Discharge for Whistleblower Activity CASE STUDY 1-1 Janet Broom and Darla Miller were employed as a certified medication aide and cook, respectively, at the employer's residential care facility located in Norman, Oklahoma. Both employees suspected another employee of stealing and using drugs intended for use by residents of the facility from the facility's medication room. Broom and Miller decided to report the suspected employee based on their observation that she had falsified medical drug log books to conceal her theft from facility managers. The facility's Employee Handbook clearly outlined a procedure employees were to follow when making complaints involving other employees. The Employee Handbook called for the initial complaint to be filed with the accused employee's immediate supervisor. Because the two employees making the complaint believed that the immediate supervisor in this case, Sarah Dutton, was a close personal friend of the accused, Broom and Miller chose to make their complaint to another manager, who was the medication consultant at the facility. Upon learning of the complaint from the medication consultant, supervisor Dutton discharged Broom and Miller for ‘‘not following the proper chain of command in raising an issue about another employee.'' Both Broom and Miller are nonunion employees unrepresented by a union. After being discharged, Broom and Miller's only recourse was to file a wrongful discharge state court claim, arguing that they were engaged in internal whistleblowing activity and thus protected from discharge as a matter of Oklahoma public policy. The employer argued that Broom and Miller were subject to the Oklahoma common law employment-at-will doctrine, which permits an employer to discharge an at-will employee at any time for any or no stated reason. The employer sought and received a summary judgment in state district court declaring Broom and Miller's discharge to be lawful under the state's common law employment-at-will doctrine. Broom and Miller appealed the state district court's decision to a federal Court of Appeals, seeking to reverse the district court's decision. In Groce v. Foster, 880 P.2d902 (Okla. 1994), the Oklahoma Supreme Court recognized five types of public policy exceptions to the common law employment-at-will doctrine. Under Oklahoma law, an at-will employee may not be lawfully discharged for (1) refusing to participate in an illegal activity; (2) performing an important public service (e.g. jury duty); (3) exercising a legal right or interest of the employee; (4) exposing some wrongdoing by his or her employer; and (5) performing an act that public policy would encourage or refusing to perform an act public policy would discourage, when the discharge action is coupled with a showing of bad faith, malice, or retaliation. Broom and Miller argued that their discharge fell under the fifth public policy exception to the employment-at-will doctrine. By reporting to management a co-worker who they honestly believed was engaged in stealing drugs intended for administration to residents of the facility, Broom and Miller believed they were engaging in conduct that Oklahoma public policy encourages. The Oklahoma Supreme Court mandates that to be recognized and enforced, public policy exceptions must be clearly stated in state constitutional, regulatory, or case decision law. To that end, Broom and Miller cited three statutory laws that they believed provided a clear statement of public policy supporting their action. The first law is the Nursing Home Care Act, which governs safeguards and procedures for the storage, safekeeping, monitoring, dispensing, and, when necessary, destruction of patient prescription drugs. The employer argued that the act specifically applies only to licensed nursing homes operating within the state. The employer's facility is licensed as a residential care facility and thus is excluded from coverage under the Nursing Home Care Act. The state of Oklahoma grants operating licenses for several different types of elder-care facilities, including nursing homes, assisted living homes, and residential care facilities. The second law is the Residential Care Act, which the employer admitted does apply to the facility in this case. Broom and Miller noted that the law authorizes the Oklahoma State Department of Health to ‘‘develop and enforce rules and regulations... to implement the provisions of the Residential Care Act. Such rules and regulations shall include but not be limited to governing temperature limits, lighting, ventilation, and other physical conditions which 33 shall protect the health, safety, and welfare of the residents in the home.'' The employer argued that Broom and Miller did not raise the issue of the Residential Care Act's applicability to their case when the case was before the district court and therefore could not legally raise it as a supporting argument on appeal. It is a wellsettled legal principle that issues or arguments not clearly presented and considered at a prior legal proceeding cannot be subsequently raised as a legal basis for argument on appeal. The employer also noted that the language referred to by Broom and Miller in the Residential Care Act is very general and not specific enough to rise to the level of a clear statement of public policy supporting intent to make an exception to the prevailing Oklahoma employment-at-will doctrine. The third law cited by Broom and Miller as a basis for their appeal is the Uniform Controlled Dangerous Substances Act. Although this law does make it a criminal offense to steal a controlled dangerous substance, Broom and Miller made no specific argument as to how this law established a clear mandate of public policy applicable to their discharge case. The employer argued that Broom and Miller again failed to meet the required showing of a clear and compelling public policy in favor of restricting an employer's right to discharge an atwill employee for failing to follow the established procedure for bringing a serious complaint against a co-worker.

Questions

1. Should the federal appeals court deny Broom and Miller's appeal and enforce the decision of the state district court finding upholding the discharge of the two whistleblowers? Explain your reasoning.

2. How might this case have been handled differently if Broom and Miller had been members of a bargaining unit represented by a union for purposes of collective bargaining?