Large v. Acme Engineering and Mfg. Corp.

• Citation: 790 P.2d 1086
• Decision Date: 17 April 1990
• Docket Number: No. 66098,66098
• Parties: Michael LARGE, Appellant, v. ACME ENGINEERING AND MANUFACTURING CORPORATION, Appellee.
• Court: Supreme Court of Oklahoma

Page 1086

790 P.2d 1086

1990 OK 34

Michael LARGE, Appellant, v. ACME ENGINEERING AND MANUFACTURING CORPORATION, Appellee.

No. 66098.

Supreme Court of Oklahoma.

April 17, 1990.

Michael E. Kelly, Kelly & Howerton, Muskogee, for appellant.

Carl D. Hall, Jr., Frank B. Wolfe III, Nichols, Wolfe, Stamper, Nally & Fallis, Inc., Tulsa, for appellee.

SIMMS, Justice.

Action alleging retaliatory discharge in violation of 85 O.S.1981 § 5, et seq. The background facts are not in dispute.

Plaintiff/appellant, Michael Large (hereinafter "employee") at all times relevant to this case was employed as a machinist by defendant/appellee, Acme Engineering and Manufacturing Corporation (hereinafter "employer"). Employee is a member of the Sheet Metal Workers' International Association AFL/CIO, Local 275. Employee's job is protected by a collective-bargaining agreement between the Union and employer.

Employee was injured while on the job. He filed a workers' compensation claim and was found to have suffered a permanent partial disability. The award entered by a judge of the Workers' Compensation Court was subsequently sustained on appeal to a three-judge Workers' Compensation Court panel. Employer and employee then settled the matter by employee accepting a cash settlement from employer.

After the settlement was finalized, employer demanded that employee be examined by a new doctor to determine employee's physical fitness to perform his regular duties. This doctor was not involved in the employee's original workers' compensation claim. Contrary to the opinion of doctors treating employee during the time the above claim was heard by the compensation courts, the new doctor determined that employee was physically unable to perform any of his previous duties and that his continued employment as a machinist constituted a health hazard not only to himself, but to others as well.

Allegedly basing its decision on the new medical report, employer notified employee that the employer was exercising its option under the collective-bargaining agreement to transfer employee to other duties. The proposed transfer was to a job not covered and protected by the Union agreement with employer and was at a lower pay rate with no fringe benefits. Upon being notified of the conditions of the proposed transfer, employee refused to agree and filed a grievance through his union representatives. This resulted in the employer's second transfer order, for a job at no change of pay or loss in benefits. Again, employee refused, filed the appropriate union grievances and also commenced this action in district court, alleging a retaliatory, "constructive" discharge.

Employer responded to the employee's trial court petition with a combined motion to dismiss for failure to state a claim for which relief may be granted under 12 O.S.Supp.1984 We find the determinative question which must be addressed is whether an employee has a cause of action under Oklahoma law for a retaliatory, "constructive" discharge.

§ 2012(B)(6) or, in the alternative, for summary judgment. Employer alleged that there had been no termination as recognized under 85 O.S.1981 § 5 et seq., and that the state court lacked subject matter jurisdiction because employee's cause of action, if any, was pre-empted by Federal Labor law. Employer attached numerous affidavits and exhibits in support of its motion. The trial court sustained employer's motion for summary judgment making specific findings that: (1) employee had not been discharged within the contemplation of 85 O.S.1981 § 5 et seq., and: (2) the employee's remedies, if any, were subject to the procedures within the collective bargaining agreement and were, therefore, pre-empted by federal law. Employee now appeals that determination by the trial court.

A plaintiff must make a prima facie case of retaliatory discharge by providing evidence which shows that the filing of a claim was a significant factor in the employee's termination from employment. Elzey v. Forrest, Okl., 739 P.2d 999 (1987) (emphasis added). A prima facie case of retaliatory discharge is not made when a plaintiff merely shows that his termination was "somewhat contemporaneous" with the filing of a workers' compensation claim. Elzey v. Forrest, supra, at 1003. Thompson v. Medley Material Handling Co., Okl., 732 P.2d 461 (1987). For example, Title 85, O.S.1981, § 5, et seq., does not operate to sanction employers who discharge employees for excessive absenteeism even if the absences are caused by compensated injuries. Pierce v. Franklin Electric Co., Okl., 737 P.2d 921 (1987).

The most basic element in making out a prima facie case for retaliatory discharge in Oklahoma is that there must be a discharge from employment. None of our cases construing 85 O.S.1981 § 5 et seq. have recognized these statutes as providing a remedy for a "constructive" discharge. It is significant in this case that the trial court was not presented with facts showing an actual cessation of employment. Here, the most significant thing that can be said about employee's claim is that employee's form of employment was to be altered by the proposed transfer in question.

There are jurisdictions which have adopted constructive discharge as a theory of recovery, but they have generally limited its application to the context of a breach of the employment contract context.

Federal courts, for instance, have applied an objective standard when deciding whether a constructive discharge occurs. The courts have said that the employee need not show that the employer subjectively intended to force the employee to resign. Such a discharge is shown when the facts of the case show that "a reasonable person in the employee's position would have felt that he was forced to quit because of intolerable and discriminatory working conditions." Watson v. Nationwide Insurance Co., supra, at 361 (citations omitted). Working conditions must be so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign. Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536 (11th Cir.1987) (emphasis added); see also: Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir.1980); Alicea Rosado v. Garcia-Santiago, 562 F.2d 114, 119 (1st Cir.1977).

The federal courts often see constructive discharge allegations in the context of Title VII ¹ civil rights violations in employment relationships. See: Watson v. Nationwide Insurance Co., 823 F.2d 360 (9th Cir.1987); Garner v. Wal-Mart Stores, Inc., supra. In cases alleging constructive discharge through discriminatory practices, federal courts have stated that the employee/plaintiff "must show some aggravating factors, such as a continuous pattern of discriminatory treatment." Satterwhite v. Smith, 744 F.2d 1380, 1382 (9th Cir.1984); Clark v. Marsh, 665 F.2d 1168, 1174 (D.C.Cir.1981).

A "single isolated instance" of discrimination has been held as insufficient as a matter of law to support a finding of constructive discharge. Glasgow v. Georgia Pacific Corporation, 103 Wash.2d 401, 693 P.2d 708, 713 (1985); Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir.1982). ²

When an employee/plaintiff alleged constructive discharge through an unfavorable transfer to other, arguably less favorable, job assignments, the courts have recognized an employee's obligation to act reasonably with respect to the employer's decision to transfer. In Garner, the court said: "[p]art of an employee's obligation to be reasonable is an obligation not to assume the worst, and not to jump to conclusions too fast" regarding the employer's decision to transfer the employee. Garner v. Wal-Mart Stores, Inc., 807 F.2d at 1139. (emphasis supplied).

In this case, employee alleged that a constructive discharge occurred when employer transferred him to other job duties which were outside the collective bargaining agreement and that such transfer was without just cause, as defined by that agreement. The district court was presented only with the employee's conclusions that the transfer was to a less favorable position outside the collective bargaining unit and that the transfer was without just cause. These facts are insufficient under any standard. It is evident that employee failed to make a prima facie showing of constructive discharge, much less, a retaliatory one. We refuse to adopt "constructive" discharge as a theory of recovery in Oklahoma under the facts presented in this case. Employee has failed to state a claim for which relief may be granted. Neither has employee demonstrated that a genuine issue of fact exists as to the claim for retaliatory "constructive" discharge. The trial court was correct when it sustained employer's 12 O.S.Supp.1984 § 2012(B)(6) motion to dismiss and granted summary judgment in favor of employer. It therefore is unnecessary to address the issue of federal pre-emption.

Accordingly, the judgment of the District Court of Muskogee County is AFFIRMED.

HARGRAVE, C.J., OPALA, V.C.J., LAVENDER, J., and BAILEY, Special Justice, concur.

HODGES, DOOLIN, ALMA WILSON and KAUGER, JJ., dissent.

SUMMERS, J., disqualified.

KAUGER, Justice, with whom DOOLIN, Justice, joins, dissenting.

Today, the majority has held that summary judgment was properly granted in Large's constructive discharge claim. In so deciding, it has ruled, in effect, that an employer may take any retaliatory action it wishes against an employee who has filed a worker's compensation claim so long as the employer stops short of firing the employee outright. I must dissent for two reasons: 1) the motion to dismiss was improperly granted because there are material questions of fact left undecided by the trial court; and 2) the opinion does not address the trial court's finding that the employee's claim for retaliatory discharge under the Workers' Compensation Act was pre-empted by federal law.

FACTS

Michael Large was employed by Acme Engineering and Manufacturing Co. as a...