Skrable v. St. Vincent Infirmary

Luke SKRABLE v. ST. VINCENT INFIRMARY

CA 96-743                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                Opinion delivered April 30, 1997


1.   Judgment -- when summary judgment should be granted -- factors
     on review. -- Summary judgment should be granted only when a
     review of the pleadings, depositions, and other filings
     reveals that there is no genuine issue as to any material
     fact, and the moving party is entitled to judgment as a matter
     of law; the appellate court reviews all proof in the light
     most favorable to the party opposing the motion, resolving all
     doubts and inferences against the moving party; where the
     operative facts are undisputed, the court simply determines on
     appeal whether the appellee was entitled to summary judgment
     as a matter of law. 

2.   Master & servant -- employment generally terminable at will of
     either party -- right of employer at common law to terminate
     employment unconditional and absolute. -- It is the general
     rule that when the term of employment in a contract is left to
     the discretion of either party, or left indefinite, or
     terminable by either party, either party may put an end to the
     relationship at will and without cause; generally, employment
     is held only by mutual consent, and at common law the right of
     the employer to terminate the employment is unconditional and
     absolute.  

3.   Master & servant -- employment-at-will doctrine -- public
     policy exception. -- An employer should not have an absolute
     and unfettered right to terminate an employee for an act done
     for the good of the public; therefore, an at-will employee has
     a cause of action for wrongful discharge if he or she is fired
     in violation of a well-established public policy of the state;
     this limited exception to the employment-at-will doctrine is
     not meant to protect merely proprietary interests. 

4.   Master & servant -- public-policy exception inapplicable --
     trial court did not err in ruling that appellant did not have
     claim for wrongful discharge. -- The termination of an
     employee who divulges or threatens to expose mere deficiencies
     in an employer's performance of its contractual obligations
     does not offend public policy; the public-policy exception is
     limited and narrow in scope, it does not embrace the claim of
     an employee who is fired for threatening to undermine an
     employer's private, contractual relationships; appellant did
     not represent that appellee was violating any law in its
     operation of the program; the trial court did not err in
     ruling that appellant did not have a claim for wrongful
     discharge and that appellee was entitled to judgment as a
     matter of law.


     Appeal from Pulaski Circuit Court, Third Division; John Ward,
Judge; affirmed.
     Floyd A. Healy, for appellant.
     Jack. Lyon & Jones, P.A., by:  Stephen W. Jones and Gary D.
Jiles, for appellee.

     Judith Rogers, Judge.
     The appellant, Luke Skrable, appeals from the trial court's
decision granting appellee, St. Vincent Infirmary's, motion for
summary judgment on appellant's claim for wrongful discharge.  On
appeal, appellant contends that the trial court's decision was
based on an incorrect analysis and misapplication of the public
policy exception to the at-will-employment doctrine.  We disagree
and affirm. 
     Appellant was hired by appellee in 1993.  In May of 1994, he
was made an account executive in appellee's Life Line Program,
which is a system designed to help elderly persons and others in
obtaining assistance in the event of an emergency.  Appellant's
duties included selling Life Line Program units throughout the
state and insuring that the units were in good working condition. 
Appellee terminated appellant's employment effective May 10, 1995.
     Appellant subsequently brought this suit against appellee for
wrongful discharge.  By his complaint, appellant did not dispute
that his contract of employment was terminable at will, but he
contended that he was wrongfully discharged for a reason that was
contrary to public policy.  He alleged that he was fired after he
had threatened to inform the Arkansas Department of Human Services
[ hereinafter "DHS"] of problems with the Life Line Program and of
appellee's failure to take corrective action.  Appellee denied that
there were any problems with the Life Line Program and denied that
appellant's threat of exposure played any role in its decision to
terminate appellant.  Appellee later moved for summary judgment
contending that, even if this had been a reason for appellant's
termination, the firing of appellant did not offend public policy. 
Appellee maintained that its relationship with DHS was contractual
and that appellant had failed to identify any specific
constitutional or statutory provision that it had allegedly
violated in its operation of the Life Line Program.  The trial
court granted appellee's motion for summary judgment, ruling that
appellant had not shown that appellee's business practices violated
any law or other defined public policy of this state.  On appeal,
appellant contends that the trial court erred in its interpretation
and application of the public policy exception.   
     Summary judgment should be granted only when a review of the
pleadings, depositions and other filings reveals that there is no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.  Johnson v. Harrywell, 47
Ark. App. 61, 885 S.W.2d 25 (1994).  We review all proof in the
light most favorable to the party opposing the motion, resolving
all doubts and inferences against the moving party.  Equity Fire &
Casualty Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996).  Where
the operative facts are undisputed, this court simply determines on
appeal whether the appellee was entitled to summary judgment as a
matter of law.  American States Ins. Co. v. Southern Guar. Ins.
Co., 53 Ark. App. 84, 919 S.W.2d 221 (1996).  While it would be for
a jury to determine the reason for the plaintiff's termination, the
question of whether the reason asserted by the plaintiff was in
violation of a well-established public policy of the state is
ordinarily a question of law for the court.  Koenighan v. Schilling
Motors, Inc., 35 Ark. 94, 811 S.W.2d 342 (1991).  For the purposes
of this opinion, we will assume that appellant was fired for the
reason asserted by him in his complaint.
     It is the general rule that when the term of employment in a
contract is left to the discretion of either party, or left
indefinite, or terminable by either party, either party may put an
end to the relationship at will and without cause.  City of Green
Forest v. Morse, 316 Ark. 540, 873 S.W.2d 155 (1994).  Generally,
employment is held only by mutual consent, and at common law the
right of the employer to terminate the employment is unconditional
and absolute.  Marine Services Unlimted, Inc. v. Rakes, 323 Ark.
757, 918 S.W.2d 132 (1996).
     In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380
(1988), the supreme court recognized the public policy exception to
the at-will-employment doctrine.  The court said:
Following our lead in Counce, supra, we
acknowledge that an employer should not have
an absolute and unfettered right to terminate
an employee for an act done for the good of
the public.  Therefore, we hold that an at-
will employee has a cause of action for
wrongful discharge if he or she is fired in
violation of a well-established public policy
of the state.  This is a limited exception to
the employment-at-will doctrine.  It is not
meant to protect merely proprietary interests. 
Wagner, supra.
Id. at 249, 743 S.W.2d  at 385.  In Sterling, the employee alleged
that he was fired because the employer believed that he had
reported its use of false information in contract negotiations with
a federal agency.  It was said that providing false and inaccurate
data to the agency was a violation of federal law for which the
employer had paid $1,075,000 in a settlement with the government. 
In finding that appellee had a claim for wrongful discharge, the
court noted that a state's public policy is found in its
constitution and statutes, and it referred to Ark. Code Ann.  5-
53-112 (Repl. 1993), which provides:
(1) A person commits the offense of
retaliation against a witness, informant, or
juror if he harms or threatens to harm another
by any unlawful act in retaliation for
anything lawfully done in the capacity of
witness, informant, or juror.

(2)  Retaliation against witnesses,
informants, or jurors is a class A
misdemeanor.
The court concluded that this statute illustrated that there was an
established public policy favoring citizen informants and crime
fighters and that the public policy of this state is contravened if
an employer discharges an employee for reporting a violation of
state or federal law.  
     The appellant here contends, citing the statute referred to in
Sterling, supra, that public policy favors whistle blowers, and
argues that, like the employee in Sterling, his claim comes within
the ambit of the public policy exception because he was fired in
retaliation for threatening to report problems with the Life Line
Program to DHS.  We agree, however, with the trial court that the
termination of an employee who divulges or threatens to expose mere
deficiencies in an employer's performance of its contractual
obligations does not offend public policy.  As was said by the
court in Sterling, the public policy exception is limited and
narrow in scope.  We thus cannot conclude that it embraces the
claim of an employee who is fired for threatening to undermine an
employer's private, contractual relationships.  To be sure,
appellee provides what can be considered a vital service to the
customers who subscribe to its program.  However, appellant did
not, and has not, represented that appellee was violating any law
in its operation of the program.  As found by the trial court, this
distinguishes this case from that of Sterling.  We hold that the
trial court did not err in ruling that appellant did not have a
claim for wrongful discharge and that appellee was entitled to
judgment as a matter of law.
     Affirmed.
     Cooper and Meads, JJ., agree.