                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 23 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MICHAEL R. HEATH,

                Plaintiff-Appellant,

    v.                                                    No. 00-5177
                                                    (D.C. No. 99-CV-791-B)
    JOHN CHRISTNER TRUCKING,                              (N.D. Okla.)
    INC., an Oklahoma Corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant Michael R. Heath appeals from summary judgment granted in

favor of appellee John Christner Trucking, Inc. (JCT) on his state-law tort claim

for wrongful termination brought pursuant to Oklahoma law. The district court’s

diversity jurisdiction arose under 28 U.S.C. § 1332 when JCT removed the action

to federal court. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm


                              I. Standard of review

      Because the district court sat in diversity, it was obliged to apply the most

recent statement of applicable Oklahoma law by the state’s highest court. See

Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir. 1994). On appeal, we utilize

“the normal federal standards of appellate review to examine the district court’s

decision process.” Mid-America Pipeline Co. v. Lario Enters., Inc., 942 F.2d

1519, 1524 (10th Cir. 1991). Thus, we review the district court’s grant of

summary judgment de novo, applying Oklahoma law. See Charter Canyon

Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135 (10th Cir. 1998). Under

Fed. R. Civ. P. 56(c), summary judgment is proper only if the evidence, viewed in

the light most favorable to the party opposing summary judgment, shows that

there are no genuine issues as to any material fact, and that the moving party is

entitled to judgment as a matter of law. See id.




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                                II. Relevant facts

      Mr. Heath is a truck driver who asserts that he was wrongfully terminated

on September 4, 1998 by John Christner, president and co-owner of JCT, in

retaliation for his refusal to accept two allegedly illegal driving assignments on

August 25 and 28, 1998.   See Burk v. K-Mart Corp. , 770 P.2d 24, 28 (Okla. 1989)

(adopting public policy exception to the at-will employment termination rule

where the “discharge is contrary to a clear mandate of public policy as articulated

by constitutional, statutory or decisional law”). He claims that the assignments

would have required him to violate maximum-driving-time regulations as

provided by the United States Department of Transportation (“DOT”) and as

incorporated into Oklahoma law.

      JCT maintains that it terminated Mr. Heath for letting a refrigerated truck

run out of fuel on August 31, 1998, which undisputedly is a violation of company

policy that may result in immediate termination according to the employee

handbook. It also argues that the assigned loads were not per se illegal because

Mr. Heath could actually arrive at the delivery destination any time within seven

hours of the stated delivery time.

      The following facts are undisputed. Mr. Heath was assigned a load on

August 25 requiring him to make a 2,600 mile run from California to Columbus,

Ohio, by August 28. When Mr. Heath advised the dispatcher that he could not


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deliver the load on time without violating his driving-time requirements, the

dispatcher instructed him to deliver the load to the JCT yard in Sapulpa,

Oklahoma, so that another driver could pick it up and finish delivery. Mr. Heath

delivered the load in Sapulpa on August 27. Two hours later, he reported back,

requesting to be dispatched out again and stating that he preferred to be

dispatched west. According to Mr. Heath, the dispatcher appeared to be angry

that Mr. Heath had not continued to Columbus with the original load, but told

Mr. Heath to return later for a different dispatch. At between 9:00 a.m. and

10:00 a.m. on August 28, the dispatcher assigned Mr. Heath a different load to

Columbus with documents indicating a 6:00 a.m. delivery time on August 29.

Mr. Heath testified that he could not deliver the load by 6:00 a.m. without

violating his maximum-driving-hours limitation.

      It is undisputed, however, that he did not inform the dispatcher or anyone

else at JCT of this potential problem or request clarification or an extension of the

delivery time. He did not refuse the load but, instead, told the dispatcher only

that he “would like a slower load.” Aplt’s App. at 160, 117. According to

Mr. Heath, the dispatcher became angry, told him he had “just about had it” with

him, and instructed him to give him back the assignment documents.      Id. at 157.

      The dispatcher testified that it was “general knowledge” that the particular

load assigned on August 28 did not have to be delivered by 6:00 a.m. but could be


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delivered any time between 6:00 a.m. and 2:00 p.m.      Id. at 269-70. Mr. Heath

was subsequently dispatched out on August 30 on a “slow load” going west, as he

had requested.   Id. at 207, 272. During this trip, he allowed the refrigeration unit

on the trailer to run out of gas, necessitating repairs and risking the loss of the

frozen load. When he returned to Sapulpa, John Christner called him into the

office, confirmed that he had run out of fuel, and fired him. Evidence regarding

the actual reasons for Mr. Heath’s termination was conflicting. Viewing it in the

light most favorable to Mr. Heath, the record shows that he was terminated both

for refusing the August 28 load and for running out of gas.


                                   III. Discussion

      Relying on White v. American Airlines, Inc.    , 915 F.2d 1414 (10th Cir.

1990) (applying Oklahoma law), the district court held that, in order to survive

summary judgment, Mr. Heath had to present evidence that (1) he was requested

to accept a dispatch that would cause him to be in violation of DOT regulations;

(2) Mr. Heath refused the dispatch and John Christner knew of the refusal; and (3)

Mr. Heath’s termination was significantly motivated by his refusal. The district

court granted summary judgment in favor of JCT on its conclusion that Mr. Heath

had failed to establish a genuine issue of material fact as to any of these three

elements.



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        A. Elements of wrongful termination.        Mr. Heath first argues that the

district court improperly added an essential element of proof to his prima facie

showing of wrongful termination by requiring him, pursuant to      White , to present

evidence that John Christner had knowledge of his refusal to carry an illegal load.

He argues that White conflicts with Oklahoma Uniform Jury Instruction

(OUJI-Civ) 21.2. That instruction provides that, in wrongful termination cases

based on retaliation for refusing to do an illegal act, the plaintiff must show that

(1) he was discharged; (2) he refused to do an illegal act; (3) a significant factor

in the decision to discharge was retaliation for plaintiff’s refusal to do the illegal

act; and (4) plaintiff was damaged as a result of the discharge. OUJI-Civ 21.2

(Vernon’s Okla. Forms 2d). Mr. Heath complains that the district court

erroneously required a showing of John Christner’s knowledge of his refusal to do

an illegal act as part of the second element of the prima facie case and that OUJI

21.2 requires evidence of knowledge only in the third, causation element.

        Mr. Heath’s argument presents a distinction without a difference. In a

retaliation case, if there is a question whether a terminating employer actually

knew of its employee’s refusal to do an allegedly illegal act, at some point in the

employee’s prima facie evidentiary presentation there must arise some evidence

of that knowledge – otherwise, there could be no retaliation for refusing to do the

illegal act.   Cf. Buckner v. Gen’l Motors Corp.   , 760 P.2d 803, 806 (Okla. 1988)


                                            -6-
(holding that elements of prima facie case for retaliatory discharge for filing

workers’ compensation claim includes “receipt of treatment under circumstances

which put the employer on notice   that treatment had been rendered for a

work-related injury”) (emphasis added). The district court did not err in requiring

direct or circumstantial evidence that John Christner knew that Mr. Heath refused

to commit an illegal act.

      B. Genuine issues of material fact.      Mr. Heath next argues that there are

genuine issues of material fact that preclude summary judgment. As to the first

element – whether JCT required Mr. Heath to accept a dispatch that would cause

him to be in violation of DOT regulations – the court considered several

undisputed facts. First, the court noted that there was no dispute that when

Mr. Heath advised dispatch of his belief that delivering the August 25 load would

cause him to violate DOT regulations, he was immediately relieved of the

dispatch, told to drop it in Sapulpa, and ultimately assigned another load. The

court noted that the dispatcher testified that he knew that the Columbus

destination had a flexible delivery time between 6 a.m. and 2 p.m. and that it was

common knowledge in the industry. JCT submitted an undated memo from the

Columbus facility stating that its receiving hours were from 6:00 a.m. to 2:30

p.m. with no appointment necessary. Further, Mr. Heath admitted that, if the

delivery times on the August 25 and 28 loads were in fact flexible and not fixed,


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he would not have been in violation of DOT regulations and could not have been

fired for refusing to take a dispatch in violation of public policy. Aplt’s App. at

303-04.

      On appeal, Mr. Heath argues that a genuine issue of material fact exists as

to whether the loads were illegal. He asserts that, because he was informed on

August 25 that the load’s delivery date of August 28 could not be rescheduled, it

presents an issue relevant to whether the delivery time of 6:00 a.m. was a fixed

time, which, he argues, is critical to the question of whether JCT required him to

drive an illegal load. In regard to the August 25 load, Mr. Heath testified:

       . . . I noticed that the load was two days old, 2,600 miles. . . . I
      promptly informed dispatch . . . that I couldn’t complete it on time. .
      . . In other words, not enough time to get it there. The original      five
      days would have been very adequate. But only          three days , it wasn’t
      enough time. . . . They said they couldn’t reschedule. They would
      split the load in Sapulpa.

Id. at 155 (italics added). This testimony indicates only that JCT could not

reschedule the date that the load was to arrive. It does not raise a genuine issue

whether the delivery time was fixed and could not be rescheduled. In fact, the

delivery date was not rescheduled. Mr. Heath delivered the load to Sapulpa at

noon on August 27, and another driver delivered it in Columbus on August 28,

arriving within the Columbus facility’s receiving hours.

      The dispatcher testified that when a load had an absolutely fixed delivery

time, assignment documents would also include a comment on the lines of

                                           -8-
“[c]ustomer must have at 5 a.m.,” for example, or the dispatcher would verbally

tell the driver of the absolute delivery requirement.   Id. at 176. It is undisputed

that neither the August 25 nor the August 28 assignment documents included such

a comment, nor did the dispatchers tell Mr. Heath that the deliveries had an

absolute delivery time. Likewise, notwithstanding Mr. Heath’s subjective belief

that the Columbus loads were illegal for     any driver to accept because of the

allegedly fixed delivery time, in fact they were not, as demonstrated by the fact

that the driver who took the August 28 load delivered it at 9:47 a.m. on

August 29, well within the maximum-driving-time regulations.

       Finally, Mr. Heath never advised JCT that he believed the August 28 load

was illegal and he did not allege in the unemployment compensation hearings that

he had been asked to take an illegal load on August 28. He represented that the

load was a “hot” one, meaning that it had to be delivered quickly, and that if the

dispatcher had denied his request for a slow load going west, he “would have

simply taken what he gave me.”       Id. at 54.

       Mr. Heath’s assertion on appeal that he refused the Columbus loads

because he thought they were illegal may be an honest one. His subjective belief,

however, is not dispositive as to whether the loads were actually illegal. In

Oklahoma, the public policy exception to at-will employment is “tightly

circumscribed” and the employee’s discharge must actually violate a “clear


                                             -9-
mandate of public policy.”   Burk , 770 P.2d at 28-29; Wheless v. Willard Grain &

Feed, Inc. , 964 P.2d 204, 206 (Okla. 1998) (favorably citing Michigan case in

which requested act would “clearly violate the law of the state”). A request that

may only theoretically violate a statute as interpreted by a particular individual

does not meet the actual violation requirement.   Cf. Pearson v. Hope Lumber &

Supply Co. , 820 P.2d 443, 444 (Okla. 1991) (holding that trial court determines

what the public policy is and jury then examines facts and decides “if the public

policy was violated”). Under the facts recited above showing that JCT did not

require Mr. Heath to drive per se illegal loads, summary judgment was proper.

      Because Mr. Heath cannot establish that JCT required him to perform an

illegal act, we need not address his other contentions on appeal. The judgment of

the United States District Court for the Northern District of Oklahoma is

AFFIRMED.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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