Vasquez v. Dillard's, Inc.

Citation381 P.3d 768,2016 OK 89
Decision Date13 September 2016
Docket NumberCase Number: 114810
Parties Jonnie Yvonne Vasquez, Plaintiff/Respondent, v. Dillard's, Inc., QualifiedEmployer, Defendant/Petitioner.
CourtSupreme Court of Oklahoma

G. Calvin Sharpe, Catherine L. Campbell, Amy D. White, PHILLIPS MURRAH P.C., Oklahoma City, Oklahoma, for Defendant/Petitioner, Dillards, Inc.

Jay M. Wallace(pro hac vice), Alana Ackels (pro hac vice), BELL NUNNALY & MARTIN LLP, Dallas, Texas, Rabindranath Ramana, CALVERT LAW FIRM, Oklahoma City, Oklahoma, for Plaintiff/Respondent, Jonnie Yvonne Vasquez

Bob Burke, Oklahoma City, Oklahoma, Patrick R. Wyrick, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma, for the State of Oklahoma

Brandon Burton, Oklahoma City, Oklahoma, Kathleen G. Sumner, Greensboro, NC, Amici Curiae for Academic Experts in support of Respondent Vasquez

Brandon Burton, Oklahoma City, Oklahoma, Daniel M. Dalmat, Daniel M. Rosenthal, JAMES & HOFFMAN, P.C., Washington, D.C., Amici Curiae for National Employment Law Project

Larry Derryberry, Douglas A. Rice, DERRYBERRY & NAIFEH, LLP, Oklahoma City, Oklahoma, Amici Curiae for AIA, PCI and NAMIC in support of Respondent Vasquez


¶ 1 With the constitutionality of the Oklahoma Employee Injury Benefit Act, 85A O.S. Supp. 2014 201–213, squarely before this Court in the instant cause, we determine that we have authority to address the special law issues presented pursuant to the legislative directive contained in 85A O.S. Supp. 2014 213(A)1 and under Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477. The core provision of the Opt Out Act, 85A O.S. Supp. 2015 2032 creates impermissible, unequal, disparate treatment of a select group of injured workers. Therefore, we hold that the Oklahoma Employee Benefit Injury Act, 85A O.S. 2014 201–213, is an unconstitutional special law under the Oklahoma Constitution, art. 2, 59.3


¶ 2 Vasquez, Dillard's employee, injured her neck and shoulder as she lifted shoe boxes while working on September 11, 2014.4 On that date and on September 24th, she filed claims for benefits under Dillard's Opt–Out plan. Dillards denied the claims on October 3 and 10, 2014, respectively. The employee appealed to the Workers' Compensation Commission, filing a Notice of Claim for Compensation on December 5, 2014.

¶ 3 The employer sought removal to federal court on August 6, 2015 on grounds that the federal court had exclusive jurisdiction under the Employee Retirement Income Security Act (ERISA). The United States District Court for the Western District disagreed and remanded the cause to the Commission on September 30, 2015. The Commission heard arguments in the cause in February, issuing an order in the cause on September 26, 2015. It found that the Opt Out Act: 1) constituted an unconstitutional special law;5 2) denied equal protection to Oklahoma's injured workers;6 and 3) denied injured workers the constitutionally protected right of access to courts.7

¶ 4 On March 17, 2016, Dillard's filed a petition for review with this Court. Extensive briefing ensued by the parties, the Attorney General,8 and various amici curiae. The most recent filing in the cause, the employee's Submission of Supplemental Authority, occurred on the afternoon of July 30th. We issue today's opinion in conjunction with the Legislature's directive that appeals alleging constitutional challenges to the Opt Out Act should be expedited9 and in recognition that multiple cases concerning challenges similar to the one presented here have currently been stayed by the Commission.


¶ 5 a. Constitutional issues are properly before this Court pursuant to the legislative mandate of 85A O.S. Supp. 2014 213(A)andRobinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477.

¶ 6 Dillard's assertions that this Court lacks jurisdiction to hear the instant cause are unconvincing. In 213(A) of the Opt Out Act,10 the Legislature directs that whenever the constitutionality of the Act is challenged, the Supreme Court shall11 retain the appeal. Furthermore, we are instructed to expedite review.

¶ 7 We have recently determined in Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477, that the Commission has no authority to determine the facial constitutionality of the Opt Out Act as a special law. Therefore, the Commission's determinations of constitutionality were not authorized as a blanket strike of the Opt Out Act.

¶ 8 The portion of Robinson important to these proceedings is found at 14. It provides that "this Court has a duty to review the constitutionality of a challenged legislative enactment when presented with a justiciable case or controversy...." We are presented with such a cause here.

¶ 9 At issue is a challenge to the constitutionality of the Opt Out Act. Robinson confirms that it is this Court's responsibility to address the issue currently before us. Furthermore, the Legislature has directed us to do so in a timely manner. Therefore, we determine that issues related to the constitutionality of the Opt Out Act are properly before this Court.12 ¶ 10 b. The Opt Out Act is an unconstitutional special law, creating an impermisible select group of employees seeking compensation for work-related injuries for disparate treatment, in violation of art. 5, 59 of the Oklahoma Constitution.

¶ 11 Before addressing the various arguments of the parties, it is helpful to understand the test for determining whether a law violates the special law prohibition of art. 5, 59. Its terms are that:

"Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted."

Statutes facing an art. 5, 59 challenge are considered pursuant to a three-part test to determine constitutional muster. First, is the law special or general? Second, if the law is special in nature, does a general law apply? And, finally, if a general law is not applicable, is the statute a permissible special law?13

¶ 12 The first prong requires us to identify the class. If the statute relates to all persons or things within the class, it is a general law. Where the law singles out less than an entire class of similarly affected persons or things for different treatment, it is a special law. Under the second prong, the question is whether the legislation is susceptible of general treatment or if some special situation makes treatment by a general law impossible. Third, it must be determined whether the special law is so substantially related to a valid legislative objective that it will survive the constitutional challenge.14

¶ 13 The above analysis was posited by this Court in Reynolds v. Porter, 1988 OK 88, 760 P.2d 816. We consider the arguments of the parties, in which many of the concerns of the Attorney General are subsumed, in making our determination as to whether the Opt Out is general or special in nature.

¶ 14. 1) The defined class for special law analysis is made up of injured employees.

¶ 15 Dillard's contends that there is no disparate treatment of the class at issue in the Opt Out Act. It does so by alleging that the relevant stautorily-created class is composed of "all employers" rather than injured employees. Vasquez insists that the class at issue is that of "injured employees." We consider the employer's argument unconvincing and agree with the employee.

¶ 16 The employer relies on Grimes v. City of Oklahoma City, 2002 OK 47, 49 P.3d 719for the propisition that the defined class should be considered to be employers rather than employees. Grimes upheld, against a special law attack, the municipality's right to determine the manner in which to support economically the schools within its corporate limits. In so doing, we recognized that the members of the class were the municipalities, all of which were given the same option.

¶ 17 Grimes is distiguishable on its facts and provides no assistance to the employer's arguments. It did not address any issue related to the workers' compensation scheme or rights among injured employees. Rather, it concerned the authority of municipalities to manage tax revenues in support of select public schools. In determining that no special law was involved and in defining the class at issue, the Grimes court looked to the title of the legislative act, "Municipal support of public school systems." It determined that the title of the act, referring to municipalities, indicated that the class at issue was made up of all municipalities of the state and was general in nature.

¶ 18 Here, the title of the Opt Out Act makes no mention of employers. Rather, the legisation is entitled as the "Employee Injury Benefit Act." Furthermore, the title of the Administrative Act refers to "workers" rather than employers. Just as the title of the act was considered to encompass the identified class in Grimes, it also serves as legislative intent here that the identified class is that of "injured employees."15

¶ 19 2) The Opt Out Act does not guarantee members of the subject class, all employees, the same rights when a work related injury occurs. Rather, it provides employers the authority to single out their injured employees for inequitable treatment.

¶ 20 The employer makes the rather incredible argument that the Opt Out Act provides a baseline of Core Coverage requirement in 203(B) guaranteeing individual injured employees equal treatment. Vasquez relies on the same statutory provision for the proposition that inequitable treatment is specifically allowed. We are convinced by the very language of the statutory provision that the employee's position is viable.

¶ 21 Title 85A O.S. Supp. 2015 203(B)provides:

The benefit plan shall provide for payment of the same forms of benefits included in the Administrative Workers' Compensation Act for temporary total disability, disfigurement, amputation or permanent total loss of use of a...

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