Barker v. State Insurance Fund

Gary Bova; BARKER; Linda Arthur Gaston; Living

Foreman; Anne James Valley, Greg

ston; Snipes and Carla

Plaintiffs/Appellants, Beal; Carter;

Kathy Ault; Eugenia Janice Jerry Childers; Delier; Michelin

Linda Pittman; Gary Sleeper

Hatley; Anne Walker, Plaintiffs, Sherry FUND,

STATE INSURANCE

Defendant/Appellee . 93,154.

No.

Supreme of Oklahoma. Court

Nov. Nov.

As Corrected Keller, OK, City, Ap-

E.W. Oklahoma for pellants. Edmondson, OK, City,

Mark S. Oklahoma Appellant Linda Foreman. for Gwartney, D. Thomas E. Prince and Aaron Slater, Edmond, OK; and Lee Oklahoma City, Appellee.

BOUDREAU, Justice: ¶ 1 (SIF) The Insurance Fund is an State to, among entity created statute other compensation things, provide workers' insur employers, agencies and other ance to state political Supp. state subdivisions. 0.8. supervised by §§ a 181-151. SIF is Managers and is administered Board of Tyree (Tyree) Terry was Commissioner. acting at all times rele SIF's Commissioner vant to this case.

{ early commissioned Alex- 2 In SIF (A A), consulting & ander & Alexander firm, plan allow to recommend would provide of the art services and state SIF industry contemporary stan- keep pace objectives ex- of SIF'"s was to dards. One outsourcing files- pand practice of claim its is, of its claim files to to refer more (third party ad- claims administrators outside TPAs) ministrators, handling and case April A made In & A its resolution. A & A recommended a recommendations. files, outsourcing claim recom- plan for reorganize its mended that SIF claims recommended that SIF legal divisions and (RIF). in foree conduct a reduction approved the recommen- Managers Board dations. (Yoder), employ- A an A &

I 3 John Yoder ee, assisting in the instrumental was A recommended implementаtion of & A's during spring of 1996. Ulti- changes completed disputed, mately, question solely SIF are not June one of implementation by conducting two RIFs af- we law which review de novo. Id. positions: fecting a total of 145 summary judgment 17 Whether division, legal 54 in the division and claims properly question entered is of law policyholders two in division. Brown, which we review novo. Manley de Bova, Foreman, Gary Linda Appellants T4 In 1999 OK a de novo Valley Snipes Greg among review, Carla plenary, independent we have jobs their employees who lost authority non-deferential determine only appellants They are the who RIFs. applica whether the trial court erred in its concerning sought entry review certiorari of the law tion and whether there is summary judgment favor of on SIF genuine issue of material fact. Kluver v. four, wrongful discharge their claims. These Hospital Authority, Weatherford Barker, along appellants Arthur court, with James 859 P.2d 1084. Like the trial Livingston, sought Gaston Anne also cer- and pleadings summary we examine the and concerning tiorari review the federal district judgment evidentiary materials submitted blacklisting court's of their claims.1 dismissal parties genuine the to determine if there is a issue of material fact. viewWe the facts and presented are on 15 Two issues certiorari: arising all reasonablе inferences therefrom in (1) appellants' blacklisting whether claims light the most favorable non-moving to the may re-litigated be in state court after hav- Fund, party. Fehring v. State Insurance ing been dismissed the federal court and ¶11, 3, 2001OK (2) entry summary judgment the whether of Bova, Foreman, proper Snipes against was II. DISCUSSION Valley wrongful discharge and on their claims. Blacklisting A. Claims [ appellants 8 All seven testified that after

I. STANDARD OF REVIEW discharged, them, were SIF blacklisted preventing them obtaining employment from 16 Whether the doctrine of claim anyone that through received claim files preclusion prevents appellants from re-liti outsourcing program. SIFs Before ad- we gating usually their claims is state mixed claims, blacklisting dress the merits of the question of law and fact. "[A] deferential however, appel- we must determine whether applies standard of review to resolutions of may re-litigate lants these claims state disputed supported by facts when reasonable litigating court after them federal court. evidence; judgment independent an standard procedural history T9 The of this applies of the review ultimate conclusion trigger preclu that these facts do or do not began case is unusual. It in state court. Bayless v. sion." AJ Industrial Commission Appellants asserted two state law claims (wrongful discharge Arizona, blacklisting) and and one 179 Ariz. P.2d Here, discrimination). (App.1993). underlying (age since the facts federal law claim SIF (who summary subsequently After the state trial court entered appeal), DeLier dismissed her SIF, judgment plaintiffs appealed. in favor Livingston, Linda Foreman, Gaston, James Anne claims, respect wrongful discharge With to the However, Greg Snipes Valley. Carla and in the Appeals the Court of Civil reversed toas three Appellants, CombinedBrief in Chiefof filed with plaintiffs, Jerry Hatley, Gary Anne Pittman and leave of 12, 2001, Court on state July appellants Sleeper, concluding eniry summary the only appellants sought four of the certiorari judgment premature as to them. SIF did wrongful discharge review of claims-Bova, their not seek certiorari review therefore the Foreman, Snipes Valley. Accordingly, we wrongful discharge Hatley, claims Pittman wrongful discharge limit our review of the claims Sleeper are not before us. The Court of appellants. Apparently to those four all seven of Appeals entry Civil summary affirmed the (the appellants eight who were in the named judgment wrongful discharge on the claims of certiorari, body petition excluding of the De- remaining appellants. Eight appel- of those Lier) seek certiorari review of the dismissal of body petition lants named in the of the blacklisting their claims. certiorari: Barker, Bova, Arthur Michelin Gary However, the on December The entered federal court. action to removed the 15, 1999, dismissed the blacklist court's March order court federal district federal district age claims and resolving the discrimination months the merits.2 Some ing claims on discharge remanding wrongful claims to later, granted sum district court the federal litigation plaintiffs' before the of SIF on state court ended mary judgment favor Upon entry re at that time federal court.3 claims. Since age discrimination order, previously entered interlocu mand plaintiffs' remaining claims were tory dismissing blacklisting claims order claims, dis discharge the federal wrongful final order. appealable Carr became its continue to exercise declined to trict court (3d Cross, 17 F.3d American Red jurisdiction and remanded supplemental Cir.1994). appeal. did not Plaintiffs pur to state court wrongful discharge claims w 1367(c). § Plaintiffs did suant to 28 U.S.C. summary judgment 12 In motion after its court's appeal the federal district remand, from argued that the federal district SIF whether, onee the question blacklisting claims orders. court's dismissal of court, plaintiffs re-litigating to state precludes plaintiffs was remanded those case blacklisting litigate agree. their could continue clаims. We claims. preclu The doctrine of elaim {10 apply federal law to deter re-litigation of We operates to bar issues sion finality the federal district court's competent litigated mine the that were a court of judgment jurisdiction to a final on the merits. aggrieved right, matter of an orders. As a 95, Frazier, P.2d 61. Erwin v. 1989 OK 786 appeal a "final decision" of a feder party can subject identity requires an § The doctrine 28 1291. This ‍​‌‌​​‌‌​‌‌‌‌​​‌‌​​​​​​‌‌‌​​​​​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‍al district court. U.S.C. matter, privies, their of the parties of the or "final for the so-called statute forms the basis capacity parties and of the cause of 54(b) Rule of the Feder order" rule. Under Assoc., R. action. Carris v. John Thomas & Procedure, is a "final order" al Rules of Civil 33, 522, Here, P.C., P.2d 527. 1995 OK 896 involving all disposing of all claims an order claims, the elements are met with re because all disposing of some parties. An order claims, plaintiffs' blacklisting the spect to involving disposing all claims even one or prevents preclusion appel doctrine of claim parties, not a final order. than all the is fewer re-litigating blacklisting their lants from Id. claims in state court.4 age T11 discrimination Since wrongful discharge claims were claims and B. the federal district court pending still when Discharge Wrongful Claims . claims, blacklisting the order dismissed {$14 appellants' non- We now consider dismissing blaсklisting claims was a discharge claims. The doctrine of interlocutory wrongful it appealable order when was apply, preclusion to a dis 2. In for claim note that in their order here, 4. We to briefly, pause appellants have been on the merits. See Sala Chief seem to at- missal must Combined Brief in 20 ¶ 18, City, City OK v. Oklahoma change blacklist tempt zar the nature of their discharge wrongful case, In this the dismissal ing claims to claims for 1056, 976 P.2d 1063. The federal district court was on the merits. blacklisting. policy against public violation of a blacklisting claims for failure dismissed the intent, attempt appellants' is to no If is that claim, finding that an element of blacklist state a First, the doctrine of for two reasons. avail employee ing who malicious intent and state is re-litigation only preclusion precludes claim acting intent cannot be with acts with malicious previously litigated but also of of the claim employment scope as defined in in the prior in the that have been raised claims should Claims Act. Oklahoma Governmental Tort Jestes, 1998 OK Estate Sneed action. In re Second, 8, alleged all of the 953 P.2d 1111. discretionary an order itself was 3. The remand appellants blacklisting after conduct occurred City Hyde Fe appealable Park Co. v. Santa order. wrongful discharge discharged. tort of (10th Cir.2000); Council, 226 F.3d policy ac- does not make violation of Authority, Dalrymple v. Grand River Dam employer's occurred conduct that tionable an (10th Cir.1998); see also 14C F.3d employee's discharge. subsequent to the Wright, & Edward Alan Arthur R. Miller Charles Practice and Procedure H. Federal Cooper, ed.1998). (3d § 3740 firmly university policy embedded held that a employment-at-will keep- favor of ing inventory Insig accurate of Oklahoma. Collier v. records did not rise to common law the level of an established and well-defined Group, 1999 OK P.2d nia Financial public policy. respect state With to the floor In we created a ex narrow incident, however, tiles we held that "Hf ception employment-at-will to the doctrine- [plaintiff] discharged K-Mart, fact for public policyexception. Burk v. supervisor's complaint over his head in anof 1989 OK 770 P.2d We held that an illegal disposition property pub- of state then employee discharged refusing who is for Vanmnerson, policy lic is invoked." act in of an violation established and well- later, years at 1055. in Hayes, plaintiff Five performing or an defined for act shortly accusing was fired manager after his compelling public with a clear and consistent embezzling from employer. their We held policy may bring wrongful claim a tort Hayes protected thаt Mr. was not from retal- cautioned, however, discharge. Id. We iatory discharge whistle-blowing regard- unique: applies the Burk tort is reported alleged wrong- less whether he tightly narrow class of and it must be cases doing internally externally, or because the Clinton, Id.; cireumseribed. alleged wrongdoing did not rise to the level prevail P.3d 545. To on a claim of compellingpublic policy. of clear and Some wrongful discharge in violation of Oklahoma's interpreted language have our in Vamnerson public policy, plaintiff identify must first Hayes creating as a distinction between public policy goal Oklahoma is well es complain whistle-blowers who within the em- tablished, compelling clear and and articulat (internal ploying organization reporting) and constitutional, existing jur statutory ed in or complain those who organization outside the Clinton, isprudential law. P.3d (external reporting). addition, prove In plaintiff must he or she Today opportunity T16 we take the employee, was an at-will that he or she was First, primary address issue. one of the actually constructively discharged goals of protecting whistle-blowers from re- employment employer's and that dis taliatory discharge wrongdoing is to reduce charge pub- decision violated the articulated in speedy, a In effiсacious manner. policy. public policy lie Id. The identified respect, recognize makes sense to claims truly public, merely "must be rather than report wrongdoing whistle-blowers who with- Eateries, private proprietary." Hayes or v. employing organization in person to a Inc., 108, 778, 1995 OK 905 P.2d position investigate remedy a to and Second, wrongdoing. internal disclosures L. disruptive are much company less to the than protects Oklahoma law both internal and ex- employees, external disclosures. go organizations, ternal whistle-blowers who a who do not outside establish their public policy protection employ- sufficient should not have less than violation from re- taliatory disruptive ees who could be considered discharge. more by complaining organizations." outside their case, appellants allege 115 In this Westman, Whistleblowing: Daniel P. The they wrongfully discharged in retalia (1991). Retaliatory Discharge, Law of at 114 whistle-blowing. tion for leading Two of our protects Oklahoma law both internal and ex- dealing whistle-blowing cases with are Van reporting ternal who whistle-blowers es- Regents nerson v. University Board public policy tablish a sufficient violation Oklahoma, 1989 OK retaliatory discharge. which shortly we decided after we created tort, Eateries, Inc., Hayes the Burk v. Vаmnerson, P.2d In Appellants failed to articulate an established plaintiff reporting discrepan- was fired after and well-defined that SIF university cles in inventory warehouse by discharging violated them. reported records. Months earlier had he seeing university employee a transfer two problem public T 17 The fundamental all non-employee. policy boxes of floor defining specific, tiles to We is cases what public well-established, compelling promptly upon. She told her clear and being not acted (and Tyree) supervisor she also told believes cases, the answer policy. In whistle-blower in- subjects thought political favors were she question determines to this outsourcing may may in the of files. volved which whistle-blower about of this complain. The nature legitimately ¶ 21 attorney, was Snipes, an testified she aptly the Connect problem described was at suspicious what on about was SIF. it said issue Supreme "[t]he when icut Court complaints the Board to voice She wanted prob common law the familiar then becomes "people take action and do and to that could to draw the deciding where and how lem of something" but could not. She testi felt she genuinely involve claims that line between complaints" fied that voiced "whines she policy thаt are action the mandates of co-workers, family and friends. to her employee ordinary disputes between able and analyst, he Valley, a medical testified v. Ted employer that are not." Sheets him that Tyree that a vendor had told told Foods, 427 A.2d 179 Conn. dy's Frosted soliciting kickbacks from the Yoder was (1980). 385,387-88 money "up front." asking TPAs and case, subjects which about In this that, job Shortly Valley's duties were after Foreman, Bova, Valley Snipes and appellants Valley super- severely also told his cut back. implementation complained related to SIFs outsourcing of that he did not believe visor A. changes A & recommended of the files was cost effective. upcoming they learned about When recognized tort have not Courts appel- who are not changes, and others complaints whose claims for whistle-blowers among their began express concerns lants personal opinions about the upon are based They management. con- co-workers and Seq, managed. eg. way organization is an throughout their concerns express tinued Univ., Pennsylvania State Rossi v. changes SIF. implementation (1985) (plaintiff Pa.Super. 489 A2d 828 Bova, attorney who Specifically, mismanagement); Dicomes v. reported Tyree relationship with working a close had P.2d 1002 Washington, 113 Wash.2d friend, him a testified that he and considered banc) (1989) (en reported (plaintiff that her informally times- spoke several surplus funds superiors failed to include Tyree's office after for two hours onee management); presented budget Tyree about his concerns Bova told work. Fernald Superintendent, Smith-Pfeffer security upcoming job light of the about School, 533 N.E.2d 1368 404 Mass. caseloads, heavy about reorganization, about (1989) organiza (plaintiff complained about of the using outside counsel to handle some by developed changes policies su tional and role at He and about Yoder's SIF. caseload Bow, v. Town 736 perintendent); Bourque taking, might be or had heard that Yoder (D.N.H.1990) (plaintiff com F.Supp. 398 take, some of the planning kickbacks from to his su about plained to town selectmen TPAs, it he did not talk to about but court succinet pervisor). The Smith-Pfeffer Tyree already knew. because he assumed recognizing not ly the rationale for stated complain who Foreman, claims for whistle-blowers attorney, testified she tort an 120 managed: way organization is an queen" she saw the about the memo when "became orga be institution] should {[the "How state changes occurring In her memos she at SIF. opinion and of internal a matter of nized is personal complained about the removal mat office, policy are a legal policy. Internal decisions her assis- from her about effects judgment those entrusted with ter of for signature stamp without her using tant her institution." decision-making within knowledge, an counsel retained about outside Like at 1371. Smith-Pfeffer, 533 N.E.2d a case for by who had offered settle SIF recog earlier, jurisdictions, does not other Oklahoma about SIF's less than she had offered employees who public Burk tort for a claim- nize a investigators who contacted private way organization an is complain about the claimant was though they knew ant even merely complaints exhibit counsel, managed when the by about her re- represented and with opinion or dissatisfaction continuing legal education differences quest to attend (E). 840-2.5(A)(Z), If, discretionary management § decisions and the investigation after Something required is hearing, like. more such as and it is determined that a violation activity occurred, reporting fraudulent or criminal mis- of section 840-2.5 has the Commis hearing use of funds. sioner examiner shall order cor pursuant rective Supp.1995, action 0.8. Burk, which holds that termi § provides While this statute limited 840-6.6. employee in nation of an at-will contravention protection public employees for who are dis public pоlicy of a clear mandate of is a com ciplined reporting mismanagement, for tort, parameters mon law fashions of an "mismanagement." does not define the term at-will-employment exception general parameters Because the statute leaves the v. Rural doctrine. Gunn Consolidated Wa undefined, mismanagement mismanagement District, ter & Sewer 1992 OK amorphous is an term that includes essential firmly Although the Burk tort is root ly any employer decision of an is chal law, recognize our ed the common cases lenged by employee opin an with a different public policy may that the clear mandate of way organization ion about the an should be Burk, articulated ‍​‌‌​​‌‌​‌‌‌‌​​‌‌​​​​​​‌‌‌​​​​​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‍a state statute. be managed. The being term falls short of suf However, every P.2d statute sets ficiently specific purposes and clear for public policy upon forth a mandate of which a articulating an established and well-defined See, may eg., Burk tort based. be Griffin public policy against discharging employees (Okla Mullinix, 947 P.2d 177 reporting mismanagement. The statute Safety Occupational homa's and Standards support cannot a Burk tort.5 Act, 0.8.1991, §§ seq., et does not tort). support a common law Burk Unless a Appellants point %26 also to 85 0.8. specifically statute articulаtes an established 1991, § public 138.2 policy as a source of the public policy, Oklahoma well-defined allegedly by discharging SIF violated them may upon support statute not be relied in the RIF's. Section 188.2 defines who is a Burk, common Burk tort. law P.2d at fiduciary respect to SIF and sets forth powers and duties of such fiduciaries. reject appellants' According appellants, impos claim section 138.2 We public fiduciary duty that an es on them a established to act in the best well-defined policy against discharging employee policyholders. interest of SIF"s Since their reporting mismanagement can be found in expressions concern were the best inter statute, Supp. continue, our whistle-blower policyholders, O.S. est of the SIF's 1995, § provides discharge That statute that a public of them violated Oklahoma 840-2.5. for, employee disciplined who has been policy. disagree. We Section 188.2 does not among things, "reporting ... specific, established, other misman articulate a well clear agement," may appeal compelling file an with the Okla Oklahoma homa Merit Protection Commissionwithin 60 favor of encouraging employees SIF to com plain way managed.6 days about the disciplinary SIF alleged action. Id. at person 5. A harmed a violation of the Snipes any report whistle record that Foreman or made might blower statute contend that the statute at all about kickbacks. The dissent itself con- implied right creates an of action and seek to report any allegations cedes that Bova did not of press appel- a statute-based tort claim. Because graft Tyree or kickbacks since he assumed al- pursue theory ap- lants did such a And, not their ready although Valley knew. Dissent at %9. we need decide the Tyree issue. told he had heard a rumor thai Yoder was peal, kickbacks, taking Valley admitted he had no idea 6. The dissent offers alternative two sources of decision, if para- the rumor was true. Our public policy urged by appellants: that were not graph Valley's concludes that unsubstantiat- the Anti Act Kickback of 74 0.51991 type report protect- ed rumor is not the of that is §§ seq. et 3401 and the Oklahoma Central Pur by ed the whistle-blower strand of the Burk tort. Act, chasing seq. §§ 74 85.1 et O.S.1998 While may the The also Anti Kickback Act dissent identifies the Central Purchas- indeed be an ade quate public policy support ing public policy. source of a Act as a source of We to Burk need tort, appellants whistle-blower none of the four not decide whether this is a sufficient source of adequate report public policy made an about kickbacks. because there no evidence that summary judgment There is no appellants any report evidence in the of the four made at all just says And he I'll evidentiary to make sure. summary judgment know 127 The Bova, pretty much the that Fore- look into it. And that was in this case shows materials seriously disagreed Tyree man, Snipes Valley the conversation. Mr. and extent of (emphasis talk to me a whole lot. disagreed didn't management. They SIF's with added). Tyree Yoder in which and the manner files, outsourcing claim of SIF conducted the research has not revealed a 130 Our legal claims and reorganization of SIF's the single jurisdiction recognizes that a tort They expressed two RIFs. and the divisions report for whistle-blowers who a rumor claim outsourcing pro- whether the concerns about wrongdoing they have no idea if the of when they ques- effective and gram would be cost spreader There is no "rumor rumor is true. implementation role the tioned Yoder's employment-at-will exception" doc to one, At least Fore- recommendations. Corp., AK Lawson v. Steel trine. See man, the out- reported that she believed (Com. Misc.2d 703 N.E.2d Ohio program political favors. sourcing involved Pl.1998). summary However, viewing when even deciding a whether whistle- 1131 Without light evidentiary in the judgment materials knowledge personal must have direct blower appellants, to we find most favorable wrongdoing must reported or instead expressions of concern tie their have failed to objectively good that only an faith belief have established, clear and com- specific, to a well occurred, reported wrongdoing has we appel- that pelling Oklahoma reject any Valley's report that notion by sought to correct their actions lants report type protect rumor he heard is appellants by discharging that SIF violated the Burk ed the whistle-blower strand of Vannerson, 784 P.2d at 1055. in the RIFs. See, City Lynwood, eg., tort. Read Instead, expressions of we find that their . (1985) Cal.Rptr. Cal.App.3d complaints to the voiced concern are similar city reported that a contrac (plaintiff rumor Rossi, Dicomes, Smith- plaintiffs (with employee- attempted city exception we tor had bribe Bourque one Pfeffer below). claim); support whistle-blower insufficient address Corp., 47 v. Interactive Data Cal.3d Foley closer to The one incident that comes (1988) Cal.Rptr. 765 P.2d 373 Valley's re- satisfying the Vannerson test is FBI was inves (plaintiff reported rumor that he, Tyree Valley, had been told port to that supervisor new for embezzle tigating his soliciting kick- by a that Yoder was vendor support whistle-blower ment-insufficient However, unnee- TPAs. it is backs from the claim). essary whether the sub- for us to determine ject Valley's report implicates matter of III CONCLUSION policy because we find sufficient state Valley's report for a different insufficient preclu- of claim 132 Under the doctrine reason. sion, appellants blacklisting claims Foreman, Gaston, Barker, Bova, Livingston, Valley report his described Valley re-litigated be Snipes and cannot as follows: litigat- because those claims state court got him I a call from a I had told finality in court. that informed me that Mr. Yoder the federal district vendor ed appellants discharge wrongful claims says soliciting He when kickbacks. Bova, Foreman, Valley Snipes and cannot just hap- happen, I did said this appel- summary judgment because just got survive yesterday, because I pened evidentiary materi- summary judgment day I had lants' before. And called call him, genuine to create als are not sufficient day, get I couldn't to see so but fact as to whether their day, I of material I him the next because was issue then saw him, concern expressions and of days. says, complaints I other working half And I told know, any specific, well estab- rise to the level of I there's truth to you don't know if poli- not, lished, compelling public and state thought you I should let clear but I it or bidding process. competitive concerning alleged violations of the KAUGER, J., OPALA, joins, with whom J. employee sought cy to correct which Ap concurring part in dissenting part: his or her actions.7 Court Civil and in peals' ruling appellants the claims of Hat- on agree majority's T1 I with the resolution ley, Sleeper Pittman and is not before this blacklisting claims and that both inter- Accordingly, review. we Court on certiorari nal establishing and external whistle-blowers portion of leave undisturbed that the Court public policy protected violations should be Appeals' opinion remanding Hatley, of Civil retaliatory discharge. Nevertheless, I Sleeper's claims to the trial Pittman and portion opinion dissent from the of the indi- leave proceedings. court for further We also cating plaintiffs/appellants, Gary that portion of the Court of undisturbed that Civil (Bova), (Foreman), Bova Linda Foreman Appeals opinion relating appel to claims of (Val- Snipes (Snipes) Greg Valley Carla and lants who did not seek certiorari review. ley) (collectively, employees), failed to articu- . PREVIOUSLY GRANT- CERTIORARI any late well-defined violation in ED; THE OPINION OF COURT OF CIV- support wrongful of their termination claims. PART; IN IL APPEALS VACATED appropri What the Court describes as CIVIL APPEALS COURT OF OPINION represents ate issues in the case a flawed PUBLICATION; WITHDRAWN FROM analysis employees' claims. What the TRIAL COURTS SUMMARY JUDG- employees prove they meed to is that were MENT, AFFIRMED IN PART AND RE- discharged they present because po or VERSED IN PART. tential agency's whistle blowers mis management. This cause involves much HARGRAVE,C.J., HODGES, complaints more than mere voiced around SUMMERS, BOUDREAU, LAVENDER, the water defendant/appel- cooler about the WINCHESTER, JJ., concur. lee's, (Fund), State Insurance Fund internal OPALA, J., II(A); part T in concurs managerial Rather, operations style. or im II(B). part dissents from based, portant, statutorily public policy man dates are at in issue-identified the whistle KAUGER, J., part concurs statute, § 840-2.51 Supp.1997 blower 0.8. part. dissents statutory genesis and whose arises from other disqualified. WATT,V.C.J., pr ohibitions.2 information; concluding paragraph suggests Disclosing 7. public The dissent's 1. Reporting any there are issues of material fact as to "whether 2. violation of state or federal illegal law, kickbacks were either made or condoned policy; mismanagement; gross rule or possibility public funds; with the real monies public authority; waste of an abuse of correctly through were not marshaled violations specific danger or substantial and competitive bidding process." of the Dissent at safety; health or appropriate inquiry controversy 120. The in this Reporting giving such information without SIF, is not whеther and Yoder were en- prior employee's supervisor notice to the or gaged taking kickbacks and violations of the anyone employee's else chain of com- competitive bidding process. mayWe assume mand; purposes summary judgment they Discussing operations and functions of is, instead, appropriate inquiry were. The agency, specifically generally, either or reported appellants whether kickbacks and viola- Legislature with the Governor, members bidding competitive process tions of the which or others...." reports discharges. in their resulted The record language quoted Because the is identical to that summary judgment on reveals that did not. contained in the statute's ref- counterpart, erences are to the currentstatute. Supp.1997 provides § 1. Title 74 O.S. 840-2.5 pertinent part: See, the Anti-Kickback Act of 74 O.S. section, purposes 'agency' "A. of this For § seq. Specifically, Supp. 3401 et 74 0.5. office, any department, means commission or providing: § 1999 3404 government. institution of the state No officer employee agency prohibit "Any or person knowingly state shall who shall make or receive, disciplinary against employees directly or lake action indirectly either a kickback agency, subject provi- guilty felоny, upon such whether to the shall be of a conviction System sions of the Merit or in unclassified shall be fined not more than Ten Thousand ($10,000.00) Dollars or double the amount of service, for:

473 cussing operations Fund's with the questions the material fact Specifically, 13 in of the 1) representatives violation elected the defen- concerning: whether exist statute. whistle-blower Fund Insurance dant/appellee's, State pay- (Fund), the condoned Commissioner Here, allege employees there T4 the in return for the services kickbacks ment of Fund which violated activities at the were (Yoder), individual charac- an of John Yoder in an public policy and which were done party ad- employee of a third an terized as circumstances, illegal manner. Under such (TPA), the Anti- in violation of ministrator may resolve a issue this Court § et Act of 0.8.1991 Kickback appeal.3 advanced below nor on We neither 2) were let state contracts seq; and whether policy judicial public notice of estab take the in violation of Okla- legal services through statutory for enactments.4 lished Act, Purchasing 70 0.8.1991 homa Central operated against public the Fund Whether Further, questions material seq. § et may controversy policy presents we 1) by the em- theory supported as to: whether the rеcord fact also exist resolve on a of 2) or, wrongdoing; actually reported ployees although not tendered on certiorari.5 Rather not, the Commissioner so, if did whether doing majority the than emasculates ignores supervisors prohibited whistle blower statute and statutori or other Fund a) prohibiting making public ly-based public policy issues kickbacks employees from: Fund b) letting without approval; dis- 6 and the of contracts prior or disclosure without "Congress respecting gain imprisoned shall make no law or for not the financial be (5) years, religion, prohibiting of or than five or both." establishment more thereof; quoted language abridging statute is identical of the freedom free exercise or press; right speech, or the of the of or of Therefore, refer- that of it's 1991 counterpart. assemble, ences are to the current statute. petition peaceably people and to Act, See, Purchasing Central the Oklahoma grievances." for a redress of the Government seq. Specifically, § 74 O.S. 85.1 et 0.8.1991 Const., provides: § The Okla. art. part: providing pertinent Supp.1996-85.7 write, pub- "Every person may freely speak, or acquisition be made or contract shall "A. No subjects, being on all lish his sentiments re- by competitive bids without the submission of sponsible right; the abuse of that and no for Director, Purchasing except pro- as the State passed abridge be to restrain or law shall vided in this section. press. liberty speech of the In all crimi- of Any acquisition or contract for an amount 1. libel, prosecutions the truth of the mat- nal for Five Hundred Dollars of Two Thousand may given alleged to be libelous be ter ($2,500.00) exempted be from or less shall jury, appear and if it shall evidence to the bidding procedures. Separate competitive charged jury be that the matter as libelous acquisitions the individual contracts or true, good published and was written or split project components a total or service or of ends, party justifiable and for shall motives purpose evading purchasing of the re- acquitted." be bidding quirement competitive shall be felony...." deemed a Organ., Inc., Health Maintenance 3. Davis GHS the statute We note that the current version of 3, ¶ 25, 1204; re OK In Initiative $25,000.00 cap opposed to the as contains $2,500.00 122, ¶ 4, 838 P.2d 1; Petition No. 1992 OK counterpart. cap imposed in its 1996 ¶ 4, 734 P.2d Matter 1987 OK McNeely, provides: § Title 74 0.S.1991 85.15 agents, employees persons, and "All officers provisions within the of this the state included provides pertinent strictly § required 12 0.8.1991 to conform Title act are act, of this such any persons, provisions part: employees violating pro- agents, officers or shall be taken the court "A. Judicial notice guilty this act shall be deemed vision of law, constitutions and of the common provid- unless herein otherwise misdemeanor state, statutes force every territory ed, less upon conviction shall be fined not jurisdiction United States...." ($100.00) nor more than One Hundred Dollars Organ., Inc., Health Maintenance Davis v. GHS ($500.00) or be Five Hundred Dollars than see note supra. jail county exceed six imprisoned in the not to (6) imprison- fine and months or both such Commissioners, County v. Board 5. Russell ment." 80, ¶ 10, P.2d 492. Further, freely employees prohibited opinions-a constitutionally pro- expressing their Const., § Supp note 0.8. see right. amend. 1 Title 74 The United States tected supra. provides: 474 competitive bidding proc employees reported alleged wrong- the Fund the protection

the of ess.7 doing. legislative are blower statutes 115Whistle Act, 17 The Anti-Kickback 0.8.1991 74 encourage pro intended to expressions monetary § seq., prohibits et incentives wrongful governmental reporting of tect the obtaining any for the of state contracts to effectively deter retaliation and to activities employee any person holding high state or a They reporting. provide redress for for such tier contract purpose er with the state the consequence damages as a suffered maintaining relationship.11 of contractual the partic power use of official to limit a specific kickback, party making A receiving or a di activity-the proper reporting protected ular rectly indirectly, guilty felony or is of a job-related wrongful on-the-job or actions.8 of $10,000 may face a or fine of double the whistle blower statute not Oklahoma's impris gain amount of the financial and be protected prohibits disciplinary actions for up years.12 oned for to five activities, employee reporting it also restricts Purchasing 8 The Oklahoma Central Act denying employees op managers from Act), (Purchasing § Supp.1998 0.8. 85.1et agency operations portunity to discuss seq., amended has been since the occurrences representatives.9 functions with their elected During period involved here. the Fund determined to be Such directives have been reorganization, undergoing its Pur was statutory provis under similar unenforceable chasing any acquisition Act mandated that or ions.10 $2,500.00 contract in excess or could not be majority Although characterizes completed Purchasing without Di State controversy questions the cause as a over of submitting competitive rector bids.13 Parties alleged managerial style, there much more violating Purchasing guilty Act are aof wrongdoing here-criminal the form of subject misdemeanor and to a fine not less of condoning kickbacks for services rendered than and not more than In $100.00 $500.00. letting and the Fund's of state

the Fund addition, may county violators face a term in competitive bidding outside the contracts jail upof to six months.14 materials, process. together, taken are 19 Bova question believed that kickbacks were oc certainly raise a in a sufficient curring personal because of person's mind whether conversations reasonable about ille- may with Yoder.15 While Bova have galities occurring with monies discharges directly reported allegations graft and whether occurred because of or kick purpose acquiring which is of for the of or § 85.15, 2, 7. Title 74 0.5.1991 see note supra. holding such contract with the state ..." provides: § Title 74 0.5.1991 1, v. 52 Cal.3d Shoemaker Myers, Cal.Rptr. 303, 1054, (1990). person, holding 801 P.2d "No a contract with the state furnishing goods any for the of or services of 8$40-2.5, 1, Supp.1997 § 9. Title740.8. seenoté give give kind, shall or offer kickback supra. any person holding higher tier contract any employee." the state or to state O'Brien, 10. Lanes v. 1370-72 also, Kerr, (Colo.App.1987). Gasparinetti Supp.1999 § 12. Title 74 O.S. See see note supra. (3d Cir.1977), denied, 568 F.2d 311 cert. 436 U.S. (1978). 98 S.Ct. L.Ed.2d 401 85.7, Supp.1996 § 13. Title 74 O.S. see note § provides pertinent 11. Title 74 0.5.1991 supra. part: 85.15, "As used in this act: supra. § 14. Title 74 0.5.1991 see note money giving 1. Kickback means the of or any thing directly value other either or indi- Deposition Gary providing perti- Bova rectly by any person, behalf of or on or part pp. nent at 194-95: agent any person, holding a contract or My slippage question Q "... in that last re- bidding to obtain a contract with the state for you minds me. furnishing goods any Should I-did John Yoder tell or services kind receiving money employee any presently that he person holding was state or TPAs, higher money tier or was he to receive contract with the state for fur- services, nishing goods giving when the a later date from the TPAs? get her that he was aware that Yoder was back, the Commissioner he did believe . of ac ting percent had been accused a three kickback from the that Yoder aware exchange TPAs in for kickbacks from cepting Valley addition, TPAs.18 In testified that he it had been out-sourcing files either because included in the in believed he was reduction employee16 by another reported to him reported that foree because he kickbacks taking during place of conversations because being outsourcing solicited for the meetings.17 staff Finally, expressed cоncerns files.19 Foreman being private referred out to that files were by Brad- supported are 1 10 Bova's beliefs in return guid pro quo told firms on a basis testimony that the Commissioner ford's following Monday, and so it would have way was-he was John would-it A No. The condescending cocky, guy. And leaving he- kind of a been December 16th. And as I was his me, office, discussing newspa- he after know, this is small told that, it would be like you work here. I know, I don't even per article that come out about John Yo- had you potatoes, consulting my money my fees from make der, everybody he told me that knew about know, And, you through he never these TPAs. contracts. John's money going receiving now or I'm I'm said Q And was that the contracts that involved him just money that the in the future. It's receive getting percent the 3 kickback from the TPAs? through money way his was he earned presume. That THE WITNESS: I was what TPAs. newspaper, we was in the so that's what had you're Q he was unclear as to whether So discussing, so I-..." been receiving money at time of from TPAs your conversation? Deposition Greg Valley providing per- 19. A. in Well, know, you I you I could tell what A part: tinent I And I as- from what heard.... assumed money receiving from that he was sumed Okay. you Q p. "... What leads at them. you believe the conversation had with you Q to be at the time And understood that Terry Tyree January any way in of 1996 in present at the time of the conversation? you the decision to include in the influenced But, you conversation. A At the time of the reduction in force? know, know, John, could-you you don't I with my job severely duties were cut back A All know, brag- you was a bit of a know. He hardly I do after that. I mean was not to ger..." anything. ..." perti- Deposition Gary providing Bova in 16. your memory, p. Q the best of at 121 "... To part pp. 185-86: nent at everything by you please that was said tell us Why you enough. Q tell "... That's fair didn't Tyree meeting. and Mr. in that Tyree Terry John Yoder about statements got him that I a call from a A I had told you, receiving money ‍​‌‌​​‌‌​‌‌‌‌​​‌‌​​​​​​‌‌‌​​​​​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‍was had made to that he that Mr. Yoder was vendor that informed me third-party from the administrators? says soliciting He when did this kickbacks. know, A You I assumed he knew it. just yester- happen, happened and I said it Tyree you Q to assume that Mr. knew What led just got day day, be- because I the call that? day, called but I fore. And I had just with Well, A based on a brief conversation get I him, couldn't in to see so then saw him you Greg Valley passing, But I do know.... day, working nexi because I was half saying going Greg he was to or did have recall him, know, says, you days. And I told I I Terry...." that conversation not, truth to it or but I don't know if there's Gary perti- Deposition providing in of 192; Bova you just thought let to make I should know part p. at nent I don't know know, sure. And he says, you you Q about not, "... Did tell Elizabeth Bradford thought I I if there's truth to it or but Yoder, with John the conversations had you just know to make sure. And you should let money receiving the third- that he was says pretty into it. And that was he I'll look party administrators? _ Mr. much the extent of the conversation. » up meeting. ...' it came in a staff A I'm sure Tyree a whole lot. didn't talk to me Tyree you Terry Q Did tell that Archie ... providing Deposition of Elizabeth Bradford percentage per- had of 3 Anderson used pertinent part pp. at 166-67: being requested? the amount cent as you Q knew "... Has Mr. ever told he A don't know if I did nor not. I contracts with the TPAs? about Mr. Yoder's you Terry Tyree Q that Yoder had Did tell A Yes..... that, Keller) cash (By you $3,000 2 to front Q When did he tell if Mr. up money? requested asking money up A I told him that he was you remember? special meeting A We had a in December of front...." Friday. It was which I believe was on politicalfavors.20 9,000 indicated that some files were out bidding process sourced to firms without a that he understood T11 Yoder testified having instigated been at all.22 that, get paid, the Commissioner in order to through an actu direct monies Bradford testified the she assumed Evidently, ary benefit. this was done there were files outsourced violation of the for his competitivebidding statutes and that more having engage Fund to avoid the bidding process.21 Yoder also files were referred out than the competitive State Insur providing right. my Deposition S. Foreman A That's And I-I went to of Linda three go pertinent part pp. clients. I did not Risk 164-65: Claims Ser- vices. o Q or .. What additional concerns com- They any Q did not bid for of that work you represented plaints were not did voice that through process? a State today? you brought you in the memos with A There was never as bid. There was never Sleeper, my manag- A I voiced concerns to Mr. an RFP written. There were never inter- attorney, Terry Tyree ing to in and I believe views. were never There contracts. There meeting reorganization-and our that that nothing...." was being happening what I saw with files out- p. you Q at 79 "... But the work that describe attorneys, very specific at- sourced to various work, emergency Tyree you, as that came to quid torneys, perhaps pro quo that there was a assigned that was all out when? What date? occurring. assigned beginning That A out the-I quid pro quo? Q And what is . April think the second week or third week of though political favors A I would-it seemed as of '96- changing were hands.... Q There was no bid? you Tyree your testimony Q Is it told Mr. about bid, RFP, A-without without without con- this concern? tract...." meeting expressed I A At our first concerns political overtones of what was oc- Deposition about the providing of Elizabeth Bradford pertinent part pp. curring. at 126-27: ... you your Q us what at Would now tell was said you portion Q "... I would like to read to Terry Tyree? meeting with 85.7, Title Section as shown in the supple- feasibility expressed about A I concerns ment. study, expressed feasibility concerns that I And, 'A., [sic] No or contract quote acquisition own, does not on its I con- stand expressed shall be made without the submission of com- attorneys cerns that the were to be fired petitive purchasing bids the state director monetarily and that would benefit someone except provided as in this section. activity...." politically from this [(sic) 1., or contract for any acquisition $2,500 amount or less shall be exempted John Yoder Sworn statement of taken Novem- competitive bidding procedures. Sepa- from ber, 27, 1996, providing pertinent part p. at acquisitions rate contracts or for the individual 15: components project split of a total service or or purchasing purpose evading the re- since-Well, said, Terry 'Okay. "... A and We quirement competitive bidding shall be you pay pay can't we can't the TPAs without felony. deemed a going through process. an RFP and a bid We purchasing may The state director waive or MacLean-Oddy pay they're can because actu- $2,500 up increase the limit to but not said, just-we'll so I 'Fine. We'll aries.' And purchase рrice exceed a contract or of 10 package make the the whole deal. You check percent open perfect above the market limit to MacLean-Oddy. MacLean-Oddy knows acquisition an otherwise valid or contract in- my They what fee is. know what the fee is for $2,500 advertently exceeding the limit due to the TPAs. we'll do it.'. ..." That's how administrative error or for unforeseeable cir- cumstances.' 22. Sworn John Yoder taken statement of Q outsourcing ... Did the the cases to TPAs 1996, providing pertinent part: receiving include them that fees exceeded $2,500? pp. many Q at 55-56 "... How files all to- gether, approximately? A so, I believe sir. yes, you Q A Nine-those three clients of mine have Do know how much their fees were for 92,000 files.... the first I'm sure there's year, example? Well, Q paying year-end budget expense showing how are TPA-who's or how paid.... TPAs? much A State Fund. THE WITNESS: I'm is, sure there but to be honest, I don't know. It would be an educated get Q TPAs, And did the the cow bids that done, Terry Tyree get got guess, just he sent out to based on I number of files. you get people those come in and do would have to assume it was in excess of $2,500 the work for him? ...." (Board)24 Managers only obtaining supervisory approval.28 ance Fund's Board of after in agreed should be outsourced.25 She also testimony There is alsо in the record indicat her dicated that the Commissioner limited ing that the Commissioner issued a memo requested the Board access to materials prohibiting attorneys randum Fund that the information that was he "controlled" communicating legislators about the oc portion to the Board.26 A submitted Further, currences at the Fund.29 one em alleged information Bradford was withheld ployee testified he was instructed to outsourcing from the Board involved the keep complaints his "within the chain com having engaged competi in the files without general mand" the Fund's counsel while bidding process.27 tive another indicated he did not talk to the 1 13 It is clear from the record that Fund Commissioner because super two of the employees meetings could attend the Board's Managers Deposition providing 24. The Board of of the State Insurance of Elizabeth Bradford supervision operations. pertinent part p. Fund has over the Fund's 164: provides § $upp.1996 perti- 0.5. Title 85 131a Keller) (ByQ "... Mr. Was the board ever nent part: open meetings by advised at those Mr. anybody they hereby going on his behalf that were to "A. There is a Board to be created great outsource a number of contracts or cases Managers known as the 'Board of of the State through letter-type to TPAs contract without Fund', Insurаnce which Board shall have su- any bidding? pervision opera- over the administration and No, ... THE WITNESS: the State sir...." tion of Insurance Fund ..." Deposition providing 25. of Elizabeth Bradford 28. dated in 29, 1995, Memorandum March from Tyree employees, to Commissioner all marked pertinent as part pp. at 126-27: summary exhibit to answer to the motion for Q "... You were aware of the minutes of the judgment, providing pertinent part: in April meeting 1996 board of board of recognition heavy "... In of the Fund's work- managers they that-they wherein said made a loads, employees monthly should not attend passed motion that that stated that not more meetings Managers Board of unless a percent than 15 of their cases after the transi- Board, specific request is made tion would be outsourced. were You aware of prior approv- Administration or unless written that minute? your al for annual leave is obtained from Divi- Yes,A sir.... Manag- sion Administrator or Branch Office they percent Q Did outsource more than 15 er.... the cases? Deposition providing of Elizabeth Bradford in A Yes...." pertinent part p. at 59: Q go "... Were advised not to to Deposition providing [attorneys] 26. of Elizabeth Bradford in any meetings they got prior per- board unless pertinent pp. part at 162-63: mission? Keller) (ByQ "... Mr. I notice that one or A was a directive There to all Stаte Insurance more board members of whom we've employees prior my coming Fund to on board deposition taken their have indicated about- to that effect. ..." your competency, you when asked about that provide don't them information. Your answer Jerry Deposition Hatley providing 29. Frank you've get indicates that been unable to infor- 24: at pertinent p. part you mation from the State Insurance Fund that Q you've "... Tell me about this memo refer- represent. Tyree. enced now twice from Commissioner you Q provide ... I assume can't it to the early A A memo circulated sometime '96. I you're get board members if able to it verbally, first heard about it then I believe yourself. seeing positive I remember it, it. I'm not I saw right. A That's ... Basically saying I I did. but believe that person Q persons And what in the State attorneys with Fund should not be commu- refusing give you Fund Insurance is to infor- nicating anyone legislature in the state mation? about what was at the on Fund...." Tyree,... A Mr. wanted, Q you given The information has he providing of James Jr. Gaston, Leo Deposition that information to the boaid members him- part pertinent p. at 48: self? Okay. Q "... When did Ms. Bradford instruct A No, sir.... Keller) (ByQ you you your keep complaints Mr. Do believe that Mr. to within the chain Tyree trying gets to control what information of command? say to the board? A I would that made at the comment was mandatory meeting second that I went to. ..." Yes, sir, A much...." very Further, him31 Al access to that al attorneys had Yoder stated

visory session.34 that Snipes testified that true sent out letters though it is though the Commissioner employ receiving out indicating to other law firms worries that voiced her she family, alleged that her ees, she Fund free to hire former friends sourced files were appearing at from her supervisor prevented certain attorneys, to make he was instructed by directing her not meeting they the Board's not to hire knew were that these firms that he was Valley, also testified attend.32 stated employees. Fund Yoder former meetings on attending Board prohibited opposing reason that the Commissioner's instructions.33 the Commissioner's want that he did not such hires was billing attorneys have access to ree- that the Commission Fund testified I 14 Yoder that the Fund was would reflect ords which firing the Fund's delayed intentionally er being legal work outsourced paying more for having oppor keep them from lawyers to formerly paid counse for in-house than it had to Senators tunity to concerns direct l.35 Legislature was Representatives while 32. neni nent were Liz and posed A be dealing up, at about this? at "... Deposition Deposition of Carla presiding A present. were wouldn't information to And I wаs even A The was told I A I doubt it. that I know, tion. with Mr. A I don't believe wanted on Q sor. And members. ever hear wanted made it clear plaints? and he looked A No. complaints? said, well, lic Q Q No, part pp. part: pp. you Who told Well, Did Commissioner Did Elizabeth doing, Q meeting to talk they-no, you at 86-87 Okay. could But I remember know, 70-71 said, meeting I remember p. to be there. to I told with all of Tyree ever. willing not your complaints. And I guy and he was do thai 122: could not I remember-the go. I believe Gary. you it's Did and I can "... permitted Gary "... so that I don't know real worried Terry I didn't. Gary Sleeper what I that I could not my present. before go couldn't I was told I've ever to take you only people They Q Bradford hear planned on based Snipes if I were us...." Q Which board understanding Bova ..." Did the board members on go. leaving I have the Terry ever talk to Mr. my Tyree set him I was terminated. to attend? go. my those kind of go? upon providing in immediate And I had had a up providing I could not and he wouldn't own shaking any And he-and ever hear way only part-you Gary there you. And he I going. our conversa- conversation really, really of the board my time. right go. And I your it's said, no, as kind of knowing his head chart in planned meeting supervi- have to a things go. to I had perti- perti- set com- pub- your sup- go. to I I I I 35. 34. Sworn ber tinent times his board the rumors about ture and legislature until hoped A I аsked Mr. not period. That's A Yeah. The-the A He said neys shutdown shutdown done after attend, department. attend out. department lature went out of session...." Q "... "... ... Deposition Greg Sworn 27, 1996, A A Yes. My- front of that plaints Q Q So he . A Yeah. TPAs were to hire or send want Q legal department, part Right...." providing Okay. In very Q May would have Q the right He Did he meeting, to a Did period. your essence, Did statement of John Yoder planned board statement anyone attending legislature delay didn't want real get you- litlle 1. Is according-he really was to occur the last of So the basis away, get p. providing was out of management; until you inability And going. 76: explain concern, meeting? why...." the announcement on and he said But specific happened has never on McRae about ever just ever instruct what was pertinent time to mobilize the your peers right? train of John Yoder A, firing roadblock Tyree expressed multiple went back out that why? And he wanted the about the time the request but Valley providing that if session, pertinent part at said just-Originally, stuff attorneys the is that true? your express the board it's that we were not to occurred. He had going part Did can tell Terry Tyree lawyers you work out to annual my done, lawsuit then is which he did attending taken Novem- at you that none of didn't recollection your pp. kicked out of session. hapрen taken May. The meetings, you the atior- ask after the the files leave to legisla- 88-90: put p. legis- why? get all of com- legal legal does per- the 84: might sons reach different conclusions.38 ¶ 15 Oklahoma, summary judgment In Only affidavits, party pleadings, when a proper shows that there is no when the admissions, evidentiary depositions, or other dispute material fact in and the law favors genuine materials establish that there is no the movant's claim or defense should sum fact, any material and that issue as to mary judgment be entered.39 To defeat judgment moving party is entitled to as a summary judgment, motion for the nonmov- matter of law.36 All inferences drawn from merely ant present "something" must show evidentiary materials submitted to the that, trial, ing proof will there be light trial court are viewed most favor allegations.40 relating summary Materials party opposing able to the the motion. Be judgment need not rise to the level of admiss summary judgment fore a motion for under ibility.41 Supp.19983, App., Rule O.S. Ch. Courts, may properly Rules for the District summary 1 17 The process standard for granted, be the movant must show that there substantially. federal courts differs Fed disputed is no issue of material fact.37 litigants provide eral persuasive must more support proffered position.42 evidence to undisputed, 16 Even when basic facts are judges inquire Trial are free to whether a summary judgment motions for should be if, evidence, per jury reasonably denied under the reasonable could find the evidence this, lawyers previously you 'saving money?" that had been with the and what do mean State Fund? biggest Insurance That was his fear...." fact, A In he told me Yes. that he Serv., K & K Food Inc. v. S & H, Inc., 2000 OK out that said, send memos the TPAs 'You're 31, ¶ 16, 3 anybody you 705; P.3d Skinner v. Braum's Ice free to hire want.' But I then Store, 11, ¶ 9, 922; Cream 1995 OK 890 P.2d immediately personally was to sit down with Goods, Sporting Buck's Inc. v. First Nat'l Bank & manager TPA, of each which I did, tell them, Co., 14, ¶11, Trust 1994 OK 868 P.2d 'That's what he said. This is what he wants.' Q 37. K what Serv., H, & K Food Inc. v. S & see And was- Inc., note 36, supra; Phelps Management, v. Hotel 1996 OK don't-you Sleeper, A 'You don't hire Bova or anybody Ann 114, ¶ 8, 891; else.' Pittman had wanted-We Health Roper Mercy ¶ getting Center, OK P.2d calls from-from the TPAs wanting law firms various to hire former City City, 38. Prichard v. Oklahoma attorneys, Fund and he had standard letter response. response And time that went ¶ 19, 914; 975 P.2d Krokowski v. Henderson Nat' l 57, ¶ 8, 1996 OK 917 P.2d Carris v. 8; Corp., out, he would instruct me or instruct Beth Assoc., 33, ¶ 16, John R. Thomas & 1995 OK 896 Herron to instruct me to make sure that that 522; P.2d Roach v. Co., Atlas Ins. 1989 OK going knew, TPA You're not them. [sic] hire Life They going They are not to work for the Fund. 27, ¶ 15, 769 P.2d 158. going are not to work on the Fund files.... Inc., Copeland Lodge Enterprises, 39. v. 2000 Q OK Did have a Did reason for that? he 36, ¶ 8,4 P.3d 695. you why just tell he did that? He didn't want them? Inc., Copeland Lodge Enterprises, 40. they v. see note A He wаs afraid that would undermine project. they the He was afraid that would 39, v. Leitner, 146, ¶ 13, Davis 1989 OK supra; 924; Inc., Wedgewood Village, attorneys, attorneys 782 ‍​‌‌​​‌‌​‌‌‌‌​​‌‌​​​​​​‌‌‌​​​​​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‍P.2d Weeks v. have-that the former 72, 12, ¶ Fund, would, firm, 1976 OK P.2d 780. joining 554 be able to gain billing prove access to would records that attorneys the cost of the who hired Seitsinger 41. Pontiac, Inc., v. Dockum 1995 OK . 29, ¶ 16, attorneys TPAs and that the cost of 894 P.2d 1077 those kept having would exceed the cost of those-In words, attorney $75 other if an is to bill 42. Matsushita Elec. Indus. v. Zenith Radio Corp., 574, 1348, 1356, 475 U.S. 106 S.Ct. L.E.2d 89 hour, an 75 times 40 is a week. 3,200, 3,150 evidence, (1986). buy weighed That would him for a month at 538 concluded [Court the Fund. inadequate required plaintiffs it And what he was most fearful of that one of to come is meeting persuasive sup them would come back to board forward with more evidence to port their claim than would neces otherwise be 12,000 to a board member I billed say, you Comm'n, Gill, for the last or four months-or excuse See Federal Trade v. also, quarter, sary.]. (2001) me-four weeks- 265 [Evidence F.3d 944 must be more "significantly probable" than or more than Q weeks, Four yeah. pay "merely summary judg A-four weeks. You used to me that for colorable" to avoid you three months. Where ment.]. are headed with 480 43 Further, the movant convincing."

"clearly wrongful termination on re tions of based employer's producing porting of an kickback activitiеs of evi the burden need not bear support if an a defense have been found sufficient to establish dence sufficient employee's party cause of action on does bear on which issue is one grounds.50 In Vannerson v. Board Re proof at trial.44 Proffered of the burden of 125, ¶11, gents, 784 P.2d 1053 1989 OK courts must rise to in the federal evidence (1989), allegations evidentiary this determined that stan Court level of the substantive may illegal disposition property of judges consid state Federal dard for trial.45 46 Here, public policy concerns. there need invoked admissible evidence er disputed allegations illegal kickbacks and cir in the search of are not seour the record approach to questions.47 The federal competitive bidding stat fact cumvention of the utes-certainly, possibility both involve the summary process has been characterized as with im property that state has been dealt former judiciary's intrusion into area exclusively properly. ly as almost within the viewed Further, adversely jury's may province. principles 1 in mind and 19 With above right impact litigant's constitutional a civil Vammerson, only plausible our decision

jury trial.48 majority's explanation determination summary judgment properly Speech any evidence en 1 18 which discloses to take the federal corruption, impropriety, or malfea tered is that it has chosen other summary position approach process 51-a part on the officials concerns sance Further, binding certainly public policy.49 allega not on this Court.52 It a matter of 242, Inc., prof Liberty Lobby, raising employer's 477 U.S. dence a doubt about the 43. Anderson v. employment explanation (1986). fered for the adverse 2505, 91 L.Ed.2d 202 2513-14, 106 S.Ct. summary disposition. McCul decision to avoid 557, lough City City, F.Supp.2d v. Atlantic Catrett, 317, 44. v. 477 U.S. 106 S.Ct. Celotex Corp (D.N.J.2001). (1986). 2548, 2552, 91 L.Ed.2d Inc., 43, 45. v. see note Anderson Liberty Lobby, Humanities, Inc., v. Center Gasperini supra. 2211, S.Ct. 135 L.Ed.2d 659 U.S. (1996) governs proceedings [The 7th Amendment Beverages, Group Inc. Perrier Amer Nora v. also, See court, court.]. in federal but not in state ica, Inc., Cir.2001). (2nd 269 F.3d 114 Pearson v. 95 U.S. 24 L.Ed. 436 Yewdall, (1877); Sauvinet, 90, 92, Walker v. 92 U.S. Educ., (7th v. 267 F.3d 723 Greer Board of Burns, (1875); L.Ed. v. 50 Haw. Harada Cir.2001); Waldridge Corp., v. American Hoechst (1968). Civil The Court of (7th Cir.1994). 24 F.3d 921-22 Appeals specifically has addressed the issue of applicability approach of the federal to Okla 48. D. "Anderson v. Lib- Comment, Hostsenpiller, summary judgment procedure and found it homa erty Lobby, or First Inc.: Federal Rules Decision Kating City Pryor, inapplicable. Case," Amendment 59 U.Colo.L.Rev. 953- 26, ¶ 8, P.2d 1142. The same CIV APP §2, 55. The Okla. Const. Art. 19, provides position taken a number other has been pertinent part: v. So.2d See, Caldwell, state courts. Berner 543 by jury right ''The of trial shall be and rеmain (Ala.1989); v. 686-88 Jarboe Landmark Commu ..." inviolate. Indiana, Inc., nity Newspapers 644 N.E.2d 118, (Ind.1994); Steelvest, Inc. v. Scansteel 123 (10th Prager LaFaver, 1185, v. 180 F.3d 1190 (Ky. 476, S.W.2d 479-80 Ctr., Inc., Serv. 807 Cir.1999), denied, 967, cert. 528 U.S. 120 S.Ct. Jackson, Lesbrookton, 1991); Inc. v. 796 S.W.2d 405, (1999); 315 v. Board 145 L.Ed.2d Erickson Adams, 276, also, (Tex.App.1990). See C. Comm'rs, 414, County F.Supp. Developments in Civil Proce "Recent Oklahoma (D.Colo.1992). dure," (1997) L.J. Okla [The 33 Tulsa Supreme adopted not federal homa Court has 50. See, Rioux, Antinerella v. 229 Conn. Instead, summary judgment. standard for (1994); A.2d Human Texas Dept. of Green, place the on the mov- (Ct. Court continues to Services v. 855 S.W.2d 145-46 burden Court, ant to demonstrate that there is no substantial App.Tx.1993); Superior Collier v. 228 Cal. (1991). Adams, material C. fact.}; as to controversy any App.3d Cal.Rptr. "Developments in Oklahoma Civil Procedure Further, (1999) least one court deter- federal has Okla 1997-98", [The 34 Tulsa L.J. 501 adopted Supreme Court has not the feder homa wrongful cause, mined that in a termination summary judgment.]. point evi- al whistle blower need to "some" standard principles applying well-settled of Okla summary judgment regarding law both homa obligation judicial

and our to take notice .of through statutory established

enactments.53 express opinion

1120 I no on whether employees

or all of the would succeed if

given opportunity present their claims Nevertheless,

to a fact finder. I will not

usurp opportunity their to exercise ‍​‌‌​​‌‌​‌‌‌‌​​‌‌​​​​​​‌‌‌​​​​​‌​​​​‌‌‌‌​‌‌‌​‌‌​‌‍a consti- right jury

tutional to a trial when evidence presented

has been to demonstrate material

questions concerning illegal of fact whether

kickbacks were either made or condoned and possibility

with the real monies correctly through

were not marshaled viola- competitive bidding process.

tions of the

Therefore, I dissent.

2001 OK 111 Mary H.

Gene FRANCIS and Ann

Francis, Plaintiffs/Appellants, ROGERS,

Ira F. K. Susan Hendricks Rogers, Heirs,

Russell and the Execu

tors, Administrators, Devisees, Trustees Assigns Rogers, of Lucille deceased Unknown Successors of Lucille

Rogers, deceased, Defendants/Appellees. 94,607.

No.

Supreme Court of Oklahoma.

Dec. 3, supra. see note § 2201, 53. Title 12 0.5.1991 see note 4, supra; Organ., Davis v. GHS Health Maintenance Inc.,

Case Details

Case Name: Barker v. State Insurance Fund

Court Name: Supreme Court of Oklahoma

Date Published: Nov 7, 2001

Citation: 40 P.3d 463

Docket Number: 93,154

Court Abbreviation: Okla.