Ted KRUCHOWSKI, Gerald Adams, William Cooper, Tony Fennell, Alan Gebert, Harold Griffin, Stan Harris, Ford Hendershot, Ed Risenhoover, Susan Rogers, Linda Slabaugh, and Joel White, Plaintiffs, v. The WEYERHAEUSER COMPANY, Defendant. and Larry Thompson, Plaintiff, v. The Weyerhaeuser Company, Defendant.
No. 104872
Supreme Court of Oklahoma
Dec. 16, 2008
As Corrected Dec. 19, 2008 and Feb. 11, 2009.
2008 OK 105
The legislation challenged in this original proceeding, identified as Senate Bill 1708, passed by the 51st Legislature, second session on May 23, 2008, and signed into law by the Governor on June 3, 2008, is facially contrary to the
/s/ James E. Edmondson
VICE CHIEF JUSTICE
EDMONDSON, V.C.J., KAUGER, WATT, COLBERT, REIF, JJ., concur.
OPALA, J., with whom WINCHESTER, C.J., HARGRAVE, TAYLOR, JJ. join, dissenting:
“I concede that the legislation sought to be invalidated is unconstitutional in part but not in toto.”
Mark Hammons, Jim T. Priest, Oklahoma City, OK, J. Vince Hightower, Broken Arrow, OK, for Plaintiffs.
Kristen L. Brightmire, William S. Leach, Michael F. Smith, Tulsa, OK, for Defendants.
¶1 The United States District Court for the Eastern District of Oklahoma certified five questions of Oklahoma Law under the Revised Uniform Certification of Questions of Law Act,
¶2 The record discloses very little factual information about this cause. It appears that the plaintiffs, Kruchowski, Adams, Cooper, Fennell, Gebert, Griffin Harris, Hendershot, Kelley, Lewis, Little, Privette, Risenhoover, Rogers, Slagaugh, and White (collectively Kruchowski plaintiffs) and the plaintiff Larry Thompson (Thompson) were all former employees of The Weyerhaeuser Company (the Company). The Kruchowski plaintiffs were terminated pursuant to a series of reductions in force which took place in 2002. Thompson was terminated from employment in 2003.
¶3 On November 24, 2003, the Kruchowski plaintiffs filed a complaint in the United States District Court for the Eastern District of Oklahoma alleging that their terminations were the result of age discrimination, contrary to the Federal Age Discrimination and Employment Act,
¶4 On July 11, 2006, we decided Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037. On August 24, 2006, the Kruchowski and Thompson cases were consolidated. Four days later, the plaintiffs, relying on Saint, amended their complaints to include allegations that their discharges were also in violation of state law tort for wrongful discharge in violation of Oklahoma public policy. On July 20, 2007, the United States District Court for the Eastern District of Oklahoma filed an order certifying questions of law to this Court.
¶5 Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037 IMPLICITLY OVERRULED List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, AND IT SHOULD BE APPLIED RETROACTIVELY.
¶6 The Kruchowski plaintiffs argue that Saint clearly abrogated List‘s holding because List did not address what remedies were required by the
a. List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, its predecessors and its progeny.
¶7 In 1996, the Court decided List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, a case which tested the possible expansion of the tort-based exception to Oklahoma‘s employment-at-will doctrine recognized and adopted in Burk v. K-Mart Corp., 1989 OK 22, ¶ 17, 770 P.2d 24. Burk involved a federal certified question concerning an alleged “implied obligation of good faith and fair dealing” in reference to termination of any employment-at-will contract. The Burk employee sued her employer in contract and in tort, alleging that she was pre-
¶8 Although the Court rejected the implication of a duty of good faith and fair dealing in every employment-at-will contract, Burk was the landmark case wherein the Court adopted a public policy exception to the at-will termination rule in a narrow class of cases in which the discharge of an employee is contrary to the clear mandate of public policy as articulated by constitutional, statutory, or decisional law. We recognized, for the first time, that the action was a tort. We also noted that because the term “public policy” was vague, the exception had to be tightly circumscribed.
¶9 Three years after Burk, we promulgated Tate v. Browning-Ferris, Inc., 1992 OK 72, 833 P.2d 1218. Tate involved the question of whether a Burk tort could be asserted for racial discrimination, to which we answered-yes. In discussing the remedies available for such a claim, the Court determined that the remedies provided by the Oklahoma Discrimination Act,
The Act here in contest does not provide a private right of action to a person aggrieved by racially discriminatory practices if the Commission does not resolve the claim to his satisfaction. In contrast, it does afford a private right of action for discrimination based on handicap. Were we today to construe the statute as having established the sole remedy for racially discriminatory practices, we would create a dichotomous division of discrimination remedies contrary to
Art. 5 § 46 of the Oklahoma Constitution . There would be a more generous remedy for victims of handicap discrimination than for those who suffered from racial discrimination. For remedial purpose, discrimination victims comprise a single class. Our Constitution absolutely interdicts the passage of special law that would sanction disparate remedies for those who complain of employment discrimination. (Citations omitted.)
¶10 Accordingly, we held that “the employee who brings a common-law tort action for damages occasioned by either a racially motivated discharge or by one in retaliation for bringing a racial discrimination complaint states a state-law claim for tortious employment termination under Burk.”7 However, we left the matter for the trial court to preclude plaintiff‘s double recovery for cumulative theories of recovery.
¶11 After Tate, we decided List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011,8 which involved the question of whether the Burk tort would be extended to violations of public policy predicated on constructive discharge. The List plaintiff alleged that he was demoted based on his age and that it was a deliberate attempt to make his working conditions so intolerable that he would voluntarily resign. List‘s claim was predicated solely upon his status — his age. Diverging from the language we used in Tate in which we recognized that victims of discrimination form but one class and are constitutionally required to be treated the same, the Court instead focused on the remedies that would be available to List and whether they were “adequate.” Absent from the opinion was any discussion of
¶13 Consequently, in List, we implicitly equated the fact that the plaintiff had more remedies available to him than the Tate plaintiff with term “adequate” remedies. The Court also noted that “[m]ost courts have refused to allow common law retaliatory discharge actions based on age or illness, saying that only a discharge arising from the employee‘s acts, rather than his status, will support a common law retaliatory discharge action.”10 Examples of such conduct, rather than status were: employees being fired for reporting unlawful or unsafe activities to the authorities; refusing sexual advancement of supervisors; refusing to perform unsafe work activities; and filing workers’ compensation claims.
¶14 The next year, the Court decided Marshall v. OK Rental & Leasing, Inc., 1997 OK 34, 939 P.2d 1116.11 In Marshall, the employee sued a former employer alleging intentional infliction of emotional distress and constructive discharge due to sexual harassment by a co-worker. The Court again declined to extend the Burk exception to a claim of constructive discharge based on sexual harassment. Relying on List, supra, the Court again decided that a Burk tort could not lie because the action was based upon the plaintiff‘s status rather than her conduct.
¶15 Again, looking to the “adequacy” of the remedies available to the plaintiff, Marshall determined that because the remedies provided by Federal law in Title VII12 and Oklahoma‘s anti-discrimination statutes13 provided “adequate” remedies, there was no reason to extend the Burk tort exception to Marshall‘s claim.
¶16 Two years after Marshall, we once again addressed the issue of whether a plaintiff alleging sexual harassment in the workplace could state a Burk tort claim in Collier v. Insignia Financial Group, 1999 OK 49, 981 P.2d 321. This time, the victim alleged that quid pro quo14 sexual harassment by a supervisor led to her constructive discharge. She, like the plaintiff in Marshall, sued under Title VII and Oklahoma‘s anti-discrimination statutes.
¶18 Finally, the Court determined that if we were to hold that the Oklahoma Act provided the exclusive remedy, in effect, we would be sanctioning unequal remedies for members of the same class in violation of the Oklahoma Constitution. Accordingly, we held that a common law Burk tort was an available remedy for the plaintiff. Absent from the discussion in Collier was an analysis of the remedies available to the plaintiff under Federal law and their alleged “adequacy.”
¶19 However, the “adequacy” of a federal remedy was tested in Clinton v. State of Oklahoma ex rel. Logan County Election Board, 2001 OK 52, 29 P.3d 543,16 the final case leading to Saint. Clinton involved an employee who alleged she was discharged because she was pregnant. The Court held that because the employee had an “adequate” federal statutory remedy for wrongful discharge, she could not also assert a Burk tort. We did not discuss the “adequacy” of the federal remedy, instead, we noted that:
When a statutory remedy adequately accomplishes the goal of protecting Oklahoma public policy, a common law remedy is not needed. While a federal statute cannot by itself serve as a statement of Oklahoma policy, a federal statutory remedy may be as effective as an Oklahoma statutory remedy in dissuading employers from discharging employees for reasons that violate Oklahoma public policy. Accordingly, we hold the existence of a federal statutory remedy that is sufficient to protect Oklahoma public policy precludes the creation of an independent common law claim based on a public policy exception to the employment-at-will doctrine.
¶20 The Court also clarified the parameters of the Burk tort remedy:
1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law; 2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma public policy goal precludes a Burk tort; 3) the plaintiff must establish he or she is an at-will employee and the reason for discharge violates the identified Oklahoma public policy goal; and 4) a discharge for purposes of the Burk tort may be either actual or constructive.
¶22 The federal court in Saint certified the following question:
Is there either an implied statutory remedy or a common-law Burk tort remedy for state age discrimination claims arising under the operation of the Oklahoma Constitution, art. 5, § 46 and the provisions of the Oklahoma Anti-Discrimination Act,
25 O.S. §§ 1101, et seq. and § 1901 ?
We noted the prior holdings which had expanded the common-law Burk tort remedy to the areas of race and sexual harassment. We recognized that:
1) refusal of such remedies would create a dichotomous division of members of the same class, which would offend the § 46 mandated norms of uniformity, symmetry and evenhanded treatment;20 2) age-discrimination victims are part of the employment discrimination class, and as such must be afforded the same rights as the other members of the class; and 3) there is a Burk tort remedy for those who allege age employment age discrimination.21
¶23 Although Saint also involved age discrimination, it did not address List at all. Saint was decided under a constitutional question, whereas List was not. Nevertheless, the holding in Saint is clearly contrary to List‘s holding and as such, List was implicitly overruled. Today, we expressly overrule List and reaffirm that age discrimination victims are part of the employment discrimination class to which Burk applies.
¶24 After Saint,22 we again addressed the elements of a Burk tort in Vasek v. Board of County Commissioners, 2008 OK 35, ¶¶ 27-28, 186 P.3d 928. It involved a plaintiff who alleged wrongful termination for making a complaint to the Department of Labor (DOL) concerning mold at the courthouse. The plaintiff‘s action was not based on discrimination such as those addressed in Saint (handicap, race, sex and age), rather it was based on the fact that she alleged she was fired for reporting her employer‘s violation of the law. We reiterated the elements of a Burk tort in such circumstances, stating:
The elements of a claim for wrongful discharge of an at-will employee articulated in Burk and its progeny can be summarized. A viable Burk claim must allege (1) an actual or constructive discharge (2) of an at-will employee (3) in significant part for a reason that violates an Oklahoma public policy goal (4) that is found in Oklahoma‘s constitutional, statutory, or decisional law or in a federal constitutional provision that
prescribes a norm of conduct for Oklahoma and (5) no statutory remedy exists that is adequate to protect the Oklahoma policy goal.
¶25 In Vasek, we equated “adequacy” of remedies with “sufficiency,” in other words: Were the remedies available to the plaintiff sufficient to protect Oklahoma‘s public policy goals? Our decision today does not disturb Vasek or cases in which a plaintiff‘s conduct is alleged to have triggered a discharge or constructive discharge in violation of Oklahoma public policy. However, to the extent that the rationale of Marshall v. OK Rental & Leasing, Inc., 1997 OK 34, 939 P.2d 1116 and Clinton v. State of Oklahoma ex rel. Logan County Election Board, 2001 OK 52, 29 P.3d 543, conflicts with our decision in Saint and our decision today, they are expressly overruled.
b. Retroactivity
¶26 The Saint Court did not address whether the opinion should be applied retroactively. This Court is neither prohibited from giving, nor compelled to give, judicial decisions retrospective operation.23 Judicial policy determines whether, and to what extent, a new rule will operate retroactively.24 We may give prospective operation to our announcements when necessary to avoid disruption and to allow a period for adjustment.25 In making such a determination, we must consider: 1) the purpose of the new rule; 2) the extent of reliance on old doctrines; and 3) the burden likely to be im-
posed on administering the legal process due to additional litigation or curative actions.26
¶27 In McGehee v. Florafax International, Inc., 1989 OK 102, 776 P.2d 852, we discussed these factors when we held that Burk would be applied retroactively. McGehee involved an employee who alleged he was fired for refusing to commit perjury. In discussing whether to apply Burk retroactively the Court noted at ¶¶ 11-13 that:
The public policy exception to the employment-at-will rule seeks to maintain a proper balance “among the employer‘s interest in operating a business efficiently and profitably, the employee‘s interest in earning a livelihood, and society‘s interest in seeing its public policies carried out.” ... Retroactive application of Burk will only further the operation of the limited public policy exception to employment-at-will doctrine by advancing well-established public policies. Liability is imposed on an employer only when “an employee is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy.“... Unfairness and undue hardship would be imposed upon discharged employees by a merely prospective application of the Burk decision. Appellant would be deprived of an actionable tort claim for his employer‘s alleged violation of a clear expression of public policy found in the perjury statute.... In contrast, no inequity will result from the retroactive application of Burk. Employers accused of violating clear ex-
pressions of public policy cannot be said to have justifiably relied on the employment-at-will doctrine.
... Nor will appellees in this action be substantially harmed by being forced, at a new trial, to present evidence that appellant‘s discharge was motivated by poor employee performance rather than his refusal to sign false small claims affidavits. Appellees’ claim of “good-faith reliance” on the employment-at-will doctrine cannot justify its alleged tortious firing for an employee‘s refusal to commit a crime. No “manifest injustice” will result from requiring appellees to defend against appellant‘s claim. (Citations omitted.)
¶28 While the same rationale we applied in making the Burk tort retroactive in McGehee could apply to Saint, McGehee was decided only six months after Burk, not ten years later. Consequently, based on consideration of the factors enumerated in McGehee and based on consideration that Saint was decided ten years after List, rather than six months, we hold that the Saint decision will be given retroactive application to all matters which were in the litigation pipeline, state and federal, when Saint was decided, but not to any claims which arose before Saint and which were not pending when Saint was decided.
II.
¶29 PURSUANT TO Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037 AVAILABLE REMEDIES MUST BE COMMENSURATE WITH THE SAME CLASS OF EMPLOYMENT DISCRIMINATION VICTIMS.
¶30 The plaintiff in Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, argued that she was entitled to assert a state law Burk tort claim for wrongful discharge in violation of public policy because available remedies sought pursuant to the Federal Age Discrimination in Employment Act,
¶31 Accordingly, pursuant to Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, and in order to provide clarity to the bench and bar, we hold that a plaintiff may pursue a state law claim for wrongful discharge in violation of public policy when the available remedies to the same class of employment discrimination victims are not uniform and evenhanded — regardless of whether the remedies originate under Federal or State law. It is only when the available remedy to the victim is not commensurate with that which is provided for like or similar discrimination to vindicate an on-the-job tort that we will craft an appropriate common law remedy.
¶32 The Burk claim‘s actionable character is anchored in the employer‘s discharge in breach of Oklahoma‘s public policy. In order to assert such a claim, the plaintiff must show that a breach of Oklahoma‘s public policy occurred for which there is no statutorily-crafted remedy or the available statutory remedy is not commensurate with that provided for similar work-related discrimination.27
¶33 Although we did not expressly say so in Saint, it goes without saying that this does not mean that the plaintiff is entitled to double recovery for cumulative theories of liability. In Tate v. Browning-Ferris, Inc., 1992 OK 72, ¶ 19, 833 P.2d 1218, we stated that Oklahoma law allows only one recovery to make a plaintiff whole.28 Consequently,
CONCLUSION
¶34 In List v. Anchor Paint Mfg. Co. 1996 OK 1, 910 P.2d 1011, the Court declined to extend the Burk tort remedy to a claim involving allegations of constructive discharge based on age discrimination because the plaintiff had “adequate” statutory remedies for age discrimination such as the Federal Age Discrimination in Employment Act of 1967,
¶35 Our earlier holding that age-discrimination victims are part of the employment discrimination class, and as such must be afforded the same rights as the other members of the class, implicitly overruled List. Today, we expressly overrule List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, and hold that there is a Burk tort remedy for those who allege employment age discrimination. To the extent that the rationale of Marshall v. OK Rental & Leasing, Inc., 1997 OK 34, 939 P.2d 1116 and Clinton v. State of Oklahoma ex rel. Logan County Election Board, 2001 OK 52, 29 P.3d 543, conflicts with our decision in Saint and our decision today, they too are expressly overruled. When Saint was decided, retroactivity was not an issue. However, for the same reasons expressed in McGehee v. Florafax International, Inc., 1989 OK 102, 776 P.2d 852, and because Saint was decided ten years after List, we apply Saint retroactively and apply Saint to Burk tort claims to only those cases which were in the litigation pipeline when Saint was decided.
¶36 Pursuant to Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, a plaintiff may pursue a state law claim for wrongful discharge in violation of public policy when the available remedies to the same class of employment discrimination victims are not uniform and evenhanded-regardless of whether the remedies originate under Federal statutes or state law. However, it is only when the available remedy to the victim is not commensurate with that which is provided for similar harms to vindicate an employment discrimination on-the-job tort that the Burk common law remedy is available.
¶37 Nevertheless, the Burk claim‘s actionable character is anchored solely in the employer‘s discharge in breach of Oklahoma‘s public policy. In order to assert such a claim, the plaintiff must make a showing that a breach of Oklahoma‘s public policy occurred for which (a) there is no available statutory-crafted remedy or (b) the available statutory remedy is not commensurate with that which is provided for similar work-related discrimination.
QUESTION ANSWERED.
WINCHESTER, C.J., EDMONDSON, V.C.J., HARGRAVE, OPALA, KAUGER, TAYLOR, COLBERT, REIF, JJ., concur.
WATT, J., concurs in part and dissents in part.
WATT, J. concurring in part and dissenting in part:
¶1 I concur in today‘s opinion to the extent that: 1) it relies on this Court‘s pronouncement in Saint v. Data Exchange, Inc., 2006 OK 59, ¶ 6, 145 P.3d 1037 determining that the
¶2 IT IS UNNECESSARY TO OVERRULE LIST v. ANCHOR PAINT MFG. OR MARSHALL v. OK RENTAL & LEASING, INC., CASES IN WHICH THE COURT WAS NOT CALLED UPON TO ADDRESS THE CONSTITUTIONAL CHALLENGE LEVIED IN SAINT v. DATA EXCHANGE, INC.
¶3 In List, we were asked to extend the common law Burk tort to a situation where the employee alleged a constructive discharge claim based on age discrimination. The allegations in support of the age discrimination claim are found in footnote number 1 of the List opinion providing in pertinent part:
“... (10) C.R. List claims, and the Defendants deny, that the decision to demote C.R. List to Head of Labeling was based on age and was a deliberate attempt to make his working conditions so intolerable that he would voluntarily resign his employment and that this employment action constitutes a wrongful discharge in violation of the public policy of Oklahoma, as articulated in the Age Discrimination Act of 1967,
29 U.S.C. § 626(b) , and Oklahoma‘s Anti-Discrimination Act,Okla.Stat. tit. 25, § 1302 .(11) L. List also claims wrongful discharge in violation of public policy as articulated by the Age Discrimination in Employment Act of 1967, § 623(d), and Oklahoma‘s Anti-Discrimination Act,
Okla. Stat. tit. 25, § 1302 ....”
Notably absent from the allegations in List are the constitutional challenges specifically presented to the Court in Saint. In response to the motion to dismiss in Saint, the plaintiff asserted “that the Oklahoma Statute creates a unified class of persons who are the victims of handicap, race, gender or age discrimination therefore requiring equal remedies for all of those persons under
¶4 Marshall v. OK Rental & Leasing, Inc., 1997 OK 34, 939 P.2d 1116 is similar to List on two fronts. First, like List, no constitutional challenge was presented in support of the sexual harassment claim. Second, also in accord with the reasoning of List, the Court refused to create a Burk public policy exception to the employment-at-will doctrine where the employee‘s claim was based solely upon her status rather than her conduct and where adequate remedies existed under state and federal discrimination statutes.
¶5 It is interesting to note that the author of the majority opinion dissented in Collier v. Insignia Financial Group, 1999 OK 49, 981 P.2d 321 to what the dissent characterized as a partial overruling of List and Marshall.4 Collier holds that a victim of quid pro quo sexual harassment who has been discharged from employment, either explicitly or con-
¶6 As late as 2001, the author of the majority opinion reiterated the statements made in the Collier dissent. In a concurring opinion to Clinton v. State ex rel. Logan County Election Board, 2001 OK 52, 29 P.3d 543, the authoring Justice wrote the following in ¶ 1 of the concurring opinion.
“... The majority recasts the certified question adopting the position expressed in the dissent in Collier v. Insignia Commercial Group, 1999 OK 49, ¶ 8, 981 P.2d 321. It is unnecessary to extend the teachings of Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24 to remedy a state law public policy claim for wrongful discharge if adequate federal statutory remedies are available to the employee for a wrongful discharge. I concur based on the reasoning set forth in my dissent in Collier ....”
No more reason exists today to overrule List or Marshall, cases in which no constitutional challenge was presented or considered, than was present when either the dissent in Collier was written or when the concurring opinion in Clinton was authored.
CONCLUSION
¶7 No justification exists for today overruling cases decided by this Court in excess of ten years ago in which we were not requested to address a constitutional challenge. Therefore, I concur in today‘s opinion to the extent that it upholds the constitutional challenge to an age discrimination challenge recognized in Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037 and to the limited retroactive application of that opinion. Nevertheless, I dissent to the unnecessary overruling of List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011 in which no constitutional challenge was presented or considered and to the same treatment of Marshall v. OK Rental & Leasing, Inc., 1997 OK 34, 939 P.2d 1116, which similar to List, contained no constitutional challenge.