Krein v. Marian Manor Nursing Home, 870099

• Decision Date: 19 November 1987
• Docket Number: No. 870099,870099
• Citation: 415 N.W.2d 793
• Parties: 45 Fair Empl.Prac.Cas. 979, 45 Empl. Prac. Dec. P 37,806, 56 USLW 2336, 2 Indiv.Empl.Rts.Cas. 1188 Mary J. KREIN, Plaintiff and Appellant, v. MARIAN MANOR NURSING HOME and Rodney Auer, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 793

415 N.W.2d 793

45 Fair Empl.Prac.Cas. 979,

45 Empl. Prac. Dec. P 37,806, 56 USLW

2336,

2 Indiv.Empl.Rts.Cas. 1188

Mary J. KREIN, Plaintiff and Appellant, v. MARIAN MANOR NURSING HOME and Rodney Auer, Defendants and Appellees.

Civ. No. 870099.

Supreme Court of North Dakota.

Nov. 19, 1987.

Chapman & Chapman, Bismarck, for plaintiff and appellant; argued by Charles L. Chapman.

Fleck, Mather, Strutz & Mayer, P.C., Bismarck, for defendants and appellees; argued by Robert L. Udland.

MESCHKE, Justice.

Mary J. Krein appealed from dismissal of her damage claim against Marian Manor Nursing Home and its administrator, Rodney Auer, for wrongful termination of employment. We hold that Krein may sue for retaliatory discharge for seeking workmen's compensation, including exemplary damages, but that she has not shown enough about being physically handicapped to allow her to proceed with a claim for employment discrimination. Accordingly, we affirm in part, reverse in part, and remand.

Krein was employed as a nurse's aid by Marian Manor from 1979 until January 16, 1984. Thereafter Krein sued Marian Manor and Auer for damages, alleging wrongful termination of employment. Krein claimed: (1) she was discharged in retaliation for her intention to claim workmen's compensation; (2) her discharge was a breach of good faith and fair dealing by Marian Manor; and (3) she was discharged because she was obese, a discriminatory employment practice violating NDCC Ch. 14-02.4.

In summarily dismissing Krein's suit, the trial court assumed that Krein had raised genuine issues of fact about whether her leaving employment was voluntary or involuntary and about the reasons it happened. The trial court accepted as true Krein's claims that she was discharged because she intended to claim workmen's compensation for a job-related injury and because she was overweight. Even with those assumptions, the trial court concluded that Krein did not have a claim upon which relief could be granted. The trial court ruled that: (1) there is no recognized right to judicial relief in this state for a retaliatory discharge for seeking workmen's compensation; (2) there is no recognized right to judicial relief in this state by a discharged at-will employee against an employer for breach of good faith and fair dealing; and (3) Krein did not show that her obesity was a physical handicap which might make her discharge discriminatory. Krein appealed from the summary judgment dismissing her suit.

Whether a claim for retaliatory discharge for seeking workmen's compensation is recognized in North Dakota is an issue of first impression for this court. To decide it, we assume, as did the trial court, that Krein has raised material issues of fact about whether her employment was terminated in retaliation for the intended compensation claim.

In North Dakota the general rule is that employment without a definite term is presumed to be at will and the employer has the right to terminate the employee with or without cause. Bailey v. Perkins Restaurants, Inc., 398 N.W.2d 120 (N.D.1986). Krein concedes that her employment was at will, but she asserts that it is contrary to public policy to permit an employer to discharge an employee for filing or for expressing an intent to file a workmen's compensation claim. Krein asserts that because a retaliatory discharge contravenes public policy it is grounds for a tort action against her employer.

We agree that the retaliatory discharge of an employee for seeking workmen's compensation violates public policy in North Dakota. That public policy was expressed by our legislature in the Workmen's Compensation Act at NDCC 65-01-01:

"The state of North Dakota, exercising its police and sovereign powers, declares that the prosperity of the state depends in a large measure upon the well-being of its wage workers, and, hence, for workmen injured in hazardous employments, and for their families and dependents, sure and certain relief is hereby provided...."

The "sure and certain relief" for an injured workman in our Workmen's Compensation Act would be largely illusory and do little for the workman's "well-being" if the price were loss of his immediate livelihood. We agree with those courts which hold that discharge of an employee for seeking workmen's compensation profanes public policy and permits a tort action against the employer. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978); Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973). See also Annot., Recovery for Discharge From Employment in Retaliation for Filing Worker's Compensation Claim, 32 A.L.R.4th 1221 (1984). The reasons were well expressed by the Supreme Court of Illinois in Kelsay, supra:

"... the legislature enacted the workmen's compensation law as a comprehensive scheme to provide for efficient and expeditious remedies for injured employees. This scheme would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act. We cannot ignore the fact that when faced with such a dilemma many employees, whose common law rights have been supplanted by the Act, would choose to retain their jobs, and thus, in effect, would be left without a remedy either common law or statutory. This result, which effectively relieves the employer of the responsibility expressly placed upon him by the legislature, is untenable and is contrary to the public policy as expressed in the Workmen's Compensation Act. We cannot believe that the legislature, even in the absence of an explicit proscription against retaliatory discharge, intended such a result." 23 Ill.Dec. at 563, 384 N.E.2d at 357.

We hold that an employee can sue an employer for a wrongful discharge in retaliation for seeking workmen's compensation. Since the trial court erred in dismissing Krein's suit on this ground, the case is remanded for a trial of her claim for retaliatory discharge.

Krein alleges that, in discharging her, Marian Manor, through administrator Auer, acted with oppression, fraud and malice. Krein asserts...