Large v. Acme Engineering & Manufacturing Corp.

1990 OK 34, 790 P.2d 1086, 1990 Okla. LEXIS 43, 1990 WL 43810
CourtSupreme Court of Oklahoma
DecidedApril 17, 1990
Docket66098
StatusPublished
Cited by17 cases

This text of 1990 OK 34 (Large v. Acme Engineering & Manufacturing Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Large v. Acme Engineering & Manufacturing Corp., 1990 OK 34, 790 P.2d 1086, 1990 Okla. LEXIS 43, 1990 WL 43810 (Okla. 1990).

Opinions

SIMMS, Justice.

Action alleging retaliatory discharge in violation of 85 O.S.1981 § 5, et seq. The-background facts are not in dispute.

Plaintiff/appellant, Michael Large (hereinafter “employee”) at all times relevant to this case was employed as a machinist by defendant/appellee, Acme Engineering and Manufacturing Corporation (hereinafter “employer”). Employee is a member of the Sheet Metal Workers’ International Association AFL/CIO, Local 275. Employee’s job is protected by a collective-bargaining agreement between the Union and employer.

Employee was injured while on the job. He filed a workers’ compensation claim and was found to have suffered a permanent partial disability. The award entered by a judge of the Workers’ Compensation Court was subsequently sustained on appeal to a three-judge Workers’ Compensation Court panel. Employer and employee then settled the matter by employee accepting a cash settlement from employer.

After the settlement was finalized, employer demanded that employee be examined by a new doctor to determine employee’s physical fitness to perform his regular duties. This doctor was not involved in the employee’s original workers’ compensation claim. Contrary to the opinion of doctors treating employee during the time the above claim was heard by the compensation courts, the new doctor determined that employee was physically unable to perform any of his previous duties and that his continued employment as a machinist constituted a health hazard not only to himself, but to others as well.

Allegedly basing its decision on the new medical report, employer notified employee that the employer was exercising its option under the collective-bargaining agreement to transfer employee to other duties. The proposed transfer was to a job not covered and protected by the Union agreement with employer and was at a lower pay rate with no fringe benefits. Upon being notified of the conditions of the proposed transfer, employee refused to agree and filed a grievance through his union representatives. This resulted in .the employer’s second transfer order, for a job at no change of pay or loss in benefits. Again, employee refused, filed the appropriate union grievances and also commenced this action in district court, alleging a retaliatory, “constructive” discharge.

Employer responded to the employee’s trial court petition with a combined motion to dismiss for failure to state a claim for which relief may be granted under 12 O.S. [1088]*1088Supp.1984 § 2012(B)(6) or, in the alternative, for summary judgment. Employer alleged that there had been no termination as recognized under 85 O.S.1981 § 5 et seq., and that the state court lacked subject matter jurisdiction because employee’s cause of action, if any, was pre-empted by Federal Labor law. Employer attached numerous affidavits and exhibits in support of its motion. The trial court sustained employer’s motion for summary judgment making specific findings that: (1) employee had not been discharged within the contemplation of 85 O.S.1981 § 5 et seq., and: (2) the employee’s remedies, if any, were subject to the procedures within the collective bargaining agreement and were, therefore, pre-empted by federal law. Employee now appeals that determination by the trial court.

' We find the determinative question which must be addressed is whether an employee has a cause of action under Oklahoma law for a retaliatory, “constructive” discharge.

A plaintiff must make a prima fa-cie case of retaliatory discharge by providing evidence which shows that the filing of a claim was a significant factor in the employee’s termination from employment. Elzey v. Forrest, Okl., 739 P.2d 999 (1987) (emphasis added). A prima facie case of retaliatory discharge is not made when a plaintiff merely shows that his termination was “somewhat contemporaneous” with the filing of a workers’ compensation claim. Elzey v. Forrest, supra, at 1003. Thompson v. Medley Material Handling Co., Okl, 732 P.2d 461 (1987). For example, Title 85, O.S.1981, § 5, et seq., does not operate to sanction employers who discharge employees for excessive absenteeism even if the absences are caused by compensated injuries. Pierce v. Franklin Electric Co., Okl., 737 P.2d 921 (1987).

The most basic element in making out a prima facie case for retaliatory discharge in Oklahoma is that there must be a discharge from employment. None of our cases construing 85 O.S.1981 § 5 et seq. have recognized these statutes as providing a remedy for a “constructive” discharge. It is significant in this case that the trial court was not presented with facts showing an actual cessation of employment. Here, the most significant thing that can be said about employee’s claim is that employee’s form of employment was to be altered by the proposed transfer in question.

There are jurisdictions which have adopted constructive discharge as a theory of recovery, but they have generally limited its application to the context of a breach of the employment contract context.

Federal courts, for instance, have applied an objective standard when deciding whether a constructive discharge occurs. The courts have said that the employee need not show that the employer subjectively intended to force the employee to resign. Such a discharge is shown when the facts of the case show that “a reasonable person in the employee’s position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.” Watson v. Nationwide Insurance Co., supra, at 361 (citations omitted). Working conditions must be so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign. Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536 (11th Cir.1987) (emphasis added); see also: Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir.1980); Alicea Rosado v. Garcia-Santiago, 562 F.2d 114, 119 (1st Cir.1977).

The federal courts often see constructive discharge allegations in the context of Title VII1 civil rights violations in employment relationships. See: Watson v. Nationwide Insurance Co., 823 F.2d 360 (9th Cir.1987); Garner v. Wal-Mart Stores, Inc., supra. In cases alleging constructive discharge through discriminatory practices, federal courts have stated that the employee/plaintiff “must show some aggravating factors, such as a continuous pattern of discriminatory treatment.” Satterwhite v. Smith, 744 F.2d 1380, 1382 (9th Cir.1984); Clark v. Marsh, 665 F.2d 1168, 1174 (D.C.Cir.1981). [1089]*1089A “single isolated instance” of discrimination has been held as insufficient as a matter of law to support a finding of constructive discharge. Glasgow v. Georgia Pacific Corporation, 103 Wash.2d 401, 693 P.2d 708, 713 (1985); Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir.1982).2

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Large v. Acme Engineering & Manufacturing Corp.
1990 OK 34 (Supreme Court of Oklahoma, 1990)

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Bluebook (online)
1990 OK 34, 790 P.2d 1086, 1990 Okla. LEXIS 43, 1990 WL 43810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/large-v-acme-engineering-manufacturing-corp-okla-1990.