Collier v. Insignia Financial Group

• Decision Date: 22 June 1999
• Docket Number: No. 90,482.,90
• Parties: Jill COLLIER, Plaintiff, v. INSIGNIA FINANCIAL GROUP d/b/a Insignia Commercial Group, Defendant.
• Court: Oklahoma Supreme Court

981 P.2d 321

1999 OK 49

1999 OK 49

Jill COLLIER, Plaintiff, v. INSIGNIA FINANCIAL GROUP d/b/a Insignia Commercial Group, Defendant.

No. 90,482.

Supreme Court of Oklahoma.

May 25, 1999.

Rehearing Denied June 22, 1999.

Mark Hammons of Hammons & Associates, Inc., Oklahoma City, Oklahoma, for plaintiff.

William B. Federman and Bill P. Guest of Day Edwards Federman Propester & Christensen, P.C., Oklahoma City, Oklahoma, for defendant.

LAVENDER, J.

¶ 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 certified the following question:

May a plaintiff pursue a public policy tort claim under Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24 (1989), for quid pro quo sexual harassment and retaliatory constructive discharge in light of the remedies available under federal and state anti-discrimination laws?

I RELEVANT FACTS

¶ 2 While employed by Insignia Financial Corporation Insignia, Collier was allegedly subjected to unwelcome sexual remarks and actions by her supervisors. She also claims that management suggested she flirt with prospective customers. Collier contends that although she reported the questionable conduct, her employer undertook no remedial acts and in fact retaliated against her by not timely paying commissions which were her due. She resigned her position, alleging that she was constructively discharged.¹

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

¶ 3 Inherent in the question posited by the certifying court is the implication that under the case's facts the plaintiff Collier has adequate civil remedies under applicable federal and state statutory regimes for any harm which she might have suffered. Nonetheless, because of the Burk tort's underpinnings the adequacy of the state-law remedy for quid pro quo sexual harassment must be assayed in order to resolve the certified question. Since the case is not before us for decision, we refrain (1) from applying the declared state-law response to the facts elicited in the federal-court litigation and (2) from passing upon the effect of federal procedure on the issues, facts and proof in the case. We have briefly outlined the case's factual underpinnings to place the certified question in a proper perspective. It is the federal district court that must analyze our answer's impact on the facts ultimately before it.²

III

THE BURK PUBLIC-POLICY TORT: AN EXCEPTION TO THE EMPLOYMENT-AT-WILL DOCTRINE

¶ 4 The submitted query's essence is whether quid pro quo sexual harassment which culminates in an employee's "constructive discharge" is actionable under an exception — first enunciated in Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24 — to the common law's employment-at-will doctrine. The Burk exception's availability to support a claim for wrongful discharge based upon sexual harassment has been considered but a few times since 1989.

¶ 5 Oklahoma's jurisprudence has historically evinced a great respect — which abides even to this day — for the common-law doctrine that an employment contract of indefinite duration may be terminated "for good cause, for no cause, or even for cause morally wrong" with no liability for breach of contract.³ It was in this context that the Court in Burk first crafted a narrow tort-based exception to the employment-at-will doctrine. A private cause of action for wrongful discharge was made necessary because of "unchecked employer power" to disregard, and hence frustrate, public-policy mandates which had been articulated by Oklahoma's legislature.⁴ Because the exception stands in derogation of the common-law terminable-at-will doctrine and further because public policy is oftentimes amorphous in nature, the Burk court limited a discharged employee's use of the public-policy tort to situations falling within narrowly prescribed guidelines. The Burk tort only lies when an employer violates by wrongful discharge public-policy goals which are clearly articulated in existing law — constitutional, statutory or jurisprudential — and then only if there is no adequate, statutorily-expressed remedy for the same. At a minimum the common-law tort embraces situations where an employee is "discharged for refusing to act in violation of an established and well-defined public policy."⁵

IV CERTIFIED QUESTION ANSWERED

¶ 6 The certified question calls the Court to address two issues, i.e., (1) whether a constructive retaliatory discharge is actionable within the Burk tort's parameters and (2) whether a Burk claim may be pressed for a wrongful discharge occasioned by quid pro quo sexual harassment if there are available federal and state statutory remedies.

A

WITHIN THE PARAMETERS SET FORTH BELOW A RETALIATORY CONSTRUCTIVE DISCHARGE CAN SERVE AS A PREDICATE

FOR A BURK TORT

¶ 7 Since its first appearance as a labor law concept under the National Labor Relations Act, the constructive discharge doctrine has been accorded acceptance among the various U.S. Circuit Courts of Appeal in Title VII discrimination cases. Today Collier urges Oklahoma to allow a retaliatory constructive discharge to suffice as the basis for bringing a Burk-type claim.

¶ 8 While the concept of retaliatory "constructive discharge" has been considered in conjunction with several Burk claims, Oklahoma's extant jurisprudence has never specifically approved it as a basis for bringing the public-policy tort. The public-policy tort has as its focus the remediation of wrongful discharges (as that term is delimited by Burk), regardless whether they are explicit or constructive. Discharges falling within the latter class are nonetheless more problematic. Until now the Court has not been called upon to succinctly define the criteria for determining when a constructive discharge has occurred and whether the same will suffice for purposes of the Burk exception to the employment-at-will doctrine.

¶ 9 In Marshall v. OK Rental & Leasing, Inc.⁶ the Court observed that a constructive discharge occurs when an employer deliberately makes or allows the employee's working conditions to become so intolerable that a reasonable person⁷ subject to them would resign.⁸ While accurate, this statement does not adequately define the outside parameters under which a constructive discharge will support a Burk-type claim.

¶ 10 Initially, it must be observed that the Burk tort encompasses a broader range of wrongful discharges that just those involving one of the proscribed categories of discrimination articulated in Title VII or the Oklahoma Anti-Discrimination Act. The Burk tort is available to redress employer violations of any state-declared public policy which culminate in civilly unremedied employee terminations. The test today adopted for ascertaining whether a constructive discharge has occurred is an objective one which assays the complained of employer's conduct through the eyes of a reasonable person standing in the employee's shoe and applies to all constructive discharges pressed under the Burk tort's guise. The focus of today's test is upon the impact of the employer's actions, whether deliberate or not, upon a "reasonable" employee. The test requires the trial court to inquire (1) whether the employer either knew or should have known of the "intolerable" work conditions and (2) if the permitted conditions were so intolerable that a reasonable person subject to them would resign. This imposes upon the trial court the obligation to survey the totality of the circumstances which allegedly prompted the constructive discharge, including (but not limited to) the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."⁹ If the employer's behavior is so objectively offensive as to alter the conditions of the plaintiff's employment (causing the employee to resign), a retaliatory constructive discharge can be said to have occurred and may serve as a predicate for bringing a Burk-type claim, assuming the tort's other preconditions have been satisfied.

B QUID PRO QUO SEXUAL HARASSMENT IS REMEDIABLE UNDER THE BURK TORT'S AEGIS BECAUSE AN ADEQUATE STATUTORY REMEDY FOR THE SAME IS NOT PROVIDED BY OKLAHOMA'S ANTI-DISCRIMINATION ACT

¶ 11 Oklahoma's Anti-Discrimination Act (see 25 O.S.1991 § 1302) clearly articulates a public policy which castigates sexual harassment in the workplace¹⁰ when it provides in pertinent part:

A. It is a discriminatory practice for an employer:

1. To ... discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, privileges or responsibilities of employment, because of race, color, religion, sex, national origin, age, or handicap. . . .Emphasis added.

This statutory language condemns conditioning continued employment upon the grant of sexual favors requested of an employee by an employer or supervisor — the essence of quid pro quo sexual harassment.¹¹ Hence, were a discharged employee able to prove quid pro quo sexual harassment he/she would be able to satisfy one of the public-policy tort's predicates, i.e., an employer's violation of a state-declared public policy.

¶ 12 The other predicate to assertion of the Burk exception is the absence of a state-statutory remedy for the public-policy violation. If the Oklahoma Anti-Discrimination Act provides an adequate remedy for the offending sexual harassment, there can be no Burk tort. It does not.

¶ 13 Central to assessment of the remedial schemes provided for by the Act is the language of 25 O.S.1991 § 1101, which provides in pertinent part:

A. The general purposes of this act are to provide for execution within the state of the policies embodied in the federal Civil Rights Act of 1964, the federal Age Discrimination in Employment Act of 1967, and Section 504 of the

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