Smith v. PIONEER MASONRY, INC. , 2009 Okla. LEXIS 89 ( 2009 )

REIF, J.

{1 The issue presented on certiorari review is whether an employer with less than fifteen employees can incur Burk tort liability for wrongful termination of an employee based on racial discrimination prohibited by the Oklahoma Anti-Discrimination Act.¹ This issue arose because the trial court dismissed a wrongful termination claim by Jerry Smith against Pioneer Masonry, Inc. Mr. Smith alleged that as a black male, he "was subjected to racially motivated harassment by his employer [that] included 'racial Tuesday' when anyone could use any form of racial slurs toward [him]." Mr. Smith stated that with the management's knowledge, he was constantly subjected to various forms of verbal harassment in the form of racial comments and jokes. After repeated complaints to Pioneer Masonry's owner about this racially motivated harassment, Mr. Smith contended he "was constructively discharged from employment ... because of the Defendant's continued barassment and racially discriminatory conduct and its' [sic] failure to remedy and stop such harassment and conduct."

12 The trial court ruled that the public policy embodied in the Oklahoma Anti-Discrimination Act does not apply to employers, like Pioneer, that have less than fifteen employees.² The Court of Civil Appeals affirmed the dismissal by a 2-1 vote. Both the trial court and Court of Civil Appeals' majority believe that this result was mandated by Brown v. Ford, 1995 OK 101, 905 P.2d 283. Upon certiorari review, we hold the public policy embodied in the Act can be the basis of a wrongful termination claim regardless of the number of employees.

3 In Brown, this Court did find the public policy protection embodied in the Oklahoma Anti-Discrimination Act to be tied to the number of employees. This Court held that "Brown's common law claim would not be actionable as a discharge in breach of public policy [embodied in the Act] because her employer, who engaged fewer than fifteen employees, is outside the Act's purview." Brown, 1995 OK 101, 1 10, 905 P.2d at 229.

114 However, the Brown case concerned a discrimination claim based on workplace sexual harassment that involved offensive touching. The Court in Brown avoided considering a public policy basis to remedy this wrong because it found a remedy was afforded by the existing common law remedy for assault and battery. Id. at ¶ 11, 905 P.2d at 229-80.

15 With regard to public policy, Brown actually falls in the line of cases that place discriminatory acts outside the scope of the public policy Burk tort where the victim has another adequate remedy. See Clinton v. State ex rel. Logan County Election Bd., 2001 OK 52, [Opala, J., ¶¶ 6-7], 29 P.3d 543, 548 (Opala, J., concurring in result but not in the text of the Court's pronouncement). This Court has since abandoned the adequacy of the remedies test in cases of wrongful termination involving status based discrimination, i.e., race, color, religion, sex, national origin, age, and handicap. Shephard v. CompSource Oklahoma, 2009 OK 25, ¶ 11, 209 P.3d 288, 292-93.

1 6 On the issue of public policy, Brown is also inconsistent with the teachings of Tate v. Browning-Ferris, Inc., 1992 OK 72, 833 P.2d 1218. The Tate opinion answered a question that was certified by a federal district court concerning the scope of a Burk tort grounded on racial discrimination. Tate, 1992 OK 72, ¶ 1, 833 P.2d at 1220. This Court found the record in support of the federal court's question to implicitly ask: "Are state-law remedies prescribed by Oklahoma's anti-discrimination statute, 25 0.8.1981 §§ 1101 et seq. [the Act], exclusive for vindication of a racially motivated wrongful or retaliatory discharge?" Id. at ¶ 2, 833 P.2d at 1220 * (footnotes omitted).

T7 This Court answered this question in the negative, stating "[the Act] neither explicitly nor implicitly provides an exclusive remedy for employment-related discrimination." Id. The Court concluded the Act provided "cumulative" remedies. Id. at {[ 11, 888 P.2d at 1226.

8 After discussing the development of the public-policy tort exception to the termination at-will doctrine, the Tate Court turned its attention to deciding "whether racially discriminatory conduct that leads to retaliatory discharge ... is actionable under this exception." Id. at 19, 888 P.2d at 1225. In answering this question, the Court found the Act's declaration of public policy prohibiting discrimination had broader protection than the remedies provided by the Act. The Court observed, "[rlegulation of discrimination lies in many legal domains." Id. at % 17, 833 P.2d at 1229. The Court ruled the Burk tort also provided protection of the Act's public policy prohibiting discrimination.

T9 The Court ultimately concluded the Oklahoma Anti-Discrimination Act posed "no obstacle [in] applying Burk's common-law tort to a racially motivated wrongful or retaliatory discharge." Id. at 119, 833 P.2d at 1230 (footnote omitted). The Court held "the employee who brings a common-law tort action for damages occasioned by either a racially motivated discharge or by one in retaliation for bringing a racial discrimination complaint states a state law claim for tor-tious employment termination under Burk." Id.

T 10 The Court explained that it was necessary to treat the Burk tort as cumulative to the remedies in the Act, because the Act did not afford a private right of action to all victims of discrimination. Id. at 118, 833 P.2d at 1229. The Court said such "a dicko-tomous division of discrimination remedies [is] contrary to Art. 5 § 46 of the Oklahoma Constitution." The Court observed: "For remedial purposels], discrimination victims comprise a single class" and, therefore, the private right of action must be available to all members of this class to avoid constitutional infirmity. Id.

{11 Recently, this Court has reaffirmed the principles from Tate that vietims of employment discrimination comprise a single class and the Burk tort is available to all members of this class. Shirazi v. Childtime Learning Center, Inc., 2009 OK 13, 204 P.3d 75; Kruchowski v. The Weyerhaeuser Company, 2008 OK 105, 202 P.3d 144; and Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037. Even though a vietim of discrimination who works for an employer with less that fifteen employees may be excluded from statutory remedies as recognized in Brown, this victim is nonetheless a member of the general class of employment discrimination victims who enjoy the cumulative, independent remedy of a Burk tort.

112 In conclusion, we hold that one of the primary purposes of Oklahoma's Anti-Discrimination Act is to prohibit racial discrimination in employment and to make such discrimination a legal wrong. This purpose constitutes a general declaration of public policy on this subject. To vindicate violations of this policy, the Act provides statutory remedies in cases where employers have more than fifteen employees, while the common law provides a Burk tort to all victims of racial discrimination regardless of the number of employees. The only limitation on pursuit of a Burk claim in conjunction with other remedies is that the plaintiff cannot receive a double recovery.

T 13 In view of this holding, Brown v. Ford is overruled to the extent it holds the public policy embodied in the Oklahoma Anti-Discrimination Act can only serve as the basis for a Burk tort pursued by an employee whose employer meets the fifteen employee threshold. In reaching this conclusion, we do not disturb Brown's holding that the Legislature may validly excuse "small shops" from statutory remedies. However, this exclusion does not affect the right of employees in "small shops" to pursue the common law remedy of a Burk tort for the discharge based on prohibited discrimination.

114 The trial court erred in dismissing Mr. Smith's suit for failure to state a claim upon which relief can be granted. The trial court's dismissal is reversed and this case is remanded for further proceedings.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; THE DISMISSAL IS REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS.

{15 EDMONDSON, CJ., TAYLOR, V.C.J., KAUGER, WATT, COLBERT, and REIF, JJ., concur. {16 HARGRAVE, OPALA, and WINCHESTER, JJ., coneur in part; dissent in part.

1 . Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24.

2 . The trial court dismissed this case for failure to state a claim upon which relief could be granted. In reaching this conclusion, the trial court considered evidentiary materials showing Pioneer did not have fifieen employees during the time of Mr. Smith's employment. The dismissal was, in effect, a summary judgment. 12 O.S.2001 § 2012(B). On certiorari review, both Mr. Smith's allegations and the uncontroverted evi-dentiary materials are taken as true for this Court's de novo determination of whether the petition is legally sufficient. Indiana Nat'l Bank v. State Dept. of Human Services, 1994 OK 98, 880 P.2d 371.