Date: 09-24-2013

Case Style: Steven King v. Berryhill Fire Protection District

Case Number: 2013 OK 76

Judge: Reif

Court: Supreme Court of Oklahoma on cert. from the Court of Civil Appeals, Division III

Plaintiff's Attorney: Steven R. Hickman, FRASIER, FRASIER & HICKMAN, LLP, Tulsa, Oklahoma, for Plaintiff/Appellee,

Defendant's Attorney: Terry S. O'Donnell & Joshua A. Cline, SAVAGE, O'DONNELL, AFFELDT, WEINTRAUB & JOHNSON, Tulsa, Oklahoma, for Defendant/Appellant.

Description: ¶1 This case concerns a claim that the Berryhill Fire Protection District wrongfully terminated the employment of Steven King for his efforts to stop a "training exercise" that involved the burning of structures owned by the fire chief. The trial court believed that the circumstances surrounding the fire chief's decision to burn the structures in question created a factual issue over whether this "training exercise" would violate the statutory prohibition against arson. The jury found that King acted to prevent arson and was wrongfully terminated for performing an act consistent with this clear and compelling policy.

¶2 The Court of Civil Appeals disagreed, ruling that burning the structures for training could not constitute arson as a matter of law. The Court of Civil Appeals noted that arson requires a "malicious burning" or one without just cause or excuse. The Court of Civil Appeals reasoned that the burning of the structures for a fire district training exercise could not be a "malicious burning," because it involved a burning with a just cause or excuse. Upon review, we disagree with this analysis.

¶3 The chief problem with this analysis is that it invades the province of the jury. The jury heard the accounts of both King and the fire chief concerning the plan to burn the structures, and more importantly, viewed their demeanor as they testified. The jury was free to consider and weigh the self-interest on the part of the fire chief, as well as the numerous factors that indicated burning of the structures would not be appropriate for training. The jury was likewise free not to believe the fire chief's explanation that he intended the burn to be a training exercise. In doing so, the jury could reasonably conclude the "training exercise" was a pretext and the attempt of the fire chief to do indirectly what he could not do directly, i.e., commit arson by burning the structures himself.

¶4 It is well settled that "[a]n employer's termination of an at-will employee in contravention of a clear mandate of public policy is a tortious breach of contractual obligations." Burk v. K-Mart Corp., 1989 OK 22, ¶ 17, 770 P.2d 24, 28 (footnote omitted). Early on, this Court generally recognized that "the employer has committed a wrong against the employee and society at large when the employee is discharged for doing that which is right [in the public interest] or refusing to do that which is wrong." Marshall v. OK Rental & Leasing, Inc., 1997 OK 34, ¶ 8, 939 P.2d 1116, 1119 (overruled in other respects by Kruchowski v. The Weyerhaeuser Company, 2008 OK 105, ¶ 35, 202 P.3d 144,154). More recently, this Court has specifically recognized that "Employees who report and complain of an employer's unlawful or unsafe practices and whose actions seek to further public good by unmasking these breaches should be protected from an employer's retaliation." Vasek v. Board of County Commissioners of Noble County, 2008 OK 35, ¶ 22, 186 P.3d 928, 933 (citation omitted).

¶5 In the case at hand, the jury believed Mr. King's account that he was fired in retaliation for exposing and opposing the unlawful and unsafe burning of structures owned by the fire chief under the guise of a "training exercise." Furthermore, the jury either (1) did not believe the non-retaliatory reasons proffered by the fire chief and fire district for his termination, or (2) concluded that Mr. King's exposure of and opposition to the unlawful and unsafe burning constituted a significant factor in the decision to terminate him, notwithstanding any non-retaliatory reasons. Id. at ¶¶ 30-31, 186 P.3d at 934. The trial court's judgment on the jury verdict must be affirmed because review of the record reveals competent evidence to support the jury's verdict and no fundamental error1 in the trial of this case. 12 O.S.2011, § 78; 20 O.S.2011, § 3001.1.

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See: http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=2013+OK+76

Outcome: CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED, TRIAL COURT'S JUDGMENT ON THE JURY VERDICT AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

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