insufficiency and the motion must comply with the statutory format. 12 O.S. Supp.2005, § 2012(B); Indiana Nat'l Bank, 1994 OK 98 at ¶ 3, 880 P.2d at 375. A plaintiff need not identify cither a specific theory or set out the correct remedy in order to prevail on the motion to dismiss. The trial court's task is to inquire whether relief is possible under any set of facts that could be established consistent with the allegations. Generally a motion to dismiss may be sustained for two reasons: (1) lack of any cognizable legal theory, or, (2) insufficient facts under a cognizable legal theory. Id., 1994 OK 98 at ¶ 4, 880 P.2d at 375-76.
ANALYSIS AND REVIEW
¶ 8 A plaintiff, to bring himself within the ambit of a Burk tort claim, must establish: (1) a clear, compelling public policy goal that is established, existing law by virtue of statute or judicial decision; (2) no statutory remedy exists to protect that policy goal; (8) at-will employment; and, (4) the reason for termination violated the identified public policy goal. McCrady, 2005 OK 67 at ¶ 9, 122 P.3d at 475. It is undisputed that age discrimination constitutes a public policy goal, the violation of which would give rise to a Burk tort if the other elements are present. Next, for purposes of the motion to dismiss, elements three and four are taken as true.
¶ 9 Thus, if Morehouse has a remedy under the OPA, his action fails as a matter of law. -It is clear that the OPA does provide a remedy which will preclude existence of the Burk tort in those instances where the OPA applies. McCrady, 2005 OK 67 at ¶¶ 11-12, 122 P.3d at 475-76. Morehouse argues that the OPA does not apply to him because he is an unclassified employee. Next, he maintains that the OPA does not apply to OCCC, and thus not to him.
A. Application of OPA to Morehouse
10 The sole function here of McCra-dy is to establish that the OPA provides a remedy which precludes a Burk tort. Otherwise, the case is distinguishable on its facts and does not resolve the issues here. The plaintiff, McCrady, was a classified employee and thus not an employee-at-will, so McCra-dy lacked this element of his claim. Here, there is no dispute that Morehouse is an unclassified employee-at-will.
¶ 11 In addition, McCrady did come under the OPA as a classified employee. The OPA provides that unclassified employees are not covered by the Act "unless otherwise provided." 74 0.98.2001, § 840-5.1.
The statutes do make provision for OPA application to unclassified employees in matters involving age discrimination. 74 . 0.8.2001, § 954.
Moreover, an Attorney General Opinion concludes that the anti-discrimination and whistle blower provisions of the OPA apply to the unclassified employee. 1999 OK AG 44.
¶ 12 Therefore, this Court holds that the OPA provides a statutory remedy for claims of age discrimination.
The "no statutory remedy" element of the Burk tort is not present here as a matter of law.
B. Application of OPA to OCCC
¶ 13 Morehouse argues then that the OPA does not apply to OCCC. He cites State ex rel. Board of Regents v. Oklahoma Merit Protection Commussion, 2001 OK 17, 19 P.3d 865. There, the Supreme Court granted a writ of prohibition directing the Commission to cease exercising jurisdiction over the Board and other petitioners because they are constitutional entities. As such, they are "empowered by Art. 18-A §§ 1 and 2 as well as Art. 18-B §§ 1 and 2, OKkl. Const., to conduct the internal affairs of their subordinate institutions of higher learning free of any interference by the Oklahoma Merit Protection Commission. The Legislature is powerless to delegate the petitioners' constitutional control over the management of their institutions to any department, commission or agency of state government." State ex rel. Board of Regents, 2001 OK 17 at 11, 19 P.3d at 865-66; see also 1995 OK AG 12, (where the Attorney General reaches the same conclusion with respect to whether a hiring freeze may be imposed upon constitutional entities empowered to manage their own affairs) In summary, Morehouse equates OCCC to the constitutional Boards together with the authority of those Boards as self-governing.
1 14 The Attorney General, in 1995 OK AG 12 at 1122-24, 39(1), distinguished constitutional Boards of Regents from statutory Boards of Regents. The Opinion concluded that the hiring freeze could be imposed upon the statutory Boards of Regents. The Board of Regents for OCCC was one such statutory Board and thus included in the hiring freeze. 70 0.98.2001, § 4423.
The Attorney General reasoned as follows:
The power vested in all these Boards of Regents or Boards of Trustees is solely statutory power, unlike the situation pre
sented by the constitutionally ereated Boards of Regents. Thus, none of the power vested in the statutory boards constitutes a restriction or limit on the Legislature's power. Accordingly, the Legislature possesses the power to authorize the Governor to include the institutions managed by these boards within any hiring freeze commenced under the provisions of 74 0.8. Supp.1995 § 8§40-2.14.
I 15 The Attorney General, in 1992 OK AG 10, also distinguished statutory Boards of Higher Education from constitutional Boards of Higher Education. In this Opinion, the Attorney General stated that boards created by statute are subject to the law-making power of the Legislature. The Opinion concluded that the statutory prohibition against payment by the State for certain moving expenses of employees did apply to the statutory Boards but did not apply to the constitutional Boards.
T{16 This Court agrees with the analysis and conclusion by the Attorney General. Therefore, this Court holds that the OPA and the remedy available thereunder for complaints involving discrimination, including age discrimination, applies to OCCC because it is a statutory agency.
{17 Therefore, the judgment of the trial court dismissing the action is affirmed.
{ 18 AFFIRMED.
GABBARD, P.J., and REIF, J., concur.