F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 10 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
PAULA DIANE WILBURN and
VIRGINIA PEARL SHROYER,
Plaintiffs - Appellants,
v.
No. 02-5040
MID-SOUTH HEALTH
DEVELOPMENT, INC., a Texas
corporation, doing business as
Heartland Plaza,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 00-CV-468-K (E))
Bill V. Wilkinson of the Wilkinson Law Firm, Tulsa, Oklahoma, for Plaintiffs-
Appellants.
Terry J. Garrett (Kelly J. Walker with him on the briefs), Garrett & Walker, LLP,
Norman, Oklahoma, for Defendant-Appellee.
Before SEYMOUR, EBEL, and BRISCOE, Circuit Judges.
EBEL, Circuit Judge.
Plaintiffs-Appellants Paula Diane Wilburn and Virginia Pearl Shroyer ask
us to find that Oklahoma public policy prohibited their termination from their at-
will employment and to reverse the district court’s grant of summary judgment in
favor of Defendant-Appellee Mid-South Health Development, Inc. Because
Plaintiffs have failed to identify any Oklahoma state law—constitutional,
statutory, regulatory, or decisional—which articulates a public policy sufficiently
strong to prevent their termination, we AFFIRM the judgment of the district
court.
I. BACKGROUND
Wilburn and Shroyer (“Plaintiffs”) were terminated from their respective
positions as certified medication aide and cook at Heartland Plaza, a residential
care facility operated by Defendant. Plaintiffs suspected another employee of
stealing and using drugs from the facility’s medication room. They decided to
report this other employee based on their observations that she had falsified the
medication room log records to conceal her theft of patient medication. But,
instead of following the chain of command outlined in the employee handbook,
which would have required them to report this employee to her close friend,
Administrator Janice Evans, Plaintiffs reported this employee to Denise Hudson, a
medication consultant at the facility. Janice Evans fired Plaintiffs for, inter alia,
“not following the proper chain of command in raising an issue about another
employee.”
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Plaintiffs brought actions against Defendant for wrongful discharge in
violation of Oklahoma public policy. Defendant first filed a motion for summary
judgment with respect to Plaintiff Wilburn. The district court granted the motion,
finding that Oklahoma had no public policy that protected internal
whistleblowing. Defendant then filed a motion for summary judgment with
respect to Plaintiff Shroyer. During the briefing on the motion for summary
judgment against Shroyer, the Oklahoma Supreme Court issued Barker v. State
Insurance Fund, 40 P.3d 463 (Okla. 2001), an opinion that substantially
undermined the district court’s reasoning in its first order by holding that both
internal and external whistleblowers may be protected from termination by
Oklahoma public policy. Id. at 468. 1 Upon Wilburn’s motion to reconsider, the
district court decided to permit supplemental briefing on Barker and to hear the
second motion for summary judgment with respect to both Plaintiffs in light of
that case. (App. at 256.)
In its second order, the district court again granted Defendant’s motion for
summary judgment. Despite its recognition that under Barker, internal
1
In reaching its initial conclusion that Oklahoma state law does not protect
internal whistleblowers, the district court had relied heavily on our case,
Richmond v. ONEOK, Inc., 120 F.3d 205, 210 (10th Cir. 1997). We note that
certain language in that case pertaining to the inapplicability of a Burk claim to
an internal whistleblowing situation has been disapproved by the Oklahoma
Supreme Court in Barker.
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whistleblowers may be protected from termination, the district court held that
Plaintiffs had not proven that there was a sufficiently strong Oklahoma public
policy preventing their termination and that Plaintiffs had failed adequately to
substantiate their belief that the accused employee was actually stealing or taking
drugs. The district court also found that this case was controlled by existing
Oklahoma Supreme Court precedent and did not need to be certified.
On appeal, Plaintiffs contend that Oklahoma does have a strong public
policy preventing their termination; however, they have failed coherently to
articulate what that policy is or upon what law it is based. Thus, we exercise
jurisdiction over this diversity action pursuant to 28 U.S.C. § 1291 and AFFIRM
the district court’s grant of summary judgment. Because we find this case can be
resolved without the assistance of the Oklahoma Supreme Court, we decline to
certify a question to that court.
II. DISCUSSION
We review motions for summary judgment de novo, applying the same
standard as the district court. Richmond, 120 F.3d at 208. Summary judgment is
appropriate if there is no genuine issue of material fact and one party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). The only question at issue in
this appeal is whether the state of Oklahoma has a public policy that would bar
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the termination of Plaintiffs’ at-will employment. The determination of a public
policy exception is a question of law for the court to decide. Pearson v. Hope
Lumber & Supply Co., 820 P.2d 443, 444 (Okla. 1991). Thus, we review this
issue de novo. Quigley v. Rosenthal, 327 F.3d 1044, 1057 (10th Cir. 2003)
(reviewing de novo a question of state law decided on summary judgment).
In Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okla. 1989), the Oklahoma
Supreme Court recognized a cause of action for wrongful discharge in violation
of public policy, creating an exception to its general rule of at-will employment. 2
The court noted, however, that this public policy exception “must be tightly
circumscribed” and is available only “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.” Id. at
29. The clear and compelling public policy on which the plaintiff relies must be
articulated by state constitutional, statutory, regulatory or decisional law. Id.;
Gilmore v. Enogex, Inc., 878 P.2d 360, 364 n.19 (Okla. 1994). 3
2
This cause of action is now referred to as a “Burk tort.”
3
Although many cases state that the policy must be articulated in
“constitutional, statutory, or decisional law,” others indicate that regulatory law is
acceptable as well. Gilmore, 878 P.2d at 364 n.19 (“When attempting to find and
articulate a clear mandate of public policy, we look to the letter or purpose of a
constitutional, statutory or regulatory provision.”) (emphasis added); Burk, 770
P.2d at 29 (“‘[C]ourts should inquire whether the employer’s conduct contravenes
the letter or purpose of a constitutional, statutory or regulatory provision or
(continued...)
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The Oklahoma Supreme Court has identified five kinds of public policy
exceptions to the general rule of at-will employment: (1) refusal to participate in
an illegal activity; (2) performance of an important public obligation; (3) exercise
of a legal right or interest by the employee; (4) exposure of some wrongdoing by
the employer; and (5) performance of an act that public policy would encourage
or refusal to do something that public policy would condemn, when the discharge
is coupled with a showing of bad faith, malice or retaliation. Groce v. Foster, 880
P.2d 902, 904-05 (Okla. 1994).
Plaintiffs assert that their claim falls into the fifth category—they claim
that they performed an act that public policy would encourage, i.e., they reported
a co-worker who was stealing narcotics from the elderly residents of the facility
and using them at work. 4 Thus, for claims of this type, “[t]he identified public
policy ‘must be truly public, rather than merely private or proprietary.’” Barker,
40 P.3d at 468 (citing Hayes, 905 P.2d at 786).
3
(...continued)
scheme.’”) (emphasis added) (citing Parnar v. Americana Hotels, Inc., 652 P.2d
625, 631 (Haw. 1982)).
4
Plaintiffs also allege that their assertion of public policy may fall into the
second category—performance of an important public obligation. This category
is meant to cover public service, such as jury duty, not the types of actions taken
by Plaintiffs in this case. See Hinson v. Cameron, 742 P.2d 549, 552-53 & n.9
(Okla. 1987).
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In Barker, the Oklahoma Supreme Court specifically examined the
sufficiency of a Burk tort claim in the whistleblower context. Barker, 40 P.3d at
468. The Court held that internal and external whistleblowers may state a Burk
tort claim under two conditions. First, they must assert a strong public policy
supporting their specific whistleblowing activity. Id. (“Oklahoma law protects
both internal and external reporting of whistle-blowers who establish a sufficient
public policy violation from retaliatory discharge.”). Second, the employee’s
whistleblowing must not be based entirely on rumor. Id. at 471 (“There is no
‘rumor spreader exception’ to the employment-at-will doctrine.”) Barker left
open the question of how certain the employee must be of the information he or
she is reporting, declining to decide whether a whistleblower must have “direct
personal knowledge of the wrongdoing” or “only an objectively good faith belief
that the reported wrongdoing has occurred.” Id.
In the instant case, there is a genuine dispute of material fact regarding how
certain Plaintiffs were about their co-employee’s alleged drug theft and use,
which we cannot resolve on summary judgment. 5 Therefore, if Plaintiffs can
5
We disagree with the district court’s finding that Plaintiffs did not show
“any facts that offer the Court any more evidence than that [they] w[ere] tattling
on someone for purported conduct about which [they] had only a supposition.”
We find that Plaintiffs’ affidavits and deposition testimony were sufficient
evidence to create a genuine issue of material fact on whether they held
“objectively good faith belief[s]” that their co-employee committed the alleged
(continued...)
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identify a sufficiently strong public policy underlying their whistleblowing
activity, they can survive summary judgment. We find that they have failed to do
so.
Plaintiffs argue that three different areas of Oklahoma law support their
claim that Oklahoma has a strong public policy encouraging the reporting of the
theft or use of drugs by employees in elderly care facilities: the Nursing Home
Care Act and regulations promulgated thereunder; the Residential Care Act and
regulations promulgated thereunder; and the Uniform Controlled Dangerous
Substances Act. We will consider each alleged basis in turn.
A. Nursing Home Care Act
Plaintiffs first argue that Oklahoma’s Nursing Home Care Act, Okla. Stat.
Ann. tit. 63, § 1-1901 through § 1-1952, and regulations promulgated thereunder
indicate that Oklahoma has a strong public policy supporting their
whistleblowing. Plaintiffs refer specifically to § 1-1942, which authorizes the
Oklahoma State Department of Health to promulgate rules and regulations under
the Act. They also cite to one regulation promulgated under the Act, Okla.
(...continued)
5
wrongdoing.
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Admin. Code § 310:675-9-9.1 (“Resident Care Services”). 6 Plaintiffs argue that
this regulation articulates a strong public policy because it “expressly provide[s]
for safeguards and procedures regarding the storage, safekeeping, monitoring,
dispensing, and when necessary, the destruction of patient prescription drugs,
including narcotic drugs such as the ones involved here.” (Aplt. Br. at 6.)
However, because Defendant is not governed by the Nursing Home Care Act or
its regulations, Plaintiffs cannot rely on these laws to support their Burk tort
claim.
In Griffin v. Mullinix, 947 P.2d 177 (Okla. 1997), the Oklahoma Supreme
Court held that an employee cannot articulate a public policy that would prevent
his or her termination if that policy is based on laws that do not apply to the
employer. Id. at 179 (holding that employee could not state a public policy to
prevent his termination based on Oklahoma’s workplace safety laws when those
laws did not apply to his employer). Thus, we must determine what laws govern
Defendant’s facility to determine what laws we may consider in deciding whether
Oklahoma has a strong public policy that would prevent Plaintiffs’ termination.
The district court, relying on Plaintiffs’ misrepresentations, mistakenly
6
believed that this regulation was promulgated pursuant to the Residential Care
Act, presumably because it is entitled “Resident Care Services.” This regulation
was in fact promulgated under the Nursing Home Care Act and applies only to
residents of nursing homes. See Okla. Admin. Code, ch. 675, indicating that the
authority for regulation 310:675-9-9.1 is 63 O.S. 1901 et seq., the Nursing Home
Care Act.
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Under Oklahoma law, the state may issue licenses for several types of
elderly care facilities, including nursing homes, continuum of care or assisted
living homes, and residential care facilities. Each type of facility is licensed
under and governed by separate laws and regulations. Nursing homes are
governed by the Nursing Home Care Act, Okla. Stat. Ann. tit. 63, § 1-1901
through § 1-1952, and the regulations in chapter 675 of the Oklahoma
Administrative Code. Continuum of care or assisted living facilities are governed
by the Continuum of Care and Assisted Living Act, Okla. Stat. Ann. tit. 63, § 1-
890.1 through § 1-899.1, and the regulations in chapter 663 of the Oklahoma
Administrative Code. Residential care facilities are governed by the Residential
Care Act, Okla. Stat. Ann. tit. 63, § 1-819 through § 1-842, and the regulations in
chapter 680 of the Oklahoma Administrative Code.
Plaintiffs maintain that Defendant operates a nursing home governed by the
Nursing Home Care Act; Defendant claims it operates a residential care facility,
governed by the Residential Care Act. We agree with the district court’s finding
that Defendant operates a residential care facility. Defendant’s license clearly
indicates that it is a residential care facility, and Plaintiffs offer no evidence to
the contrary.
Because Defendant operates a residential care facility, we may consider
only laws governing residential care facilities. The Nursing Home Care Act
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specifically excludes residential care facilities from its coverage. Okla. Stat.
Ann. § 1-1903(B). Although the Residential Care Act incorporates some
provisions of the Nursing Home Care Act, id. § 1-840, Plaintiffs do not cite any
of those provisions as supporting their claim of a strong Oklahoma public policy.
Thus, under Griffin, the Nursing Home Care Act or regulations promulgated
thereunder cannot establish a public policy sufficiently strong to prevent
Plaintiffs’ termination. 7
B. Residential Care Act
Plaintiffs next argue that the Residential Care Act, Okla. Stat. Ann. tit. 63,
§ 1-819 through § 1-842, and regulations promulgated thereunder articulate a
strong public policy that would prevent their termination. Plaintiffs point
specifically to § 1-821(A)(8), which authorizes the Oklahoma State Department of
Health to
7
Although they do not discuss them in their briefs, Plaintiffs also cite to
Okla. Admin. Code § 310:663-19-2 and a table of federal regulations attached as
an exhibit to their responses to Defendant’s motions for summary judgment.
(App. at 91-94.) Okla. Admin. Code § 310:663-19-2 is a regulation applicable
only to Continuum of Care or Assisted Living homes. Thus, for the reasons
discussed above, we cannot consider it because it does not apply to Defendant’s
facility. We also cannot consider the federal regulations because “Burk claims
must have their basis in Oklahoma state law.” Richmond, 120 F.3d at 210
(refusing to consider the federal Fair Labor Standards Act or Family and Medical
Leave Act as the basis for the plaintiff’s Burk tort claim) (emphasis added);
McKenzie v. Renberg’s, Inc., 94 F.3d 1478, 1487-88 (10th Cir. 1996).
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develop and enforce rules and regulations . . . to implement the provisions
of the Residential Care Act. Such rules and regulations shall include but
not be limited to governing temperature limits, lighting, ventilation, and
other physical conditions which shall protect the health, safety, and welfare
of the residents in the home.
Okla. Stat. Ann. tit. 63, § 1-821(A)(8) (emphasis added). Plaintiffs do not
identify any specific regulation promulgated under this section to support their
position.
As discussed above, we may consider the Residential Care Act and
regulations promulgated thereunder because these laws apply to Defendant’s
facility. However, Plaintiffs failed to mention these statutes and regulations until
their brief on appeal. By failing to assert these laws as the basis for their claim of
a public policy exception before the district court and by failing to develop their
argument based on these laws before this Court, we find that Plaintiffs have
waived this argument.
An issue is waived if it was not raised below in the district court. Walker
v. Mather, 959 F.2d 894, 896 (10th Cir. 1992). Although we may resolve an issue
not raised below where “the proceedings below resulted in a record of amply
sufficient detail and depth from which the determination may be made,” United
States v. Mendez, 118 F.3d 1426, 1431 n.2 (10th Cir. 1997) (quotation omitted),
we will not consider a new theory “that falls under the same general category as
an argument presented [before the district court] or . . . a theory that was
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discussed in a vague and ambiguous way.” Bancamerica Commercial Corp. v.
Mosher Steel of Kansas, Inc., 100 F.3d 792, 798-99 (10th Cir. 1996). In
reviewing a ruling on summary judgment, we will not consider evidence that was
not before the district court. John Hancock Mut. Life Ins. Co. v. Weisman, 27
F.3d 500, 506 (10th Cir. 1994) (citation omitted). We also will not consider
issues that are raised on appeal but not adequately addressed. Ambus v. Granite
Bd. of Educ., 975 F.2d 1555, 1558 n.1 (10th Cir. 1992).
Applying these principles, we conclude that Plaintiffs have waived an
argument premised on the Residential Care Act and its regulations. Although
Plaintiffs mention the Residential Care Act as support for their Burk tort claim in
their brief on appeal, they do not specifically address a single substantive
provision of the Act or identify a single regulation promulgated under the Act to
advance their argument. For us to conclude that these laws and regulations
established a public policy exception, we would have to understand how they
governed Defendant’s employees, how their purposes were effected, and what
public health risk Plaintiffs argue was at stake. Because none of this analysis was
presented to the district court or to this Court, it is simply impossible for us to
conclude that the Residential Care Act articulates a strong Oklahoma public
policy preventing Plaintiffs’ termination. Thus, any argument premised on the
Residential Care Act must fail.
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C. Uniform Controlled Dangerous Substances Act
Finally, Plaintiffs cite the Uniform Controlled Dangerous Substances Act,
Okla. Stat. Ann. tit. 63, § 2-101 through § 2-608, as support for their claim. The
Plaintiffs make scant reference to this Act, stating only that “Oklahoma laws such
as 63 O.S. § 2-209(B) et seq. and 21 O.S. § 1725, the Uniform Controlled
Dangerous Substances Act, for example, also represent clear Oklahoma public
policy involved here.” (Aplt. Br. at 6.) The first section they mention, 63 O.S.
§ 2-209(B), does not exist. 8 The second section they mention, 21 O.S. § 1725,
was repealed in 1971 and replaced by Okla. Stat. Ann. tit. 63, § 2-403. Section 2-
403 criminalizes the theft of controlled dangerous substances. Presumably,
Plaintiffs point to this section to show that they were reporting that their co-
employee was engaged in illegal conduct.
These laws are simply not sufficient to establish the “clear mandate of
public policy” necessary to state a Burk tort claim. Burk, 770 P.2d at 28.
Plaintiffs point to no provision of the Uniform Controlled Dangerous Substances
Act that purports to establish a policy that governs their situation or encourages
8
Before the district court, Plaintiffs cited Okla. Stat. Ann. tit. 63, § 2-
309(B). Assuming that they intended to cite this statute in their brief on appeal, it
does not change our analysis. Section 2-309(B) merely provides definitions of
terms used in the Anti-Drug Diversion Act. It is unclear how this provision
applies to this case. If Plaintiffs intended to cite § 2-309(B), they likewise fail to
explain its applicability to the instant case.
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the type of reporting that occurred in this case. We agree with the district court
that this authority is “far too slender a reed upon which to base a public policy
tort.” McKenzie v. Renberg’s, Inc., 94 F.2d 1478, 1488 (10th Cir. 1996); see
Hayes, 905 P.2d at 781 (holding that the Oklahoma law criminalizing
embezzlement did not state a sufficiently strong public policy to prevent an
employee from being terminated after he reported to his employer that his
manager was embezzling).
Because we find that none of the legal authority that Plaintiffs have
properly presented to this Court articulates a clear mandate of public policy that
would prevent their termination, we AFFIRM the district court’s grant of
summary judgment to Defendant. Appellee’s motion to dismiss is denied.
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