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1979 OK 125
600 P.2d 334
Case Number: 53847
Decided: 09/11/1979
Supreme Court of Oklahoma


Original proceeding for Writ of Prohibition.

¶0 Employer seeks to invoke original jurisdiction to prohibit the District Court, Tulsa County, from entertaining a statutory action under 85 O.S.Supp. 1978 §§ 5 -7 to recover damages for wrongful refusal to retain or rehire an employee. JURISDICTION ASSUMED; WRIT DENIED.

McGivern, Scott & Steichen, Tulsa, for petitioner.

R.K. Pezold, Howard & Rapp, Tulsa, for respondents.

OPALA, Justice:

¶1 Under the provisions of H.B. No. 1353, Ch. 217, O.S.L. 1976, p. 337, 85 O.S.Supp. 1976 §§ 5 -7 an employee refused to be retained or rehired because he/she "has in good faith filed a [compensation] claim" may seek, inter alia, "reasonable damages" resulting from the employer's wrongful discharge. The narrow issue presented in this proceeding is whether the right to damages for the discharge made wrongful by the cited act is redressible in a district court suit or must be litigated as part of the employee's compensation claim. We assume original jurisdiction under Art. 7, § 4 , Okl. Con., to settle this first-impression question and hold that rights created by H.B. No. 1353 are cognizable only in a district court action.

[600 P.2d 335]

¶2 The act under consideration consists of three sections.

¶3 The meaning of the first two sections is not in serious contention. It is the restrictive language of the last section whose effect, we are urged, casts doubt on the district court power to entertain an action for damages, as distinguished from one in which only reinstatement or some similar "equitable" relief

¶4 Several considerations militate against the adoption of employer's argument. While the language of the act is not a model of clarity and precision, its terms appear far more consistent with the legislative intent to create a statutory cause of action cognizable in ordinary courts than with adding an element of recovery to a worker's claim for injury. The liability imposed by § 2 is for "damages". By its long association with the common law that term has acquired a clearly recognizable connotative distinction from "compensation".

¶5 Twice in § 2 the discharge proscribed by § 1 is characterized as a "violation". This term is patently incongruous with a theory of liability applicable to claims for an on-the-job injury. In compensation cases responsibility is imposed without relation to, or ascription of, any wrongful conduct on the part of the employer.

¶6 There is another reason why the statute here being considered must be viewed as creating a right to damages remediable in the district court. The remedy in compensation is statutorily confined to, and made exclusive for, claims of bodily injury or death from an accidental personal injury arising out of and in the course of a worker's employment.

¶7 The language used in H.B. No. 1353 unmistakably makes the worker's remedy in damages collateral rather than incidental to that available in the Workers' Compensation Court.

¶8 We hold that the right to damages for wrongful refusal to retain or reinstate a worker within the meaning of H.B. No. 1353 is litigable only in the district court. We regard the phrase "to restrain violations", which appears in § 3, as sufficiently broad [600 P.2d 337] in the context used to warrant attribution of a meaning that would make its verb synonymous with "to redress". Once the intention of the legislature appears clear from a consideration of its total enactment, language may be altered and new words supplied to give it that meaning which is necessary to effectuate legislative intent. Protest of Chicago R.I. & P. Ry. Co., 137 Okl. 186, 279 P. 319 [1929].

¶9 The District Court, Tulsa County, is not usurping another tribunal's jurisdiction. The writ of prohibition is accordingly

¶10 Denied.

¶11 All Justices concur.


1 The full text of the enactment under consideration, which consists of three (3) sections, is as follows:

"Section 1.

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, instituted or caused to be instituted, in good faith, any proceeding under the provisions of Title 85 of the Oklahoma Statutes, or has testified or is about to testify in any such proceeding. Provided no employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties.

"Section 2.

A person, firm, partnership or corporation who violates any provision of Section 1 of this act shall be liable for reasonable damages suffered by an employee as a result of the violation. An employee discharged in violation of this act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.

"Section 3.

The district courts of the state shall have jurisdiction, for cause shown, to restrain violations of this act."

2 The liability defined is made subject to a proviso which could constitute a material ingredient in the statutory description of the conduct intended to be proscribed. We express no view on the effect of the proviso may have on the allocation of the pleading burden or on the responsibility of the plaintiff to go forward with the evidence. North v. Haskett, 202 Okl. 146, 211 P.2d 279, 282 [1949].

3 Respondent-employee appears to have been reinstated to his former position. His petition seeks recovery of damages only for employer's refusal to reinstate him between March 1, 1977, when he was first declared able to return to work, and June 30, 1977, when he was allowed to resume work for the employer.

4 Now Workers' Compensation Court. 85 O.S.Supp. 1978 § 1.2 .

5 State v. Breckinridge, Okl., 442 P.2d 506, 509 [1968]; Apache Motor Company v. Elliott, Okl., 405 P.2d 705 [1965].

6 10 Coke, 116, 117; Hurt v. Pennsylvania Threshermen & Farmers' Mutual Casualty Ins. Co., 175 Md. 403, 2 A.2d 402, 405-406 [1938]. The term "damages" is so intimately connected with the common-law process of trial that it is only grudgingly conceded to equity jurisprudence in a very narrow class of cases on a restricted basis. Mid-Continent Petroleum Corporation v. Bettis, 180 Okl. 193, 69 P.2d 346, 348 [1937]; Smith v. Stock Yards Loan Co., 186 Okl. 152, 96 P.2d 55, 58 [1939]; Reynolds v. Conner, 190 Okl. 323, 123 P.2d 664, 666 [1942]; Sinclair Oil & Gas Company v. Bishop, Okl., 441 P.2d 436, 448 [1968].

7 23 O.S. 1971 § 3 .

8 85 O.S.Supp. 1978 §§ 3 (6) and 22.

9 85 O.S.Supp. 1978 § 11 expressly imposes liability "without regard to fault as a cause of such injury".

10 Doyle v. Oklahoma Press Pub. Co., 206 Okl. 254, 242 P.2d 155, 158 [1952]; Scott v. Habinck, 192 Iowa 1213, 184 N.W. 817, 818 [1921]. For a brief history of the phrase see Davis v. Passman, ___ U.S. ___, 99 S. Ct. 2264, 60 L. Ed. 2d 846 [1979].

11 85 O.S.Supp. 1978 § 11 ; 85 O.S. 1971 § 12 and 85 O.S.Supp. 1978 § 122 .

12 Employment relationship is the "first pre-requisite" to any award under the Workers' Compensation Act. 85 O.S.Supp. 1978 § 11 ; Hillcrest Hospital v. State Ind. Ct., Okl., 452 P.2d 781 [1969].

13 From our conclusion that § 2 remedy in damages is collateral to that available in compensation, it does not necessarily follow that employer's liability under § 1 is also to be regarded as collateral to, rather than arising out of, obligations imposed by the Workers' Compensation Act. That issue need not be decided here and we reserve it for another day.