White v. American Airlines, Inc.

Decision Date01 October 1990
Docket Number89-5035 and 89-5063,Nos. 87-2127,88-1521,88-2309,88-1421,s. 87-2127
Parties116 Lab.Cas. P 56,400, 17 Fed.R.Serv.3d 1199, 6 Indiv.Empl.Rts.Cas. 1086 Joe L. WHITE, Plaintiff-Appellee/Cross-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellant/Cross-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Reuben Davis (Frederic N. Schneider, III and John A. Burkhardt, were on the briefs), Tulsa, Okl., for defendant-appellant/cross-appellee.

Gary L. Richardson (Gregory G. Meier and Ronald E. Hignight, of Richardson, Meier, McKenzie & Associates, P.C., Tulsa, Okl. and Joe L. White and Donald G. Hopkins of Collinsville, Okl., were on the briefs), for plaintiff-appellee/cross-appellant.

Before TACHA and EBEL, Circuit Judges, and SAFFELS, District Judge. *

EBEL, Circuit Judge.

These consolidated appeals relate to an action brought by plaintiff-appellant Joe L. White against defendant-appellee American Airlines, Inc. ("American"), White's former employer. White alleges, among other things, that he was discharged in retaliation for his refusal to commit perjury on behalf of American. The case was initially filed in Oklahoma state court, but subsequently was removed to the United States District Court for the Northern District of Oklahoma. A jury found that White was terminated in violation of Oklahoma's public-policy exception to the employment-at-will doctrine and awarded him $1,516,000 in damages. Because we conclude that the jury was given an erroneous instruction concerning plaintiff's burden of proof as to the motive for his discharge, we reverse and remand for a new trial.

FACTS

White was an employee of American from 1968 until his termination on September 18, 1981. During his tenure at American, White held several supervisory, lower-level management positions. In the fall of 1978, White was assigned to a special task force to study maintenance and engineering problems concerning the DC-10 aircraft. As part of this assignment, White prepared some reports discussing the procedures American was following to change engines on the DC-10. During this time, White was promoted to shift superintendent of DC-10 aircraft maintenance, a position he held until approximately July 1979. From July 1979 until his termination, White worked as a supervisor of a Boeing 727 engine change crew.

On July 17, 1981, Darroll Davison, a Vice-President of American, met with White and informed him that his employment with American would be terminated in 60 days. American argues that White was terminated because of "an unacceptable pattern of deteriorating work performance and poor judgment." Appellant's Brief-in-Chief at 12 (Nos. 88-1421, 88-1521) (filed Oct. 27, 1988). Among other things, American alleges the following in support of its decision to terminate White: (1) in mid-March 1981, White took his crew to St. Louis to change an engine without obtaining permission from his immediate supervisor; (2) White failed to follow the union overtime list for field trips, resulting in grievances being filed against American by mechanics who should have been sent to St. Louis to perform the work and resulting in American having to pay those mechanics for the time that they would have spent in St. Louis; (3) White violated American's company policy by having his crew work more than 30 straight hours; (4) White violated FAA regulations by having a mechanic inspect his own work; (5) on June 24, 1981, White permitted an aircraft, on which his crew was performing an engine change, to leave the Tulsa Base without completing the engine change; (6) on Saturday, June 26, 1981, White, refused to report for weekend duty; (7) other supervisors complained that White was neglecting his responsibilities, that he was frequently absent from the premises during his shift, and that White's crew left work early; (8) White's immediate supervisor and another American employee made a total of twenty-two spot checks during White's shift and only found White at work during one of those checks; (9) White listed eight hours of overtime on his timecard that he did not in fact work; and (10) White induced his crew to work overtime by promising them that they would be paid for more hours than they actually worked. Id. at 6-9.

White alleges that he was in fact fired because he refused to perjure himself, as requested by David E. Wheeler, American's outside counsel in litigation concerning the May 1979 crash of an American DC-10 in Chicago. White had been served with notice to appear for a deposition in the case During the first day of their meetings, White and Wheeler allegedly discussed an engine removal procedure that American had followed involving the use of a hyster forklift. White initially testified that Wheeler told him not to mention the removal procedure at his deposition. R.Vol. IV at 223-29. However, White subsequently stated that Wheeler in fact had only asked him not to volunteer any information. R.Vol. IV at 230, 234-35.

and he met with Wheeler several times over a three-day period in April or May of 1981 to prepare for the deposition. No one else was present at the meetings.

White testified that on the second day of their meetings, White and Wheeler discussed: (1) a May 1, 1979 memorandum written by White requesting that maintenance be performed on the hyster forklift; (2) a "request for engineering evaluation" allegedly filed by White relating to the use of the hyster forklift to perform the engine removal process; and (3) an incident in 1979 in which White had a structural engineer examine the wing of a DC-10 as part of his complaints about the engine removal procedure. R.Vol. IV at 235-245. White testified that Wheeler told him not to remember any of this, but that White refused. R.Vol. IV at 247-48.

White never testified, by deposition or otherwise, in the DC-10 litigation. Wheeler denied that he asked White to testify falsely or that he told White to forget what he knew about the DC-10 or any other matter. White never notified anyone at American of Wheeler's alleged attempt to have White commit perjury.

On or about July 7, 1982, White filed his first suit against American in Oklahoma state court ("White I "). American removed the case to the United States District Court for the Northern District of Oklahoma, and on August 27, 1982, White filed an amended complaint alleging five causes of action: (1) breach of contract; (2) retaliatory discharge; (3) violation of 42 U.S.C. Sec. 1983; (4) defamation; and (5) conspiracy.

On September 27, 1982, American filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The district court dismissed all of White's claims except the defamation claim on January 4, 1984. On June 9, 1986, White filed a motion to vacate the district court's January 4, 1984 order. In ruling on that motion on October 10, 1986, the court concluded that White had stated a contractual claim for breach of an implied covenant of good faith pursuant to Hall v. Farmers Ins. Exchange, 713 P.2d 1027 (Okl.1985), and to that extent vacated its January 4, 1984 order and reinstated White's claim for breach of contract. On November 19, 1986, the court denied a motion filed by American requesting summary judgment on the defamation claim.

On July 16, 1984, White filed a second suit in Oklahoma state court ("White II "), alleging a conspiracy to wrongfully terminate him and to defame him and a conspiracy to destroy and falsify evidence. Plaintiff named American and several individual employees and other agents of American as defendants. American removed White II to the United States District Court for the Northern District of Oklahoma. On April 30, 1986, the district court granted American's motion for summary judgment in White II, concluding that: (1) a corporation cannot conspire with itself as a matter of law, and the individual agents were not alleged to have acted outside the scope of their employment; (2) the underlying tort claims for wrongful termination and defamation should be dismissed as a matter of law for the same reasons set forth by the district court in its January 4, 1984 order dismissing those same claims in White I; and (3) White II was merely an attempt to circumvent the court's rulings in White I, including a ruling that had prohibited plaintiff from naming additional defendants in White I.

On January 6, 1987, this court affirmed the district court's April 30, 1986 order dismissing White II. On September 15, 1987, the district court again partially vacated its January 4, 1984 order in White I, as well as its October 10, 1986 order in White I, and concluded that because of the Oklahoma Supreme Court's subsequent decision in Hinson v. Cameron, 742 P.2d 549 Six days later, on September 21, 1987, the district court denied American's request for a continuance. On September 23, 1987, the trial of both the retaliatory discharge claim and the defamation claim began. On October 13, 1987, the jury returned a verdict in favor of White on his retaliatory discharge claim and awarded White $1,516,000 in damages. The jury returned a verdict in favor of American on the defamation claim. On March 9, 1988, the district court denied American's motion for a partial judgment n.o.v. or, alternatively, for a new trial or order of remittitur. American appeals that decision.

(Okl.1987), White could not maintain a contract claim under Hall v. Farmers Ins. Exchange for breach of an implied covenant of good faith. However, the court also concluded after reviewing the Hinson opinion that, although the Oklahoma Supreme Court had not yet done so, Oklahoma would adopt as part of its tort law a public policy exception to its employment-at-will doctrine. Therefore, the court reinstated White's wrongful discharge tort claim in White I.

At the time this appeal was filed, the Oklahoma Supreme Court had not yet announced its decision in Burk v. K-Mart, 770 P.2d 24 (Okl.1989), which recognized, under Oklahoma tort law,...

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