Groce v. Foster , 880 P.2d 902 ( 1994 )

OPALA, Justice.

This certiorari proceeding tenders an issue of first impression — whether, under the limited public-policy exception to the termination-at-will doctrine, first announced in Burk v. K-Mart Corporation,¹ a wrongful discharge action will lie against an employer who fires an employee for the latter’s refusal to dismiss his common-law negligence action against a third party, who was a customer of the employer, for redress of on-the-job injuries. We answer in the affirmative.

I

THE ANATOMY OF LITIGATION

Recovery is sought for tortious discharge from employment in violation of this State’s public policy.² The defendants [appellees] are Midwestern Services, Inc. and its owner, Bob Foster [collectively called Foster or employer]. Their former employee, plaintiff below [appellant], is William Groce [employee or Groce].

Groce, while working for his employer (an oil field service company) at a wellsite, was helping employees of Hydraulic Well Control, Inc. [Hydraulic] hoist a pipe when he suffered bodily harm. According to Groce, Hydraulic employees, while operating a rig, negligently dropped a’ pipe on his foot.

Groce received workers’ compensation benefits from his employer. Later, he brought a third-party claim³ to recover for his work-related injuries against Hydraulic,

which was not only a service contractor at the jobsite, but also his employer’s customer. When Hydraulic informed Foster of his employee’s suit, Foster demanded that Groce dismiss it at once.⁴ Groce refused to do so and was fired immediately; this § 44 suit⁵ for wrongful discharge followed. In support of its dismissal quest below, the employer invoked the “at-will termination rule”.⁶ Although Groce urged at nisi prius the Burk public-policy exception protects him from termination for exercising a legal right,⁷ the trial court dismissed this action for failure to state a claim. The Court of Appeals affirmed that decision. We granted certiorari upon Groce’s petition.⁸

II

THE PUBLIC-POLICY EXCEPTION TO THE AT-WILL EMPLOYMENT DOCTRINE

While Oklahoma jurisprudence has long adhered to and continues to retain the American employment-at-will doctrine,⁹ Burk¹⁰ adopted a narrow tort-based exception. Its scope is limited to a circumscribed class of eases in which the discharge is shown to be contrary to a clear mandate of public policy that is articulated by constitutional, statutory or decisional law.¹¹ In the context of the public-policy¹² exception, the employer is free to advance all of its legitimate interests except those which may collide with the employee’s rights that are explicitly shielded by law.

The Burk exception had been foreshadowed in Hinson v. Cameron,¹³ where we identified five public-policy areas in which wrongful-dismissal claims may be actionable. These are an employee’s discharge for (1) refusal to participate in an illegal activity; (2) performance of an important public obligation; (3) exercise of a legal right or interest; (4) exposure of some wrongdoing by the employer; and (5) performance of an act that public policy would encourage or refusal to do- something that public policy would condemn, when the discharge is coupled with a showing of bad faith, malice or retaliation.¹⁴

Groce urges Art. 2, § 6, OM. Const.,¹⁵ the so-called Open-Court-of-Justice Clause, gives him a constitutional right to forensic redress of his bodily harm against the responsible party and makes wrongful any dismissal for exercising one’s right to bring a § 44 suit for a third party’s negligence.¹⁶ The employer, who counters that Groce has not met his burden to show that a clear mandate of legislative or judicially recognized public policy has been violated, seeks to persuade us that the constitutional command for open access to the courts (a) is directed only to those who administer legal process rather than to private individuals, (b) was framed to provide for equality in the administration of legal process, and (c) creates neither a new private right nor claim. According to the employer, because Groce’s third-party negligence action against Hydraulic is still pending, his denial-of-court-access complaint must fail.¹⁷

These arguments of the parties overlook the full statutory implications of the employer’s conduct which are central to our consideration of the case. In an at-will employment setting the relationship between the employer and employee is contractual or promise-based — express or implied.¹⁸ The employer, to avoid assumed economic detriment to itself, would read into Groce’s employment contract an implied covenant that would preclude the employee from pursuing any claim for bodily harm caused on the job by the tortious acts of an employer’s customer. Rejecting today this notion advanced for the employer’s position, we hold that a discharge in retaliation for the worker’s refusal to abandon his/her § 44 lawsuit against a third party to redress an on-the-job injury impermissibly interferes with the legally protected recovery regime for those who suffer work-connected harm. It is hence in breach of the law’s declared public policy.

Today’s decision does not make actionable a discharge for employee resistance to all forms of employer-practiced economic intimidation. Far from it. What the court must and does condemn as a breach of declared policy is forcing one’s employee to choose between keeping a job or pressing a statutorily protected § claim for legal redress of an on-the-job injury,¹⁹ No matter how economically advantageous this conduct may be to the employer, an employee cannot be compelled, directly or obliquely, to bear the loss of his/her on-the-job harm.²⁰ Having to give up any part of one’s claim, in the face of an employer’s threat of discharge is just as repugnant to the expressed public policy as is being forced into paying or contributing to the employer’s compensation liability insurance premiums.²¹ In both instances it is the employee to whom the cost of on-the-job harm would be impermissibly shifted. That which the law prohibits the employer from exacting contractually may not be secured with impunity through naked intimidation.

Since every employee enjoys explicit legislative protection from discharge for laying claim to compensation against his/her very own employer,²² with what modicum of persuasion may the employer argue today that it is consistent with public policy to fire one who for the same on-the-job harm presses a statutorily authorized § action against a third party²³ — an utter stranger to the traditionally required bond of loyalty between the master and servant? To condition a job on the employee’s abandonment of that legislatively-bestowed benefit is no less a breach of public policy than making employment dependent upon the employee’s willingness to commit perjury.²⁴

Lastly, Foster’s attempt to coerce Groce into withdrawing his claim against Hydraulic [the third party] clearly offends the articulated statutory policy that makes the entire legal recovery regime for a worker’s on-the-job injury subject to the Workers’ Compensation Court’s exclusive jurisdiction over settlements and other agreed dispositions.²⁵ The Workers’ Compensation Act²⁶ explicitly confers upon that court supervisory powers over all agreements reached between the injured employee and either his/her employer or the responsible third party. To countenance an employer’s coercing its employees into relinquishing their claims for redress of work-related harm has the effect of defeating the Workers’ Compensation Court’s supervision of the process and contravenes the stated legislative policy. The employer’s insistence on Groce’s dismissal of his negligence claim is hence in breach of a public policy articulated in 85 O.S.1991 §§ 5-7, 12, UU~k7 and ⅜

III

DISMISSAL UNDER 12 O.S.1991 § 2012(B)(6) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED WAS IMPROPER UNDER THE FACTS PLED BY THE EMPLOYEE.

A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the claimant can prove no set of facts which would entitle it to relief.²⁷ If the facts alleged in Groce’s petition were proved, the termination in question would constitute a tortious discharge within the narrow Burk-announced public-policy exception to the employment-at-will doctrine.

IV

THE FALLACY OF THE DISSENT

A

The mandates of an articulated public policy are drawn from the body of a jurisdiction’s constitutional, statutory, and decisional law.²⁸ The court’s pronouncement today places its reliance on that public policy which is articulated by 85 O.S.1991 §§ 5-7,²⁹ 12, 44-47, and 84. It is divined from these sections considered in combination rather than singly. The impact of all of these provisions compels our recognition of a public policy that is offended by Foster’s retaliatory discharge of Groce for pursuing his legal action to redress an on-the-job injury against a third party, Hydraulic.³⁰

In its attempt to divine Oklahoma public policy, the dissent has ignored the totality of the law considered by the court.³¹ By beginning and ending its analysis with a narrowly-focused discussion of Art. 2, § 6, Okl. Const., the dissent ignores the full panoply of pertinent sources from which Oklahoma public policy must be gleaned.

The dissent would have the court hold the claim non-actionable because of a concern that today’s opinion implicitly holds that Art. 2, § 6, the Open-Court-Of-Justice Clause, applies to private as well as state actions.³² The short answer to this concern is that the court’s analysis reaches beyond the private-versus-public-remedy dichotomy and finds its anchor in clearly declared public policy.

B

The authorities used in the dissent’s analysis demonstrate that the essence of the opinion’s reasoning has been missed. The articulated public policy approved today is that which gives an employee statutory access to courts against a third-party tortfeasor alleged to have occasioned the worker’s on-the-job injury. The dissent would distract from the bull’s-eye by ignoring the full range of legislative sources that support the court’s conclusion.

With the exception of Watson v. Peoples Sec. Life Ins. Co.,³³ the jurisprudence offered by the dissent addresses factual situations where the employer fires the employee for bringing suit against the employer and does not deal with the issue of an employee’s discharge for suing a third party for work-related harm suffered by the employee.³⁴ In Watson an employee sued another employee for sexual harassment. After her employer became aware of the suit, she was fired. She then amended her original complaint to include a cause of action against the employer for her wrongful discharge.³⁵ The dissent stopped too short in its analysis of this case. While the Watson court held that an employer was not liable for discharging its employee in retaliation for being drawn into a harassment suit, the court’s main holding— excluded from the dissent’s discussion — was:

“... that [it] is contrary to a clear mandate of public policy to discharge an employee for seeking legal redress against a co-worker for workplace sexual harassment culminating in assault and battery.” ³⁶

In short, after reviewing relevant statutory provisions, the Maryland court recognized that firing an employee for suing a third party for work-connected delictual harm is actionable as conduct in breach of declared public policy. Here, Groce was not fired for suing his employer but rather for suing a third party believed responsible for the work-related bodily harm.

V

SUMMARY

Dismissal from employment in retaliation for an employee’s refusal to bear that part of the worker’s on-the-job harm for which the law authorizes him to recover from a third party is in breach of a clearly articulated public policy. That policy broadly protects workers against all employer-coerced abridgement or relinquishment of their statutory right to full legal redress of work-related injuries.³⁷ Where as a condition of continued employment, express or implied, an employee is expected to give up a statutorily-protected benefit for work-related harm, the provision is null and void.

If Foster punished Groce for doing what the law explicitly authorized him to do — i.e., bringing a § 44 action against a third party for an on-the-job injury — Groce’s discharge was a clear case of retaliation for exercising a statutory right. The employer’s conduct, from which relief is sought, would fall within the narrow Burk exception to the employment-at-will rule. It was error to dismiss the worker’s claim for wrongful discharge.

ON CERTIORARI PREVIOUSLY GRANTED, THE COURT OF APPEALS’ OPINION IS VACATED; THE TRIAL COURT’S DISMISSAL ORDER IS REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS PRONOUNCEMENT.

HODGES, C.J., and ALMA WILSON, KAUGER and WATT, JJ., concur. LAVENDER, V.C.J., and SIMMS, HARGRAVE and SUMMERS, JJ., dissent.

1 . Okl., 770 P.2d 24, 28 (1989). See Sargent v. Central Nat. Bank & Trust Co., Okl., 809 P.2d 1298, 1300 (1991); Todd v. Frank’s Tong Service, Inc., Okl., 784 P.2d 47, 50 (1990).

2 . Burk, supra note 1 at 28.

3 . An exception to workers' compensation exclusivity provisions permits an injured worker to bring an action against another employer on the same job. 85 O.S.1981 § 12. The pertinent terms of § 12 are:

“The immunity created by the provisions of this section shall not extend to action by an employee ... against another employer ... on the same job as the injured ... worker ... even though such other employer may be considered as standing in the position of a special master of a loaned servant where such special master neither is the immediate employer of the injured ... worker nor stands in the position of an intermediate or principal employer to the immediate employer of the injured ... worker....” [Emphasis supplied.]

See also the provisions of 85 O.S.1991 § 44 which regulate the procedure that governs claims against third parties.

4 . Groce urged below that the employer threatened to "blackball” him. He withdrew that allegation on appeal.

5 . See infra note 25 for the pertinent terms of 85 O.S.1991 § 44.

6 . Generally, an employment contract for an indefinite term may be terminated without contractual liability at the will of either party. Hinson v. Cameron, Okl., 742 P.2d 549, 552 (1987).

7 . Burk, supra note 1 at 28.

8 . The Court of Appeals' decision was handed down on January 19, 1993; a timely certiorari petition came on February 2, 1993.

9 . See Hinson, supra note 6 at 552; Singh v. Cities Service Oil Company, Okl., 554 P.2d 1367 (1976); Foster v. Atlas Life Ins. Co., 154 Okl. 30, 6 P.2d 805 (1932).

The “at-will” doctrine is a departure from the English common law. The latter tradition presumed a hiring for one year. L. Larson & P. Borowsky, Unjust Dismissal, § 2.04 at 2-6 (1989). In the late nineteenth century, courts in the United States began to discard the English formulation and to develop an "American rule”. See Feinman, The Development of the Employment at Will Rule, 20 Am.J.L.Hist. 118, 122-23 (1976). The crystallization of an American rule is attributed to Horace Gray Wood, whose 1877 treatise on employment relations (Master and Servant, § 134 at 272) states:

"With us, the rule is inflexible that a general or indefinite hiring is prima facie a hiring at will, and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof. A hiring at so much a day, week, month or year, no time being specified, is an indefinite hiring * * * and is determinable at the will of either party * * *.”

Under this doctrine employers were able to "dismiss their employee[s] at will, be they many or few, for good cause or no cause, or even for cause morally wrong, without thereby being guilty of legal wrong.” (Emphasis added.) Payne v. Western A.R.R. Co., 81 Tenn. 507, 519, 520 (1884), overruled in part by Hutton v. Watters, 132 Tenn. 527, 179 S.W. 134 (1915).

10 . Burk, supra note 1 at 28. See Sargent, supra note 1 at 1300; Todd, supra note 1 at 50.

11 . Burk, supra note 1 at 28.

12 . The determination of public policy is generally a question of law. Pearson v. Hope Lumber & Supply Co., Inc., Okl., 820 P.2d 443, 444 (1991).

13 . Hinson, supra note 6 at 552-553.

14 . Hinson, supra note 6 at 552-553. See Tate v. Browning-Ferris, Inc., Okl., 833 P.2d 1218, 1224-1225 n. 24 (1992); see also Vannerson v. Bd. of Regents of U. of Okl., Okl., 784 P.2d 1053, 1054-1055 (1989).

15 . Art. 2, § 6, Okl. Const., provides in pertinent part:

"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation....” [Emphasis supplied.]

16 . Groce points to Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057 (5th Cir.1981), where an employee was terminated for bringing a personal injury § 44 suit against his employer under the Jones Act, 46 U.S.C. § 688. The court found the termination wrongful as a violation of public policy clearly articulated in the federal statute.

17 . The employer points to some jurisdictions which have failed either to (a) recognize a public-policy exception to the "at-will employment" doctrine or (b) find that an Open-Court-of-Justice Clause creates a private claim for wrongful termination or guarantees redress for every wrong. See DeMarco v. Publix Super Markets, Inc., 384 So.2d 1253 (Fla.1980); Kavanagh v. KLM Royal Dutch Airlines, 566 F.Supp. 242 (N.D.Ill.1983); Simpson v. Kilcher, 749 S.W.2d 386, 389 (Mo.1988). See also Meech v. Hillhaven West, Inc., 238 Mont. 21, 776 P.2d 488, 491 (1989); McCloskey v. Eagleton, 789 S.W.2d 518 (Mo.App.1990).

18 . See Burk, supra note 1 at 28; Missouri, K. & T. Ry. Co. v. West, 38 Okl. 581, 134 P. 655, 658 (1913), appeal dismissed, 232 Ú.S. 682, 34 S.Ct. 471, 58 L.Ed. 795 (1914). .

19 . See 85 O.S.1991 § 45. Its terms are:

“No benefits, savings or insurance of the injured employee, independent of the provisions of this act shall be considered in determining the compensation or benefit to be paid under this act.” [Emphasis added.]

20 . See 85 O.S.1991 § 47. Its terms provide:

"No agreement by an employee to waive his right to compensation under this act [Workers' Compensation Act] shall be valid."

21 . See 85 O.S.1991 § 46. Its terms are:

"No agreement by any employee to pay any portion of the premium paid by his employer to the cost of mutual insurance or other insurance, maintained for or carried for the purpose of providing compensation as herein required, shall be valid, and any employer who makes a deduction for such purpose from the wages or salary of any employee entitled to the benefits of this act shall be guilty of a misdemeanor.”

See Parkhill Truck Co. v. Brewer, Okl., 354 P.2d 774, 776-77 (1960); Welty v. Martinaire of Oklahoma, Inc., Okl., 867 P.2d 1273, 1274-76 (1994) (condemning an employer for shifting to the employee liability for payment of any part of the workers’ compensation insurance premium).

22 . 85 O.S.1991 §§ 5-7. The pertinent terms of § 5 state:

"No person, firm, partnership or corporation may discharge any employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim....’’ [Emphasis added.]

23 . 85 O.S.1991 §§ 12 and 44.

24 . See Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959).

25 . See 85 O.S.1991 §§ 44 and 84. See also Oklahoma Gas & Electric Co. v. Kiblinger, 167 Okl. 48, 28 P.2d 9, 11 (1933). The pertinent terms of § 44 provide that "[t]he compromise of any such cause of action by the worker at any amount less that the compensation provided for by the Workers’ Compensation Act shall be made only with the written approval of the [Workers’ Compensation] Court.” [Emphasis added.]

26 . 85 O.S.1991 §§ 1 et seq.

27 . Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Atchison, Topeka, and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 569, 107 S.Ct. 1410, 1417 n. 15, 94 L.Ed.2d 563 (1987); Frazier v. Bryan Memorial Hosp. Authority, Okl., 775 P.2d 281, 287 (1989). See also comments in Buckner v. General Motors Corp., Okl., 760 P.2d 803, 812 (1988).

28 . Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982). See Hinson, supra note 5 at 552-553; Petermann, supra note 24 at 27.

29 . For the pertinent terms of 85 O.S.1991 §§ 5-7, see supra note 21.

30 . Today's opinion does not countenance, directly or indirectly, an implied right of action ex delicto for a private employer’s breach of the Art. 2, § 6 mandate. For the pertinent terms of Art 2, § 6 see supra note 15.

31 . The dissent ignores an employee's statutory right to redress an on-the-job injury that was occasioned by a third party. This claim is explicitly recognized by 85 O.S.1991 §§ 12 and 44 — 47.

32 . See supra note 30.

33 . 322 Md. 467, 588 A.2d 760 (1991).

34 . The dissent relies upon DeMarco v. Publix Super Markets, 384 So.2d 1253 (Fla.1980) (employee discharged after bringing suit for injury to his minor daughter occurring when she was shopping with her mother); Deiters v. Home Depot U.S.A., Inc., 842 F.Supp. 1023 (M.D.Tenn.1993) (employee fired after appealing decision of court in prior wrongful discharge action in favor of employer); Kavanagh v. KLM Royal Dutch Airlines, 566 F.Supp. 242 (E.D.Ill.1983) (employee discharged after retaining counsel to represent him in suit against employer for unpaid wages); Meech v. Hillhaven West, Inc., 238 Mont. 21, 776 P.2d 488 (1989) (addressed certified questions regarding interpretation of the Montana Wrongful Discharge from Employment Act); McCloskey v. Eagleton, 789 S.W.2d 518 (Mo.App.1990) (employee/attomey sued employer after being discharged for filing a suit without employer’s approval); Wagner v. General Elec. Co., 760 F.Supp. 1146 (E.D.Pa.1991) (employee discharged after complaining about employer’s products to third parties); Whitman v. Schlumberger Ltd., 793 F.Supp. 228 (N.D.Cal.1992) (discharge after employee gave notice of intent to sue employer for unpaid compensation); Beam v. IPCO, 838 F.2d 242 (7th Cir.1988) (employee sued employer for discharge after employee sought the advice of counsel about work-related events); Smith v. Neyer, Tiseo & Hindo, Ltd., 1993 WL 57653 (E.D.Pa.1993) (discharge after employee sued employer for unpaid compensation); Becket v. Welton Becket & Assoc., 39 Cal.App.3d 815, 114 Cal.Rptr. 531 (1974) (son fired after bringing suit against employer on behalf of his father’s estate); Abrams v. Bchlin Corp., 174 Ill.App.3d 434, 123 Ill.Dec. 884, 528 N.E.2d 429 (1 Dist.1988) (employee discharged after threatening suit to collect unpaid commissions); Buysse v. Paine, Webber, Jackson & Curtis, Inc., 623 F.2d 1244 (8th Cir.1980) (discharge after employee sued employer for unpaid compensation); Meredith v. C.E. Walther, Inc., 422 So.2d 761 (Ala.1982) (employee fired after testifying on behalf of an employees’ trust and later becoming a plaintiff in the same suit); Daniel v. Magma Copper Co., 127 Ariz. 320, 620 P.2d 699 (App.1980) (employee discharged after threatening to sue employer for medical malpractice occurring at a company-owned hospital). These authorities simply do not address an employee's dismissal because he/she exercised a statutory right to access the courts to seek legal redress for work-related injuries against a party other than the employer.

35 . Maryland recognizes a cause of action for abusive discharge when the employer’s motivation for termination of employment contravenes a clear mandate of public policy. Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464, 473 (1981).

36 . Watson, supra note 33 at 766.

37 . This public policy is clearly divinable from the cluster of provisions in 85 O.S.1991 §§ 5-7, 12, 44, 45-47 and 84. For the pertinent terms of these statutory sections, see supra notes 3, 18, 19, 20, 21 and 25.