Marshall v. OK Rental & Leasing, Inc.

• Citation: 1997 OK 34,939 P.2d 1116
• Decision Date: 18 March 1997
• Docket Number: No. 82232,82232
• Parties: 70 Empl. Prac. Dec. P 44,734, 12 IER Cases 1283, 1997 OK 34 Jody MARSHALL, Appellant, v. OK RENTAL & LEASING, INC., dba Dollar Rent A Car, a corporation, Appellee.
• Court: Supreme Court of Oklahoma

Page 1116

939 P.2d 1116

70 Empl. Prac. Dec. P 44,734, 12 IER Cases

1283, 1997 OK 34

Jody MARSHALL, Appellant, v. OK RENTAL & LEASING, INC., dba Dollar Rent A Car, a corporation, Appellee.

No. 82232.

Supreme Court of Oklahoma.

March 18, 1997.

Rehearing Denied June 26, 1997.

Thomas L. Bright, Tulsa, For Appellant.

Donald M. Bingham, Stephanie L. Theban, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, For Appellee.

SIMMS, Justice:

Jody Marshall appeals the summary judgment entered in favor of her former employer, OK Rental & Leasing, Inc. d/b/a Dollar Rent a Car (Dollar), on her claims of constructive discharge due to sexual harassment by a co-employee and intentional infliction of emotional distress. The trial court found that the undisputed facts did not support Marshall's claims, and the Court of Civil Appeals affirmed on appeal.

Certiorari was granted to consider the first impression question of whether the public policy exception to the employment-at-will doctrine enunciated in Burk v. K-Mart Corp., 770 P.2d 24 (Okla.1989), applies to an employee claiming sexual harassment at work caused her to be "constructively discharged", i.e. she was not terminated but quit due to an intolerable work environment intentionally created by the employer.

Because we find the public policy exception of Burk does not apply in Marshall's case, we vacate the Court of Civil Appeals opinion and affirm the judgment of the district court. The judgment for defendant on the cause of action for intentional infliction of emotional distress is also affirmed. The facts adduced from affidavits, Marshall's diary and other summary judgment attachments follow.

I

Dollar hired Marshall to work at its airport location in Tulsa renting cars to travelers. A co-worker, Frazier, occasionally asked her to go on dates with him. She refused and "mentioned" it to her supervisor in hopes that the supervisor would say something to Frazier about it, but apparently the supervisor said nothing to Frazier. One night when Marshall came home, Frazier was waiting for her. After talking for about thirty minutes, Frazier moved towards her as if to kiss her. She laughed and told him that she just wanted to be his friend. The next day she asked the supervisor about any company rules regarding employees dating. The supervisor told her there was no such rule.

Sometime later, Frazier approached her again and tried to kiss her. Marshall wrote in her diary that her complaints were getting nowhere but that she was not going to quit Dollar. After working for a couple of months, Marshall got a few days off to visit her mother in Wisconsin. She asked Frazier to switch other days with her so she could be gone longer. Frazier said that he would switch with her in exchange for sex. The supervisor overheard this and told Marshall that he would have a talk with Frazier. Frazier was reprimanded for his conduct and told not to do it again.

While away on vacation, she again called to get an extra day off, but Frazier told her that he was going to get her fired. She assumed he was mad because she got him in trouble with the supervisors. In a continued effort to get more time off, Marshall spoke to another supervisor. When he was reluctant to give her any more time off, she quit and never returned to work. Besides being reprimanded, the facts indicate that Frazier quit Marshall brought this action claiming Dollar allowed on-the-job sexual harassment by a co-worker. She brings these claims under the umbrella of the public policy tort action of Burk v. K-Mart Corp., 770 P.2d 24 (Okla.1989).

his employment with Dollar two weeks after the last incident with Marshall.

II

THE FACTS DO NOT SUPPORT A CLAIM FOR WRONGFUL DISCHARGE UNDER THE BURK PUBLIC POLICY EXCEPTION TO THE TERMINABLE AT-WILL DOCTRINE.

Under Burk, supra, we carved out an exception to the long-standing rule that an employment contract of indefinite duration is terminable by either the employer or the employee at anytime. The terminable at-will doctrine acknowledges that an employer may discharge an employee for good cause, for no cause or for cause morally wrong, without bearing any legal responsibility. The exception recognizes that under certain circumstances the employer has committed a wrong against the employee and society at large when the employee is discharged for doing that which is right or refusing to do that which is wrong. We specifically held:

"... [w]e believe ... an actionable tort claim under Oklahoma law is [presented] where an employee 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." 770 P.2d at 29.

In allowing a public policy exception tort claim, we emphasized that it only applies:

"in a narrow class of cases in which the discharge is contrary to a clear mandate of public policy as articulated by constitutional, statutory or decisional law.... In light of the vague meaning of the term public policy we believe the public policy exception must be tightly circumscribed." 770 P.2d at 28-9.

Marshall contends that the anti-discrimination statutes of Oklahoma, 25 O.S.1991, §§ 1101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1988 and Supp.1992), (Title VII), embody public policies upon which she can base a Burk wrongful discharge claim. We have never before addressed this exact question. In considering Marshall's wrongful discharge claims we must strictly construe the claimed public policy to see if a clear mandate of public policy exists. We find Marshall has not stated a wrongful discharge claim under Burk because she brings this claim based upon her status rather than her conduct. List v. Anchor Paint Mfg. Co., 910 P.2d 1011 (Okla.1996) (discussed infra ).

Marshall asserts she was constructively discharged from her employment by the sexual harassment imposed upon her by Frazier, a co-worker. She points to Wilson v. Hess-Sweitzer & Brant, Inc., 864 P.2d 1279 (Okla.1993), for a definition of the term "constructive discharge". Although we did not actually define the term in Wilson, we found no error in the trial court giving a jury instruction which defined "constructive discharge" as occurring when "an employer deliberately makes or allows the employee's working conditions to become so intolerable that the employee has no choice but to quit." 864 P.2d at 1283. Marshall contends the sexual harassment she suffered while at Dollar made her work environment so intolerable that she had to quit to remove herself from the abuse. ¹

Sexual harassment is a form of gender-based discrimination which can be shown under one of two primary theories: quid pro quo discrimination or hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986) (discussing sexual harassment as a violation of Title VII). Quid pro quo sexual harassment occurs when the employee must submit to unwelcome sexual favors in order to gain some Hostile work environment sexual harassment occurs when conduct at the workplace " 'has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.' " 477 U.S. at 65-66, 106 S.Ct. at 2404-05 (quoting 29 CFR § 1604.11(a)(3) [1985] ). Accord Harris v. Forklift Systems, Inc., 510 U.S. 17, 20-22, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (affirming and explaining Meritor Sav. Bank ). For hostile work environment sexual harassment to be actionable, it must be "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' " Meritor Sav. Bank, 477 U.S. at 67, 106 S.Ct. at 2405.

economic or employment benefit. The employee must give "something for something" hence the Latin title "quid pro quo."

Marshall claims she was exposed to both forms of sexual harassment at her workplace. Her claim for quid pro quo harassment is grounded upon her assertion that in order to get Frazier to switch work days with her she had to agree to have sex with him. We need not address the quid pro quo claim because the sexual harassment did not come from a supervisor or employee with supervisory authority. Rather, the quid pro quo claim was predicated on remarks made by a peer worker, an employee on the same level of responsibility and authority as Marshall. Marshall presents no evidentiary materials showing Frazier had any supervisory control over her or could affect whether she received some economic or employment benefit.

In Highlander v. K.F.C. Nat'l Management Co., 805 F.2d 644, 648 (6th Cir.1986), the court noted that in quid pro quo actions the complaining party must show that "submission to the unwelcome sexual advances of supervisory personnel was an express or implied condition for receiving job benefits or that a tangible job detriment resulted from the employer's failure to submit to the sexual demands of supervisory employees." (Emphasis added). See also Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783 (1st Cir.1990) (quid pro quo harassment occurs "when a supervisor conditions the granting of an economic or other job benefit upon the receipt of sexual favors from a subordinate, or punishes that subordinate for refusing to comply") (Emphasis added); McCallum v. Dept. Of Corrections, 197 Mich.App. 589, 606, 496 N.W.2d 361, 369 (1993) ("Supervisory officials cannot be held liable for [quid pro quo ] sexual harassment by subordinate employees unless the supervisor either encouraged the misconduct or in some way directly participated in it.") (Emphasis added). There is nothing to indicate that the supervisors at Dollar encouraged or participated in Frazier's "something for something" demands. Rather, Frazier was reprimanded by the supervisor for making the remark. Therefore, we find the trial court correctly...