Oklahoma Bar Association

Saint v. Data Exchange Inc.:
Discrimination Claims Return to State Court
By Mark Edgar Hammons Sr.

On July 11, 2006, the Oklahoma Supreme Court, in a short and matter-of-fact opinion, held that victims of age discrimination had a state Burk tort remedy notwithstanding that such discrimination was also covered by the federal Age Discrimination in Employment Act (ADEA).1 This brief holding generated a flurry of amicus briefs seeking reconsideration and reversal of that decision.2

Why such interest among employment groups? Because the Saint holding will have a dramatic impact on the field of employment discrimination. Saint reverses the common understanding of most federal judges and defense counsel regarding the availability of state law remedies for discriminatory acts which were also covered by federal law.

In Clinton v. State ex rel. Logan County Election Bd.,3 the Oklahoma Supreme Court held that the presence of an adequate federal law remedy must be considered in deciding whether an employee terminated for a reason violating Oklahoma’s public policy would have an implied state law Burk4 remedy. “[T]he existence of a federal statutory remedy that is sufficient to protect Oklahoma’s public policy preludes the creation of an independent common law claim based on a public policy exception to the employment-at-will doctrine.”5 Because Clinton arose in a Title VII gender discrimination context, most defense counsel and federal court judges believed Clinton precluded state law claims for age, race, gender, national origin or religious discrimination resulting in job termination.

That was too broad a reading of Clinton. Previously, the Supreme Court had explained that public policy torts extended beyond the parameters of age, race, gender and disability discrimination.6 Thus, Clinton was announcing a general rule which by its own terms had to be tailored to the particular factual and legal issues presented on a case-by-case basis. In the context of a general rule, Clintonassumed, but did not decide, that Title VII remedies were sufficiently adequate to avoid inferring a state law remedy.7 Clinton cautioned that in applying its rule the trial court must make an “initial determination of the adequacy of the statutory remedy.”8

This “initial determination” requires examining the surrounding statutory framework as well as judicial precedent. In Tate v. Browning-Ferris Inc.,9 the Supreme Court held that the class of persons covered by Oklahoma’s Anti-Discrimination Act constituted a unified class which, under Okla. Const., Art. 5, § 46, had to be accorded equal remedies. Since victims of handicap discrimination (one part of that class) were expressly afforded a remedy,10 other members of the class (age, race, gender, national origin and religion) were entitled to the same remedy provided handicap discrimination victims:

A federal remedy that might be “adequate” generally to vindicate other areas of public policy would not necessarily be adequate to meet this additional requirement of equal remedies.

At this point some background history is necessary because, as Justice Opala noted in his concurrence, “[t]here appears to be a lack of symmetry in this court’s extant Burk juris prudence.”12

The concept that employment terminations wrongful under Oklahoma’s Anti-Discrimination Act (OADA) would give rise to a common-law remedy was recognized in the root case of Burk v. K-Mart Corp.13 Later, in Tate, supra, the Oklahoma Supreme Court expressly recognized that race discrimination and retaliation for reporting race discrimination would be the basis for a Burk tort. This holding was premised not only on the OADA14 but also on the Okla. Const., Art. 5, § 46, mandate of equality in treatment of members of the same class.

Three years later the Supreme Court decided Brown v. Ford15 and concluded that the public policy tort would be limited to those employers having at least 15 employees as only employers of that size were covered by the OADA.16 Next came Atkinson v. Halliburton Co.,17 which held that since the OADA required exhaustion of administrative remedies, persons seeking to pursue a Burk tort would also be subject to this exhaustion requirement.18 Atkinson departed from Tate’s holding that exhaustion of administrative remedies was not required.19 Though viewed by some as a retrenchment, those decisions were merely refinements of the Tate decision and served to ensure uniformity between the Burk tort and the statutory provisions applicable to handicap discrimination victims.

The real departure came with List v. Anchor Paint Mfg. Co.20 where the court was asked to decide whether or not constructive discharge was actionable under state law. Instead of directly answering that question, the court took the opportunity to decide whether an age-based discharge would be actionable. It had seemed clear to most observers that age-discrimination was just as actionable as race-based discharge in light of Tate’s clear statement that the OADA established a public policy applicable to age, race, gender, national origin and religious discrimination victims — the unified class created by the OADA.21 Nonetheless, List held that there was no state-law remedy. This decision was premised on the assertion that “[m]ost courts have refused to allow common law retaliatory discharge actions based on age or illness, saying that only a discharge arising from the employee’s acts, rather than his status, will support a common law retaliatory discharge cause of action.22

“Because Mr. List’s statutory remedies are adequate and his common law claim is based solely on his status, his statutory remedies are exclusive.”23 These statements were directly contrary to the court’s recognition just months earlier of a status-based claim for handicap discrimination in Atkinson as existing concurrently with the state (and federal) statutory remedies. In drawing a status-based distinction, List ignored both Tate (the status of race) and Atkinson (the status of disability). This “conduct versus status” distinction was criticized as illogical in that it afforded a remedy for a person fired for protesting prohibited discrimination while giving no remedy to the actual victim.24

Only months after List, the Oklahoma Supreme Court decided Duncan v. City of Nichols Hills.25 Duncan specifically reaffirmed Tate’s guidance on statutory construction26 and reaffirmed that state statutory remedies could be greater — but not less —than parallel federal remedies for discrimination.27 In contrast, the court said nothing about its recent List decision.

Next came Marshall v. OK Rental & Leasing Inc.28 Marshall applied the List rationale in the context of a sexually hostile work environment claim. While generally following List, Marshall opined that “Oklahoma’s anti-discrimination statutes also provide adequate remedies.”29 This comment suggested the Supreme Court might recognize an implied statutory remedy under the OADA as an alternative to a Burk action.

David Russell, a United States District Judge for the Western District, certified the question of implied statutory remedies in Collier v. Insignia Financial Group.30 The decision in Collier overturned in part List and Marshall31 and implied that in determining the existence of a public policy tort, courts must look to the adequacy of state — rather than federal — remedies. That understanding continued until Clinton, which held that the adequacy of federal remedies must be considered in determining whether a public policy tort would be recognized for a particular wrong.32

In attempting to reconcile these prior decisions, Justice Opala noted the court’s retreat from conduct versus status distinctions and summarized his understanding of the current status of the “adequate remedy” exception to recognizing a Burk tort:

It is the latter portion of this statement which provided the basis for the certified question in Saint: Are the remedies of the ADEA (federal age discrimination) “co-extensive with that provided for” victims of handicap discrimination? Justice Opala’s point was that in analyzing the adequacy of the remedy, courts must consider how similar groups are treated. In the case of members of the same class, Okla. Const. Art. 5, § 46 requires more than adequacy — it mandates the same remedies be made available.

It must be remembered that Tate’s interpretation that Art. 5, § 46 required that the remedies available under 25 O.S. § 1901 be extended to all other persons covered by the OADA has never been questioned and had been repeatedly cited as good law.34 Clinton did not overturn this holding nor question it but rather merely directed courts to consider the adequacy of federal remedies in addition to those supplied by state law. Thus, nothing in Clinton suggested that disparate, lesser remedies were constitutionally tolerable between members of what has been judicially determined to be a “single, unified class.”

In Saint, the argument was simply that as to discrimination prohibited by the OADA, everyone under the act was entitled to the same remedies as those provided for victims of handicap discrimination under 25 O.S. § 1901. Judge Sven Holmes, federal judge for the Northern District, certified that question to the Supreme Court asking that the court explain its holding in express reference to the requirements of Okla. Const. Art. 5, § 46.35 Because there were two avenues by which the Supreme Court could reconcile its prior precedent (either under the Burk doctrine or via an implied statutory remedy36), the certified question asked the court to address both issues.37

In its opinion, while not addressing these specific differences between the ADEA remedies and those available under state law, the court settled on using a Burk remedy39 and pointedly stated:

To eliminate any confusion, the court expressly reaffirmed its holdings in Collier (gender-discrimination) which held that the court must avoid “the pitfalls of according asymmetrical remedies to members of a single class of employment-discrimination victims”41 and in Tate (race discrimination) which held that “[o]ur Constitution absolutely interdicts the passage of special law that would sanction disparate remedies for those who complain of employment discrimination.”42 In light of the arguments presented, this language should leave no room for doubt that there is a state law remedy for terminations when the motivation was either age, race, gender, national origin, religious discrimination or retaliation for opposing discrimination.43

Now the following questions remain: What are the differences between the state law remedies and their federal counterparts? How far does Saint extend the state law remedies? The remainder of this article will attempt to answer those questions.

While Saint does not address the specific differences between state law and federal claims of discrimination, there is substantial guidance available from its rationale as well as from prior decisions of the Oklahoma Supreme Court. Thus, I will offer my prediction on the following issues:

There are significant differences in the coverage of the OADA versus the companion federal statutes as well as traditional Burk torts.

The OADA covers all employers having at least 15 employees44 but it also covers, without a minimum number, employees of a “contractor or subcontractor. . . furnishing the material or performing work for the state or governmental entity or agency of the state,”45 employment agencies46 and labor organizations.47 “Indian tribes [and] a bona fide membership club not organized for profit” are not covered.48 The difference between state and federal coverage is most obvious in the context of ADEA coverage where the federal law requires 20 employees while the state action requires only 15. As to this matter, Judge Ralph Thompson of the Western District of Oklahoma had previously predicted that there would be a public policy remedy under state law for employers having at least 15 but less than 20 employees.49

Under the Burk doctrine, wrongful termination actions are limited to at-will employees. Employees who are not at-will have been excluded from this protection50 on the basis that they have adequate alternative remedies. 25 O.S. § 1901, however, applies to all employees whether at-will or not. Because of the requirement for symmetry among members of the class, it would appear that this special, constitutional variant of the Burk doctrine would apply to all employees.

Neither the Oklahoma Supreme Court nor the Court of Appeals has yet determined whether agents of employers who discriminate may be held liable individually for their discriminatory or retaliatory acts. Under federal law it is clear that there is no individual liability of corporate officers and employees for discriminatory actions.51 The federal rule developed at a time when “a successful Title VII plaintiff was typically limited to reinstatement and back pay as potential remedies, i.e., to equitable remedies which are most appropriately provided by employers, defined in the traditional sense of the word.”52 That rule was continued because when Congress added compensatory relief in 1991, it did not further amend Title VII to provide for individual liability.53

In contrast, Burk torts from their inception have always provided legal rather than equitable relief.54 Such torts were viewed as common-law tort actions55 and under the common-law rule an agent is liable along with his or her employer for wrongful conduct even if that conduct is carried out at the employer’s behest.56 This has been called a “general, if not universal rule, of torts.”57

It had been argued, and accepted by some judges, that because one purpose of the OADA, 25 O.S. §§ 1101, et seq, is “to provide for execution within the state of the policies embodied in the federal” acts,58 individual liability would not be available for state law torts. That, however, is an incomplete reading of the state statute. As explained in Collier, there is a marked difference between the classes of wrongs covered by the OADA and the set of remedies available:

While it is unclear whether this may be viewed as an intention to incorporate federal Fair Housing Law remedies into the remedial scheme for employment discrimination victims, it is worth noting that individual liability is the rule under the Fair Housing Law.60

It is doubtful, however, that the question of individual liability should be decided on a mere analogy to federal law. The Supreme Court has carefully explained that there are significant differences between these two bodies of law. For instance, tort remedies under the OADA may be greater than those provided by federal law61 and, in the context of defenses to Burk claims, the court has rejected “the wholesale adoption of federal law of employment discrimination” into Oklahoma’s law of wrongful discharge.62

The proper basis for deciding this issue must be by statutory construction because “[u]nder Oklahoma law, the legislative intent of a particular statute must be ascertained from language of the statute.”63 As to handicap discrimination (and generally throughout the OADA), the term “employer” is specifically defined to “include an agent” of the employer64 and a “person” is defined to include not only businesses but “an individual.”65 In using these terms, the Legislature wrote Sec. 1901 in a manner which clearly provides for individual liability:

“[I]n the absence of a contrary definition of the common words used in a legislative act, we must assume that the lawmaking authority intended for them to have the same meaning as that attributed to them in ordinary and usual parlance.”67 Thus, it must be presumed that the Legislature intended to allow suits against two categories of individuals: those who had “discriminated against the charging party” and “any person named as respondent in the [administrative] charge.” A court “will not apply a rule of construction [which would] render meaningless express provisions of the act.”68

Although there has not been agreement in this area, Judge Joe Heaton of the Western District of Oklahoma has predicted that as a matter of statutory construction, Oklahoma would allow individual liability due to the wording of 25 O.S. § 1901:

An additional rule of construction favoring individual liability is the Supreme Court’s admonition that in construing the OADA common-law remedies should be preserved:

Had the Legislature intended to abrogate the common-law rule that employees are concurrently liable along with the corporation for acts of discrimination, it would have been required to have expressly set that out in Sec. 1901, inter alia. Instead, the OADA appears to preserve the common law rule that both the agent and the employer are jointly liable for their wrongful acts.

The author believes that individual liability is thus available under these actions.

Sec. 1901 of the OADA requires that a handicap discrimination victim file a charge of discrimination with the Oklahoma Human Rights Commission (OHRC) before filing suit. The Supreme Court has already held that this administrative filing is a prerequisite for a Burk tort remedy for handicap discrimination.71 As a matter of procedural symmetry, an administrative filing would be required for any of the other covered areas of discrimination. It can be stated with a high degree of confidence that any person seeking to assert a state law age or other discrimination claim must first file a charge of discrimination.

Furthermore, such filings must be made within 180 days rather than the 300 days available for an EEOC action. Although an employee has “the advantage of the extended 300-day period to file her federal claims with the EEOC...her state claim is barred by the 180-day filing period, and is not affected by the extended federal filing period.”72

Does that filing have to be with the OHRC? No. A filing with the EEOC is sufficient, because the EEOC and OHRC have entered into a work share agreement under which each agency is deemed the agent of the other for the purpose of filing and processing covered charges of discrimination. Because of this agency status, a filing with the EEOC is deemed a filing with the OHRC. The EEOC always gives notice to the OHRC of its filings and allows the OHRC the opportunity to investigate the charge.73 A timely filing with the EEOC will, therefore, satisfy the administrative prerequisite for a Burk antidiscrimination tort.

Is a right to sue letter necessary? In EEOC proceedings, the agency is allowed 180 days (60 days under the ADEA) to investigate the matter. Until this 180 day period expires, no suit can be brought unless a right-to-sue letter is issued prior to the expiration of that period. The OADA has an equivalent time provision in 25 O.S. § 1901,74 but there is no provision for a right to sue letter or for early termination. Nonetheless, a right to sue letter or other action ending the administrative proceedings should allow a suit to be filed even when the 180 period has not elapsed. This should be true because under the futility doctrine: “the law does not require one to do a vain or useless thing or to perform an unnecessary act to obtain relief.”75

The normal statute of limitations for tort actions is two years from the accrual of the cause of action.76 Under Title VII (gender, race, national origin and religion), the ADA (disability) and the ADEA (age), a party must file a charge of discrimination within 300 days of any discriminatory act (except for hostile environment cases), and then suit must be filed within 90 days of receipt of a right-to-sue letter.77

The OADA does not quite follow either of these systems. Under the OADA, a party is allowed to file suit within two years of the filing of a timely charge of discrimination, subject, as explained above, to waiting 180 days for the investigation of the charge. Thus, the normal two year statute of limitations applies and the accrual or commencement of that period runs from the filing of the charge of discrimination78 — not from the wrongful act nor from the end of the 180 investigative/ conciliation period.

This issue was settled in Duncan v. City of Nichols Hills, which addressed the liability of governmental subdivisions for handicap discrimination under the act.79 Duncan found an irreconcilable conflict between the OADA and the Governmental Tort Claims Act (GTCA).80 In response to that conflict, the Supreme Court held that the OADA was the more specific statute when it came to discrimination and retaliation and therefore the OADA superceded and controlled claims brought against the state and its subdivisions as to such matters:

In short, the court held “that the notice provisions of the Governmental Tort Claims Act are preempted with respect to claims brought under” the OADA.82 Furthermore, the damage limitations under the GTCA are preempted by the OADA.83

Although Duncan was decided solely with reference to handicap discrimination, the holdings in Tate, Collier and now Saint, that Okla.Const. Art. 5, § 46 requires equal remedies to all persons covered by the OADA would mandate extending Duncan’s rule to the rest of the persons covered by the OADA.

That does not mean, however, that all individuals who engage in discrimination will be entitled to indemnification under the GTCA. The GTCA forbids indemnification of employees who have engaged in discrimination based on “race, sex or national origin,” but there is no prohibition against indemnifying employees who engage in age or religious discrimination.84 Since the OADA does not speak to indemnification, the GTCA is likely to control that area.

“Under the ‘American Rule’ governing the award of attorney fees to a prevailing party, attorney fees are not ordinarily recoverable in the absence of a statute or an enforceable contract.”85 Tort actions, which include Burk torts,86 are generally subject to this rule.87 In this case, however, the remedies are shaped by the requirements of Okla. Const., Art. 5, § 46 which requires complete symmetry of the remedies. Under this standard, a right to recover attorney’s fees should be available for the limited class of Saint torts brought under the OADA. This was implicitly addressed in Saint where, in addressing the available remedies under Sec. 1901, the court set out the entire statute including the attorney’s fee clause.88

The burden of proof is more generous to victims of state law discrimination than to federal law claimants. Under state law, a party need only prove that the discriminatory factor was a significant factor rather than a motivating or determinative factor:

The meaning of the “significant factor” rule for Oklahoma cases has been explained in Elzey v. Forrest:

Thus, “the ‘determining factor’ test [used for federal claims] is a more stringent test than the ‘significant factor’ test” used for Oklahoma public policy claims.91

Under a Burk tort, “[r]ecoverable damages including punitive damages in such actions are governed by our statutory and common law principles of tort liability.”92 Actions arising under the OADA represent a special species of Burk torts and the damages there must be the equivalent of those statutorily provided in 25 O.S. §1901(C). That section provides that:

This statutory provision is slightly different that the normal common-law rule for tort damages which govern other Burk torts. Under the significant factor rule, the presence of other legitimate factors is no defense to liability. Under the statute the presence of other legitimate factors may be raised as a defense to back pay, hiring or reinstatement but not to other compensatory damages such as emotional distress or punitive damages. Unlike normal tort actions, available relief in a Saint tort includes equitable relief. The damage caps provided by Title VII and by the GTCA do not apply.93

In federal court issues of front pay, and sometimes back pay, are determined by the court as an equitable issue.94 Under state law the issue of lost wages and front pay have traditionally been a part of the legal relief determined by juries.95 The Court of Appeals in Pettit v. Dolese Brothers Co. held that “front pay” is a jury question:

The jury’s function in determining lost future earnings in wrongful termination cases has been codified in OUJI CIV 2d 21.7(B).97 More importantly, the handicap discrimination act expressly provides that “either party in any such action shall be entitled to a jury trial of any facts in dispute in the action.”98 Clearly, questions as to the entitlement to and amount of front pay or back pay are fact questions. Because of the requirement of symmetry in the treatment of all members of the class, there should be no dispute that these issues are for the jury’s determination. Although the right to a jury trial in federal court is governed by federal rather than state law, Oklahoma’s characterization of this action as a tort in which the monetary relief of past and future damages is legal would appear to require a jury trial on those issues even in federal court.99

Burk remedies have only been allowed for a wrongful termination although this includes the doctrine of constructive discharge. As to constructive discharge:

This test is considerably more lenient than that imposed by federal law. Federal law limits constructive discharge to situations where the employee had “no choice” but to resign.101

Other actions such as a discriminatory refusal to hire have not been encompassed in a Burk tort.102 In contrast, 25 O.S. § 1901 expressly covers and provides remedies for discrimination in “hiring.… or promotion… advancement or… suspen[sion].”103 Although this is a major departure from the traditional Burk doctrine, the mandate of remedial symmetry would seem to require a Saint remedy for all acts encompassed in the statutory remedy. Thus, there should be a Saint action available for discrimination or retaliation in hiring, discipline (at least if loss of pay is involved) and promotions.

Surprising as it may be, Saint’s short opinion should dramatically change the enforcement options to persons who consider themselves to be victims of discrimination or retaliation based on age, gender, race, national origin or religion. Furthermore, Saint is likely to generate new rounds of litigation to definitively answer the questions presented in this paper.

1. Saint v. Data Exchange Inc., 2006 OK 59, 145 P.3d 1037, 77 OBJ 2026 (7/15/06).
2. The petitions for rehearing including the arguments of amici were denied on Sept. 18, 2006, with all justices concurring.
3. 2001 OK 52, 29 P.3d 543.
4. Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24.
5. Clinton v. State ex. rel. Logan County Election Bd., 2001 OK 52 ¶ 9, 29 P.3d 543, 546, 72 OBJ 1933.
6. Collier v. Insignia Fin. Group, 1999 OK 49 ¶ 10, 981 P.2d 321, 324 (“Initially, it must be observed that the Burk tort encompasses a broader range of wrongful discharges than just those involving one of the proscribed categories of discrimination articulated in Title VII or the Oklahoma Anti-Discrimination Act.”)
7. “Inherent in the certifying court’s question and statement of the case are the implications that. . . plaintiff has an adequate statutory remedy under Title VII of the Civil Rights Act of 1964, as amended.” Clinton, 29 P.3d at 544.
8. Clinton, ¶ 10, p. 546.
9. 1992 OK 72, 833 P.2d 1218.
10. 25 O.S. § 1901.
11. Tate, supra, 833 P.2d at 1227, 1229-30 (emphasis by the court)
12. Clinton, Opala, concurring in judgment, ¶ 6, p. 548.
13. 1989 OK 22, 770 P.2d 24, 26 n. 4 (citing as one example of Oklahoma’s public policies limiting at-will terminations, “25 O.S. Supp. 1985 §§ 1302, 1505(c)(1) [defining as a] discriminatory practice for an employer to discharge an individual because of race, color, religion, sex, national origin, age or handicap.”)
14. 25 O.S. §§1101, et seq.
15. 1995 OK 101, 905 P.2d 223, 227.
16. 25 O.S. § 1301(1).
17. 1995 OK 104, 905 P.2d 772.
18. 905 P.2d at 775-76.
19. 905 P.2d at 775-76 (recognizing that ‘may’ is usually permissive but nonetheless distinguishing Tate).
20. 1996 OK 1, 910 P.2d 1011.
21. Tate, 833 P.2d at 1229-30.
22. List, 910 P.2d at 1014.
23. List, at 1015.
24. “Such a distinction would, for example, give a remedy to a person fired for opposing racial discrimination by his employer while offering no remedy to the actual victim of the discrimination.” Cassel v. WEBCO Indus., 942 F.Supp. 1409, 1412 n. 6 (N.D.Okla.1996) (quoting Mark Hammons, The Evolution of Oklahoma’s Tort of Wrongful Termination, 67 O.B.J. 2871, 2875 (1996)).
25. 1996 OK 16, 913 P.2d 1303.
26. 913 P.2d, at 1306-07.
27. 913 P.2d, at 1308, 1310.
28. 1997 OK 34, 939 P.2d 1116.
29. 939 P.2d at 1122.
30. 1999 OK 49, 981 P.2d 321.
31. 981 P.2d, 326 n. 20 (overruling in part Marshall). See also at 327 (Kauger, J., dissenting because “the majority opinion contravenes this court’s decisions in List v. Anchor Paint Mfg. Co., 1996 OK 1, 910 P.2d 1011 and Marshall v. OK Rental & Leasing Inc., 1997 OK 34, ¶ 23, 939 P.2d 1116.”).
32. Clinton,¶ 9, 29 P.3d, at 546 (“we hold the existence of a federal statutory remedy that is sufficient to protect Oklahoma public policy precludes the creation of an independent common law claim based on a public policy exception to the employment-at-will doctrine.”).
33. Clinton, ¶ 12, 29 P.3d at 550. This was also stated by the majority: “While both List and Marshall discussed the status versus conduct distinction, we view the holdings in those cases as being premised primarily on the fact that in each case plaintiff had an adequate statutory remedy for the alleged wrongful discharge.” Id., ¶ 7; 29 P.3d at 546. Any lingering doubts that this is a dead issue should be extinguished by Saint which expressly allowed a claim for age discrimination which, as List held, is based on status– not conduct.
34. See Cooper v. State ex rel. Dept. of Public Safety, 1996 OK 49, 917 P.2d 466, 468 and Baptist Medical Center of Oklahoma Inc. v. Aquirre, 1996 OK 133, 930 P.2d 213, 219 & n. 16, inter alia (both citing to Tate)
35. 2006 OK 59 ¶ 0, __ P.3d __, 77 OBJ 2026.
36. See Holbert v. Echeverria, 1987 OK 99, 744 P.2d 960 and Walker v. Chouteau Lime Co., 1993 OK 35, 849 P.2d 1085, 1086-1087.
37. 2006 OK 59 ¶ 0, __ P.3d __, 77 OBJ 2026.
38. Saint, ¶ 2.
39. Saint, ¶¶ 0, 6, 77 OBJ 2026-27.
40. Saint, ¶3, 77 OBJ 2026.
41. Saint, ¶ 4 quoting Collier, supra, ¶ 14, 981 P.2d at 326.
42. Saint, ¶5, quoting Tate, supra, ¶ 18, 833 P.2d at 1230.
43. “The definition of ‘discriminatory practice’ includes an employer’s discharge or discrimination against an individual as to terms or conditions of employment because of race, [25 O.S.] § 1302, as well as retaliation against a person who opposes a discriminatory practice or who files a complaint pursuant to the statutes, id. § 1601.” Tate, supra, 833 P.2d at 1220. Accordingly, “we give today a categorically affirmative answer to the question whether a racially motivated discharge or one in retaliation for filing a racial discrimination complaint offends a clear mandate of ‘public policy’ that comes within the protection of Burk.” Id., at 1225.
44. 25 O.S. § 1301(1).
45. Id.
46. 25 O.S. §1301(2), §1303. There may be an issue about whether the labor organization is an “employer” thus requiring fifteen (15) employees, but it should be remembered that the statutory language defining employers also includes agents of an employer.
47. 25 O.S. §1301(3), §1304. See also the same caution in Note 39, above, regarding labor organizations.
48. 25 O.S. § 1301(1). The exemption for private organizations may be broader than that found in Title VII. That issue, however, extends beyond the limits of this paper.
49. Debrah L. Espen and Celeste Bagwell v. Soutwest Imaging Inc., CIV-03-1660-T (Order of July 16, 2004.
50. McCrady v. Okla. Dep’t of Pub. Safety, 2005 OK 67 ¶ 13, 122 P.3d 473 (“Because McCrady is not an employee-at-will, he is not within the class of persons who may bring a claim in tort for wrongful discharge based on the public policy exception to the employment-at-will rule, a Burk action.”).
51. Haynes v. Williams, 88 F.3d 898 (10th Cir.1996)
52. Hayes, 88 F.3d at 901 (quotation marks and citations omitted).
53. Hayes, 88 F.3d at 901.
54. “We recognize this new cause of action in tort.” Burk, 770 P.2d, at 28.
55. “[T]he Burk tort is firmly rooted in the common law”. Barker v. State Ins. Fund, 2001 OK 94, ¶ 24; 40 P.3d 463, 470.
56. “As the Restatement (Second) of Agency § 343 states ‘an agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal’.” Wathor v Mut. Assur. Adm’rs Inc., 2004 OK 2 87 P3d 559, 565 n 3.
57. As to “[a] to corporate officers acting in a corporate capacity, the ‘general, if not universal rule,’ of torts is that they may be held personally liable for tortious conduct of the corporation that they directly participated in or specifically directed others to carry out. 3A Fletcher Cyc. Corp. § 1137, at 275 (Perm. ed. 1986).” McClelland v. Watling Ladder Co., 729 F.Supp. 1316, 1319 (W.D.Okl.,1990).
58. 25 O.S. § 1101.
59. Collier, 981 P.2d at 325.
60. Holley v. Crank, 258 F.3d 1127, 1130-34 (9th Cir. 2001) (compiling cases and citing to 24 C.F.R. § 103.20 as establishing individual liability under the Fair Housing Act).
61. The Oklahoma Supreme Court has held that the state statute must provide at least as much relief as that offered under federal law, but there is no bar to the statute providing more relief than federal law.Duncan, supra, 913 P.2d at 1308 (“in enacting a remedy for employment discrimination, the Oklahoma legislature was bound to provide protection equal to or greater than protection provided by the federal civil rights provisions.” (Emphasis added)).
62. Mosley v. Truckstop Corp. Of America, 1993 OK 79, 891 P.2d 577, 583 (rejecting “the wholesale adoption of federal law of employment discrimination” as part of Oklahoma’s law of wrongful discharge). Accord Buckner v. General Motors Corp., 1988 OK 73, 760 P.2d 803, 806.
63. Duncan, 913 P.2d at 1306-07.
64. 25 O.S. § 1301(1).
65. 25 O.S. § 1201(5).
66. 25 O.S. § 1901(A) (emphasis supplied).
67. State ex rel. Cartwright v. Georgia-Pacific Corp., 1982 OK 148, 663 P.2d 718, 722.
68. Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, ¶ 20, 71 P.3d 5, 17.
69. Bob Marion v. Johnson Claim Service Inc., CIV-04-0864-HE (Sept. 17, 2004), quotation from p. 3. Emphasis by the court, footnotes omitted.
70. Tate, 1992 OK 72, 833 P.2d 1218, 1225 -1226 (emphasis by the court, footnotes omitted).
71. In enacting the OADA “[t]he legislature intended not only to combat discrimination, but also to provide the enforcement mechanisms necessary to do so.” Atkinson, 905 P.2d, 775. “The language of § 1901. . . supports the conclusion that exhaustion of the administrative remedies provided in § 1901 is a condition precedent to filing a civil action for redress.” Id., at 776.
72. Forcum v. Via Christi Health Sys. Inc., 2006 OK CIV APP 77, ¶¶11-12, 137 P.3d 1250.
73. 29 C.F.R. § 1601.13(a)(4)(B).

74. 25 O.S. §1901(A) (If the charge of discrimination “is not resolved to the satisfaction of the charging party within one hundred eighty (180) days form the filing of such charge, the charging party may commence an action” in court for redress.)
75. Apache Corp. v. State, 2004 OK 48, ¶ 9, 98 P.3d 1061, 1064. This issue is not free from doubt. The “futility doctrine” does not apply if the requirement is statutory. In the author’s view the one hundred eighty (180) day period is not mandated in the sense of being a minimum time before filing suit but rather serves as a deadline for the administrative agency.
76. 12 O.S. § 95(3).
77. Forcum v. Via Christi Health Sys. Inc., 2006 OK CIV APP 77, 137 P.3d 1250.
78. Duncan, 913 P.2d, at 1305 -1306 (“Section 1901 of the anti-discrimination statutes creates a private cause of action for handicap employment discrimination and specifically requires any action brought in district court pursuant to Section 1901(A) be brought within two (2) years of the filing of a charge with the OHRC.”)
79. 1996 OK 16, 913 P.2d 1303.
80. 913 P.2d at 1305-06.
81. 913 P.2d, at 1308 (emphasis supplied).
82. 913 P.2d, at 1309.
83. 913 P.2d at 1309 (“We conclude that the same remedial objectives underlying Oklahoma’s antidiscrimination statutes which require preemption of the Act’s notice provisions would also require preemption of the limits on damages as provided in [the GTCA at] 51 O.S. 1991, § 154.”).
84. 51 O.S. § 162(B)(4)(e).
85. Barnes v. Okla. Farm Bureau Mut. Ins. Co., 2004 OK 25, 1 94 P.3d 25, 26 n. 1.
86. “We recognize this new cause of action in tort.” Burk, 770 P.2d, at 28.
87. Olansen v. Texaco Inc., 1978 OK 139, P47, 587 P.2d 976, 988 (prevailing party attorney fees are not generally available in tort actions).
88. Saint, ¶ 2, n. 2 setting out in full 25 O.S. §1901 including subpart (D) providing for attorney’s fees.
89. Tate, supra, 833 P.2d at 1230 n. 69 (emphasis by the court).
90. 1987 OK 58, 739 P.2d 999, 1001-02. Accord Wallace v. Halliburton Co., 1993 OK 24, 850 P.2d 1056, 1059 (“an employee does not have to meet a `but for’ standard [however] the evidence must do more than show that the filing of the claims was only one of many possible factors resulting in his discharge”).
91. Bentley v. Cleveland County Board of County Comm’rs, 41 F.3d 600, 606 (10th Cir.1994) (noting the difference in the proof required for a federal claim versus a state law claim).
92. Burk, 770 P.2d, at 28 n. 10. The general right to recover damages for a tort is set out in 23 O.S. § 61 and “is the amount which will compensate for all detriment proximately caused [by the wrongful action], whether it could have been anticipated or not.” OUJI Civ 2d No. 21.7 sets out the instruction for damages in a wrongful termination.
93. Duncan, 913 P.2d at 1309 (“We conclude that the same remedial objectives underlying Oklahoma’s antidiscrimination statutes which require preemption of the Act’s notice provisions would also require preemption of the limits on damages as provided in [the GTCA at] 51 O.S. 1991, § 154.”).
94. See Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1421-22 (10th Cir.1991) (age discrimination); Bartee v. Michelin N. Am. Inc., 374 F.3d 906, 910 (10th Cir. 2004) (“A district court’s decision to award back or front pay under the ADA is an equitable one.”) and McCue v. Kansas, 165 F.3d 784, 791-92 (10th Cir. 1999) (construing back and front pay as equitable remedies). But compare Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 218 (2002) which suggests that back pay is traditionally a legal remedy and is only considered equitable in Title VII jurisprudence because of the statutory language defining remedies.
95. See Complete Auto Transit Inc. v. Reese, 425 P.2d 465, 469 (Okla.1967) (“an unemployed plaintiff is entitled to recover for loss of earning capacity, despite inability to show specific loss of earnings”) and King v. City of Guymon, 523 P.2d 1154 (Okla.App.1974) (“loss of earning capacity is compensable even though one is unable to show a specific loss of earnings”). Accord Muskogee Electric Traction Co. v. Eaton, 49 Okl. 344, 152 P. 1109 (1915).
96. 1997 OK CIV APP 46 ¶ 18, 943 P.2d 161, 166.
97. The jury “must determine...: The loss of earnings in the future that [plaintiff] would be reasonably likely to suffer as a direct result of the discharge, if [he/she] used reasonable diligence in finding employment of comparable quality as the employment with [defendant];. . .”
98. 25 O.S. § 1901(B).
99. Int’l Fin. Servs. Corp. v. Chromas Techs. Can. Inc., 356 F.3d 731, 735 (7th Cir. 2004) (explaining the standards to be used in deciding when there is a right to a jury trial in federal court).
100. Collier, ¶ 10, 981 P.2d at 324.
101. “Constructive discharge occurs when an employer deliberately makes or allows the employee’s working conditions to become so intolerable that the employee has no other choice but to quit.” MacKenzie v. Denver, 414 F.3d 1266, 1281 (10th Cir. 2005).
102. See Williams v. Dub Ross Co., 1995 OK CIV APP 9, 895 P.2d 1344 and Sarsycki v. United Parcel Serv., 862 F. Supp. 336 (W.D. Okla. 1994) (both refusing to extend the Burk doctrine to cover wrongful refusals to hire). Davis v. Bd. of Regents, 2001 OK CIV APP 65, ¶ 8 25 P.3d 308, 310 (Okla. Ct. App. 2001) (limiting Burk tort to discharge claims and holding that transfers and demotions were not actionable).
103. 25 O.S. § 1901( C), describing available remedies.

Mark E. Hammons Sr. has been the principal in his law firm of Hammons, Gowens & Associates since 1976 with a practice primarily in federal court in the areas of civil rights, employment discrimination and administrative law. He regularly appears before the 10th Circuit and presents appeals to the Oklahoma Supreme Court. He earned his B.B.A. degree from OU and his J.D. degree from OCU. He is past chair of the Oklahoma Trial Lawyers Employment Litigation Section.

Saint v. Data Exchange Inc.:
Discrimination Claims Return to State Court
Published 78 OBJ 140 (Jan. 13, 2007)

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