                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        September 26, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JERRY WALKER,

      Plaintiff - Appellant,

v.                                                         No. 16-6037
                                                    (D.C. No. 5:15-CV-01226-R)
BALCO, INC.,                                               (W.D. Okla.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

      Balco fired Jerry Walker, a long term employee, for making threats of

violence it believed endangered its Hispanic employees. The threats, it says, resulted

from an altercation between Walker and a Hispanic-American individual in his

neighborhood.1 Walker sees it differently, so differently that he filed



*
  After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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. 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 make these brief observations only to put the case in perspective. Our review
is limited to the facts recited in the complaint. See Note 3, infra.
suit.2 He now appeals from an order dismissing his state-law retaliation claim

brought under Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989). It was dismissed

because he failed to allege facts sufficient to show his discharge to be contrary to a

compelling Oklahoma public policy as articulated by state constitutional, statutory, or

decisional law.3 We see no error.

       In a counselled complaint Walker alleged Balco had employed him from June

24, 1980, until he was discharged on June 25, 2015. His supervisor at the time of the

discharge was Tom Shupe. Beyond that, as the district judge noted, “[t]he facts

underlying [his] claims are somewhat difficult to construe.” Aplt. App. at 4. We,

like the district judge, will do our best.



2
  The complaint was filed in an Oklahoma state trial court. Balco removed the case to
federal court.
3
  The decretal portion of the court’s “Order” simply grants the motion to dismiss
without specifying whether it was based on Rule 12(b)(6) or whether it was with or
without prejudice. The Judgment is equally uninformative. But language in the Order
indicates the dismissal to be for failure to state a claim under Rule 12(b)(6). See Aplt.
App. at 6 (“The Court finds that as a matter of law, accepting Plaintiff's allegations as
true, that there is no compelling Oklahoma public policy to support his Burk claim.”).

Since neither the Order nor the Judgment specified the type of dismissal, we presume it to
be with prejudice. See, e.g., Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292,
1299 (10th Cir. 2014) (“Dismissals for failure to state a claim are presumptively with
prejudice because they fully dispose of the case.”).

Walker, who was represented by counsel, did not seek leave to amend the complaint.
Accordingly, we must conclude counsel was unable to produce more factually robust
pleadings or considered the complaint to be sufficient and the district judge’s assessment
of it incorrect. In any event our review is constrained by the facts recited in the
complaint and guided by Oklahoma law.

                                             2
      In September 2011, approximately four years before he was discharged,

Walker allegedly “disclosed misconduct by Shupe to Ron Knuk, Shupe’s supervisor.”

Aplee. Supp. App. at 7. The alleged misconduct involved Shupe “blatantly

misstat[ing]” the effect of “Oklahoma City shop closings [on] hourly wage

employees as compared to salaried employees.”4 Id.

      According to the complaint, after Walker’s disclosure of Shupe’s misstatement

to Knuk, Shupe “engaged in further misconduct, including harassment and sexual

misconduct, of which [Walker] was aware.” Id. The complaint revealed neither the

alleged victim or the nature of the misconduct and it did not claim that Walker

reported the misconduct. It only alleged Shupe to have become “vulnerable to

further whistleblowing” because of the alleged misconduct. Id. Then, it said, Shupe

“engaged in a pattern of harassment of [Walker] in an effort to drive [Walker]

from . . . employment” with Balco. Id. No specific acts of harassment against

Walker, other than his eventual termination in 2015, were alleged. But the complaint

went on to state additional “facts” and a pattern of harassment claim against Shupe.

      According to the complaint, Knuk left his employment with Balco sometime in

2015. Before Knuk left, Walker claims to have told him about another incident


4
  Apparently, the Balco shop in Oklahoma City endured a temporarily closure.
According to the complaint Walker and Shupe discussed the impact the closure would
have on employees during which Shupe falsely told him salaried employees would lose
pay during the temporary closure in the same manner as hourly employees. That, he
contends, was a misstatement of the Fair Labor Standards Act (“FLSA”) and, in fact, the
pay of salaried (exempt) employees was undiminished during the closure, unlike that of
hourly employees.

                                           3
involving Shupe; one that had occurred years earlier–in October 2011. That incident,

he says, resulted when Walker’s co-worker, Steve Cooper, and Knuk were discussing

Shupe’s closing of Balco’s Oklahoma City shop. As a result of Cooper’s statements,

Shupe allegedly “harassed, cursed, and threatened the life of [Balco’s] Oklahoma

City employees Larry Cooper and Gary Cooper,” who were Steve Cooper’s brothers.

Id.

      Walker claims to have been “discharged by letter signed by Shupe, in

retaliation for [Walker’s] whistleblowing” to Knuk, who by then was no longer with

Balco. Id. at 8. Walker alleges Balco’s “stated reasons for the discharge were based

upon distortion and subterfuge” and his “discharge was against the public policy of

Oklahoma.” Id.

      We review de novo the district court’s dismissal of Walker’s complaint for

failure to state a claim. Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir.

2015). “To survive a motion to dismiss, a complaint must ‘state a claim to relief that

is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (internal quotation marks omitted).

      “Oklahoma law recognizes a public policy exception to the otherwise virtually

unfettered ability of an employer to terminate an at-will employee.” Bastible v.

Weyerhaeuser Co., 437 F.3d 999, 1007 (10th Cir. 2006). A tort remedy is available

“where an employee is discharged for refusing to act in violation of an established

                                           4
and well-defined public policy or for performing an act consistent with a clear and

compelling public policy.” Burk, 770 P.2d at 29. But this “unique tort” applies “to

only a narrow class of cases and must be tightly circumscribed.” Clinton v. State

ex rel. Logan Cty. Election Bd., 29 P.3d 543, 545 (Okla. 2001), overruling on other

grounds recognized by Shirazi v. Childtime Learning Ctr., Inc., 204 P.3d 75, 78 n.13

(Okla. 2009); see also Burk, 770 P.2d at 28-29.

      In argument to this court (his brief) Walker claims he was fired in violation of

“the public policy of an employee reporting a crime of a co-employee, said reporting

being a vindication of the reporting employee’s own legal right or interest of

protection of himself from death threat.” Aplt. Opening Br. at 17. To give rise to a

Burk claim, the employee’s report of a co-employee’s crime must seek to vindicate

the employee’s own legal rights or those of the general public. See Hayes v.

Eateries, Inc., 905 P.2d 778, 786 (Okla. 1995). Walker’s complaint does not allege

Shupe threatened Walker with death in the 2011 incident, and he has not shown his

report to have been for vindication of any rights of the general public.

      Instead, Walker contends he sought to vindicate his own legal rights by

reporting Shupe’s criminal threats against the Coopers. As the argument goes, the

threats against the Coopers disturbed him, thereby violating Okla. Stat. tit. 21,

§ 1362, which prohibits making a disturbance by loud or unusual noise or by abusive,

violent, obscene, profane, or threatening language. Section 1362 reads as follows:

      If any person shall willfully or maliciously disturb, either by day or night,
      the peace and quiet of any city of the first class, town, village,
      neighborhood, family or person by loud or unusual noise, or by abusive,

                                             5
      violent, obscene or profane language, whether addressed to the party so
      disturbed or some other person, or by threatening to kill, do bodily harm or
      injury, destroy property, fight, or by quarreling or challenging to fight, or
      fighting, or shooting off any firearms, or brandishing the same, or by
      running any horse at unusual speed along any street, alley, highway or
      public road, he shall be deemed guilty of a misdemeanor . . . .
      Even assuming Walker qualifies under this statute as a victim of the offense—

a person “disturbed” by Shupe’s threatening language, even though not himself the

object of the threat—we do not see how his long delayed report of Shupe’s behavior

to Balco management can form the predicate of a Burk claim, under this statute or

any other Oklahoma law. Walker points to no Oklahoma authority, either statutory

or decisional, reflecting a clear and compelling Oklahoma public policy that would

protect a report of threatening conduct amounting to a misdemeanor breach of the

peace, made four years after the events in question. And we have not located any

such authority.

      Against the backdrop of the earlier threat against the Coopers, Walker also

argues “subsequent harassment of himself and other employees truly caused [him] to

fear for his life upon Knuk’s leaving the company.” Aplt. Opening Br. at 16. He

even asserts he told Knuk how Shupe’s actions had caused him to fear for his life.

See, e.g., Aplt. Reply Br. at 1. But he breathed not a word of this in his complaint.

Instead, the complaint described a “pattern of harassment” designed to “drive

Plaintiff from the Defendant’s employment,” not to make him fear for his life.

Aplee. Supp. App. at 7. And the only whistleblowing he alleged before Knuk left

Balco involved the threats to the Coopers, not a death threat against him. More


                                            6
pointedly, he has not explained how the vague, undifferentiated, and unspecified

harassment described in his complaint violated any Oklahoma public policy as

articulated in that state’s constitutional, statutory, or decisional law.

       Walker’s complaint fails to state facts plausibly giving rise to a Burk claim.

We affirm.


                                                        Entered for the Court


                                                        Terrence L. O’Brien
                                                        Circuit Judge




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