Date: 02-17-2009
Case Style: Elizabeth Martin; Kelly Folsom v. Weyerhaeuser Company
Case Number: 07-7083
Judge: Terrence L. O’Brien
Court: United States Court of Appeals for the Tenth Circuit on appeal from the Eastern District of Oklahoma, Muskogee County
Plaintiff's Attorney:
Defendant's Attorney:
Description: Elizabeth Martin and Kelly Folsom, at-will employees, were discharged by
the Weyerhaeuser Company. As self-described whistleblowers, they claim their
discharge violated Oklahoma public policy. The district court dismissed their
complaint on a motion for summary judgment. We affirm.1
2 The record does not indicate whether the June 2004 forced ranking was
undertaken in anticipation of layoffs.
I. BACKGROUND
In August 2001, Weyerhaeuser hired Martin and Folsom to work at its
containerboard manufacturing facility in southeastern Oklahoma. Martin was
hired as a senior environmental engineer focusing primarily on water quality
issues. Folsom was hired as an environmental engineer focusing primarily on air
quality issues.
Martin and Folsom were evaluated annually and received generally positive
ratings, as well as raises and cash bonuses, until June 2004. During a forced
ranking process,2 they received ratings placing them in the bottom of the bottom
tier of salaried employees. Martin and Folsom were placed on 45-day
performance improvement plans which were extended for an additional 45 days.
Both were terminated following the expiration of the second 45-day term.
Martin and Folsom filed suit, alleging they were terminated in violation of
Oklahoma’s public policy exception to the employment-at-will doctrine. They
claimed they were terminated for “notifying management of . . . environmental
concerns and for their repeated efforts to coax and then goad . . . management to
take corrective . . . actions.” (Appellants’ App. at 33-34.) After limited
discovery, Weyerhaeuser filed a motion for summary judgment arguing Martin
and Folsom neither articulated an actionable public policy nor presented evidence
that they were discharged for either refusing to act in violation of, or performing
an act consistent with, Oklahoma public policy. In opposition to Weyerhaeuser’s
motion, Martin and Folsom submitted affidavits supporting their theory of
liability. Both claimed they raised serious environmental concerns with
Weyerhaeuser on numerous occasions and the corrective action they
recommended was not undertaken. Both “believe[d] that [they were] terminated
in retaliation for performing the core functions of [their] positions.” (Id. at 290,
300.)
The court granted Weyerhaeuser’s motion for summary judgment.3 Martin
and Folsom filed a timely notice of appeal. We requested supplemental briefing
on the issue of:
Whether, viewing the facts in the light most favorable to plaintiffs,
they have demonstrated a genuine issue of material fact in support of
their claims that their employment was terminated as a result of
either refusing to act in violation of public policy or performing an
act consistent with public policy.
II. DISCUSSION
In Burk v. K-Mart Corporation, the Oklahoma Supreme Court “adopt[ed] . .
. the public policy exception to the at-will termination rule in a narrow class of
cases in which the discharge is contrary to a clear mandate of public policy as
articulated by constitutional, statutory or decisional law.” 770 P.2d 24, 28 (Okla.
1989). A Burk tort arises “where an employee is discharged for (1) refusing to
violate an established and well-defined public policy or (2) performing some act
consistent with a clear and compelling public policy.” Darrow v. Integris Health,
Inc., 176 P.3d 1204, 1210 (Okla. 2008).
Martin and Folsom contend they were discharged for refusing to violate an
established and well-defined public policy, relying generally on Oklahoma’s
environmental statutes4 and whistleblower protections as the basis for the alleged
public policy. The district court concluded neither the environmental statutes nor
the whistleblower protections could form the basis of a Burk tort. The court also
held Martin and Folsom failed to show a genuine issue of material fact regarding
the reason for their terminations.
“This court reviews an award of summary judgment de novo, viewing the
record in the light most favorable to the non-moving party.” Hammons v. Saffle,
348 F.3d 1250, 1254 (10th Cir. 2003). Summary judgment is appropriate only “if
the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372,
127 S. Ct. 1769, 1776 (2007) (quotations omitted). “If there is no genuine issue
of material fact in dispute, this court then determines if the substantive law was
correctly applied by the district court.” Hammons, 348 F.3d at 1254. Since this
case is grounded on diversity jurisdiction, the substantive law of Oklahoma
governs. Blanke v. Alexander, 152 F.3d 1224, 1228 (10th Cir. 1998). The district
court’s determination of Oklahoma law is entitled to no deference. Id.
A. Legal Question
“[A]n employer’s violation of a state-declared public policy is the
fundamental predicate for a Burk tort.” Darrow, 176 P.3d at 1210. Thus, we
begin by considering whether the court correctly determined Martin and Folsom
did not allege an actionable public policy. “The determination of a public policy
exception is a question of law for the court to decide.” Wilburn v. Mid-South
Health Dev., Inc., 343 F.3d 1274, 1277 (10th Cir. 2003); see also Pearson v.
Hope Lumber & Supple Co., 820 P.2d 443, 444 (Okla. 1991) (same). The
Oklahoma Supreme Court has acknowledged “it is not always easy to identify
what is a specific, well-established, clear and compelling public policy.” Darrow,
176 P.3d at 1210. After the district court’s decision, the Oklahoma Supreme
Court decided Darrow, which changed the Burk tort landscape, calling into
question the cases relied upon by the district court.
1. Oklahoma’s Environmental Statutes
According to the district court the environmental statutes relied upon by
Martin and Folsom did not set forth an actionable public policy because they do
not purport to affect the employment relationship. It cited Pearson5 and Shero v.
Grand Sav. Bank, 161 P.3d 298 (Okla. 2007),6 for the proposition that “[t]he
statute upon which an employee relies for the public policy exception to his at
will status must [ ] explicitly state in its provisions an intent to affect the
employment relationship.” (Appellants’ App. at 27.)
In Darrow, the Oklahoma Supreme Court rejected an argument that a Burk
claim must fail under Pearson and Shero if “the sources of public policy relied on
by [the plaintiff] contain no provisions limiting the actions of an employer.” 176
P.3d at 1214, n.45. The court held Pearson and Shero were “not applicable” in
Darrow “because we are dealing with matters of importance to the general
public.” Id. The issues in this case—the quality of Oklahoma’s air and
water—would seem to be matters of importance to the general public, no less than
the issue of health care fraud and abuse in Darrow. We assume the Oklahoma
environmental statutes cited by Martin and Folsom can support a Burk tort.7 In
any event, they are clearly not infirm because of their failure to touch the
employment relationship.
2. Oklahoma’s Whistleblower Protections
The district court also held Martin and Folsom could not rely on
Oklahoma’s whistleblower protections as a basis for their claims. It relied upon
Richmond v. ONEOK, Inc., where “[w]e reject[ed] [the plaintiff]’s claim that
Oklahoma law provides an exception to at-will employment on the basis of her
‘internal whistleblowing’” noting “[t]his court has already held that there is no
clear mandate of Oklahoma public policy against terminating employees for
whistleblowing activity.” 120 F.3d 205, 210 (10th Cir. 1997).
The Oklahoma Supreme Court has since clearly recognized that internal
and external whistleblowing can provide a basis for a Burk claim. In Darrow, the
Oklahoma Supreme Court held the plaintiff, who alleged he was wrongfully
discharged for reporting record discrepancies and concerns about patient safety,
stated a claim under Burk.8 176 P.3d at 1216. The court distinguished Hayes v.
Eateries, Inc., 905 P.2d 778, 785-86 (Okla. 1995), which held a restaurant
employee could not maintain a Burk claim after being discharged for reporting a
co-employee’s embezzlement because he reported the embezzlement out of
loyalty to his employer and concern for his employer’s proprietary interest, not to
vindicate his own interests or those of the general public. Id. at 1212-16. The
Darrow court determined Hayes did not exclude all whistleblowing claims, but
only those without public impact. Id. at 1214. It explained:
Oklahoma law protects both internal and external reporting of
whistleblowers who rely on an employer’s public-policy violation to
support an actionable employment termination . . . . Employees who
report and complain of an employer’s unlawful or unsafe practices
and whose actions seek to further the public good by unmasking
these breaches should be protected from an employer’s retaliation.
Id. at 1215-16 (emphasis in original).
Based on Darrow, it appears Martin and Folsom stated a Burk tort claim
since they allege they were discharged for internal whistleblowing related to
Weyerhaeuser’s allegedly unlawful environmental practices.
B. Factual Question
Assuming Martin and Folsom stated a public policy basis for their claims
does not end the analysis. The district court also concluded Martin and Folsom
failed to allege facts sufficient to withstand summary judgment.9 It said: “The
general allegations espoused by Plaintiffs . . . simply represent Plaintiffs’
personal speculation and opinion without an evidentiary basis . . . . Plaintiffs’
ultimate conclusion[ ] that their terminations were based upon their performance
of their job duties in reporting environmental matters is ethereal at best.”10
(Appellants’ App. at 30.)
To succeed on a Burk tort claim, a plaintiff must allege he was discharged
“in significant part for a reason that violates an Oklahoma public policy goal.”
Vasek v. Bd. of County Comm’rs of Noble County, 186 P.3d 928, 932 (Okla.
2008). Upon careful review of the record, we conclude reasonable minds could
not conclude Martin and Folsom’s internal whistleblowing about alleged
environmental wrongdoings, to the extent it can be characterized as such, was a
significant factor in their discharge.11 See id. at 934 (“If, from the evidentiary
materials attached to the motion for summary judgment and the response,
reasonable minds could reach differing conclusions as to whether Plaintiff’s call
to the [Department of Labor] was a ‘significant factor’ in her discharge, then the
issue of retaliatory intent is a jury question.”).
Martin and Folsom do not specifically allege Weyerhaeuser violated any
environmental regulations; nor do they point to any evidence of retaliatory intent.
The only evidence they cite to support their theory of retaliation are the negative
rankings they received in June 2004, preceded generally by their voicing of
various environmental concerns, which may or may not have violated the law, and
which may or may not have been remedied. In Barker, the Oklahoma Supreme
Court stated:
Oklahoma does not recognize a Burk tort for public employees who
complain about the way an organization is managed when the
complaints merely exhibit differences of opinion or dissatisfaction
with discretionary management decisions and the like. Something
more is required such as reporting fraudulent activity or criminal
misuse of funds.
40 P.3d at 469-70. Martin and Folsom have not shown they did anything more
than express their dissatisfaction with Weyerhaeuser’s environmental practices.
Without specific evidence that Weyerhaeuser’s conduct was fraudulent, criminal
or illegal, their case fails under Burk. See id. at 471 (“[E]ven when viewing the
summary judgment evidentiary materials in the light most favorable to
[plaintiffs], we find they have failed to tie their expressions of concern to a
specific, well established, clear and compelling Oklahoma public policy . . . .”).
Though a party opposing summary judgment “need not offer conclusive
proof,” he “must proffer some probative evidence that would be sufficient to
sustain [his] burden of persuasion at trial.” Riggs v. AirTran Airways, Inc., 497
F.3d 1108, 1116 (10th Cir. 2007). Martin and Folsom have failed to do so.
* * *
http://www.ca10.uscourts.gov/opinions/07/07-7083.pdf
Outcome: AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments:
