                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                        February 17, 2009
                                  TENTH CIRCUIT
                             __________________________               Elisabeth A. Shumaker
                                                                          Clerk of Court

 ELIZABETH MARTIN; KELLY
 FOLSOM,

           Plaintiffs - Appellants,
                                                              No. 07-7083
 v.                                                           (E.D. Okla.)
                                                    (D.Ct. No. 6:06-cv-00188-KEW)
 WEYERHAEUSER COMPANY,

           Defendant - Appellee.
                          ____________________________

                               ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and O’BRIEN, Circuit Judges.


       Elizabeth Martin and Kelly Folsom, at-will employees, were discharged by

the Weyerhaeuser Company. As self-described whistleblowers, they claim their

discharge violated Oklahoma public policy. The district court dismissed their

complaint on a motion for summary judgment. We affirm. 1




       *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
       1
           We exercise jurisdiction pursuant to 28 U.S.C. § 1291.
                                I. BACKGROUND

      In August 2001, Weyerhaeuser hired Martin and Folsom to work at its

containerboard manufacturing facility in southeastern Oklahoma. Martin was

hired as a senior environmental engineer focusing primarily on water quality

issues. Folsom was hired as an environmental engineer focusing primarily on air

quality issues.

      Martin and Folsom were evaluated annually and received generally positive

ratings, as well as raises and cash bonuses, until June 2004. During a forced

ranking process, 2 they received ratings placing them in the bottom of the bottom

tier of salaried employees. Martin and Folsom were placed on 45-day

performance improvement plans which were extended for an additional 45 days.

Both were terminated following the expiration of the second 45-day term.

      Martin and Folsom filed suit, alleging they were terminated in violation of

Oklahoma’s public policy exception to the employment-at-will doctrine. They

claimed they were terminated for “notifying management of . . . environmental

concerns and for their repeated efforts to coax and then goad . . . management to

take corrective . . . actions.” (Appellants’ App. at 33-34.) After limited

discovery, Weyerhaeuser filed a motion for summary judgment arguing Martin

and Folsom neither articulated an actionable public policy nor presented evidence


      2
        The record does not indicate whether the June 2004 forced ranking was
undertaken in anticipation of layoffs.

                                         -2-
that they were discharged for either refusing to act in violation of, or performing

an act consistent with, Oklahoma public policy. In opposition to Weyerhaeuser’s

motion, Martin and Folsom submitted affidavits supporting their theory of

liability. Both claimed they raised serious environmental concerns with

Weyerhaeuser on numerous occasions and the corrective action they

recommended was not undertaken. Both “believe[d] that [they were] terminated

in retaliation for performing the core functions of [their] positions.” (Id. at 290,

300.)

        The court granted Weyerhaeuser’s motion for summary judgment. 3 Martin

and Folsom filed a timely notice of appeal. We requested supplemental briefing

on the issue of:

        Whether, viewing the facts in the light most favorable to plaintiffs,
        they have demonstrated a genuine issue of material fact in support of
        their claims that their employment was terminated as a result of
        either refusing to act in violation of public policy or performing an
        act consistent with public policy.

                                  II. DISCUSSION

        In Burk v. K-Mart Corporation, the Oklahoma Supreme Court “adopt[ed] . .

. the public policy exception to the at-will termination rule in a narrow class of

cases in which the discharge is contrary to a clear mandate of public policy as

articulated by constitutional, statutory or decisional law.” 770 P.2d 24, 28 (Okla.


        3
         The parties consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c)(1).

                                          -3-
1989). A Burk tort arises “where an employee is discharged for (1) refusing to

violate an established and well-defined public policy or (2) performing some act

consistent with a clear and compelling public policy.” Darrow v. Integris Health,

Inc., 176 P.3d 1204, 1210 (Okla. 2008).

      Martin and Folsom contend they were discharged for refusing to violate an

established and well-defined public policy, relying generally on Oklahoma’s

environmental statutes 4 and whistleblower protections as the basis for the alleged

public policy. The district court concluded neither the environmental statutes nor

the whistleblower protections could form the basis of a Burk tort. The court also

held Martin and Folsom failed to show a genuine issue of material fact regarding

the reason for their terminations.

      “This court reviews an award of summary judgment de novo, viewing the

record in the light most favorable to the non-moving party.” Hammons v. Saffle,

348 F.3d 1250, 1254 (10th Cir. 2003). Summary judgment is appropriate only “if

the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is



      4
         Martin and Folsom rely on the Oklahoma Environmental Quality Act, Okla. Stat.
tit. 27A, §§ 1-1-101—1-4-107; the Oklahoma Clean Air Act, Okla. Stat. tit. 27A, §§ 2-5-
101—118; the Oklahoma Environmental Quality Code, Okla. Stat. tit. 27A, §§ 2-1-
101—2-16-107; the Oklahoma Pollutant Discharge Elimination System Act, Okla. Stat.
tit. 27A, §§ 2-6-201—206; the Oklahoma Water Supply Systems Act, Okla. Stat. tit. 27A,
§§ 2-6-301—310.4; and the Environmental Crimes Act, Okla. Stat. tit. 21,
§§ 1230.1—.10.

                                          -4-
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The mere

existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372,

127 S. Ct. 1769, 1776 (2007) (quotations omitted). “If there is no genuine issue

of material fact in dispute, this court then determines if the substantive law was

correctly applied by the district court.” Hammons, 348 F.3d at 1254. Since this

case is grounded on diversity jurisdiction, the substantive law of Oklahoma

governs. Blanke v. Alexander, 152 F.3d 1224, 1228 (10th Cir. 1998). The district

court’s determination of Oklahoma law is entitled to no deference. Id.

A. Legal Question

      “[A]n employer’s violation of a state-declared public policy is the

fundamental predicate for a Burk tort.” Darrow, 176 P.3d at 1210. Thus, we

begin by considering whether the court correctly determined Martin and Folsom

did not allege an actionable public policy. “The determination of a public policy

exception is a question of law for the court to decide.” Wilburn v. Mid-South

Health Dev., Inc., 343 F.3d 1274, 1277 (10th Cir. 2003); see also Pearson v.

Hope Lumber & Supple Co., 820 P.2d 443, 444 (Okla. 1991) (same). The

Oklahoma Supreme Court has acknowledged “it is not always easy to identify

what is a specific, well-established, clear and compelling public policy.” Darrow,

176 P.3d at 1210. After the district court’s decision, the Oklahoma Supreme

                                         -5-
Court decided Darrow, which changed the Burk tort landscape, calling into

question the cases relied upon by the district court.

       1. Oklahoma’s Environmental Statutes

       According to the district court the environmental statutes relied upon by

Martin and Folsom did not set forth an actionable public policy because they do

not purport to affect the employment relationship. It cited Pearson 5 and Shero v.

Grand Sav. Bank, 161 P.3d 298 (Okla. 2007), 6 for the proposition that “[t]he

statute upon which an employee relies for the public policy exception to his at

will status must [ ] explicitly state in its provisions an intent to affect the

employment relationship.” (Appellants’ App. at 27.)

       In Darrow, the Oklahoma Supreme Court rejected an argument that a Burk

claim must fail under Pearson and Shero if “the sources of public policy relied on



       5
         In Pearson, the court agreed with the defendant employer that the Polygraph
Examiners Act, Okla. Stat. tit. 59, §§ 1451-76, did not contain a clear mandate of public
policy because it did not “purport to touch any aspect of the employment relationship.”
820 P.2d at 445.
       6
          In Shero, the court held the Open Records Act, Okla. Stat. tit. 51, §§
 24A.1—.29, could not provide a public policy basis for a Burk tort. 161 P.3d at 301.
 Relying on Pearson, it explained:
       While the Open Records Act expressly sets forth the public policy
       concerning the people’s right to know and be fully informed about their
       government, it is silent as to any public policy against conditioning
       continued employment on the abandonment of claims pursuant to the Act.
       It is the latter alleged public policy which must be deducible from the Act in
       order for the Employee to state a claim under . . . [Burk]
Id.

                                            -6-
by [the plaintiff] contain no provisions limiting the actions of an employer.” 176

P.3d at 1214, n.45. The court held Pearson and Shero were “not applicable” in

Darrow “because we are dealing with matters of importance to the general

public.” Id. The issues in this case—the quality of Oklahoma’s air and

water—would seem to be matters of importance to the general public, no less than

the issue of health care fraud and abuse in Darrow. We assume the Oklahoma

environmental statutes cited by Martin and Folsom can support a Burk tort. 7 In

any event, they are clearly not infirm because of their failure to touch the

employment relationship.

      2. Oklahoma’s Whistleblower Protections

      The district court also held Martin and Folsom could not rely on

Oklahoma’s whistleblower protections as a basis for their claims. It relied upon

Richmond v. ONEOK, Inc., where “[w]e reject[ed] [the plaintiff]’s claim that

Oklahoma law provides an exception to at-will employment on the basis of her

‘internal whistleblowing’” noting “[t]his court has already held that there is no

clear mandate of Oklahoma public policy against terminating employees for


      7
          The Oklahoma environmental statutes cited by Martin and Folsom may not
present a clear mandate of public policy because they are too general. Martin and Folsom
do not explain what specific statutory provisions Weyerhaeuser allegedly violated. This
Court has rejected a Burk claim for a similar lack of specificity. See Wilburn v. Mid-
South Health Dev., Inc., 343 F.3d 1274, 1281 (10th Cir. 2003) (concluding plaintiffs
waved any argument premised on the Residential Care Act in support of their Burk tort
claim because “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”).

                                           -7-
whistleblowing activity.” 120 F.3d 205, 210 (10th Cir. 1997).

       The Oklahoma Supreme Court has since clearly recognized that internal

and external whistleblowing can provide a basis for a Burk claim. In Darrow, the

Oklahoma Supreme Court held the plaintiff, who alleged he was wrongfully

discharged for reporting record discrepancies and concerns about patient safety,

stated a claim under Burk. 8 176 P.3d at 1216. The court distinguished Hayes v.

Eateries, Inc., 905 P.2d 778, 785-86 (Okla. 1995), which held a restaurant

employee could not maintain a Burk claim after being discharged for reporting a

co-employee’s embezzlement because he reported the embezzlement out of

loyalty to his employer and concern for his employer’s proprietary interest, not to

vindicate his own interests or those of the general public. Id. at 1212-16. The

Darrow court determined Hayes did not exclude all whistleblowing claims, but

only those without public impact. Id. at 1214. It explained:

       Oklahoma law protects both internal and external reporting of
       whistleblowers who rely on an employer’s public-policy violation to
       support an actionable employment termination . . . . Employees who
       report and complain of an employer’s unlawful or unsafe practices
       and whose actions seek to further the public good by unmasking
       these breaches should be protected from an employer’s retaliation.

Id. at 1215-16 (emphasis in original).

       Based on Darrow, it appears Martin and Folsom stated a Burk tort claim



       8
          Darrow based his claim on three federal statutes, several state statutes, and
judicial decisions. 176 P.3d at 1209.

                                             -8-
since they allege they were discharged for internal whistleblowing related to

Weyerhaeuser’s allegedly unlawful environmental practices.

B. Factual Question

      Assuming Martin and Folsom stated a public policy basis for their claims

does not end the analysis. The district court also concluded Martin and Folsom

failed to allege facts sufficient to withstand summary judgment. 9 It said: “The

general allegations espoused by Plaintiffs . . . simply represent Plaintiffs’

personal speculation and opinion without an evidentiary basis . . . . Plaintiffs’

ultimate conclusion[ ] that their terminations were based upon their performance

of their job duties in reporting environmental matters is ethereal at best.” 10

(Appellants’ App. at 30.)

      To succeed on a Burk tort claim, a plaintiff must allege he was discharged



      9
           Weyerhaeuser contends Martin and Folsom waived any argument on factual
sufficiency because they did not raise the issue in their opening brief. We conclude the
argument has not been waived, as Martin and Folsom addressed the district court’s factual
findings to a limited degree in their opening brief and more thoroughly in their
supplemental brief.
        10
           Martin and Folsom contend the court erred in holding their claims lacked
evidentiary support before ruling on their pending motion to compel. They assert: “It is
simply unknown what additional relevant information the Employees could have
presented in response to the [summary judgment motion] without the District Court even
ruling on the Employee’s [sic] timely filed and well supported motion to compel.”
(Appellants’ Opening Br. at 45.) Martin and Folsom did not raise this argument with the
district court. Thus, we will not consider it. See McDonald v. Kinder-Morgan, Inc., 287
F.3d 992, 999 (10th Cir. 2002) (“[A]bsent extraordinary circumstances, we will not
consider arguments raised for the first time on appeal.”).


                                           -9-
“in significant part for a reason that violates an Oklahoma public policy goal.”

Vasek v. Bd. of County Comm’rs of Noble County, 186 P.3d 928, 932 (Okla.

2008). Upon careful review of the record, we conclude reasonable minds could

not conclude Martin and Folsom’s internal whistleblowing about alleged

environmental wrongdoings, to the extent it can be characterized as such, was a

significant factor in their discharge. 11 See id. at 934 (“If, from the evidentiary

materials attached to the motion for summary judgment and the response,

reasonable minds could reach differing conclusions as to whether Plaintiff’s call

to the [Department of Labor] was a ‘significant factor’ in her discharge, then the

issue of retaliatory intent is a jury question.”).

      Martin and Folsom do not specifically allege Weyerhaeuser violated any

environmental regulations; nor do they point to any evidence of retaliatory intent.

The only evidence they cite to support their theory of retaliation are the negative

rankings they received in June 2004, preceded generally by their voicing of

various environmental concerns, which may or may not have violated the law, and

which may or may not have been remedied. In Barker, the Oklahoma Supreme

Court stated:

      Oklahoma does not recognize a Burk tort for public employees who
      complain about the way an organization is managed when the


      11
           We struggle to see how Martin and Folsom’s voicing of their concerns to
management can be characterized as whistleblowing when they acknowledge it was part
of their job description to raise such concerns.

                                          -10-
      complaints merely exhibit differences of opinion or dissatisfaction
      with discretionary management decisions and the like. Something
      more is required such as reporting fraudulent activity or criminal
      misuse of funds.

40 P.3d at 469-70. Martin and Folsom have not shown they did anything more

than express their dissatisfaction with Weyerhaeuser’s environmental practices.

Without specific evidence that Weyerhaeuser’s conduct was fraudulent, criminal

or illegal, their case fails under Burk. See id. at 471 (“[E]ven when viewing the

summary judgment evidentiary materials in the light most favorable to

[plaintiffs], we find they have failed to tie their expressions of concern to a

specific, well established, clear and compelling Oklahoma public policy . . . .”).

      Though a party opposing summary judgment “need not offer conclusive

proof,” he “must proffer some probative evidence that would be sufficient to

sustain [his] burden of persuasion at trial.” Riggs v. AirTran Airways, Inc., 497

F.3d 1108, 1116 (10th Cir. 2007). Martin and Folsom have failed to do so.

      AFFIRMED.

                                        Entered by the Court:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




                                         -11-
