Barker v. State Ins. Fund, No. 93,154.

• Court: Supreme Court of Oklahoma
• Writing for the Court: BOUDREAU, Justice
• Citation: 2001 OK 94,40 P.3d 463
• Parties: Arthur BARKER; Gary Bova; Linda Foreman; James Gaston; Anne Livingston; Carla Snipes and Greg Valley, Plaintiffs/Appellants, and Kathy Ault; Eugenia Beal; Janice Carter; Linda Childers; Michelin Delier; Jerry Hatley; Anne Pittman; Gary Sleeper and Sherry Walker, Plaintiffs, v. STATE INSURANCE FUND, Defendant/Appellee.
• Decision Date: 06 November 2001
• Docket Number: No. 93,154.

40 P.3d 463
2001 OK 94

Arthur BARKER; Gary Bova; Linda Foreman; James Gaston; Anne Livingston; Carla Snipes and Greg Valley, Plaintiffs/Appellants, and
Kathy Ault; Eugenia Beal; Janice Carter; Linda Childers; Michelin Delier; Jerry Hatley; Anne Pittman; Gary Sleeper and Sherry Walker, Plaintiffs,
v.
STATE INSURANCE FUND, Defendant/Appellee

No. 93,154.

Supreme Court of Oklahoma.

November 6, 2001.

As Corrected November 7, 2001.

E.W. Keller, Oklahoma City, OK, for Appellants.

Mark S. Edmondson, Oklahoma City, OK, for Appellant Linda Foreman.

Thomas E. Prince and Aaron D. Gwartney, Edmond, OK; and Lee Slater, Oklahoma City, for Appellee.

40 P.3d 465

BOUDREAU, Justice

¶ 1 The State Insurance Fund (SIF) is an entity created by statute to, among other things, provide workers' compensation insurance to employers, state agencies and other state political subdivisions. 85 O.S. Supp. 1999, §§ 131-151. SIF is supervised by a Board of Managers and is administered by a Commissioner. Terry Tyree (Tyree) was SIF's acting Commissioner at all times relevant to this case.

¶ 2 In early 1996, SIF commissioned Alexander & Alexander (A & A), a consulting firm, to recommend a plan that would allow SIF to provide state of the art services and keep pace with contemporary industry standards. One of SIF's objectives was to expand its practice of outsourcing claim files — that is, to refer more of its claim files to outside claims administrators (third party administrators, or TPAs) for handling and case resolution. In April of 1996, A & A made its recommendations. A & A recommended a plan for outsourcing claim files, recommended that SIF reorganize its claims and legal divisions and recommended that SIF conduct a reduction in force (RIF). The Board of Managers approved the recommendations.

¶ 3 John Yoder (Yoder), an A & A employee, was instrumental in assisting Tyree in the implementation of A & A's recommended changes during the spring of 1996. Ultimately,

40 P.3d 466

in June of 1996, SIF completed the implementation by conducting two RIFs affecting a total of 145 positions: 89 in the claims division, 54 in the legal division and two in the policyholders division

¶ 4 Appellants Gary Bova, Linda Foreman, Carla Snipes and Greg Valley were among the employees who lost their jobs in the RIFs. They are the only appellants who sought certiorari review concerning the entry of summary judgment in favor of SIF on their wrongful discharge claims. These four, along with appellants Arthur Barker, James Gaston and Anne Livingston, also sought certiorari review concerning the federal district court's dismissal of their blacklisting claims.¹

¶ 5 Two issues are presented on certiorari: (1) whether appellants' blacklisting claims may be re-litigated in state court after having been dismissed by the federal court and (2) whether the entry of summary judgment was proper against Bova, Foreman, Snipes and Valley on their wrongful discharge claims.

I. STANDARD OF REVIEW

¶ 6 Whether the doctrine of claim preclusion prevents appellants from re-litigating their state claims is usually a mixed question of law and fact. "[A] deferential standard of review applies to resolutions of disputed facts when supported by reasonable evidence; an independent judgment standard of review applies to the ultimate conclusion that these facts do or do not trigger preclusion." AJ Bayless v. Industrial Commission of Arizona, 179 Ariz. 434, 880 P.2d 654, 659 (App.1993). Here, since the underlying facts are not disputed, the question is solely one of law which we review de novo. Id.

¶ 7 Whether summary judgment was properly entered is question of law which we review de novo. Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455. In a de novo review, we have plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact. Kluver v. Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081, 1084. Like the trial court, we examine the pleadings and summary judgment evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. We view the facts and all reasonable inferences arising therefrom in the light most favorable to the non-moving party. Fehring v. State Insurance Fund, 2001 OK 11, ¶ 3, 19 P.3d 276.

II. DISCUSSION

A. Blacklisting Claims

¶ 8 All seven appellants testified that after they were discharged, SIF blacklisted them, preventing them from obtaining employment with anyone that received claim files through SIF's outsourcing program. Before we address the merits of the blacklisting claims, however, we must determine whether appellants may re-litigate these claims in state court after litigating them in federal court.

¶ 9 The procedural history of this case is unusual. It began in state court. Appellants asserted two state law claims (wrongful discharge and blacklisting) and one federal law claim (age discrimination). SIF

40 P.3d 467

removed the action to federal court. The federal district court dismissed the blacklisting claims on the merits.² Some months later, the federal district court granted summary judgment in favor of SIF on plaintiffs' age discrimination claims. Since at that time the only remaining claims were plaintiffs' wrongful discharge claims, the federal district court declined to continue to exercise its supplemental jurisdiction and remanded the wrongful discharge claims to state court pursuant to 28 U.S.C. § 1367(c). Plaintiffs did not appeal from the federal district court's orders. The question is whether, once the case was remanded to state court, plaintiffs could continue to litigate their blacklisting claims

¶ 10 We apply federal law to determine the finality of the federal district court's orders. As a matter of right, an aggrieved party can appeal a "final decision" of a federal district court. 28 U.S.C. § 1291. This statute forms the basis for the so-called "final order" rule. Under Rule 54(b) of the Federal Rules of Civil Procedure, a "final order" is an order disposing of all claims involving all parties. An order disposing of some claims, or even one disposing of all claims involving fewer than all the parties, is not a final order. Id.

¶ 11 Since the age discrimination claims and wrongful discharge claims were still pending when the federal district court dismissed the blacklisting claims, the order dismissing the blacklisting claims was a non-appealable interlocutory order when it was entered on December 8, 1997. However, the federal district court's March 15, 1999, order resolving the age discrimination claims and remanding the wrongful discharge claims to state court ended the litigation before the federal court.³ Upon the entry of the remand order, the previously entered interlocutory order dismissing the blacklisting claims became an appealable final order. Carr v. American Red Cross, 17 F.3d 671, 678 (3d Cir.1994). Plaintiffs did not appeal.

¶ 12 In its summary judgment motion after remand, SIF argued that the federal district court's dismissal of the blacklisting claims precludes plaintiffs from re-litigating those claims. We agree.

¶ 13 The doctrine of claim preclusion operates to bar re-litigation of issues that were litigated in a court of competent jurisdiction to a final judgment on the merits. Erwin v. Frazier, 1989 OK 95, 786 P.2d 61. The doctrine requires an identity of subject matter, of the parties or their privies, of the capacity of the parties and of the cause of action. Carris v. John R. Thomas & Assoc., P.C., 1995 OK 33, 896 P.2d 522, 527. Here, because all the elements are met with respect to plaintiffs' blacklisting claims, the doctrine of claim preclusion prevents appellants from re-litigating their blacklisting claims in state court.⁴

B.

Wrongful Discharge Claims

¶ 14 We now consider appellants' wrongful discharge claims. The doctrine of

40 P.3d 468

employment-at-will is firmly embedded in the common law of Oklahoma. Collier v. Insignia Financial Group, 1999 OK 49, 981 P.2d 321, 323. In 1989 we created a narrow exception to the employment-at-will doctrine — the public policy exception. Burk v. K-Mart, 1989 OK 22, 770 P.2d 24. We held that an employee who is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy may bring a tort claim for wrongful discharge. Id. We cautioned, however, that the Burk tort is unique: it applies to only a narrow class of cases and it must be tightly circumscribed. Id.; Clinton, 2001 OK 52, 29 P.3d 543, 545. To prevail on a claim of wrongful discharge in violation of Oklahoma's public policy, a plaintiff must first identify an Oklahoma public policy goal that is well established, clear and compelling and articulated in existing constitutional, statutory or jurisprudential law. Clinton, 29 P.3d at 546. In addition, plaintiff must prove he or she was an at-will employee, that he or she was actually or constructively discharged from employment and that the employer's discharge decision violated the articulated public policy. Id. The identified public policy "must truly be public, rather than merely private or proprietary." Hayes v. Eateries, Inc., 1995 OK 108, 905 P.2d 778, 786.

1.

Oklahoma law protects both internal and external whistle-blowers who establish a sufficient public policy violation from retaliatory discharge.

¶ 15 In this case, appellants allege they were wrongfully discharged in retaliation for whistle-blowing. Two of our leading cases dealing with whistle-blowing are Vannerson v. Board of Regents of the University of Oklahoma, 1989 OK 125, 784 P.2d 1053, which we decided shortly after we created the Burk tort, and Hayes v. Eateries, Inc., 1995 OK 108, 905 P.2d 778. In Vannerson, plaintiff was fired after reporting discrepancies in the university warehouse inventory records....