Groce v. Foster

Groce v. Foster
1994 OK 88
880 P.2d 902
65 OBJ 2414
Case Number: 78068
Decided: 07/12/1994
Modified: 09/28/1994
Supreme Court of Oklahoma

WILLIAM GROCE, PLAINTIFF-APPELLANT,
v.
BOB FOSTER AND MIDWESTERN SERVICES, INC., DEFENDANTS-APPELLEES.

Appeal from the District Court, Oklahoma County, Leamon Freeman, J.

On Certiorari to the Court of Appeals, Division No. 1.

¶0 In an action against an oilfield service company and its owner for wrongful termination of employment the District Court, Oklahoma County, Leamon Freeman, Judge, granted the employer's dismissal quest for failure to state a claim. The Court of Appeals affirmed. Certiorari was granted upon the employee's petition.

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.

Patrick J. Malloy III, Malloy & Malloy, Inc., Tulsa, and Leslie V. Williams, Jr., Earl H. Remmel, Williams & Remmel, Oklahoma City, for appellant.

Michael L. Darrah, Christopher J. Bergin, Huckaby, Fleming, Frailey, Chaffin & Darrah, and Clell I. Cunningham, III, Miller, Dollarhide, Dawson, & Shaw, Oklahoma City, for appellees.

OPALA, Justice.

[880 P.2d 903]

¶1 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,

I

THE ANATOMY OF LITIGATION

¶2 Recovery is sought for tortious discharge from employment in violation of this State's public policy.

¶3 Groce, while working for his employer (an oil filed 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.

¶4 Groce received workers' compensation benefits from his employer. Later, he brought a third-party claim

II

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

¶5 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 cases 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.

¶6 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 [880 P.2d 905] 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

¶7 Groce urges Art. 2, § 6 , Okl.Const.,

¶8 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.

¶9 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 § 44 claim for legal redress of an on-the-job injury.

¶10 Since every employee enjoys explicit legislative protection from discharge for laying claim to compensation against his/her very own employer,

¶11 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.

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

¶12 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.

IV

THE FALLACY OF THE DISSENT

A

¶13 The mandates of an articulated public policy are drawn from the body of a jurisdiction's constitutional, statutory, and decisional law.

¶14 In its attempt to divine Oklahoma public policy, the dissent has ignored the totality of the law considered by the court.

¶15 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.

B

¶16 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 3 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.

¶17 With the exception of Watson v. Peoples Sec. Life Ins. Co.,

". . . 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."

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

¶18 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.

¶19 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

¶20 HODGES, C.J., and ALMA WILSON, KAUGER, and WATT, JJ., concur.

¶21 LAVENDER, V.C.J., and SIMMS, HARGRAVE and SUMMERS, JJ., dissent.

Footnotes:

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. Public 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. 658, 658 (1913), appeal dismissed, 232 U.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 [Worker's 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 worker's 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 (1993). 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 §§ 57 , 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/attorney 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. Echlin 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.

SIMMS, Justice, DISSENTING:

[880 P.2d 909]

Today the majority extends the public policy exception to the termination-at-will doctrine well beyond the narrow boundaries intended to circumscribe it. This public policy exception first announced in Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989), was adopted with the understanding that it would apply only in a "narrow class of cases." Id. Today's pronouncement permits the exception to apply in a case which does not fit within that narrow class, therefore I must respectfully dissent.

Burk recognized a cause of action in tort for wrongful discharge where the employee shows that the discharge was contrary to "a clear mandate of public policy as articulated by constitutional, statutory or decisional law." 770 P.2d at 28. The majority finds that the termination of the employee (Groce) in this case was contrary to the public policy guaranteeing litigants access to court.

First, Groce's access to court has not been denied by the actions of his employer. His action against the third party was not affected by the termination, and from all indications it appears his action against the third party is viable. In other words, Groce's access to the courts is not hindered. See DeMarco v. Public Super Markets, Inc., 384 So. 2d 1253, 1254 fn. 1 (Fla. 1980) (trial court dismissal of employee's action for wrongful discharge was proper where employee's personal injury action against employer on behalf of daughter was still pending and neither employee nor his daughter had been denied access to the courts).

Moreover, by instituting an action against his employer's customer, Hydraulic Well Control, Inc., Groce was not "exercising his legal rights" under Okla. Const. art, 2, § 6 .

In Moses v. Hoebel, 646 P.2d 601 (Okla. 1982), this Court unanimously held that Oklahoma's "open courts" provision prohibited a district court from enjoining the prosecution of a personal injury action until the plaintiff paid the legal expenses of defendants from an earlier action arising from the same injuries which the plaintiff had dismissed while trial was proceeding. We stated:

"Under the Open-Court-of-Justice Clause of the state constitution, the obligation adjudicated against Moses cannot serve as a bar to his courthouse access for the prosecution of another case. Art. 2 § 6, Okl. Const. Moses' right to proceed with his claim in a subsequent action is protected by that clause. The judge's attempted use of the unsatisfied obligation adjudicated in the dismissed case to prevent Moses from pursuing his claim in the refiled case plainly contravenes both the Open-Court-of-Justice Clause of our own constitution as well as the federal and state minimum standards of due process." 646 P.2d at 604 (Citations omitted).

Therefore, Oklahoma jurisprudence indicates that the purpose of Okla. Const. art. 2, § 6 , like the "open courts" clauses of other states, is to limit the actions of the courts of the state, and not the actions of private individuals such as Groce's employer. As a result, Groce's discharge could not have been in retaliation for the exercise of his right to an "open court." Accord Rigsby v. Murray Ohio Manufacturing Co., 1991 WL 95710 [880 P.2d 910] (Tenn. App. 1991), (firing of an at will employee for exercising his constitutional right to free speech on the employer's premises during working hours does not violate the public policy of the state).

¶22 In fact, the Montana Supreme Court has interpreted its constitutional "open courts" provision, Mont. Const. art. III, § 6, which is almost identical to Oklahoma's provision, Okla. Const. art. 2, § 6 , to be a "mandate to the courts to provide equal access to causes of action recognized at law." Meech v. Hillhaven West, Inc., 238 Mont. 21, 776 P.2d 488, 491-92 (1989). Although Montana's provision was amended in 1972, the amendment had no effect upon the court's decision that "the guarantee was directed at the courts, and it was framed to provide equality in the administration of justice." 776 P.2d at 492. The Montana Supreme Court had traced the origins of the "open courts" provision to portions of the Magna Carts and noted that the meaning of those portions historically have been interpreted to secure a remedy from those who administer the law, i.e., the courts.

¶23 This is further seen in a Missouri Court of Appeals decision in which the court affirmed the lower court's order dismissing the employee's wrongful discharge action for failure to state a claim. McCloskey v. Eagleton, 789 S.W.2d 518 (Mo. App. 1990). The employee, an attorney, argued that his employer, a law firm, fired him in retaliation for bringing an action in his own name against a realtor, a bank and others. The court noted that the "open courts" provision of the Missouri Constitution was not designed to create rights but to allow a person with a legitimate claim recognized by the law access to the courts. In other words, the employee could avail himself of the protections of the "open courts" provision "if and only if he had a legitimate, recognizable claim" against his employer. 789 S.W.2d at 520. There being no such claim, the court determined the employee had failed to state a cognizable action. See also DeMarco v. Publix Super Markets. Inc., 360 So. 2d 134, 136 (Fla. Dist. Ct. App. 1978) aff'd 384 So. 2d 1253 (1980) ("there is no civil cause of action for the interference with the exercise of one's right" to access to courts).

¶24 In addition, the "open courts" clause is not a "clear mandate of public policy" which prevents an employer from discharging its employee for bringing a lawsuit against the customer of that employer. A clear mandate of public policy is crucial to the application of the exception to the termination-at-will doctrine. Throughout the Burk opinion, the Court emphasized that the public policy exception should only be applied in a very narrow class of cases, i.e. those where there exists a clear mandate of public policy. For instance, the Court stated:

"In light of the vague meaning of the term public policy we believe the public policy exception must be tightly circumscribed." 770 P.2d at 28-9 (Emphasis added). See also Smith v. Farmers Cooperative Ass'n of Butler, 825 P.2d 1323, 1326 (Okla. 1992).

¶25 As noted above, it is not the employer's conduct against which the "open courts" provision is designed to guard. It's purpose is to ensure that the State does not deny a litigant the right to have a legitimate action heard by a court. Other than the fact that the Oklahoma Constitution contains the "open courts" provision, the majority points to no clear mandate of any public policy contravening Groce's termination. However, other jurisdictions have specifically determined that constitutional or statutory "open courts" provisions are not clear mandates of public policy preventing employers from discharging employees who file legal actions against the employer or others.

¶26 In Wagner v. General Elec. Co., 760 F. Supp. 1146 (E.D.Pa. 1991), the court granted summary judgment to the employer in an action for wrongful discharge where the employee alleged he was terminated for bringing an action against the community in which he lived. The employer had expressed [880 P.2d 911] concern about the publicity and visibility which the employee received due to the lawsuit, but the employee continued active participation in the litigation. In holding that a constitutional provision guaranteeing access to courts was not a clear mandate of public policy, the court noted that the employee:

"brought a lawsuit by an act of free choice; he sued another as a result of no other coercive force than a singular dispute between two minds. Plaintiff was not caught between Scylla and Charybdis as would an employee called to jury duty who, threatened with termination or statutory penalties, had no free and independent choice - either would result in harm." 760 F. Supp. at 1154.

¶27 A New Jersey appellate court also found no clear mandate of public policy in a case where the employer discharged the employee after the employee brought an action over a salary dispute. Alexander v. Kay Finlay Jewelers, Inc., 208 N.J. Super. 503, 506 A.2d 379 (1986), cert. denied, 104 N.J. 466, 517 A.2d 449 (1986).

¶28 A federal district court addressed the issue in Kavanagh v. KLM Royal Dutch Airlines, supra, and found no violation of a public policy. The court held:

"There is no question that the right to counsel and to free access to the courts are important public policies. However, these freedoms usually are expressed in terms of limitations on government, not on private parties. The invocation of the public interest in the effectuation of these policies to create new common law rights would be unprecedented; a party does not violate another party's right to counsel or to free access to the courts by taking measures, even though retaliatory and spiteful in nature, which lawfully are available to him simply because resort to these measures somehow penalizes the other party for suing. For instance, if a squabble developed between merchants who regularly conducted business with one another, although they were not under contract to do so, would one of the merchants commit a tort if he told the other that they would no longer do business if suit were filed? Even if the court limited plaintiff's theory to the employment context, it would metamorphose the supposedly narrow exception . . . into the monster that swallowed the employment-at-will rule. Whenever a dispute between an employer and an at-will employee threatens to culminate in the employee's discharge, the employee, simply by retaining an attorney and threatening to sue, could procure that which is unavailable to him through contract - employment security. KLM persuasively argues that inherent in the employment-at-will relationship it had with plaintiff was an understanding that the organization and its managers function more effectively in an atmosphere of trust and cooperation; when this harmony is destroyed, regardless of who is at fault, it is in the interest of all concerned to terminate their relationship. The rule advocated in the complaint ironically would penalize a company for discharging an at-will employee when the employment relationship has completely soured. Plaintiff cannot stake his claim on the allegation that KLM by discharging him violated general public policies in favor of the right to counsel and the right to free access to the courts."

¶29 More recently, in Deiters v. Home Depot U.S.A., Inc., 842 F. Supp. 1023, 1029 (M.D.Tenn. 1993), the court concluded that the Tennessee constitutional provision guaranteeing access to courts "does not create a clear and unambiguous public policy exception to the employment at will doctrine."

 
¶30 Other courts specifically holding an at-will-employee may not bring an action against his/her employer for wrongful discharge where the employee alleges the discharge contravened a constitutional or statutory provision guaranteeing access to courts include: Whitman v. Schlumberger Ltd., 793 F. Supp. 228 (N.D.Cal. 1992); Beam v. IPCO Corp., 838 F.2d 242 (7th Cir. 1988); Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 588 A.2d 760 (1991); and, Smith v. Neyer, Tiseo & Hindo, Ltd., 1993 WL 57653 (E.D.Pa. March 1, 1993). Without mentioning "open courts" provisions, the following courts held that discharge of an at-will employee for bringing or [880 P.2d 912] threatening to bring a lawsuit against the employer did not violate any public policy: Beck v. Welton Becket & Assoc., 39 Cal. App. 3d 815, 114 Cal. Rptr. 531 (1974); Abrams v. Echlin Corp., 174 Ill. App.3d 434, 123 Ill.Dec. 884, 528 N.E.2d 429 (1 Dist. 1988); Buysse v. Paine, Webber, Jackson & Curtis, Inc., 623 F.2d 1244 (8th Cir. 1980) (construing Minnesota law); Meredith v. C.E. Walther, Inc., 422 So. 2d 761 (Ala. 1982); and, Daniel v. Magma Copper Co., 127 Ariz. 320, 620 P.2d 699 (App. 1980).

¶31 Moreover, contrary to the inference of the majority opinion, this case is not about the employer reading "an implied covenant of relinquishment" of the right to access to courts into the employment contract. There is no indication that in order for Groce to be employed with the employer he must waive some constitutional right. Rather, the employer is doing what any prudent business would do; it is asking its employees not to sue customers of the business. Indeed, the motivation of the employer in the case at bar for discharging Groce seems quite clear to me. Litigation between an employee of a business and a customer of that business is going to have some negative effect upon the relationship of the business and its customer. It is therefore understandable why the employer would desire to sever its relationship with an employee who was actively pursuing litigation against a customer of the employer. Such a discharge of an at-will employee violates no public policy of this state.

¶32 Neither is this action one involving a discharge in retaliation for bringing a workers' compensation claim pursuant to 85 O.S. 1991, §§ 5 -7 as suggested by the majority opinion.

¶33 The burden was on the employee, groce, to prove that he was discharged in contravention of a clear mandate of public policy, Parner v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982), and Groce has failed to meet that burden. It is beyond doubt that Groce could prove no set of facts which would entitle him to relief under Oklahoma law. Gunn v. Consol. Rural Water & Sewer District No. 1, 889 P.2d 1345 (Okla. 1992). Since the employee did not have a legally recognized cause of action under the facts and circumstances of this case, it follows that the district court did not err in dismissing the action for failure to state a claim upon which relief could be granted. 12 O.S. 1991 § 2012 (B)(6). I would affirm the order of the district court dismissing the action.

¶34 I am authorized to state that Vice Chief Justice LAVENDER, Justice HARGRAVE, and Justice SUMMERS join with me in the views expressed herein.

Footnotes:

1 Hereinafter, Okla. Const. art. 2, § 6 , is referred to as the "open courts" provision or clause. It provides:

"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; and right and justice shall be administered without sale, denial, delay, or prejudice."

2 See also Woody v. State ex rel. Dept. of Corrections, 833 P.2d 257, 259 (Okla. 1992) (Okla. Const. art. 2, § 6 probably originated with the Magna Carta . . . ") For a discussion of the historical background of the "open courts" guarantees including comment on the Magna Carta provision, see Meech, 776 P.2d at 491-93 and E. Coke. The Second Part of the Institutes of the Laws of England, pt. 1, 53-56 (4th ed. 1671).