Date: 02-24-2009

Case Style: Ana Maria Shirazi v. Childtime Learning Center, Inc.

Case Number: 2009 OK 13

Judge: Kauger

Court: Supreme Court of Oklahoma on certification from the Western District of Oklahoma, Oklahoma County

Plaintiff's Attorney: Mark Hammons and Amber Hurst, Oklahoma City, Oklahoma

Defendant's Attorney: Elaine E. Turner and Elizabeth E. Muckala, Oklahoma City, Oklahoma

Description: ¶1 The United States District Court for the Western District of Oklahoma certified two questions of Oklahoma Law under the Revised Uniform Certification of Questions of Law Act, 20 O.S. 2001 §§1601-1611,2 seeking clarification concerning the "adequacy" of remedies available to a plaintiff who brings an employment discrimination lawsuit based on race, national origin, and age discrimination claims. We have consolidated and reformulated3 the two questions into one.

¶2 The plaintiff, Ana Maria Shirazi (Shirazi), was employed by the defendant, Childtime Learning Center, Inc. (the Center) as a teacher. After Shirazi was terminated from employment, she brought an action in the United States District Court for the Western District of Oklahoma alleging that during her employment, she was subjected to discriminatory and harassing employment practices based on race, national origin, and age.

¶3 On July 14, 2008, the United States District Court for the Western District of Oklahoma filed an order certifying two questions of law to this Court concerning the "adequacy" of federal or state remedies available to a plaintiff asserting race, national origin, or age discrimination claims and the availability of a Burk tort. On December 16, 2008, the Center filed its Notice to the Court of Settlement Agreement asserting that a settlement agreement had been reached.

¶4 On January 9, 2009, we directed Shirazi to show cause why the questions were not moot. She responded, arguing that the public interest exception to the mootness doctrine was applicable,4 and she provided documentation alleging that the bench and bar remained uncertain about our recent holdings in Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, and Kruchowski v. Weyerhaeuser Co., 2008 OK 105, __ P.3d ___ .5 We agree that the public interest exception to mootness applies.

¶5 THE OKLA. CONST. ART. 5, §46 REQUIRES THAT THE SAME REMEDIES MUST BE APPLICABLE TO EVERYONE WITHIN THE SAME CLASS OF EMPLOYMENT DISCRIMINATION, REGARDLESS OF WHETHER THE REMEDIES ORIGINATE UNDER FEDERAL STATUTES OR STATE LAW. THE SAME CLASS OF EMPLOYMENT DISCRIMINATION, AS RECOGNIZED BY 25 O.S. 2001 §1302, INCLUDES RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, AND HANDICAP.

¶6 Shirazi argues that pursuant to Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, the Okla. Const. art. 5, §46,6 requires all remedies which are recognized in the Oklahoma Anti-Discrimination Act7 to be the same. The Center contends that although Saint recognized that a constitutional "unified class" was mandated, "equal" statutory remedies were not required, and the need for the plaintiff to show that her remedies were "inadequate" was not eliminated.

¶7 In Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, the Court addressed whether a Burk tort remedy was available to an age-discrimination plaintiff. The Saint plaintiff brought an age discrimination suit in Federal Court, asserting claims under the federal age discrimination statute8 and Oklahoma's public policy against age discrimination as embodied by the Oklahoma Anti-Discrimination Act, 25 O.S. 2001 §§1101-1901. The plaintiff's argument was that the Oklahoma Anti-Discrimination Act created a unified class of persons who are the victims of handicap, race, gender, or age discrimination; therefore, equal remedies are required for all those persons under art. 5, §46 of the Oklahoma Constitution.9 We agreed with the plaintiff's argument.10

¶8 On December 16, 2008, we decided Kruchowski v. Weyerhaeuser Co., 2008 OK 105, __ P.3d ___. Kruchowski also involved an age discrimination claimant who asked the United States Court for the Eastern District of Oklahoma to certify a question to this Court in an attempt to clarify Saint's impact on previous decisions.11 We recognized that: 1) Saint had already determined that our Constitution required that the same remedies must be made available for everyone within the class of employment discrimination -- handicap, race, sex, and age; and 2) pursuant to Saint, the case turned not on the adequacy of the remedies, but whether the remedies were disparate and unequal. Although we did not discuss the entire class of similarly situated employment discrimination plaintiffs, the Oklahoma Anti-Discrimination Act specifically places race, color, religion, sex, national origin, age, and handicap as types of discrimination within the same employment class.12

¶9 In Kruchowski, we held that a plaintiff may pursue a state law claim for wrongful discharge in violation of public policy when the available remedies to the same class of employment discrimination victims are not uniform and evenhanded - regardless of whether the remedies originate under federal or state law. It is only when the available remedies to the victim are not the same as those remedies which are provided for like or similar discrimination that we will craft an appropriate common law remedy. We also noted that because a Burk claim's actionable character is anchored in the employer's discharge in a breach of Oklahoma's public policy, the plaintiff must show either that a breach of Oklahoma's public policy occurred for which there is no statutorily-crafted remedy or that the available statutory remedy in existence is not the same as those provided for work-related discrimination within the same employment class.13

¶10 Once again, we reiterate that rather than focus on the adequacy of the remedies available to a plaintiff, pursuant to the Okla. Const. Art. 5 §46, Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, and Kruchowski v. Weyerhaeuser Co., 2008 OK 105, __ P.3d ___ , a plaintiff may pursue a state law Burk tort claim for wrongful discharge in violation of public policy when the available remedies to the same class of employment discrimination victims are not the same -- regardless of whether the remedies originate under federal or state law. Lest there be any mistake, pursuant to the Oklahoma Anti-Discrimination Act, 25 O.S. 2001 §1302, race, color, religion, sex, national origin, age, and handicap are the types of discrimination within the same employment class to which we refer. However, double recovery is never permitted.

CONCLUSION

¶11 In Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, the Burk public policy exception was applied to a victim of alleged age discrimination because a refusal to do so would create an unequal division of members of the same class, which would offend the Oklahoma Constitution, art. 5, §4614 requirements of uniformity, symmetry, and evenhanded treatment. In Kruchowski v. Weyerhaeuser Co., 2008 OK 105, __ P.3d ___ , we held that there is a Burk tort remedy for those who allege employment age discrimination, and pursuant to Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, a plaintiff may pursue a state law claim for wrongful discharge in violation of public policy when the available remedies to the same class of employment discrimination victims are not the uniform and evenhanded -- regardless of whether the remedies originate under federal statutes or state law.

¶12 Today, we hold that the Okla. Const. art. 5 §46 requires that the same remedies must be applicable to everyone within the same class of employment discrimination. The same class of employment discrimination, as recognized by 25 O.S. 2001 §1302, includes race, color, religion, sex, national origin, age, and handicap. Regardless of whether the remedies originate under federal statutes or state law, pursuant to Saint v. Data Exchange, Inc., 2006 OK 59, 145 P.3d 1037, and Kruchowski v. Weyerhaeuser Co., 2008 OK 105, __ P.3d ___ , rather than looking to the adequacy of remedies, a plaintiff may pursue a state law Burk tort claim for wrongful discharge in violation of public policy when the same remedies are not available to the same class of employment discrimination victims. However, double recovery is not permitted.

Outcome: Question answered.

Plaintiff's Experts:

Defendant's Experts:

Comments: