Saint v. Data Exchange, Inc., 102,084.

• Decision Date: 11 July 2006
• Docket Number: No. 102,084.,102,084.
• Citation: 2006 OK 59,145 P.3d 1037
• Parties: Carol SAINT, Plaintiff/Petitioner, v. DATA EXCHANGE, INC., Defendant/Respondent.
• Court: Oklahoma Supreme Court

Page 1037

145 P.3d 1037

2006 OK 59

Carol SAINT, Plaintiff/Petitioner, v. DATA EXCHANGE, INC., Defendant/Respondent.

No. 102,084.

Supreme Court of Oklahoma.

July 11, 2006.

Rehearing Denied September 18, 2006.

Certified Question of Law from the United States District Court for the Northern District of Oklahoma.

¶ 0 The United States District Court for the Northern District of Oklahoma, certified one question of Oklahoma law under the Revised Uniform Certification of Question of Law Act, 20 O.S.2001 §§ 1601, et seq. The Federal Court asks:

Is there either an implied statutory remedy or a common-law Burk tort remedy for state age discrimination claims arising under the operation of the Oklahoma Constitution, Art. 5 § 46 and the provisions of the Oklahoma Anti-discrimination Act, 25 O.S. §§ 1101, et seq. and § 1901?

We answer in the affirmative.

CERTIFIED QUESTION ANSWERED.

Mark Hammons, Kelly J. Walker, Hammons, Gowens & Associates, Inc., Oklahoma City, OK, for Plaintiff/Petitioner.

Paul G. Summars, Oklahoma City, OK, for Defendant/Respondent.

HARGRAVE, J.

¶ 1 The United States District Court of the Northern District of Oklahoma, certified one question of Oklahoma law under the Revised Uniform Certification of Question of Law Act, 20 O.S.2001 §§ 1601, et seq. The Federal Court asks:

Is there either an implied statutory remedy or a common-law Burk tort remedy for state age discrimination claims arising under the operation of the Oklahoma Constitution, Art. 5 § 46 and the provisions of the Oklahoma Anti-discrimination Act, 25 O.S. §§ 1101, et seq. and § 1901?

We answer in the affirmative.

¶ 2 Carol Saint, age 58, brought a claim of age discrimination in Federal Court asserting that she was terminated from her job because of her age. She has asserted claims under both the federal age discrimination statute (ADEA 29 U.S.C. §§ 621 et seq.) and Oklahoma's public policy against age discrimination as embodied by the Oklahoma Anti-discrimination Act, 25 O.S. §§ 1101, et seq. The Defendant moved to dismiss the state law claims. Ms. Saint asserts that the Oklahoma Statute creates a unified class of persons who are the victims of handicap, race, gender or age discrimination therefore requiring equal remedies for all of those persons under Art. 5 § 46¹. Ms. Saint asserts that the remedy provided for victims of age discrimination under the state and federal statutes is less generous than the remedy provided for victims of handicap discrimination under 25 O.S.1901² and therefore the ADEA does not provide a Constitutionally adequate remedy. The Defendant asserts that the ADEA remedy is adequate and therefore, that no state remedy should be implied.

¶ 3 This self-same question has previously been addressed by this Court in the areas of race discrimination and sexual harassment. In both of those cases we found that a common-law Burk tort remedy was available to plaintiff as such violations create dichotomous division of members of the same class, which offends the § 46 mandated norms of uniformity, symmetry and evenhanded treatment.

¶ 4 In Collier v. Insignia Financial Group, 1999 OK 49, ¶ 14, 981 P.2d 321, 326, this Court found that victims of sexual harassment were members of the same class as victims of handicap discrimination. The majority in that case further held that:

The Burk tort gives the discharged victim a private cause of action for quid pro quo sexual harassment comparable to that statutorily accorded to victims of handicap discrimination. Hence, our adopted construction of the Act—i.e., that it does not provide the exclusive remedy for quid pro quo sexual harassment, which culminates in wrongful discharge—voids the pitfalls of according asymmetrical remedies to members of a single class of employment-discrimination victims.

In summarizing its holding, this Court further stated that if the Oklahoma Anti-Discrimination Act had afforded the victims of sexual harassment the same remedies as given to handicap-discrimination victims, the Burk tort would not be available. 1999 OK 49, ¶ 15, 981 P.2d 321, 326, 327.

¶ 5 In Tate v. Browning-Ferris, Inc., 1992 OK 72, 833 P.2d 1218, this Court addressed the same issue in a race discrimination case. This Court held:

When a statute is susceptible to more than one construction, it must be given that interpretation which frees it from constitutional doubt rather than one that would make it fraught with fundamental-law infirmities. 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,...