Clinton v. Logan County Election Bd.

• Decision Date: 26 June 2001
• Docket Number: No. 95,926.,95,926.
• Citation: 2001 OK 52,29 P.3d 543,2001 Okla. 52
• Parties: Stacy Lynne CLINTON, an individual, Plaintiff, v. STATE of Oklahoma, ex rel. LOGAN COUNTY ELECTION BOARD; Sue Ferrel, as Secretary of the Logan County Election Board; Logan County Commissioners, Defendants.
• Court: Oklahoma Supreme Court

29 P.3d 543

2001 OK 52

2001 Okla. 52

Stacy Lynne CLINTON, an individual, Plaintiff, v. STATE of Oklahoma, ex rel. LOGAN COUNTY ELECTION BOARD; Sue Ferrel, as Secretary of the Logan County Election Board; Logan County Commissioners, Defendants.

No. 95,926.

Supreme Court of Oklahoma.

June 26, 2001.

N. Kay Bridger-Riley, Diana R. Stallard, Christopher L. Camp, Tulsa; and A. Daniel Woska, John E. Barbush, Oklahoma City, for Plaintiff.

Chris J. Collins, Jason C. Wagner, Michael L. Carr, Oklahoma City, for Defendants.

Mark Hammons, Oklahoma City, for Amicus Curiae, Oklahoma Employment Lawyers Association. BOUDREAU, Justice:

¶ 1 Pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991, §§ 1601 et seq., the United States District Court for the Western District of Oklahoma, Vicki Miles-LaGrange, certified the following question:

In light of Collier v. Insignia Financial Group, 1999 OK 49, 981 P.2d 321, is a gender status-based discrimination claim, such as one's status as a pregnant female, actionable under a Burk public policy tort theory?

I

COURT'S FUNCTION WHEN RESPONDING TO A CERTIFIED QUESTION FROM A FEDERAL COURT

¶ 2 Since the case is not before us for decision we refrain from applying our answer to the certified question to the facts of the case. We also refrain from passing upon the effect of federal procedure on the issues, facts and proof in the case. We briefly outline the parties' contentions, provided to us by the certifying court, to place the certified question in perspective.

¶ 3 Logan County Election Board (Board) employed plaintiff, Clinton, from September of 1997 through August 18, 1998, when the Board fired her. Defendants contend they fired Clinton because of her dishonesty, her unsatisfactory work performance and her general work attitude. Clinton contends the Board fired her because she was pregnant. The certifying court advised us that Clinton sued defendants for pregnancy discrimination under Title VII, 42 U.S.C. § 2000e(k), and that Clinton has sought leave to amend her complaint to add a supplemental claim of "tortious violation of public policy against gender discrimination, as set forth in the Oklahoma Anti-Discrimination Act," 25 O.S. §§ 1101 et seq. (OADA).

¶ 4 Inherent in the certifying court's question and statement of the case are the implications that plaintiff's employment is terminable-at-will, that firing an at-will employee because she is pregnant violates Oklahoma's public policy and that plaintiff has an adequate statutory remedy under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e(k), 2000e 2(a)(1), for her alleged wrongful discharge. Accordingly, we rephrase the question as follows:

When an employer discharges a terminable-at-will employee based on the employee's status and the reason for the discharge violates Oklahoma's clear and compelling public policy, but the employee has an adequate federal statutory remedy for the wrongful discharge, may that employee also bring a tort claim under Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24, for wrongful discharge in violation of Oklahoma's public policy?

We answer the question in the negative.

II

DISCUSSION

A. Public policy exception to at-will-employment doctrine

¶ 5 The doctrine of employment-at-will is firmly embedded in the common law of Oklahoma. Collier v. Insignia Financial Group, 1999 OK 49, 981 P.2d 321, 323. Under this doctrine, an employee with an employment contract of indefinite duration is at liberty to leave his or her employment for any reason or no reason without incurring liability to the employer. Singh v. Cities Service Oil Co., 1976 OK 123, 554 P.2d 1367, 1369. Notions of fundamental fairness underlie the concept of mutuality which extends a corresponding freedom to the employer. Id. Thus, under the employment-at-will doctrine an employer is also at liberty to fire an at-will employee for any reason or no reason without incurring liability to the employee. Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24.

¶ 6 Twelve years ago, in Burk, we created a narrow exception to the employment-at-will doctrine-the public policy exception. The exception is a limited restriction on employers' rights to discharge at-will employees. The exception rests on the notion that in a civilized society the rights of employers to discharge at-will employees is necessarily balanced against the rights of the public at large as found in existing law. Id. at 29. We held that "an employee [who] 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" may bring a tort claim for wrongful discharge. Id. The Burk tort lies only when an employer violates, by wrongful discharge of an at-will employee, an Oklahoma public policy goal that is clearly articulated in existing Oklahoma law-constitutional, statutory or jurisprudential. Collier, 981 P.2d at 323. When we created this unique tort we cautioned that it applies to only a narrow class of cases and must be tightly circumscribed. Burk, 770 P.2d at 28-29. We have often repeated these warnings. See, e.g., Collier, 981 P.2d 321, 323

; Griffin v. Mullinix, 1997 OK 120, 947 P.2d 177, 178; Marshall v. OK Rental & Leasing, Inc., 1997 OK 34, 939 P.2d 1116, 1119; List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, 1013; Hayes v. Eateries, Inc., 1995 OK 108, 905 P.2d 778, 785.

B. Use of public policy exception in conjunction with anti-discrimination statutes

¶ 7 Within the context of at-will employment terminations, overlapping remedies often exist. A plaintiff may claim his or her termination violates one of the traditional statutory proscriptions of employment discrimination and also claim the termination falls within an exception to the employment-at-will doctrine. Considering this question in List and Marshall, cases in which plaintiffs had adequate federal statutory remedies under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., and Title VII, respectively, we held the Burk tort was not available.¹ After List and Marshall, we decided Collier. In Collier we considered the first impression issue whether the Burk tort should be extended beyond plaintiffs who had actually been discharged to include plaintiffs who had been constructively discharged. We extended Burk to include constructive discharges and identified factors to be considered in determining whether a constructive discharge occurred. We concluded that an adequate state statutory remedy would preclude the Burk tort. We examined the OADA and concluded it does not provide an adequate remedy for victims of sex discrimination. We were silent, however, as to whether the existence of an adequate federal statutory remedy precludes the Burk tort. That silence, together with our previous decisions in List and Marshall, may have resulted in some uncertainty about the nature of the Burk tort. Some argue, as the plaintiff has in this case, that after Collier the existence of an adequate federal statutory remedy is immaterial to the Burk tort. Others argue, as the defendants have in this case, that under List and Marshall the existence of an adequate federal statutory remedy precludes the Burk tort.

¶ 8 Today we answer the question head-on. The purpose of the public policy exception to the at-will-employment doctrine is to protect the state's public policy in the context of at-will employment. See Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1088 (1984)

(the policy underlying the exception is that the common law should not be used to shield an employer's action which otherwise frustrates a clear manifestation of public policy). The Burk tort protects Oklahoma's public policy by ensuring there is a strong disincentive to any Oklahoma employer who might wish to discharge an at-will employee where the reason for the discharge violates Oklahoma's clear and compelling public policy.

¶ 9 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.

III

CONCLUSION

¶ 10 We clarify the parameters of the Burk tort. First, plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law. While a federal statute, by itself, cannot serve as an articulation of Oklahoma public policy, Griffin v. Mullinix, 947 P.2d 177, 179, the existence of a federal statutory remedy or a state statutory remedy that is sufficient to protect the identified Oklahoma public policy goal precludes the Burk tort. The initial determination of public policy and the initial determination of the adequacy of the statutory remedy are questions of law to be resolved by the court. Hayes v. Eateries, Inc., 905 P.2d 778, 785 (initial determination of public policy is a question of law). Second, plaintiff must establish he or she is an at-will employee and the reason for his or her discharge violates the identified Oklahoma public policy goal. A discharge for purposes of the Burk tort may be either actual or constructive. Collier, 981 P.2d 321.

¶ 11 We rephrase the certified question as follows:

When an employer discharges a terminable-at-will employee based on the employee's status and the reason for the discharge violates Oklahoma's clear and compelling public policy, but the employee has an adequate

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