Kruchowski v. Weyerhaeuser Co.

• Decision Date: 16 December 2008
• Docket Number: No. 104872.,104872.
• Citation: 2008 OK 105,202 P.3d 144
• Parties: Ted KRUCHOWSKI, Gerald Adams, William Cooper, Tony Fennell, Alan Gebert, Harold Griffin, Stan Harris, Ford Hendershot, Ed Risenhoover, Susan Rogers, Linda Slabaugh, and Joel White, Plaintiffs, v. The WEYERHAEUSER COMPANY, Defendant. and Larry Thompson, Plaintiff, v. The Weyerhaeuser Company, Defendant.
• Court: Oklahoma Supreme Court

202 P.3d 144

2008 OK 105

Ted KRUCHOWSKI, Gerald Adams, William Cooper, Tony Fennell, Alan Gebert, Harold Griffin, Stan Harris, Ford Hendershot, Ed Risenhoover, Susan Rogers, Linda Slabaugh, and Joel White, Plaintiffs, v. The WEYERHAEUSER COMPANY, Defendant. and Larry Thompson, Plaintiff, v. The Weyerhaeuser Company, Defendant.

No. 104872.

Supreme Court of Oklahoma.

December 16, 2008.

As Corrected December 19, 2008 and February 11, 2009.

CERTIFIED QUESTIONS OF LAW FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA; James H. Payne, District Judge

¶ 0 In List v. Anchor Paint Mfg. Co. 1996 OK 1, 910 P.2d 1011, the Court declined to extend the Burk tort remedy to a claim involving allegations of constructive discharge based on age discrimination because the plaintiff had "adequate" statutory remedies for age discrimination. Ten years later in Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, the Court held that a plaintiff who asserts an age discrimination claim may pursue a state law claim for wrongful discharge in violation of public policy when the available remedies to the same class of employment discrimination victims are not uniform and evenhanded-regardless of whether the remedies originate under Federal statutes or state law. The United States District Court for the Eastern District of Oklahoma certified five questions of Oklahoma Law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001 §§ 1601-1611 in an attempt to seek clarification of our holding in Saint v. Data Exchange Inc., 2006 OK 59, 145 P.3d 1037. We consolidated and reformulated the questions into two:

1) Does Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037 overrule List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, and if so, does Saint apply retroactively?

2) Does Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037 allow a plaintiff who alleges a violation of the Federal Age Discrimination in Employment Act, 29 U.S. §§ 621-634, to also pursue a state law claim for wrongful discharge in violation of public policy only if the federal remedy and/or state remedy under the Oklahoma Anti-Discrimination Act, 25 O.S.2001 §§ 1101-1901,¹ are proven to be inadequate?

QUESTIONS ANSWERED.

Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037 implicitly overrules List v Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, and it should be applied retroactively to cases which were in the litigation pipeline when Saint was decided.

Pursuant to Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, a plaintiff may pursue a state law claim for wrongful discharge in violation of public policy when the available remedies to the same class of employment discrimination victims are not commensurate; however, double recovery is not permitted.

Mark Hammons, Jim T. Priest, Oklahoma City, OK, J. Vince Hightower, Broken Arrow, OK, for Plaintiffs.

Kristen L. Brightmire, William S. Leach, Michael F. Smith, Tulsa, OK, for Defendants.

KAUGER, J.

¶ 1 The United States District Court for the Eastern District of Oklahoma certified five questions of Oklahoma Law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001 §§ 1601-1611,² seeking clarification of our holding in Saint v. Data Exchange Inc., 2006 OK 59, 145 P.3d 1037. We consolidated and reformulated³ them into the two aforementioned questions.

¶ 2 The record discloses very little factual information about this cause. It appears that the plaintiffs, Kruchowski, Adams, Cooper, Fennell, Gebert, Griffin Harris, Hendersot, Kelley, Lewis, Little, Privette, Risenhoover, Rogers, Slagaugh, and White (collectively Kruchowski plaintiffs) and the plaintiff Larry Thompson (Thompson) were all former employees of The Weyerhaeuser Company (the Company). The Kruchowski plaintiffs were terminated pursuant to a series of reductions in force which took place in 2002. Thompson was terminated from employment in 2003.

¶ 3 On November 24, 2003, the Kruchowski plaintiffs filed a complaint in the United States District Court for the Eastern District of Oklahoma alleging that their terminations were the result of age discrimination, contrary to the Federal Age Discrimination and Employment Act, 29 U.S. §§ 621-634 (ADEA).⁴ On December 16, 2005, Thompson filed a similar complaint.

¶ 4 On July 11, 2006, we decided Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037. On August 24, 2006, the Kruchowski and Thompson cases were consolidated. Four days later, the plaintiffs, relying on Saint, amended their complaints to include allegations that their discharges were also in violation of state law tort for wrongful discharge in violation of Oklahoma public policy. On July 20, 2007, the United States District Court for the Eastern District of Oklahoma filed an order certifying questions of law to this Court.

I.

¶ 5 Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037 IMPLICITLY OVERRULED List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, AND IT SHOULD BE APPLIED RETROACTIVELY.

¶ 6 The Kruchowski plaintiffs argue that Saint clearly abrogated List's holding because List did not address what remedies were required by the Okla. Const. art. 5, § 46.⁵ The Company contends that Saint was nothing more than a reiteration of this Court's prior limited holdings in cases such as Tate v. Browning-Ferris, Inc., 1992 OK 72, 833 P.2d 1218 and Collier v. Insignia Financial Group, 1999 OK 49, 981 P.2d 321. According to the parties, courts are not clear as to whether Saint impacted List's holding.⁶ Because uncertainty apparently still remains about the nature of the Burk tort, to answer today's certified question we must revisit List, its predecessors, and its progeny.

a. List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, its predecessors and its progeny.

¶ 7 In 1996, the Court decided List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011, a case which tested the possible expansion of the tort-based exception to Oklahoma's employment-at-will doctrine recognized and adopted in Burk v. K-Mart Corp., 1989 OK 22, ¶ 17, 770 P.2d 24. Burk involved a federal certified question concerning an alleged "implied obligation of good faith and fair dealing" in reference to termination of any employment-at-will contract. The Burk employee sued her employer in contract and in tort, alleging that she was prevented from performing her job duties and was, consequently, constructively discharged. She further asserted that her employer's agent told her he would not recommend her for a promotion because of her sex.

¶ 8 Although the Court rejected the implication of a duty of good faith and fair dealing in every employment-at-will contract, Burk was the landmark case wherein the Court adopted a public policy exception to the at-will termination rule in a narrow class of cases in which the discharge of an employee is contrary to the clear mandate of public policy as articulated by constitutional, statutory, or decisional law. We recognized, for the first time, that the action was a tort. We also noted that because the term "public policy" was vague, the exception had to be tightly circumscribed.

¶ 9 Three years after Burk, we promulgated Tate v. Browning Ferris, Inc., 1992 OK 72, 833 P.2d 1218. Tate involved the question of whether a Burk tort could be asserted for racial discrimination, to which we answered-yes. In discussing the remedies available for such a claim, the Court determined that the remedies provided by the Oklahoma Discrimination Act, 25 O.S.1991 § 1101-1901, for racial discrimination were not exclusive because the Act provided more available remedies for those who alleged discrimination on the basis of handicap than those who alleged racial discrimination. The court noted in ¶ 18 that:

The Act here in contest does not provide a private right of action to a person aggrieved by racially discriminatory practices if the Commission does not resolve the claim to his satisfaction. In contrast, it does afford a private right of action for discrimination based on handicap. Were we today to construe the statute as having established the sole remedy for racially discriminatory practices, we would create a dichotomous division of discrimination remedies contrary to Art. 5 § 46 of the Oklahoma Constitution. There would be a more generous remedy for victims of handicap discrimination than for those who suffered from racial discrimination. For remedial purpose, discrimination victims comprise a single class. Our Constitution absolutely interdicts the passage of special law that would sanction disparate remedies for those who complain of employment discrimination. (Citations omitted.)

¶ 10 Accordingly, we held that "the employee who brings a common-law tort action for damages occasioned by either a racially motivated discharge or by one in retaliation for bringing a racial discrimination complaint states a state-law claim for tortious employment termination under Burk."⁷ However, we left the matter for the trial court to preclude plaintiff's double recovery for cumulative theories of recovery.

¶ 11 After Tate, we decided List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011,⁸ which involved the question of whether the Burk tort would be extended to violations of public policy predicated on constructive discharge. The List plaintiff alleged that he was demoted based on his age and that it was a deliberate attempt to make his working conditions so intolerable that he would voluntarily resign. List's claim was predicated solely upon his status — his age. Diverging from the language we used in Tate in which we recognized that victims of discrimination form but one class and are constitutionally required to be treated the same, the Court instead focused on the remedies that would be available to List and whether they were "adequate." Absent from the opinion was any discussion of art. 5, § 46 of the Oklahoma Constitution.⁹

¶ 12 Ultimately, the Court...