# Kruchowski v. Weyerhaeuser Co.

> Supreme Court of Oklahoma · February 11, 2009 · 202 P.3d 144

URL: https://www.frixlaw.com/law-library/cases/9781933

## Case

- **Full name:** Ted KRUCHOWSKI, Gerald Adams, William Cooper, Tony Fennell, Alan Gebert, Harold Griffin, Stan Harris, Ford Hendershot, Ed Risenhoover, Susan Rogers, Linda Slabaugh, and Joel White, Plaintiffs, v. the WEYERHAEUSER COMPANY, Defendant. and Larry Thompson, Plaintiff, v. the Weyerhaeuser Company, Defendant
- **Court:** Supreme Court of Oklahoma
- **Decided:** February 11, 2009
- **Citations:** 202 P.3d 144; 2008 OK 105; 2008 WL 5238495
- **Precedential status:** Published
- **Opinion:** Concurring in part by Watt
- **Judges:** Winchester, Edmondson, Hargrave, Opala, Kauger, Taylor, Colbert, Reif, Watt
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9781933

## How later opinions describe it (automated extraction)

- discussing cases applying Burk

## Opinion text

WATT, J.
concurring in part and dissenting in part:
{1 I concur in today's opinion to the extent that: 1) it relies on this Court's pronouncement in Saint v. Data Exchange, Inc., 2006 OK 59, 16 , 145 P.3d 1037 determining that the Okla. Const. art. 5, § 46 1 gives to an *155 age-discrimination plaintiff a cause of action comparable to the statutory handicap-discrimination remedy; 2 and 2) limits retroac-tivity of the Saint opinion. I dissent to the extent that the majority holds that Saint overrules List v. Anchor Paint Mfg. Co., 1996 OK 1 , 910 P.2d 1011 , in which the majority recognizes no - constitutional challenge was presented 3 along with Marshall v. OK Rental & Leasing, Inc., 1997 OK 34 , 939 P.2d 1116 , which, similar to List, contained no constitutional attack.
T2 IT IS UNNECESSARY TO OVERRULE LIST v. ANCHOR PAINT MFG. OR MARSHALL v. OK RENTAL & LEASING, INC., CASES IN WHICH THE COURT WAS NOT CALLED UPON TO ADDRESS THE CONSTITUTIONAL CHALLENGE LEVIED IN SAINT v. DaTA4 EXCHANGE, INC.
T3 In List, we were asked to extend the common law Burk tort to a situation where the employee alleged a constructive discharge claim based on age discrimination. The allegations in support of the age discrimination claim are found in footnote number 1 of the List opinion providing in pertinent part:
"... (10) C.R. List claims, and the Defendants deny, that the decision to demote C.R. List to Head of Labeling was based on age and was a deliberate attempt to make his working conditions so intolerable that he would voluntarily resign his employment and that this employment action constitutes a wrongful discharge in violation of the public policy of Oklahoma, as articulated in the Age Discrimination Act of 1967, 29 U.S.C. $ 626(b), and Oklahoma's Anti-Discrimination Act, Okla.Stat. tit. 25, § 1802.
(11) L. List also claims wrongful discharge in violation of public policy as articulated by the Age Discrimination in Employment Act of 1967, § 628(d), and Oklahoma's Anti-Discrimination Act, Okla. Stat. tit. 25, § 1802 . ..."
Notably absent from the allegations in List are the constitutional challenges specifically presented to the Court in Saint. In response to the motion to dismiss in Saint, the plaintiff asserted "that the Oklahoma Statute creates a unified class of persons who are the victims of handicap, race, gender or age discrimination therefore requiring equal remedies for all of those persons under Art. 5, $ 46." [Footnote omitted.]
14 Marshall v. OK Rental & Leasing, Inc., 1997 OK 34 , 939 P.2d 1116 is similar to List on two fronts. First, like List, no constitutional challenge was presented in support of the sexual harassment claim. Second, also in accord with the reasoning of List, the Court refused to create a Burk public policy exception to the employment-at-will doctrine where the employee's claim was based solely upon her status rather than her conduct and where adequate remedies existed under state and federal discrimination statutes.
1 5 It is interesting to note that the author of the majority opinion dissented in Collier v. Insignia Financial Group, 1999 OK 49 , 981 P.2d 321 to what the dissent characterized as a partial overruling of List and Marshall. 4 Collier holds that a victim of quid pro quo sexual harassment who has been discharged from employment, either explicitly or con *156 structively, can maintain a public policy tort claim under the Burk exception to the common law's employment-at-will doctrine. Relying on List and Marshall, the dissent asserted that there was no reason to extend the Burk doctrine as the employee had the opportunity to recover money damages under federal law. The writing goes on to assert that such an extension is not required even if the cause is brought in state court as federal claims are enforceable in Oklahoma courts. 5
T6 As late as 2001, the author of the majority opinion reiterated the statements made in the Collier dissent. In a concurring opinion to Clinton v. State ex rel Logan County Election Board, 2001 OK 52 , 29 P.3d 543 , the authoring Justice wrote the following in 1 1 of the concurring opinion.
"*... The majority recasts the certified question adopting the position expressed in the dissent in Collier v. Insignia Commercial Group, 1999 OK 49, 18 , 981 P.2d 321 . It is unnecessary to extend the teachings of Burk v. K-Mart Corp., 1989 OK 22 , 770 P.2d 24 to remedy a state law public policy claim for wrongful discharge if adequate federal statutory remedies are available to the employee for a wrongful discharge. I concur based on the reasoning set forth in my dissent in Collier ...."
No more reason exists today to overrule List or Marshall, cases in which no constitutional challenge was presented or considered, than was present when either the dissent in Collier was written or when the concurring opinion in Clinton was authored.
CONCLUSION
T7 No justification exists for today overruling cases decided by this Court in excess of ten years ago in which we were not requested to address a constitutional challenge. Therefore, I concur in today's opinion to the extent that it upholds the constitutional challenge to an age discrimination challenge recognized in Saint v. Dato Exchange, Inc., 2006 OK 59 , 145 P.3d 1037 and to the limited retroactive application of that opinion. Nevertheless, I dissent to the unnecessary overruling of List v. Anchor Paint Mfg. Co., 1996 OK 1 , 910 P.2d 1011 in which no constitutional challenge was presented or considered and to the same treatment of Marshall v. OK Rental & Leasing, Inc., 1997 OK 34 , 939 P.2d 1116 , which similar to List, contained no constitutional challenge.
. The Okla. Const. art. 5, § 46 providing in pertinent part:
"... The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
... Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial *155 proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals ..."
. The Oklahoma Anti-Discrimination Act, 25 ©.$.2001 § 1101, et seq.
. See, 123, majority opinion providing in pertinent part:
"... Saint was decided under a constitutional question whereas List was not...."
. Collier v. Insignia Financial Group, 1999 OK 49 , 981 P.2d 321 [Kauger, J. dissenting] providing in pertinent part at 11 6:
"It was acknowledged in our decisions in List v. Anchor Paint Mfg. Co., 1996 OK 1 , 11 12, 910 P.2d 1011 and in Marshall v. OK Rental & Leasing, Inc., 1997 OK 34, 123 , 939 P.2d 1116 -overruled in part by the majority opinion. Refusing to extend the Burk analysis in List, we distinguished Tate and acknowledged that the statutory scheme allowed the employee to pursue a jury trial and to attempt to recover punitive damages for his age discrimination claim. ..." [Emphasis supplied.]
. Collier v. Insignia Financial Group, see note 4, supra providing in pertinent part at 18 of the dissenting opinion:
"... Here, as in List and in Marshall, the employee has the opportunity to recover money damages under federal law. Even if the cause had been brought in state court, the extension of Burk here would be unnecessary. State courts can and do decide questions of federal law. Federal claims analogous to those outlined in state law are enforceable in Oklahoma courts. The remedies afforded under the Federal Act are available in our courts." [Footnotes omitted.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9781933. Public record. Not legal advice.