Tate v. Browning-Ferris, Inc.

• Decision Date: 19 May 1992
• Docket Number: BROWNING-FERRI,INC,No. 74863,74863
• Citation: 1992 OK 72,833 P.2d 1218
• Parties: , 123 Lab.Cas. P 57,152, 7 IER Cases 737, 21 A.L.R.5th 831, 1992 OK 72 Walter E. TATE, Plaintiff, v., a foreign corporation, Defendant.
• Court: Oklahoma Supreme Court

Page 1218

833 P.2d 1218

60 USLW 2754, 123 Lab.Cas. P 57,152,

7 IER Cases 737,

21 A.L.R.5th 831, 1992 OK 72

Walter E. TATE, Plaintiff, v. BROWNING-FERRIS, INC., a foreign corporation, Defendant.

No. 74863.

Supreme Court of Oklahoma.

May 19, 1992.

As Corrected May 22, 1992.

Certified Question from a United States Court

A discharged black employee, who sued a former employer under Title VII for employment-related discrimination and retaliatory discharge, also brought a pendent state-law claim for wrongful discharge. The United States District Court for the Western District of Oklahoma certified for this court's answer a question of state law on which there is no controlling Oklahoma precedent.

CERTIFIED QUESTION ANSWERED.

Frederick W. Southern, Jr., Oklahoma City, for plaintiff.

Mona S. Lambird, Marcia A. Rupert and R. Brown Wallace, Andrews, Davis, Legg, Bixler, Milsten & Price, Oklahoma City, for defendant.

OPALA, Chief Justice.

Pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1981 §§ 1601 et seq., the United States District Court for the Western District of Oklahoma certified for this court's answer the following question:

"Where an at-will employee terminated by a private employer files suit alleging facts that, if true, violate state and federal statutes providing remedies for employment discrimination, can the employee-plaintiff state a tort cause of action based on the same facts, pursuant to the public policy exception to the at-will termination rule, recently recognized by the Oklahoma Supreme Court in Burk v. K-Mart, 770 P.2d 24 (Okla.1989)?" ¹

We answer this question in the affirmative, noting that the federal statute violated does not preempt state law and holding that the applicable state statute neither explicitly nor implicitly provides an exclusive remedy for employment-related discrimination. Federal trial court judges sitting in this state are divided on whether a plaintiff may assert a pendent ² Oklahoma common-law tort claim for employment discrimination or must instead rely exclusively on our regime of statute-based regulatory remedies. ³ For a complete answer we must address a question expressly tendered in the parties' briefs and fairly comprised in the plaintiff's federal-court complaint allegations, although not explicitly posed: Are state-law remedies prescribed by Oklahoma's anti-discrimination statute, 25 O.S.1981 §§ 1101 et seq. [the Act], ⁴ exclusive for vindication of a racially motivated wrongful or retaliatory discharge? ⁵ We answer this question in the negative.

I. THE ANATOMY OF LITIGATION

Walter E. Tate (employee), a black male, filed two racial discrimination grievances with the Equal Employment Opportunity Commission (EEOC). The employee charged his employer, Browning-Ferris, Inc. (BFI) with (1) discrimination against black males and (2) a racially motivated wrongful discharge in retaliation for his initial EEOC complaint.

When the EEOC failed to resolve the dispute, the employee sued in federal court under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000e et seq. He sought reinstatement with back pay ⁶ or alternatively, front pay ⁷ and attorney's fees. Based upon the same facts the employee-plaintiff also pressed a pendent state-law tort claim for compensatory and punitive damages. BFI sought the tort claim's dismissal, contending the terms of the Act ⁸ provide a different and exclusive state-law remedy for racially motivated employment discrimination and retaliatory discharge. Before BFI's quest for dismissal was decided, the court certified for our answer the question now under consideration. ⁹

The plaintiff contends he was wrongly demoted and his job given to a less qualified white person. He urges that when he reported this violation to the EEOC, his employer harassed him and then discharged him. He invokes the common law of the state to recover compensatory and punitive damages for racially discriminatory and retaliatory treatment. ¹⁰

II. TITLE VII DOES NOT PREEMPT STATE LAW

Although neither party contends federal law preempts this state's employment discrimination laws, ¹¹ resolution of this issue is a critical prerequisite for the certified question's consideration. The plaintiff brings his federal claims under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000e et seq. That act provides in two separate sections that state laws will be preempted only if they actually conflict with federal law. ¹² The United States Supreme Court has interpreted these provisions as explicit disclaimers of any federal intent categorically to preempt state law or to "occupy the field" of employment discrimination. ¹³ The Nation's highest court describes Title VII as a floor beneath which federally provided protection may not drop rather than a ceiling above which it may not rise. ¹⁴ In short, states' remedies for relief from employment discrimination and for the compensation of its victims may be both different from and broader than those provided by Title VII. ¹⁵

BFI contends a common-law-based state tort remedy does not lie because the terms of the Oklahoma Act ¹⁶ (1) declare a racially discriminatory discharge to be against public policy, (2) prohibit the offensive conduct charged here and (3) provide a regulatory remedy through the Oklahoma Human Rights Commission [the Commission]. ¹⁷ The employer fears that if a tort action were allowed, employees would circumvent the statute, reaching for the more generous ex delicto remedy. Defendant directs our attention to a case from another state that confines the abusive-discharge tort to acts violative of a clear public-policy mandate which would otherwise go unvindicated by any civil remedy. ¹⁸ BFI urges us to restrict the Burk doctrine to classic "whistleblower" claims. ¹⁹

The employee contends Title VII's administrative procedures for investigation, conference, conciliation and persuasion have failed. He urges that statute-based state-law regulatory remedies are not only inadequate to make him whole; they do not succeed in deterring discriminatory practices. He argues the Oklahoma statutory remedies are neither preemptive nor exclusive of the common-law tort regime. The employee directs our attention to other states' jurisprudence which holds that tort remedies supplement employment discrimination statutes. ²⁰ According to the employee, his only recourse now is through the courts, where under the common-law tort theory recognized in Burk, the employer may be required to respond in damages for racially motivated discrimination and retaliatory discharge. The correctness of the plaintiff's assessment depends not only upon whether he has a common-law Burk claim but also upon the degree of permissible interaction of Oklahoma's common-law system with the applicable statutory regime of remedies. ²¹

III. THE PUBLIC-POLICY EXCEPTION TO THE TERMINATION-AT-WILL RULE

This court declined in Hinson v. Cameron ²² to impose upon an employer the legal duty not to terminate an at-will employee in bad faith. ²³ We noted some nationally recognized departure from yesteryear's strict termination-at-will doctrine. The recent jurisprudence rests on three distinct theories: (a) public-policy tort, (b) tortious breach of an implied covenant of good faith and fair dealing and (c) implied contract that restricts the employer's power to discharge. We rejected the good-faith-and-fair-dealing notion for every employment contract. ²⁴ We later recognized in Burk the need to "accommodate the competing interests of society, the employee and the employer." ²⁵ There we adopted the public-policy tort exception to the termination-at-will doctrine, forging narrowly its parameters for cases where the discharge violates public policy mandated by clearly articulated constitutional, statutory or decisional law. ²⁶ Confident that the public-policy exception "serves the cause of equity as well as [that of] the market place," ²⁷ we held in Burk that termination of an at-will employee, which contravenes a clear mandate of public policy is a tortious breach of contractual obligations, compensable in damages. ²⁸ Since Burk the public-policy exception has been applied in a number of cases. ²⁹ Still undecided is whether racially discriminatory conduct that leads to a retaliatory discharge upon an employee's complaint is actionable under this exception.

As there can be no doubt at this point in time that racial discrimination in the workplace clearly contravenes the public policy declared by the Act, ³⁰ we give today a categorically affirmative answer to the question whether a racially motivated discharge or one in retaliation for filing a racial discrimination complaint offends a clear mandate of "public policy" that comes within the protection of Burk. What remains to be determined is the effect of Oklahoma's anti-discrimination remedies' regime on the viability of the common-law Burk claim.

IV. EXCEPT AS ALTERED BY OUR CONSTITUTION AND STATUTES, THE COMMON LAW REMAINS IN FULL FORCE

By statutory mandate the common law remains in full force in this state, unless a statute explicitly provides to the contrary. ³¹ Oklahoma law does not permit legislative abrogation of the common law by implication; ³² rather, its alteration must be clearly and plainly expressed. ³³ An intent to change the common law will not be presumed from an ambiguous, doubtful or inconclusive text. ³⁴ A presumption favors the preservation of common-law rights. ³⁵ Where the common law gives a remedy, and another is provided by statute, the latter is merely cumulative, unless the statute declares it to be exclusive. ³⁶

Extensive amendments and additions were made in 1990 to Oklahoma's anti-discrimination statute. ³⁷ It is inconsequential that the Act was initially passed before the public-policy tort exception came to be crafted in Burk. ³⁸ The common law forms "a dynamic and growing" body of rules that change with the...