The questions presented are 1) whether a worker who obtains medical treatment from a physician provided by the employer at the job situs has instituted proceedings under 85 O.S. 1981 § 5,
The parties do not dispute that during the summer of 1984, Sheila R. Buckner, employee-appellant, was hired on a part-time basis by General Motors, employer-appellee, to work no more than eighty-nine days. On June 15, she signed a statement verifying that she was a college student; that the job she was applying for was strictly temporary; and that she would not gain seniority. On June 26, while lifting a car part from the machine, the worker injured her shoulder. On July 2, she was referred for medical treatment to the plant physicians, who placed her on limited duty. Apparently, because she had accumulated no sick leave benefits, she was given time off without pay. On July 6, 1984, having returned to work voluntarily, the worker reported to the plant's first-aid facilities complaining of pain in her injured shoulder.
At this juncture the employee and the employer differ on the facts. The employer's version is that because the physician on duty could not see the employee immediately the nurse on duty told her to go back to work until she could be seen. The employer asserts that instead of returning to her station, the employee went to the cafeteria. The employee contends that she was merely waiting to be seen by the doctor. It is undisputed that later that day she received a letter notifying her that she was being discharged for loitering. On July 9, 1984, the employee signed her first notice of accidental injury and claim for compensation claim for workers' compensation benefits which was filed on July 11. The worker was awarded workers' compensation benefits, and on October 11, 1984, she filed an action in the district court of Oklahoma County
The worker testified in a deposition given on May 22, 1985, that she had not consulted an independent physician concerning any of her injuries; that she had received no treatment from the plant physicians other than medication for pain; that after her injury she was physically incapable of doing her work; that she did not receive sick leave nor did she apply for any kind of compensation during the time she was off work; and that after she was fired she was advised by the union's grievance officer that he could not help her seek relief under the collective bargaining agreement with General Motors because she was a probationary employee who had worked less than the thirty day probationary period.
The employee appealed and the Court of Appeals reversed and remanded the cause with instructions, after finding that the employer's motion for summary judgment failed to comply with Rule 13 of the District Court Rules. It held that there was a material factual issue as to the cause of termination because of the employee's allegation that she had been terminated for having instituted a proceeding against General Motors, while General Motors contended that she had been dismissed for loitering.
Although our primary task in this appeal is to elucidate the parameters of "proceedings instituted" under § 5, this case raises important ancillary issues; namely, the order and burdens of proof when retaliatory discharge claims are advanced, and the proper function of summary judgment. We turn first to the order of proof problem.
The Order and Burdens of Proof in a Retaliatory Discharge Case
A review of our prior decisions, especially in view of the apparent confusion generated in this case, persuades us that it is desirable and necessary to provide further guidance to the trial courts and to the litigants they serve in order to promote the orderly presentation and resolution of retaliatory discharge claims. We conclude that the jurisprudence developed in the law of employment discrimination, as it pertains to the order and burdens of proof, is particularly adaptable to the problems encountered in cases brought under 85 O.S. 1981 § 5. It should be emphasized that we are applying standards developed by the federal courts only to the degree specified and discussed in this opinion; we do not mean to signal the wholesale adoption and application of the federal law of employment discrimination to retaliatory discharge claims brought under § 5.
The Legislature has made the burden of establishing a prima facie case for retaliatory discharge relatively easy. The discharged employee must show employment, on the job injury, receipt of treatment under circumstances which put the employer on notice that treatment had been rendered for a work-related injury, or that the employee in good faith instituted, or caused to be instituted, proceedings under the Act, and consequent termination of employment. After a prima facie case is established, the burden then appropriately shifts to the employer to rebut the inference that its motives were retaliatory by articulating that the discharge was for a legitimate non-retaliatory reason for the discharge. Two of these reasons include the employee's inability to perform the assigned
To accomplish this, the employer must set forth clearly, through the introduction of admissible evidence, the reasons for the employee's termination. The explanation provided must be legally sufficient to justify entering judgment for the employer. If the employer carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the employer serves two purposes — it meets the plaintiff's prima facie case by presenting a legitimate reason for the action, and it frames the factual issue with sufficient clarity to provide the worker with a full and fair opportunity to demonstrate that the reason offered by the employer for terminating the employee was not the true reason for the employment decision but was, rather, a pretext. The sufficiency of the rebuttal should be evaluated by the extent to which it fulfills these functions.
However, the nature of the burden which shifts to the employer must be understood in connection with the employee's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the employer retaliatorily discharged the employee for exercising statutory rights under the Act remains at all times with the employee. The burden of persuasion never shifts and the employee bears the burden of persuasion that the reason given for termination was pretextual. This burden merges with the ultimate burden of persuading the court that she has been the victim of retaliatory discharge. The employee may succeed in this, either directly by persuading the court that the discharge was significantly motivated by retaliation for her exercise of statutory rights, or indirectly by showing that the employer's proffered explanation is unworthy of credence.
In the present case, the worker does not dispute the fact that at the time of her termination, she had not hired a lawyer, that she had not filed a claim, or that she was about to testify in any proceedings. Rather, she asserts that she has met the statutory requirement because her two visits to the plant physician bracketing absence from the job for a work-related injury
Institution of Proceedings Under 85 O.S. 1981 §§ 5, 6, 7
The alternative requisites for stating a prima facie case for retaliatory discharge pursuant to 85 O.S. 1981 § 5 are that the employee has in good faith either filed a claim, retained a lawyer, in good
Apparently, by including the clause "instituted or caused to be instituted, in good faith, any proceeding", the legislature intended to frame a standard to fit the circumstances of individual cases which involved retaliation for any substantial exercise of a right under the Act. The ultimate public policy considerations as well as the ultimate social and economic decisions are the province of the Legislature, not of the courts. Our job is to construe the statutory directives in accordance with the Legislature's intent. The problem is that the circumstances which constitute institution of proceedings for which there is a statutory right can only be described — they defy definition, requiring instead resolution on a case by case basis.
The question we must revisit is what, other than actually filing a claim, constitutes the institution of a workers' compensation claim for the purposes of 85 O.S. 1981 §§ 5, 6, and 7? In an early case, Rucks-Brandt Const. Co. v. Price, 165 Okl. 178, 23 P.2d 690, 693 (1933), this Court held that proceedings before the Industrial Commission were instituted by filing claims for compensation; likewise, 85 O.S. 1981 § 3.4 (now 85 O.S.Supp. 1986 § 3.4) provides that all claims for any compensation or benefits under the Act shall be commenced with the filing of a notice of injury with the Administrator. Nevertheless, cases from most jurisdictions
To institute means to begin, to commence, to initiate, to originate, to establish, cause to be, found, ordain, introduce, bring into use or practice, set on foot, initiate, or start.
A proceeding may refer to a complete remedy as well as a mere procedural step which is incorporated into the overall solution for redress.
In order for the phrase "instituted or cause to be instituted any proceeding" to be given operative effect, it must be construed to mean actions taken by the claimant other than the filing of a claim. Otherwise, the phrase would be superfluous within the wording of the statute.
Although the specific formulas vary, depending on the statutes or case law of each jurisdiction, employees have recovered damages for retaliatory discharge if the worker has filed a claim or instituted proceedings, instituted, or caused to be instituted in good faith any proceeding, claimed or attempted to claim benefits, filed a claim, hired a lawyer, made known an intention to file a claim, or received or attempted to receive benefits.
In the landmark retaliatory discharge case, Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425, 63 A.L.R.3d 393 (1973), the Indiana Supreme Court was asked to provide a remedy for an employee who had been discharged from her job in retaliation for filing a workers' compensation claim. The employer argued that it had a right to terminate the employee without cause because she was an employee at-will. The Frampton court, although acknowledging that under ordinary circumstances an at-will employee may be discharged without cause, recognized an exception to the general rule. It held that if an employee at-will is discharged solely for exercising a statutorily conferred right, the worker may proceed with a tort action against the employer for compensatory and
In Leach v. Lauhoff Grain Co., 51 Ill.App.3d 1022, 1024, 9 Ill.Dec. 634, 636, 366 N.E.2d 1145, 1147 (1977), the Illinois appellate court, in response to the employer's contention that an employee at will may be discharged without cause, stated:
The distillate of this Court's holdings in Thompson v. Medley Material Handling, Inc., 732 P.2d 461, 463 (Okla. 1987), Elzey v. Forrest 739 P.2d 999, 1001 (Okla. 1987), and Pierce v. Franklin Electric Co., 737 P.2d 921 (Okla. 1987), is: 1) the protection of § 5 is limited to good faith actions taken by an employee who has suffered a work-related injury; 2) an employer may, without incurring tort liability, discharge an at-will employee who is physically unable to perform the duties of the job; 3) the employee must offer evidence which would establish circumstances giving rise to a legal inference that the discharge was significantly motivated by retaliation for the exercise of statutory rights; and 4) if retaliatory motivations comprise a significant factor in a employer's decision to terminate an employee, even though other legitimate reasons exist to justify the termination, the discharge violates the intent of § 5.
Initially, it appears that the entry of summary judgment should be summarily affirmed because of the employee's deposition testimony that she was unable after her injury to perform her duties. However, the Pierce teaching that an at-will employee may be fired for being unable physically to perform the job, is not controlling here because the employer insists that the worker was fired for loitering rather than for any physical incapacity. Therefore, we must answer the question — whether under the facts of this case receipt of medical treatment at the job situs by a physician provided by the employer constitutes the institution of proceedings for purposes of stating a prima facie case under § 5.
The worker relies on Elzey, Zaragosa, and Pierce as well as Webb v. Dayton Tire & Rubber Co., 697 P.2d 519, 524 (Okla. 1985), with special emphasis on the language in Webb. The Webb Court held that "in this case the receipt of medical treatment or the commencement of temporary compensation payments under the provisions of the Workers' Compensation Act, constitutes the institution of proceedings ..." for § 5 purposes. In Webb, the worker who was terminated for failing to return to work, reported the injury to her employer, was sent home by the company doctor, and received temporary disability benefits under the Workers' Compensation Act during the four weeks she was off work. In Zaragosa, the employee was treated by her own physician before she was seen by the doctor designated by her employer. She was terminated for disobeying her employer's order to return to work when she had been directed by her physician to rest for seven days. In Elzey the worker actually filed a claim, and in Pierce the employee received payments for temporary total disability.
Our research has not uncovered a case directly in point, and because not every injury results in the pursuit of a claim, it is presumptuous to conclude that every time an employer provides first aid treatment that a workers' compensation proceeding has been "instituted".
Merely seeking and receiving first aid is not in and of itself sufficient to institute proceedings. Some other evidence sufficient to persuade the trier of fact that the worker intended or reasonably could have intended to institute proceedings is necessary. Marginal employees cannot insulate themselves from discharge by an opportune visit to the first aid station.
On remand, it will remain the task of the trier of fact to resolve the factual issues involved in these retaliatory discharge cases. Our delineation of the order and burdens of proof is intended to ensure that those issues are presented in a manner that is coherent and consistent with the legal duties of the parties.
Failure To Comply With 12 O.S.Supp. 1985 Ch. 2, App., District Court Rule 13
Although we have determined that the employee has stated a prima facie case for
Motions for summary judgment do not admit all well-pleaded facts in a petition even though the allegations of the pleadings standing alone may raise an issue of material fact. If the defendant introduces evidence which indicates that there is no substantial controversy of a fact material to plaintiff's cause of action and this fact is in the defendant's favor, the plaintiff has the burden of showing that evidence is available which would justify the trial of the issue. Affidavits attached to a motion for summary judgment must set forth such facts as would be admissible in evidence rather than allegations of conclusory statements. Without a showing that evidence is available, mere contentions and arguments cannot and will not make it true.
Even when the basic facts are undisputed, motions for summary judgment should be denied, if under the evidence, reasonable persons might reach different inferences or conclusions from the undisputed facts.
This Court has discovered that approximately one-third of its caseload involves appeals from summary judgments. Many of these have been entered prematurely — as is the case here. We have discussed the facts previously; however, a brief restatement clearly illustrates this point. The employer submitted one affidavit, that of the general supervisor of employee relations essentially stating that the
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED.
DOOLIN, C.J., HARGRAVE, V.C.J., and LAVENDER, ALMA WILSON and KAUGER, JJ., concur.
OPALA, J., concurs in Part I, dissents from Part II.
HODGES, SIMMS and SUMMERS, JJ., dissent.
"a. A party may move for judgment in his favor on the ground that the depositions, admissions in the pleadings, stipulations, answers to interrogatories and to requests for admissions, affidavits, and exhibits on file, filed with his motion or subsequently filed with leave of court show that there is no substantial controversy as to any material fact. The motion shall be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and the reasons why summary judgment should be granted... .
b. If the adverse party or parties wish to oppose the granting of the motion, they shall serve on the moving party and file with the court clerk within fifteen days after service of the motion a concise written statement of the material facts as to which he or they contend a genuine issue exists and the reasons for denying the motion. The adverse party shall attach to the statement affidavits and other materials containing facts that would be admissible in evidence, but the adverse party cannot rely on the allegations or denials in his pleading... .
c. The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that are admissible in evidence... ."