Brown v. Transcon Lines

• Decision Date: 27 December 1978
• Citation: 284 Or. 597,588 P.2d 1087
• Parties: , 115 L.R.R.M. (BNA) 5072, 88 Lab.Cas. P 55,251 Frank E. BROWN, Appellant, v. TRANSCON LINES, a California Corporation, and J. D. Earley, Respondents. TC A 7611-16415; SC 25513.
• Court: Oregon Supreme Court

Page 1087

588 P.2d 1087

284 Or. 597, 115 L.R.R.M. (BNA) 5072,

88 Lab.Cas. P 55,251

Frank E. BROWN, Appellant, v. TRANSCON LINES, a California Corporation, and J. D. Earley Respondents.

TC A 7611-16415; SC 25513.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 11, 1978.

Decided Dec. 27, 1978.

Allen Reel, of Kennedy, King & McClurg, Portland, argued the cause and filed the briefs for appellant.

Richard H. Harding, of Littler, Mendelson, Fastiff & Tichy, P. C., San Francisco, Cal., argued the cause for respondents. With him on the brief were Arlene N. Heath, of Littler, Mendelson, Fastiff & Tichy, P. C., San Francisco, Cal., and Leon Simson, of Rives, Bonyhadi, Drummond & Smith, Portland.

TONGUE, Justice.

Plaintiff brought this action against his former employer and supervisor seeking compensatory and punitive damages for an alleged retaliatory discharge for filing a claim for workers' compensation. The trial court granted defendants' motion for judgment on the pleadings, or, in the alternative, for summary judgment, holding that "primary jurisdiction over plaintiff's complaint is vested in the Bureau of Labor by virtue of O.R.S. ch. 659." Plaintiff appeals.

Plaintiff's complaint and defendants' motion.

Plaintiff's complaint alleged that he had been employed by defendant Transcon Lines; that on May 29, 1975 he was injured in the performance of his duties, requiring medical care and treatment; that he applied for and received workers' compensation benefits under applicable Oregon statutes; that on July 1, 1975 his employment was terminated; that

"The termination of plaintiff was a wrongful act, motivated by plaintiff's pursuit of his workmen's compensation claim, and was contrary to plaintiff's right to seek compensation as provided by law without fear of reprisal, discrimination or retaliation"

and that, as a result, he suffered general damages and was also entitled to punitive damages.

Defendants filed a "motion for judgment on the pleadings and/or for summary judgment" on the grounds that plaintiff's complaint failed to state a cause of action and that the court was without subject matter jurisdiction because

"* * * (U)nder ORS 659.400 to 659.435, primary jurisdiction for resolution of an alleged unlawful employment practice based on the termination of an employee for the filing of a workmen's compensation claim is vested exclusively in the Oregon Bureau of Labor."

ORS 659.410 makes it an unlawful employment practice to discriminate against an employee for making a claim for workers' compensation. ORS 659.435 provides that such an employee may file a complaint with the Bureau of Labor. From an affidavit filed by plaintiff in opposition to defendants' motion it appears that plaintiff did not file such a complaint.

The issue to be decided and the contentions of the parties.

The issue to be decided in this case is whether an employee who alleges that he was discharged on or about July 1, 1975 for filing a claim for workers' compensation and who did not file a complaint with the Bureau of Labor was entitled to maintain an action at law for compensatory and punitive damages.

Plaintiff contends that an employee who was discharged in July 1975 for the filing of a claim for workers' compensation had a cause of action for damages under "principles of common law," citing Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975), and Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425, 63 A.L.R.3d 973 (1973). Plaintiff also cites decisions in which federal courts have found an "implied cause of action" under what plaintiff says are statutes "similar" to ORS 659.410. In addition, plaintiff contends, among other things, that his right to maintain such an action was "not affected by the administrative remedies of ORS ch. 659 prior to amendment in 1977"; that such remedies "were limited in scope and inadequate in effect", and that "there is nothing in Chapter 659 that indicates, either expressly or impliedly, that these administrative procedures are exclusive or that the remedies must be exhausted before an employee can maintain an action for damages."

Defendants' responding contentions may be summarized as follows: (1) that plaintiff has no "private" cause of action for wrongful termination for the filing of a claim for workers' compensation; (2) that the plaintiff, "having based his claim on an alleged violation of ORS 659.410" is "claiming to be aggrieved by an alleged unlawful employment practice" under the terms of ORS ch. 659 and, "therefore, must initiate and exhaust his administrative remedies before he is entitled to file a complaint in the Oregon Circuit Court"; (3) that ORS 659.410 "is part of a larger administrative scheme enacted by the Oregon Legislative Assembly to deal exclusively with offenses delineated as 'unlawful employment practices,' "; (4) that at the time of plaintiff's discharge in 1975 ORS ch. 659 provided an adequate remedy; and that the use of the word "may" in ORS 659.040(1) and ORS 659.050(1) did "not in any way undercut the principle that administrative remedies must be exhausted"; (5) that the 1977 amendments to ch. 659 do not support plaintiff's position in that they "do not provide an exclusive remedy to a person, such as plaintiff, who alleges discrimination for filing a workmens' compensation claim" and do not provide for an award of either general or punitive damages in such cases; (6) that defendants' position is directly supported by the decision of the Oregon Court of Appeals in Phillips v. Dept. of Rev., 23 Or.App. 748, 544 P.2d 196 (1975), and by the decision of this court in Walsh v. Consolidated Freightways, 278 Or. 347, 563 P.2d 1205 (1977); (7) that most of the cases relied upon by plaintiff, including Nees v. Hocks, supra, and Frampton v. Central Indiana Gas Co., supra, are not in point because no administrative remedies were available to the plaintiffs in those cases, and (8) that, for these reasons, the trial court properly ruled that plaintiff's failure to initiate and exhaust his administrative remedies deprived that court of jurisdiction. ¹

The nature and basis for plaintiff's cause of action.

In resolving these conflicting contentions it is first necessary to consider the nature and basis of plaintiff's alleged cause of action. If such a cause of action must rest upon the provisions of ORS 659.410, which makes it an "unlawful employment practice" to "discriminate" against an employee who has filed a claim for workers' compensation benefits, it may be that any such cause of action for damages in a court of law must be implied from that statutory provision and that plaintiff's sole redress is to file a complaint with the Commissioner of the Bureau of Labor and pursue the administrative remedies provided by ORS ch. 659, at least unless such administrative remedies are demonstrably inadequate.

On the other hand, if, as contended by plaintiff, his cause of action need not be based upon or implied from ORS 659.410, but instead plaintiff had a cause of action for damages for wrongful discharge based upon previously existing principles of common law, then the primary focus of the problem is not so much whether "adequate" administrative remedies were provided by ORS ch. 659 at the time of plaintiff's discharge, but whether by the enactment of that statute the Oregon legislature abolished a previously existing common law cause of action.

In determining whether such a common law cause of action existed prior to the time the legislature enacted ORS 659.410, the following chronology should be noted. Plaintiff alleges that he was wrongfully discharged on or about July 1, 1975. On June 12, 1975, this court in Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975), after a discussion of common law principles applicable to cases involving wrongful discharges of employees by their employers, held (at 218, 536 P.2d at 515) that:

"We conclude that there can be circumstances in which an employer discharges an employee for such a socially undesirable motive that the employer must respond in damages for any injury done. * * * " ²

Upon the application of that rule to the facts in Nees, we held that an employee who was discharged on March 1, 1973 because she went on jury duty contrary to the wishes of her employer had at that time a common law cause of action for damages. There was no statute applicable to such a case, however, much less any applicable administrative remedy under any such statute.

On October 5, 1973, approximately seven months after that March 1, 1973 date, the statute involved in this case, ORS 659.410, as enacted by the 1973 session of the Oregon legislature, became effective. (See Or.Laws 1973, ch. 660.) That statute declared it to be an "unlawful employment practice" for an employer to discharge an employee for the filing of a claim for workers' compensation. It follows, in our view, that if the discharge of an employee for making a claim for workers' compensation is a discharge for such a "socially undesirable motive" as to fall within the rule of Nees, then a common law cause of action for such a discharge existed prior to the enactment of ORS 659.410.

We are of the opinion that the discharge of an employee by his employer for the filing of a claim for workers' compensation is a discharge for such a "socially undesirable motive" as to come within the rule as stated in Nees. We agree with the holding by the Supreme Court of Indiana in Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425, 428, 63 A.L.R.3d 973 (1973), in which that court said:

"Retaliatory discharge for filing a workmen's compensation claim is a wrongful, unconscionable act and should be actionable in a court of law. * * * " ³

In addition, by the enactment of ORS 659.410 the Oregon legislature has declared, in effect, that the discharge of an employee for the filing of a claim for workers' compensation is a discharge of an employee for a "socially...