concurring in part and dissenting in part:
I concur in Part I of the Court’s opinion. If retaliation plays a significant part in an employer’s decision to place an employee among a list of those to be laid off for economic reasons, that employee has been discharged because of the exercise of rights granted under 85 O.S.1981 § 5.
I, however, disagree with the majority’s conclusion that the evidence taken in a light most favorable to the non-moving party, here Thompson, fails to establish a prima facie showing of retaliatory discharge, but rather concludes that Thompson’s claim for worker’s compensation benefits had no effect upon the decision to terminate Thompson’s employment. Upon a prima facie showing, it was within the province of the jury to decide the propriety of the evidence presented. The trial court thus did not err in overruling the demurrer to the evidence.
*465At the close of the plaintiff [worker’s] case-in-chief, the defendant [employer] demurred to the evidence on the ground that, “they have not put on any direct [emphasis mine ] evidence that anyone said that this man was discharged for something relating to a Worker’s Compensation claim or any evidence that anything was done in writing [emphasis mine ] that illustrated that.” The trial court in overruling the employer’s demurrer stated:
“I believe counsel ... stated in his opening statement that the case would be a circumstantial one, as most all of these are. I don’t know if you ever have a situation where someone from management says you’re fired because you filed a worker’s compensation claim. It has to be gained through surrounding circumstances, if at all by a jury.
But I believe it is sufficient to go to the jury, or to overcome the demurrer at least. Whether it is sufficient, of course, will be for the jury. But the demurrer will be overruled.”
I am of the opinion that the trial court correctly assessed the posture of the case and that the circumstantial evidence presented by the worker, Richard Thompson, was sufficient to let the case go to the jury.
The evidence discloses that Thompson worked for this employer as a long-haul truck driver for approximately six years before sustaining the on-the-job injury which prompted the filing of the worker’s compensation claim which is here the subject of inquiry. Evaluations of his work were favorable prior to August 23, 1982, the date of the on-the-job injury. Subsequent thereto, the doctor whom Thompson’s employer had sent Thompson, released Thompson to return to work; but for light duty only, restricting Thompson’s driving to a 40-mile radius, rather than long-haul distance driving. Thompson testified, however, that upon returning to the job he was told to either take the tickets [job designations] offered or go home; that “if you can’t do it, you get on welfare”. Thompson further testified that after filing the worker’s compensation claim his employer’s attitude toward him changed dramatically. On the identical date Thompson filed his first report of injury, the employer issued a letter to Thompson offering him local driver’s work; or light delivery at a reduction in pay; but requiring him to return to his regular job classification within a specified time. In the event Thompson could not within such time return to long-haul driving, Thompson was to be relegated indefinitely to unpaid “leave of absence”. Immediately following the November 5, 1982 filing of the worker’s compensation claim, Thompson testified that:
“I went to work two days and nobody said nothing to me. Well, just not a thing. This is the truth. I sat there for two days; nobody said, Richard, go do this, and Richard. And I said, what you all want me to do. We’ll get to you later. So, the day after that they went in there and they said that they was going to give Bud two dollars and a quarter of my pay for him to drive the truck and cut my pay down and give it to Bud. And Bud cannot even probably get a chauffeur’s license, which he was telling me, to drive a truck. There’s no way they can operate the forklift job without a truck — the forklift company without a truck driver.”
Thompson further testified that nevertheless he stayed on the job and during the month of November he did make daily local runs, in addition to performing mechanic’s work, but that:
“They would give me transmissions and stuff, you know. If I had to do mechanic work, it would be something underneath because I wore this brace and it made it hard to bend. I mean, it seemed like they was doing that purposefully to me.” [Emphasis added.]
Finally, if the worker’s testimony is to be believed, the company’s employee turnover is great, therefore normally the company follows a policy of first laying off employees with the least seniority during a work slow down. Thompson’s employment was terminated on December 6,1982, though he was the employee with the greatest seniority in the Service Department. It was *466Thompson’s stated belief that “lack of work” was not the reason for the termination of his employment, but rather that employment problems developed only after he claimed worker’s compensation benefits.
Because there was evidence pertaining to retaliatory discharge which warranted submission of the issue to the jury, the instruction requiring the worker to prove he was discharged solely by reason of pursuing a worker’s compensation claim is reversible error.
I am authorized to state that DOOLIN, C.J., joins in the views expressed herein.