The opinion
WINCHESTER, J.,
with whom TAYLOR, J., joins, dissenting.
{1 The majority opinion affirms the trial court's decision based on competent evidence *839 to support the jury's verdiet and no fundamental error in the trial of the case. Yet, this case was submitted to the jury on the question of whether plaintiff was terminated in retaliation for reporting an attempted arson. Critical to the case is the fact that no fire occurred, it was merely proposed as a training exercise for the fire district. The fire chief, upon consultation and consideration, omitted the burning portion of the exercise. There was no eminent danger of fire. Merely consideration of a proposed statutorily authorized action, and then deciding otherwise does not meet the definition of a violation of public policy. The COCA opinion rightly reasoned that burning structures for fire district training exercises is not a malicious burning because the intent is a just cause. That cause being adding to the skills and experience of those entrusted with fighting fires, in a safe and controlled environment. Several witnesses testified the situation was deemed unsafe and the live burn element of the exercise was eliminated. If the arson statute were invoked every time a fire district considered conducting live burn exercises, Oklahoma firefighters would be poorly prepared to fight fires.
12 In Burk v. K-Mart Corp., 1989 OK 22, ¶ 19 , 770 P.2d 24 , this Court stated the circumstances for an actionable tort claim exist when "an employee 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." Plaintiff's actions in this case fit neither of those criteria. Plaintiff says he notified the Tulsa Fire Department of the possibility of a live burn training exercise. Trial testimony indicates notifying other departments of training exercises was not at all unusual. (Tr. Vol. IV at 685)
13 A preponderance of the evidence suggests Plaintiff's work performance and attitude at the Berryhill Fire District were sub-par. In the months preceding his termination, he received several disciplinary write-ups and testimony indicates volunteers were not eager to work with him. (Tr. Vol. IV at 701) To conclude his termination was a result of retaliation over a single incident which appears to have inflicted no damages on any of the players involved requires an interpretation of the record I am unwilling to make.