Pearson v. Hope Lumber & Supply Co., Inc., 72017

• Decision Date: 05 November 1991
• Docket Number: No. 72017,72017
• Citation: 820 P.2d 443,1991 OK 112
• Parties: 122 Lab.Cas. P 57,013, 6 IER Cases 1580, 1991 OK 112 Nathan E. PEARSON, Appellant, v. HOPE LUMBER & SUPPLY COMPANY, INC., Appellee.
• Court: Oklahoma Supreme Court

Page 443

820 P.2d 443

122 Lab.Cas. P 57,013, 6 IER Cases 1580,

1991 OK 112

Nathan E. PEARSON, Appellant, v. HOPE LUMBER & SUPPLY COMPANY, INC., Appellee.

No. 72017.

Supreme Court of Oklahoma.

Nov. 5, 1991.

Certiorari to the Court of Appeals, Division No. IV; District Court Tulsa County, Robert Caldwell, J.

Action brought for wrongful termination of employment against public policy. Trial court granted defendant's motion for summary judgment. Court of Appeals reversed and remanded for a determination of public policy.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks by Anthony M. Laizure, Tulsa, for appellant.

Nichols, Wolfe, Stamper, Nally & Fallis, Inc. by Carl D. Hall, Jr., Tulsa, for appellee.

HODGES, Vice Chief Justice.

The plaintiff, Nathan E. Pearson (Pearson), brought this action against his former employer, Hope Lumber & Supply Company (Hope), for wrongful termination in violation of public policy and in violation of the implied covenant of good faith and fair dealing in his employment contract. Pearson filed a motion for partial summary adjudication on the issue of liability. Subsequently, Hope filed a motion for summary judgment. The trial court denied Pearson's motion and granted Hope's. The Court of Appeals reversed the judgment of the trial court and remanded the case. There are two issues presented for our determination: (1) Whether the determination of public policy is a question for the jury or for the court; and (2) Whether Hope violated public policy when it terminated Pearson's employment.

The parties stipulated to the facts. Pearson worked for Hope at its Pryor facility. He did not have a written employment contract with Hope and could quit or be fired at anytime. During 1985, Hope believed it was experiencing inventory shortages at its Tulsa facility. As part of its investigation, Hope decided to require every employee to take a polygraph test and to sign a waiver or release of liability before administering the test. Signing the waiver and taking the polygraph test were conditions of continued employment. Pearson refused to sign the waiver and his employment was terminated on September 20, 1985, for violating Hope's policy that all employees sign the release and take the polygraph test.

On appeal, Pearson argues that his termination violated the public policy pronouncement incorporated in the Polygraph Examiners Act, Okla.Stat. tit. 59, §§ 1451-76 (1981) (Act). The Court of Appeals found that "an unresolved question of fact remain[ed] as to whether this release of liability [was] unnecessarily broad and could involve the relinquishment of certain legal rights contrary to public policy" and "that reasonable men in the exercise of their fair and impartial judgment might conclude that requiring Pearson to sign an all inclusive release of liability involved the relinquishment of legal rights or interest and was, therefore, against public policy."

The first issue is whether the determination of public policy is a question for the jury or for the court. The determination of public policy is generally a question of law. See Hargrave v. Canadian Valley Elec. Coop., 792 P.2d 50, 59 (Okla.1990). Questions of law are to be determined by the court, not the jury. Okla.Stat. tit. 12, § 556 (1981). After the court determines the public policy, it is then the jury's duty to examine the facts and decide if the public policy was violated. Therefore, the Court of Appeals erred when it remanded this case for a jury determination of public policy.

The second issue is whether Hope violated public policy when it terminated Pearson's employment. This Court recognized a tort action for wrongful discharge of an at-will employee under a public policy exception in Hinson v. Cameron, 742 P.2d 549 (Okla.1987). In Burk v. K-Mart Corp., 770 P.2d 24 (Okla.1989), we held that the exception applied 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." Id. at 28 (emphasis added). "The truth is that the theory of public policy embodies a doctrine of vague and variable quality, and unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as the basis of a judicial determination, if at all, only with the utmost circumspection." Patton v. United, 281 U.S. 276, 306, 50 S.Ct. 253, 261, 74 L.Ed. 854 (1930).

The question now is whether the Polygraph Examiners Act is a basis for an action in tort against an employer...