Vasek v. Board of County Com'Rs

• Decision Date: 15 April 2008
• Docket Number: No. 103,580.,103,580.
• Parties: Jean VASEK, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF NOBLE COUNTY, Appellee.
• Court: Oklahoma Supreme Court

186 P.3d 928

2008 OK 35

Jean VASEK, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF NOBLE COUNTY, Appellee.

No. 103,580.

Supreme Court of Oklahoma.

April 15, 2008.

Certiorari to Court of Civil Appeals, Division IV.

¶ 0 Appellant brought a claim for wrongful termination of her employment as a deputy court clerk for Noble County. The trial court, Honorable Larry R. Brooks, granted the county's motion for summary judgment finding the claim to be legally and factually insufficient. The Court of Civil Appeals affirmed.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT'S SUMMARY JUDGMENT REVERSED; CAUSE REMANDED.

Rick Bisher & David Hood, RYAN BISHER RYAN, Oklahoma City, for Appellant.

Jodi Casey, COLLINS ZORN & WAGNER, P.C., Oklahoma City, for Appellee.

COLBERT, J.

¶ 1 In this action for wrongful termination from employment, the issue is whether summary judgment was properly granted to the defendant employer. This Court holds that the former employee stated a claim for wrongful termination sufficient to survive summary judgment and the lower courts erred in holding to the contrary. They further erred in finding no dispute as to any issue of material fact. The opinion of the Court of Civil Appeals is vacated and the trial court's summary judgment is reversed. This matter is remanded to the trial court for a determination of the jury question of whether retaliation was a significant factor in the employer's decision to terminate the plaintiff's employment.

FACTS AND PROCEDURAL HISTORY

¶ 2 Jean Vasek (Plaintiff) was employed as a deputy court clerk from January 29, 1981, until she was discharged on July 13, 2001, by the Noble County Court Clerk, Marilyn Mills. There had been a recurring problem with prisoners flooding the jail on the fourth floor of the Noble County courthouse which in turn caused flooding and water damage to the court clerk's office located beneath the jail on the third floor. On October 4, 2000, one such incident occurred.

¶ 3 Following that event, two anonymous complaints were made to the Department of Labor (DOL) in which concern was expressed about mold and a sewer smell at the courthouse. On October 18, 2000, an inspector from the DOL made an unannounced visit to inspect the courthouse. The safety coordinator for the courthouse, one of the county commissioners, was not present. An administrative assistant for the commissioners, Pamela Wilda, accompanied the inspector during his inspection.

¶ 4 An internal memorandum to the DOL file concerning the Noble County courthouse states that, when the inspector arrived at the Court Clerk's office, "Ms. Mills was very aggressive and combative and demanded to know who notified him of the problem." The same memorandum indicates that Ms. Mills called the DOL two days later to complain that the inspector had been "evasive and would not answer her questions about why he was onsite." The flooding and DOL inspection was reported in the local newspaper. An emergency requisition for an "environmental cleanup" was approved by the county commissioners and a private contractor performed the work.

¶ 5 Mills never discussed the DOL complaint with Plaintiff. In Mill's deposition she stated that she did not know who had made contact with the DOL until Plaintiff brought this wrongful termination action. According to Plaintiff, however, Mills became distant toward Plaintiff after the DOL inspection. Plaintiff was fired about nine months after the DOL complaint.¹ No reason was given for the termination but when Plaintiff sought and received unemployment benefits she was informed that the county had opposed the benefits asserting that the termination was for "insubordination and habitual tardiness."

¶ 6 Employer asserts that Plaintiff was insubordinate in leaving her post without following Mill's standing directive to first clear such absence with herself or the acting supervisor. Plaintiff maintains that while Mills was not in the office and the acting supervisor was busy with a phone call she left the office and went across the street to have her bifocal glasses adjusted. Plaintiff states she was gone for about ten minutes. She admits that she did not check with the acting supervisor but did tell a coworker where she was going. Employer also asserts that Plaintiff was habitually tardy. Plaintiff's personnel file lists two warnings concerning tardiness in 1988 and one in each year for 1989, 1995, and 1996.

¶ 7 Plaintiff brought this action for wrongful termination on February 25, 2003, asserting that she was actually fired for making a complaint to the DOL concerning mold at the courthouse. She asserted that as a whistleblower she was entitled to the protection an at-will worker receives from employment termination which violates Oklahoma's public policy citing Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24. Employer moved for summary judgment.

¶ 8 The trial court granted Employer's motion holding that Plaintiff's claim was legally and factually insufficient to overcome summary judgment. The trial court reasoned that Plaintiff's employment was not at-will, rather it was "statutory" and thus she did not fall within the rule in Burk. That court further reasoned that the two sources of public policy asserted by Plaintiff, the Oklahoma Occupational Health and Safety Standards Act, Okla. Stat. tit. 40, §§ 401-435 (2001 & Supp.2007), and the Oklahoma Personnel Act, Okla. Stat. tit. 74, §§ 840-1.1 through 840-7.1 (2001 & Supp.2007), did not apply to her and therefore could not provide a statement of Oklahoma policy for her Burk claim. At the hearing on the motion for summary judgment, the trial court mentioned with favor Employer's argument that Plaintiff had an adequate federal statutory remedy in section 1983 of title 42 of the United States Code, but the trial court did not rely on the argument for its decision. Finally, the trial court determined that "Plaintiff has failed to establish that a substantial controversy exists as to whether the Plaintiff's actions, in contacting the Department of Labor, were a significant motivating factor in the employer's decision to terminate Plaintiff's employment." It then concluded that "there [was] no material issue of fact sufficient to overcome summary judgment."

¶ 9 The Court of Civil Appeals affirmed on Employer's argument that section 1983 provided an adequate statutory remedy for Plaintiff and thus, Burk was inapplicable. It also concluded that the evidentiary materials attached to the motion for summary judgment and the response to that motion demonstrated no substantial controversy.

STANDARD OF REVIEW

¶ 10 Summary judgments are reviewed de novo. Brown v. Nicholson, 1997 OK 32, ¶ 5, 935 P.2d 319, 321. Summary judgment is appropriate when there is no dispute as to material facts or any inferences drawn from undisputed facts and the law favors the movant's claim or liability defeating defense. Myers v. Lashley, 2002 OK 14, ¶ 18, 44 P.3d 553, 561.

¶ 11 The trial court in this matter held that "Plaintiff's cause of action fails as a matter of law" and that "there [was] no material issue of fact to overcome summary judgment." Therefore, both the legal and factual aspects of the summary judgment must be addressed.

THE LEGAL DISPUTE

¶ 12 In Burk v. K-Mart Corp., 1989 OK 22, 770 P.2d 24, this Court "recognized an actionable common-law tort for an at-will employee's discharge in contravention of a clear mandate of public policy." Darrow v. Integris Health, Inc., 2008 OK 1, ¶ 6 n. 8, 176 P.3d 1204, 1208 n. 8. Burk explained that the "tightly circumscribed" exception to the employment at will doctrine applies "where an employee 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." 1989 OK 22, ¶ 19, 770 P.2d at 29. "Only a specific Oklahoma court decision, state legislative or constitutional provision, or a provision in the federal constitution that prescribes a norm of conduct for the state can serve as a source of Oklahoma's public policy." Darrow, 2008 OK 1, ¶ 13, 176 P.3d at 1212 (emphasis omitted).

¶ 13 "While a federal statute cannot by itself serve as a statement of Oklahoma policy, a federal statutory remedy may be as effective as an Oklahoma statutory remedy in dissuading employers from discharging employees for reasons that violate Oklahoma public policy." Clinton v. State ex rel. Logan County Election Bd., 2001 OK 52, ¶ 9, 29 P.3d 543, 546. In addition, "to support a viable tort claim the public policy must truly be public, rather than merely private or proprietary." Hayes v. Eateries, Inc., 1995 OK 108, ¶ 24, 905 P.2d 778, 787. Thus, "to distinguish whistleblowing claims that would support a viable common-law tort claim from those that would not, the public policy breached must truly impact public rather than the employer's private or simply proprietary interests." Darrow, 2008 OK 1, ¶ 16, 176 P.3d at 1214 (footnote omitted).

¶ 14 The elements of a claim for wrongful discharge of an at-will employee articulated in Burk and its progeny can be summarized. A viable Burk claim must allege (1) an actual or constructive discharge (2) of an at-will employee (3) in significant part for a reason that violates an Oklahoma public policy goal (4) that is found in Oklahoma's constitutional, statutory, or decisional law or in a federal constitutional provision that prescribes a norm of conduct for Oklahoma and (5) no statutory remedy exists that is adequate to protect the Oklahoma policy goal. See McCrady v. Okla. Dept. of Pub. Safety, 2005 OK 67, ¶ 9, 122 P.3d 473, 475; See also Darrow, 2008 OK 1, ¶¶ 9-19, 176 P.3d at 1210-16.

¶ 15 In this matter, the trial court held Plaintiff's claim to be legally deficient on two bases, the "at-will employee" and the "Oklahoma public policy goal" elements. The trial court erred in its legal analysis of both elements.

¶ 16 In...