Pierce v. Franklin Elec. Co.

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Pierce v. Franklin Elec. Co.
1987 OK 34
737 P.2d 921
58 OBJ 1243
Case Number: 66982
Decided: 05/05/1987
Supreme Court of Oklahoma


Certified Question from a Federal Court.

¶0 Action by employee against his former employer for retaliatory discharge from at-will employment in violation of Oklahoma Workers' Compensation Act, 85 O.S. 1981 §§ 5-7 and 14 . The United States District Court for the Eastern District of Oklahoma, Frank Seay, Judge, certified a question of law upon which there is no controlling Oklahoma precedent. Jurisdiction assumed and CERTIFIED QUESTION ANSWERED.

Walter Jenny, Jr., Messrs. Babb, Nash & Christensen, Inc., Oklahoma City, for plaintiff.

John F. McCormick, Jr., Randall G. Vaughan, Messrs. Pray, Walker, Jackson, Williamson & Marlar, Tulsa, for defendant.

OPALA, Justice.

[737 P.2d 922]

¶1 The United States District Court for the Eastern District of Oklahoma certified to this court the following question to be answered pursuant to the Uniform Certification of Questions of Law Act, 20 O.S. 1981 §§ 1601-1612 : Under 85 O.S. 1981 §§ 5-7 [ 85-5-7] and , may an employer lawfully terminate the employment of a worker's compensation claimant while he is on temporary total disability leave of absence for the sole reason that he is not physically able to return to work at that time?

¶2 We answer this question in the affirmative and hold that an employer who terminates an at-will employee for the sole reason that he is "physically unable to perform" his job duties does not commit the statutory tort created in 85 O.S. 1981 §§ 5-7 , by the terms of which liability is imposable for a retaliatory discharge of a workers' compensation claimant.


¶3 The plaintiff, James L. Pierce, was employed by the defendant corporation, Franklin Electric Company [Franklin]. After suffering a job-related injury, Pierce required an extended absence from work and claimed workers' compensation [737 P.2d 923] benefits. Franklin terminated Pierce's employment during his absence at a time when, according to a later finding of the Oklahoma Workers' Compensation Court, Pierce was temporarily totally disabled. Pierce sued in federal court alleging that Franklin wrongfully discharged him in violation of the Oklahoma Workers' Compensation Act [the Act], citing 85 O.S. 1981 §§ 5-7 and 14 . Franklin sought summary judgment submitting that its personnel policy, which limited the duration of medical leaves of absence, mandated Pierce's discharge and that its conduct was statutorily protected.


¶4 The parties in this case seek an absolute rule of law to govern employment policies and practices. The employee complains that discharging a worker who is recovering from a job-related injury violates the public policy of Oklahoma as expressed in the act and in decisions of this court. In his view, Oklahoma laws designed to protect injured employees require a rule that bars termination of a temporarily disabled employee because he is absent from work. The employer argues that an employee who is unable to work is not protected from retaliatory discharge under the Act. We examine the statute that defines the proscribed conduct and conclude that neither view is correct.

¶5 The basis for Pierce's wrongful discharge claim is 85 O.S. 1981 § 5 .

¶7 Sections 5-7 of the Act created a cause of action in tort that limits the employer's common-law right to terminate an at-will employee.

¶8 The employee argues that protecting his employment during a compensated medical absence furthers the purpose of the Act and Oklahoma public policy. Pierce relies on Iwunoh v. Maremont Corp.

¶9 The court has previously stated that, although the statutory tort is codified under Title 85 which deals with workers' compensation, the compiler's arrangement does not necessarily have interpretive significance.

¶10 The statutory tort protects at-will employment from certain retaliatory terminations. The statute imposes liability on employers who engage in offensive conduct that undermines the functioning of the workers' compensation scheme. This remedial purpose justifies a limited intrusion into the employment relationship.

¶11 On the other hand, the compensation benefits provided by the Act protect workers. The principle underlying the system is insurance. An employer is responsible for bodily injuries suffered by his employees in the course of their employment regardless of fault or any wrongful conduct by him.

¶13 The statutory norm does not call for some affirmative action by the employer.

¶14 In this case, the employer alleges a personnel policy that excused medical leaves of absence but provided a maximum absence of one year. If a disabled employee's absence was excessive and violative of the employer's nondiscriminatory rule, neutral application of the policy would require the employee's termination. Whether a workers' compensation claim was the reason for his subsequent discharge would be a factual issue. For example, the employer's alleged reason might be a pretext or one of multiple reasons.

[737 P.2d ]

¶15 The text of the statute provides additional support for 925concluding that disabled workers are not absolutely protected by expressing a limitation in retaliatory discharge cases. The final sentence of § 5 provides that an employer shall not be required to rehire or retain an employee who is physically unable to perform his job duties.

¶16 We do not hold today that an employer may discharge a disabled employee with impunity. A totally disabled employee is by definition "physically unable to perform" his job

¶18 WILSON and KAUGER, JJ., concur in result.

¶19 DOOLIN, C.J., dissents.


1 The terms of 85 O.S. 1981 § 5 provide:

"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." [Emphasis supplied.]

Subsequent sections of the Act impose liability on an employer who violates § 5 by providing injured employees with legal and equitable remedies and a means of enforcement. See 85 O.S. 1981 §§ 6-7 .

2 Okl., 697 P.2d 519, 523-524 [1985].

3 Thompson v. Medley Material Handling, Inc., Okl., 732 P.2d 461, 463 [1987].

4 Oklahoma case law continues to recognize that an at-will employee is subject to termination for any cause or without cause. Wickham v. Belveal, Okl., 386 P.2d 315, 317 [1963]. In WRG Const. Co. v. Hoebel, Okl., 600 P.2d 334 [1979], we held that §§ 5-7 created a statutory tort litigable in the district courts.

5 Okl., 692 P.2d 548, 550 [1985].

6 WRG Const. Co. v. Hoebel, supra note 4 at 336.

7 WRG Const. Co. v. Hoebel, supra note 4 at 335.

8 See 85 O.S. 1981 § 11 .

9 See 85 O.S. 1981 §§ 14 , 22.

10 See 85 O.S. 1981 § 16 .

11 Cf. Wis. Stat. Ann. § 102.35(3) [West 1986] (employers are expressly required to rehire injured employees where suitable employment is available).

12 See Thompson v. Medley Material Handling, Inc., supra note 3 at 463.

13 For the full text of § 5, see supra note 1.

14 One might interpret the proviso of § 5 as limiting the reinstatement remedy rather than the statute's scope. We express no opinion concerning the effect of the proviso but merely note that the statute does not provide a remedy in all cases.

15 The Act defines "permanent total disability" in 85 O.S.Supp. 1986 § 3 (12). "Temporary total disability" also expresses a compensation status. See 85 O.S.Supp. 1986 § 22 (2).

16 Some statutes expressly exclude permanently disabled workers from the protection afforded by the prohibition against a retaliatory discharge. See, e.g., N.C. Gen. Stat. § 97-6.1(e) [1985]. We express no opinion concerning the applicability of Oklahoma's protective statute to such situations.

17 Although research yields no statutes with comparable language, the overwhelming majority of courts in other jurisdictions hold that an injured worker may be terminated for absenteeism unless he proves the employer's retaliatory motive. See e.g. Dickens v. Tidewater Stevedoring Corp., 656 F.2d 74 [4th Cir. 1981] (applying 33 U.S.C. § 948a); Slover v. Brown, 140 Ill. App.3d 618, 94 Ill.Dec 856, 488 N.E.2d 1103 [1986]; Kern v. South Baltimore Gen. Hosp., 66 Md. App. 441, 504 A.2d 1154 [1986]; McKiness v. Western Union Telegraph Co., 667 S.W.2d 738 [Mo. Ct. App. 1984]; Galante v. Sandoz, Inc., 192 N.J. Super. 403, 470 A.2d 45 [1983], aff'd, 196 N.J. Super. 568, 483 A.2d 829 [App.Div. 1984] and Duncan v. New York State Develop. Center, 63 N.Y.2d 128, 481 N.Y.S.2d 22, 470 N.E.2d 820 [1984]. Contra Judson Steel Corp. v. Workers' Comp. Appeals, 22 Cal. 3d 658, 150 Cal. Rptr. 250, 586 P.2d 564 [1978].