Barker v. State Insurance Fund

2001 OK 94, 40 P.3d 463, 2001 WL 1383604

• Court: Supreme Court of Oklahoma
• Decided: November 7, 2001
• Docket: 93,154
• Status: Published

Opinions

BOUDREAU, Justice:

¶ 1 The State Insurance Fund (SIF) is an entity created by statute to, among other things, provide workers' compensation insurance to employers, state agencies and other state political subdivisions. 85 0.8. Supp. 1999, §§ 181-151. SIF is supervised by a Board of Managers and is administered by a Commissioner. Terry Tyree (Tyree) was SIF's acting Commissioner at all times relevant to this case.

{ 2 In early 1996, SIF commissioned Alexander & Alexander (A & A), a consulting firm, to recommend a plan that would allow SIF to provide state of the art services and keep pace with contemporary industry standards. One of SIF'"s objectives was to expand its practice of outsourcing claim files-that is, to refer more of its claim files to outside claims administrators (third party administrators, or TPAs) for handling and case resolution. In April of 1996, A & A made its recommendations. A & A recommended a plan for outsourcing claim files, recommended that SIF reorganize its claims and legal divisions and recommended that SIF conduct a reduction in foree (RIF). The Board of Managers approved the recommendations.

I 3 John Yoder (Yoder), an A & A employee, was instrumental in assisting Tyree in the implementation of A & A's recommended changes during the spring of 1996. Ultimately, in June of 1996, SIF completed the implementation by conducting two RIFs affecting a total of 145 positions: 89 in the claims division, 54 in the legal division and two in the policyholders division.

T 4 Appellants Gary Bova, Linda Foreman, Carla Snipes and Greg Valley were among the employees who lost their jobs in the RIFs. They are the only appellants who sought certiorari review concerning the entry of summary judgment in favor of SIF on their wrongful discharge claims. These four, along with appellants Arthur Barker, James Gaston and Anne Livingston, also sought cer-tiorari review concerning the federal district court's dismissal of their blacklisting claims.¹

15 Two issues are presented on certiorari: (1) whether appellants' blacklisting claims may be re-litigated in state court after having been dismissed by the federal court and (2) whether the entry of summary judgment was proper against Bova, Foreman, Snipes and Valley on their wrongful discharge claims.

I. STANDARD OF REVIEW

16 Whether the doctrine of claim preclusion prevents appellants from re-litigating their state claims is usually a mixed question of law and fact. "[A] deferential standard of review applies to resolutions of disputed facts when supported by reasonable evidence; an independent judgment standard of review applies to the ultimate conclusion that these facts do or do not trigger preclusion." AJ Bayless v. Industrial Commission of Arizona, 179 Ariz. 434, 880 P.2d 654, 659 (App.1993). Here, since the underlying facts are not disputed, the question is solely one of law which we review de novo. Id.

17 Whether summary judgment was properly entered is question of law which we review de novo. Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455. In a de novo review, we have plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact. Kluver v. Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081, 1084. Like the trial court, we examine the pleadings and summary judgment evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. We view the facts and all reasonable inferences arising therefrom in the light most favorable to the non-moving party. Fehring v. State Insurance Fund, 2001 OK 11, ¶ 3, 19 P.3d 276.

II. DISCUSSION

A. Blacklisting Claims

[ 8 All seven appellants testified that after they were discharged, SIF blacklisted them, preventing them from obtaining employment with anyone that received claim files through SIFs outsourcing program. Before we address the merits of the blacklisting claims, however, we must determine whether appellants may re-litigate these claims in state court after litigating them in federal court.

T9 The procedural history of this case is unusual. It began in state court. Appellants asserted two state law claims (wrongful discharge and blacklisting) and one federal law claim (age discrimination). SIF removed the action to federal court. The federal district court dismissed the blacklisting claims on the merits.² Some months later, the federal district court granted summary judgment in favor of SIF on plaintiffs' age discrimination claims. Since at that time the only remaining claims were plaintiffs' wrongful discharge claims, the federal district court declined to continue to exercise its supplemental jurisdiction and remanded the wrongful discharge claims to state court pursuant to 28 U.S.C. § 1367(c). Plaintiffs did not appeal from the federal district court's orders. The question is whether, onee the case was remanded to state court, plaintiffs could continue to litigate their blacklisting claims.

{10 We apply federal law to determine the finality of the federal district court's orders. As a matter of right, an aggrieved party can appeal a "final decision" of a federal district court. 28 U.S.C. § 1291. This statute forms the basis for the so-called "final order" rule. Under Rule 54(b) of the Federal Rules of Civil Procedure, a "final order" is an order disposing of all claims involving all parties. An order disposing of some claims, or even one disposing of all claims involving fewer than all the parties, is not a final order. Id.

T11 Since the age discrimination claims and wrongful discharge claims were still pending when the federal district court dismissed the blacklisting claims, the order dismissing the blacklisting claims was a non-appealable interlocutory order when it was entered on December 8, 1997. However, the federal district court's March 15, 1999, order resolving the age discrimination claims and remanding the wrongful discharge claims to state court ended the litigation before the federal court.³ Upon the entry of the remand order, the previously entered interlocutory order dismissing the blacklisting claims became an appealable final order. Carr v. American Red Cross, 17 F.3d 671, 678 (3d Cir.1994). Plaintiffs did not appeal. w

12 In its summary judgment motion after remand, SIF argued that the federal district court's dismissal of the blacklisting claims precludes plaintiffs from re-litigating those claims. We agree.

18 The doctrine of elaim preclusion operates to bar re-litigation of issues that were litigated in a court of competent jurisdiction to a final judgment on the merits. Erwin v. Frazier, 1989 OK 95, 786 P.2d 61. The doctrine requires an identity of subject matter, of the parties or their privies, of the capacity of the parties and of the cause of action. Carris v. John R. Thomas & Assoc., P.C., 1995 OK 33, 896 P.2d 522, 527. Here, because all the elements are met with respect to plaintiffs' blacklisting claims, the doctrine of claim preclusion prevents appellants from re-litigating their blacklisting claims in state court.⁴

B.

Wrongful Discharge Claims .

{$14 We now consider appellants' wrongful discharge claims. The doctrine of employment-at-will is firmly embedded in the common law of Oklahoma. Collier v. Insignia Financial Group, 1999 OK 49, 981 P.2d 321, 323. In 1989 we created a narrow exception to the employment-at-will doctrine-the public policy exception. Burk v. K-Mart, 1989 OK 22, 770 P.2d 24. We held that an employee who is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy may bring a tort claim for wrongful discharge. Id. We cautioned, however, that the Burk tort is unique: it applies to only a narrow class of cases and it must be tightly cireumseribed. Id.; Clinton, 2001 OK 52, 29 P.3d 543, 545. To prevail on a claim of wrongful discharge in violation of Oklahoma's public policy, a plaintiff must first identify an Oklahoma public policy goal that is well established, clear and compelling and articulated in existing constitutional, statutory or jurisprudential law. Clinton, 29 P.3d at 546. In addition, plaintiff must prove he or she was an at-will employee, that he or she was actually or constructively discharged from employment and that the employer's discharge decision violated the articulated pub-lie policy. Id. The identified public policy "must truly be public, rather than merely private or proprietary." Hayes v. Eateries, Inc., 1995 OK 108, 905 P.2d 778, 786.

L.

Oklahoma law protects both internal and external whistle-blowers who establish a sufficient public policy violation from retaliatory discharge.

115 In this case, appellants allege they were wrongfully discharged in retaliation for whistle-blowing. Two of our leading cases dealing with whistle-blowing are Vannerson v. Board of Regents of the University of Oklahoma, 1989 OK 125, 784 P.2d 1053, which we decided shortly after we created the Burk tort, and Hayes v. Eateries, Inc., 1995 OK 108, 905 P.2d 778. In Vamnerson, plaintiff was fired after reporting discrepan-cles in the university warehouse inventory records. Months earlier he had reported seeing a university employee transfer two boxes of floor tiles to a non-employee. We held that a university policy in favor of keeping accurate inventory records did not rise to the level of an established and well-defined state public policy. With respect to the floor tiles incident, however, we held that "Hf [plaintiff] was in fact discharged for going over his supervisor's head in complaint of an illegal disposition of state property then public policy is invoked." Vanmnerson, 784 P.2d at 1055. Five years later, in Hayes, plaintiff was fired shortly after accusing his manager of embezzling from their employer. We held that Mr. Hayes was not protected from retaliatory discharge for whistle-blowing regardless whether he reported the alleged wrongdoing internally or externally, because the alleged wrongdoing did not rise to the level of clear and compelling public policy. Some have interpreted our language in Vamnerson and Hayes as creating a distinction between whistle-blowers who complain within the employing organization (internal reporting) and those who complain outside the organization (external reporting).

T16 Today we take the opportunity to address the issue. First, one of the primary goals of protecting whistle-blowers from retaliatory discharge is to reduce wrongdoing in a speedy, efficacious manner. In that respect, it makes sense to recognize claims of whistle-blowers who report wrongdoing within the employing organization to a person in a position to investigate and remedy the wrongdoing. Second, internal disclosures are much less disruptive to the company than external disclosures. employees, who do not go outside their organizations, should not have less protection than employees who could be considered more disruptive by complaining outside their organizations." Daniel P. Westman, Whistleblowing: The Law of Retaliatory Discharge, at 114 (1991). Oklahoma law protects both internal and external reporting of whistle-blowers who establish a sufficient public policy violation from retaliatory discharge.

2.

Appellants failed to articulate an established and well-defined public policy that SIF violated by discharging them.

T 17 The fundamental problem in all public policy cases is defining what is a specific, well-established, clear and compelling public policy. In whistle-blower cases, the answer to this question determines the subjects about which a whistle-blower may or may not legitimately complain. The nature of this problem was aptly described by the Connecticut Supreme Court when it said "[t]he issue then becomes the familiar common law problem of deciding where and how to draw the line between claims that genuinely involve the mandates of public policy that are actionable and ordinary disputes between employee and employer that are not." Sheets v. Teddy's Frosted Foods, 179 Conn. 471, 427 A.2d 385, 387-88 (1980).

118 In this case, the subjects about which appellants Bova, Foreman, Snipes and Valley complained related to SIFs implementation of the changes recommended by A & A. When they learned about the upcoming changes, they and others who are not appellants began to express concerns among their co-workers and to management. They continued to express their concerns throughout the implementation of the changes at SIF.

119 Specifically, Bova, an attorney who had a close working relationship with Tyree and considered him a friend, testified that he spoke informally with Tyree several times-onee for two hours in Tyree's office after work. Bova told Tyree about his concerns about job security in light of the upcoming reorganization, about heavy caseloads, about using outside counsel to handle some of the caseload and about Yoder's role at SIF. He had heard that Yoder might be taking, or planning to take, kickbacks from some of the TPAs, but he did not talk to Tyree about it because he assumed Tyree already knew.

120 Foreman, an attorney, testified she "became the memo queen" when she saw the changes occurring at SIF. In her memos she complained about the removal of personal effects from her office, about her legal assistant using her signature stamp without her knowledge, about an outside counsel retained by SIF who had offered to settle a case for less than she had offered earlier, about SIF's private investigators who contacted a claimant even though they knew the claimant was represented by counsel, and about her request to attend continuing legal education not being promptly acted upon. She told her supervisor (and believes she also told Tyree) that she thought political favors were involved in the outsourcing of files.

¶ 21 Snipes, an attorney, testified she was suspicious about what was going on at SIF. She wanted to voice complaints to the Board and to "people that could take action and do something" but felt she could not. She testified that she voiced "whines and complaints" to her co-workers, family and friends.

1 22 Valley, a medical analyst, testified he told Tyree that a vendor had told him that Yoder was soliciting kickbacks from the TPAs and was asking for money "up front." Shortly after that, Valley's job duties were severely cut back. Valley also told his supervisor that he did not believe outsourcing of files was cost effective.

123 Courts have not recognized tort claims for whistle-blowers whose complaints are based upon personal opinions about the way an organization is managed. Seq, eg. Rossi v. The Pennsylvania State Univ., 340 Pa.Super. 39, 489 A2d 828 (1985) (plaintiff reported mismanagement); Dicomes v. Washington, 113 Wash.2d 612, 782 P.2d 1002 (1989) (en banc) (plaintiff reported that her superiors failed to include surplus funds in the budget presented to management); Smith-Pfeffer v. Superintendent, Fernald School, 404 Mass. 145, 533 N.E.2d 1368 (1989) (plaintiff complained about organizational changes and policies developed by superintendent); Bourque v. Town of Bow, 736 F.Supp. 398 (D.N.H.1990) (plaintiff complained to the town selectmen about his supervisor). The Smith-Pfeffer court succinetly stated the rationale for not recognizing tort claims for whistle-blowers who complain about the way an organization is managed: "How {[the state institution] should be organized is a matter of opinion and of internal policy. Internal policy decisions are a matter of judgment for those entrusted with decision-making within the institution." Smith-Pfeffer, 533 N.E.2d at 1371. Like other jurisdictions, Oklahoma does not recognize a Burk tort for public employees who complain about the way an organization is managed when the 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.

124 Burk, which holds that termination of an at-will employee in contravention of a clear mandate of public policy is a common law tort, fashions the parameters of an exception to the general at-will-employment doctrine. Gunn v. Consolidated Rural Water & Sewer District, 1992 OK 131, 839 P.2d 1345. Although the Burk tort is firmly rooted in the common law, our cases recognize that the clear mandate of public policy may be articulated by a state statute. Burk, 770 P.2d at 28. However, not every statute sets forth a mandate of public policy upon which a Burk tort may be based. See, eg., Griffin v. Mullinix, 1997 OK 120, 947 P.2d 177 (Oklahoma's Occupational and Safety Standards Act, 40 0.8.1991, §§ 401 et seq., does not support a common law Burk tort). Unless a statute specifically articulates an established and well-defined Oklahoma public policy, the statute may not be relied upon to support a common law Burk tort. Burk, 770 P.2d at 29.

125 We reject appellants' claim that an established and well-defined public policy against discharging an employee for reporting mismanagement can be found in our whistle-blower statute, 74 O.S. Supp. 1995, § 840-2.5. That statute provides that a public employee who has been disciplined for, among other things, "reporting ... mismanagement," may file an appeal with the Oklahoma Merit Protection Commission within 60 days of the alleged disciplinary action. Id. at § 840-2.5(A)(Z), (E). If, after investigation and hearing, it is determined that a violation of section 840-2.5 has occurred, the Commissioner or hearing examiner shall order corrective action pursuant to 74 0.8. Supp.1995, § 840-6.6. While this statute provides limited protection for public employees who are disciplined for reporting mismanagement, it does not define the term "mismanagement." Because the statute leaves the parameters of mismanagement undefined, mismanagement is an amorphous term that includes essentially any decision of an employer that is challenged by an employee with a different opinion about the way an organization should be managed. The term falls short of being sufficiently specific and clear for purposes of articulating an established and well-defined public policy against discharging employees for reporting mismanagement. The statute cannot support a Burk tort.⁵

%26 Appellants also point to 85 0.8. 1991, § 138.2 as a source of the public policy SIF allegedly violated by discharging them in the RIF's. Section 188.2 defines who is a fiduciary with respect to SIF and sets forth the powers and duties of such fiduciaries. According to appellants, section 138.2 imposes on them a fiduciary duty to act in the best interest of SIF"s policyholders. Since their expressions of concern were in the best interest of the policyholders, they continue, SIF's discharge of them violated Oklahoma public policy. We disagree. Section 188.2 does not articulate a specific, well established, clear and compelling Oklahoma public policy in favor of encouraging SIF employees to complain about the way SIF is managed.⁶

127 The summary judgment evidentiary materials in this case shows that Bova, Foreman, Snipes and Valley seriously disagreed with SIF's management. They disagreed with the manner in which Tyree and Yoder conducted the outsourcing of SIF claim files, the reorganization of SIF's claims and legal divisions and the two RIFs. They expressed concerns about whether the outsourcing program would be cost effective and they questioned Yoder's role in the implementation of the recommendations. At least one, Foreman, reported that she believed the outsourcing program involved political favors. However, even when viewing the summary judgment evidentiary materials in the light most favorable to appellants, we find they have failed to tie their expressions of concern to a specific, well established, clear and compelling Oklahoma public policy that appellants sought to correct by their actions and that SIF violated by discharging appellants in the RIFs. Vannerson, 784 P.2d at 1055. Instead, we find that their expressions . of concern are similar to the complaints voiced by the plaintiffs in Rossi, Dicomes, Smith-Pfeffer and Bourque (with one exception we address below).

28 The one incident that comes closer to satisfying the Vannerson test is Valley's report to Tyree that he, Valley, had been told by a vendor that Yoder was soliciting kickbacks from the TPAs. However, it is unnee-essary for us to determine whether the subject matter of Valley's report implicates a sufficient state public policy because we find Valley's report insufficient for a different reason.

129 Valley described his report to Tyree as follows:

I had told him that I got a call from a vendor that informed me that Mr. Yoder was soliciting kickbacks. He says when did this happen, and I said it just happened yesterday, because I just got the call the day before. And I had called that day, but I couldn't get in to see him, so then I saw him the next day, because I was working half days. And I told him, I says, you know, I don't know if there's truth to it or not, but I thought I should let you know just to make sure. And he says I'll look into it. And that was pretty much the extent of the conversation. Mr. Tyree didn't talk to me a whole lot. (emphasis added).

130 Our research has not revealed a single jurisdiction that recognizes a tort claim for whistle-blowers who report a rumor of wrongdoing when they have no idea if the rumor is true. There is no "rumor spreader exception" to the employment-at-will doctrine. See Lawson v. AK Steel Corp., 94 Ohio Misc.2d 65, 703 N.E.2d 371, 373 (Com. Pl.1998).

1131 Without deciding whether a whistle-blower must have direct personal knowledge of the reported wrongdoing or instead must have only an objectively good faith belief that the reported wrongdoing has occurred, we reject any notion that Valley's report of the rumor he heard is the type of report protected by the whistle-blower strand of the Burk tort. See, eg., Read v. City of Lynwood, 173 Cal.App.3d 437, 219 Cal.Rptr. 26 (1985) (plaintiff reported rumor that a city contractor had attempted to bribe a city employee-insufficient to support whistle-blower claim); Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373 (1988) (plaintiff reported rumor that FBI was investigating his new supervisor for embezzlement-insufficient to support whistle-blower claim).

III CONCLUSION

132 Under the doctrine of claim preclusion, the blacklisting claims of appellants Barker, Bova, Foreman, Gaston, Livingston, Snipes and Valley cannot be re-litigated in state court because those claims were litigated to finality in the federal district court. The wrongful discharge claims of appellants Bova, Foreman, Snipes and Valley cannot survive summary judgment because appellants' summary judgment evidentiary materials are not sufficient to create a genuine issue of material fact as to whether their complaints and other expressions of concern rise to the level of any specific, well established, clear and compelling state public policy which the employee sought to correct by his or her actions.⁷ The Court of Civil Appeals' ruling on the claims of appellants Hat-ley, Pittman and Sleeper is not before this Court on certiorari review. Accordingly, we leave undisturbed that portion of the Court of Civil Appeals' opinion remanding Hatley, Pittman and Sleeper's claims to the trial court for further proceedings. We also leave undisturbed that portion of the Court of Civil Appeals opinion relating to claims of appellants who did not seek certiorari review.

. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED IN PART; COURT OF CIVIL APPEALS OPINION WITHDRAWN FROM PUBLICATION; TRIAL COURTS SUMMARY JUDGMENT, AFFIRMED IN PART AND REVERSED IN PART.

38 HARGRAVE, C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur. T 34 OPALA, J., concurs in part II(A); dissents from part II(B). 35 KAUGER, J., concurs in part and dissents in part. 136 WATT, V.C.J., disqualified.

1 . After the state trial court entered summary judgment in favor of SIF, plaintiffs appealed. With respect to the wrongful discharge claims, the Court of Civil Appeals reversed as to three plaintiffs, Jerry Hatley, Anne Pittman and Gary Sleeper, concluding that the eniry of summary judgment was premature as to them. SIF did not seek certiorari review and therefore the wrongful discharge claims of Hatley, Pittman and Sleeper are not before us. The Court of Civil Appeals affirmed the entry of summary judgment on the wrongful discharge claims of the remaining appellants. Eight of those appellants were named in the body of the petition for certiorari: Arthur Barker, Gary Bova, Michelin DeLier (who subsequently dismissed her appeal), Linda Foreman, James Gaston, Anne Livingston, Carla Snipes and Greg Valley. However, in the Combined Brief in Chief of Appellants, filed with leave of Court on July 12, 2001, appellants state that only four of the appellants sought certiorari review of their wrongful discharge claims-Bova, Foreman, Snipes and Valley. Accordingly, we limit our review of the wrongful discharge claims to those four appellants. Apparently all seven of the appellants (the eight who were named in the body of the petition for certiorari, excluding De-Lier) seek certiorari review of the dismissal of their blacklisting claims.

2 . In order for claim preclusion to apply, a dismissal must have been on the merits. See Salazar v. City of Oklahoma City, 1999 OK 20 ¶ 18, 976 P.2d 1056, 1063. In this case, the dismissal was on the merits. The federal district court dismissed the blacklisting claims for failure to state a claim, finding that an element of blacklist ing is malicious intent and a state employee who acts with malicious intent cannot be acting within the scope of employment as defined in the Oklahoma Governmental Tort Claims Act.

3 . The discretionary remand order itself was an appealable order. Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 (10th Cir.2000); Dalrymple v. Grand River Dam Authority, 145 F.3d 1180, 1185 (10th Cir.1998); see also 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3740 (3d ed.1998).

4 . We pause here, briefly, to note that in their Combined Brief in Chief appellants seem to attempt to change the nature of the their blacklist ing claims to claims for wrongful discharge in violation of a public policy against blacklisting. If that is appellants' intent, the attempt is to no avail for two reasons. First, the doctrine of claim preclusion precludes re-litigation not only of the claim previously litigated but also of any claims that should have been raised in the prior action. In re Estate of Sneed v. Jestes, 1998 OK 8, 953 P.2d 1111. Second, all of the alleged blacklisting conduct occurred after appellants were discharged. The tort of wrongful discharge in violation of public policy does not make actionable an employer's conduct that occurred subsequent to the employee's discharge.

5 . A person harmed by a violation of the whistle blower statute might contend that the statute creates an implied right of action and seek to press a statute-based tort claim. Because appellants did not pursue such a theory in their appeal, we need not decide the issue.

6 . The dissent offers two alternative sources of public policy that were not urged by appellants: the Anti Kickback Act of 1974, 74 0.51991 §§ 3401 et seq. and the Oklahoma Central Purchasing Act, 74 O.S.1998 §§ 85.1 et seq. While the Anti Kickback Act may indeed be an adequate source of public policy to support a Burk whistle-blower tort, none of the four appellants made an adequate report about kickbacks. There is no evidence in the summary judgment record that Foreman or Snipes made any report at all about kickbacks. The dissent itself concedes that Bova did not report any allegations of graft or kickbacks since he assumed Tyree already knew. Dissent at % 9. And, although Valley told Tyree he had heard a rumor thai Yoder was taking kickbacks, Valley admitted he had no idea if the rumor was true. Our decision, at paragraph 131, concludes that Valley's unsubstantiated rumor is not the type of report that is protected by the whistle-blower strand of the Burk tort.

The dissent also identifies the Central Purchasing Act as a source of public policy. We need not decide whether this is a sufficient source of public policy because there is no evidence that any of the four appellants made any report at all concerning alleged violations of the competitive bidding process.

7 . The dissent's concluding paragraph suggests there are issues of material fact as to "whether illegal kickbacks were either made or condoned and with the real possibility that public monies were not correctly marshaled through violations of the competitive bidding process." Dissent at 120. The appropriate inquiry in this controversy is not whether SIF, Tyree and Yoder were engaged in taking kickbacks and violations of the competitive bidding process. We may assume for purposes of summary judgment that they were. The appropriate inquiry is, instead, whether appellants reported kickbacks and violations of the competitive bidding process which reports resulted in their discharges. The record on summary judgment reveals that they did not.