Gunn v. Consolidated Rural Water & Sewer Dist. No. 1, Jefferson County, Okl., 75722
| Decision Date | 22 September 1992 |
| Docket Number | No. 75722,75722 |
| Citation | 839 P.2d 1345,1992 OK 131 |
| Parties | 7 IER Cases 1329, 1992 OK 131 Donald GUNN, Jr., Plaintiff-Appellant, v. CONSOLIDATED RURAL WATER & SEWER DISTRICT NO. 1, JEFFERSON COUNTY, OKLAHOMA, Defendant-Appellee. |
| Court | Oklahoma Supreme Court |
On appeal from the District Court, Jefferson County; William W. Eakin, Judge.
In a statutory tort action by an employee against his former employer, a governmental entity, for retaliatory discharge in violation of §§ 5-7 of the Oklahoma Workers' Compensation Act, the trial court dismissed the petition for failure to state a claim upon which relief may be granted.
THE TRIAL COURT'S DISMISSAL ORDER IS REVERSED AND THE CAUSE REMANDED.
J. William Archibald, Holloway, Dobson, Hudson & Bachman, Oklahoma City, for plaintiff-appellant.
John Kinslow, Kinslow & Krug, P.C., Lawton, for defendant-appellee.
The issues presented are: (1) Did the trial court err in relying upon Gingles v. Central State Griffin Memorial Hospital 1 for authority to dismiss this governmental worker's statutory tort claim for retaliatory discharge? (2) Do the terms of 85 O.S. 1981 § 5 2 of the Oklahoma Workers' Compensation Act shield governmental entities from statutory tort liability for wrongful discharge in retaliation for filing a compensation claim? (3) Does 51 O.S.Supp.1988 § 155(14) 3 of the Governmental Tort Claims Act immunize a governmental entity from tort liability for a retaliatory discharge? and (4) Does the 51 O.S.Supp.1988 § 155(5)'s 4 exemption of "discretionary acts" shield a governmental entity from liability for retaliatory discharge? We answer the first question in the affirmative and the remaining questions in the negative.
The defendant Consolidated Rural Water & Sewer District No. 1, Jefferson County [District] is organized and operated pursuant to the Oklahoma Rural Water, Sewer, Gas and Solid Waste Management Districts Act. 5 Rural water and sewer districts are deemed "political subdivisions" of the State of Oklahoma [State] within the meaning of the Governmental Tort Claims Act [Tort Claims Act] 6 only for purposes of the Act's coverage. According to the record, Donald Gunn [Gunn], while a District employee, received an on-the-job injury and the District terminated him on February 28, 1989, after he had advised it of his intention to file a workers' compensation claim. Gunn notified his employer he believed his termination was in violation of state law. He then filed this suit for wrongful termination under §§ 5-7 of the Workers' Compensation Act [Compensation Act]. 7 Arguing that § 155(5) and (14) of the Tort Claims Act exempt it from liability, the District moved to dismiss the action for failure to state a claim upon which relief may be granted. 8 In reliance on Gingles, 9 the trial court dismissed the petition. As we view the record, the court ruled in essence that (1) the statutory prohibition against retaliatory discharge does not apply to political subdivisions of the State and, even if it did, (2) § 155(14) of the Tort Claims Act would exempt the District from liability in this case. Gunn, who elected to stand on his petition, now appeals from the dismissal. 10 We reverse the order and remand the cause for further proceedings.
GINGLES,
11 A PRE-VANDERPOOL
12 DECISION, AFFORDS NO
AUTHORITY FOR IMMUNIZING THE
DISTRICT FROM
STATUTORY
TORT
LIABILITY
FOR
The District asserts that Gingles absolves it of liability for a retaliatory discharge in violation of §§ 5-7 of the Compensation Act.
The District's reliance on Gingles is misplaced. Gingles holds that the sovereign immunity doctrine shields a state hospital and its employees from statutory tort liability for retaliatory discharge. The harm that gave rise to Gingles occurred in 1983--well before October 1, 1985, the effective date of the Tort Claims Act and of Vanderpool's 13 abrogation of sovereign immunity. Gingles construed §§ 3, 5 and 6.1 of the Compensation Act against the backdrop of pre-Vanderpool events, concluding that by that enactment the legislature had not expressly waived the State's immunity. We hold today that Gingles does not govern this post-Vanderpool retaliatory discharge case. 14
IN POST-VANDERPOOL
ERA IMMUNITY FROM STATUTORY TORT LIABILITY MAY
Gingles, a pre-Vanderpool case, concluded that the legislature had not waived governmental immunity by its failure to mention political subdivisions by name in § 5's litany of employers prohibited from discharging employees for pursuing compensation claims. The District's immunity from liability in post-Vanderpool era no longer can be drawn from a like reading of §§ 3(3) 15 and 5.
The District's statutory immunity depends today on sources far different from those which were available for the Gingles' sovereign immunity analysis. Vanderpool 16 teaches that, in the absence of a statute conferring partial or total immunity, the state, its political subdivisions, and employees acting within the scope of their employment, are liable in tort in the same manner as a private person or corporation. 17 The 1984 Tort Claims Act, which redefined the parameters of governmental tort liability, 18 provides in § 152.1(B) that governmental immunity of the State and its political subdivisions is waived "only to the extent and in the manner provided in" the Act. 19 Tracking Vanderpool's rationale, § 153 extends governmental accountability to all torts for which a private person or entity would be liable subject only to the Act's specific "limitations and exceptions." 20 Section 155 lists thirty exceptions, none of which embraces the retaliatory termination of an employee. We are powerless to read into legislative law tort accountability exceptions not made in the text. 21
The four corners of the Compensation Act yield no indication of legislative intent to arm a political subdivision with defenses not available to others when they are sued for retaliatory discharge. We hence reject the argument that § 5's terms--unchanged since the statute's construction in Gingles--clearly and unambiguously bar today's action. If § 5 is indeed ambiguous, it is so in failing explicitly to include governmental entities among the employers who are liable for retaliatory termination. The omission of these employers is not fatal to Gunn's claim. The post-Vanderpool remedial regime makes a political subdivision liable in tort unless it is explicitly immunized by law. 22 Retaliatory discharge under §§ 5-7 of the Compensation Act is a statutory tort. 23 Webb v. Dayton Tire & Rubber Co. 24 teaches that punitive damages are recoverable for a willful breach of duty that is owed under that statute. If the legislature did intend to shield governmental entities from retaliatory discharge responsibility, its objective remains unexpressed because it lies beyond the scope of the exceptions provided by the Tort Claims Act. Immunity cannot be read into a legislative text that is silent, doubtful or ambiguous. 25 Today's holding finds an eloquent reinforcement in the explicit reference made in § 6.1 26--a post-Vanderpool enactment--to the existence of governmental liability for retaliatory discharge under the Compensation Act.
SUBSECTIONS 155(5) and (14) OF THE TORT CLAIMS ACT DO NOT
The District's assertion that § 155(14) of the Tort Claims Act exempts it from liability is contrary to settled law.
Section 155(14) provides that a public employer shall not be liable if a claim results from any loss "covered by any workers' compensation." This exemption is confined to claims of bodily injury or death from an on-the-job injury covered by the Workers' Compensation Act. An employee's retaliatory discharge remedy under §§ 5-7, which create a statutory tort for the employer's wrongful severance of an injured worker's employment status, is distinct from a compensation claim. The former remedy is collateral rather than incidental to that in compensation. 27 It is litigable solely in the district court. 28
The District's argument that § 155(5)'s 29 so-called discretionary function exception insulates it from liability is equally without merit.
Immunity for discretionary acts--another exception to the general rule of liability--must be narrowly construed. 30 Discretionary conduct is that which lies outside the range of prohibited activity. 31 Implicit in a claim for retaliatory discharge is conduct in breach of that which is legally allowable. It charges the commission of an act that is the very antithesis of permissible conduct--one that by its very nature negates any notion of discretion or any choice among different courses of action. Discharging an employee contrary to the applicable statute is not an exercise of discretionary function within the meaning of § 155(5). It is a breach cognizable by law. 32 When a statute restricts permissible conduct in managing personnel, discretion, which implies freedom of action, is ipso facto withdrawn.
In Vannerson v. Board of Regents 33 we affirmed a judgment on jury verdict for wrongful discharge as a result of an employee's discovery and report of illegal activities in the workplace. While not explicitly alluding to statutory immunity, Vannerson clearly demonstrates that the Tort Claims Act affords no immunity from common-law tort liability for wrongful discharge under Burk. 34 If a wrongful discharge, actionable under Oklahoma common law, does not fall within the Act's immunity, there is even less reason to hold that a statutory tort--not expressly exempted by the legislative text which creates the remedy--would lie within the sweep of the Act's exceptions.
GUNN'S PETITION IS SUFFICIENT TO WITHSTAND THE QUEST FOR THE
Section 5 of the Compensation Act prohibits the discharge...
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