holding that A.C.A. § 5-53-112 (1987) illustrates that there is an established public policy favoring citizen informants or crime fighters
How later courts described this case
- holding that A.C.A. § 5-53-112 (1987) illustrates that there is an established public policy favoring citizen informants or crime fighters
- noting the length of time that the conduct occurred and stating that in the Hess case, we based our decision in part on the fact that Hess’ actions continued over a two year time span
- upholding constructive discharge judgment where a corporate employer engaged in a continuous campaign to force an employee to resign over an 18 month period after the employee reported pricing violations to a governmental agency
- recognizing that “the public policy of a state is found in its constitution and statutes”
Written by the judges who cited it.
The opinion
John I. Purtle, Justice, dissenting. The majority opinion is well written and well reasoned, with a few minor exceptions. First, the result is wrong; I think this case should be affirmed. The evidence fully supports both outrage and wrongful discharge. There is substantial evidence to support the verdict on either action. The opinion says one thing but does another.
There was evidence before the jury that the appellee had exercised his right and duty as a citizen to inform the government that the appellant was cheating in its business with the government. The appellant paid a million dollars to the government as a result of its conduct being reported. Although the appellee denied being the one who reported the appellant’s illegal conduct, he was nevertheless singled out for outrageous treatment under the belief that he was the one who reported the fraud to the government. It seems to me that this is exactly the situation we had in mind when we first recognized the tort of outrage in M.B.M. Co. Inc. v. Counce, 268 Ark. 269 , 596 S.W.2d 681 (1980). Moreover, Ark. Code Ann. § 5-53-112 (1987) makes it illegal for any person to retaliate against an informant by harming or threatening to harm him or another by any unlawful act in retaliation for anything lawfully done by the informant.
The allegations and proof demonstrated that the appellant violated the law in at least two respects. There is no suggestion that the appellee’s alleged conduct was illegal. Whistle blowers are usually right but they also usually get the bad end of the deal, as in this case.
Every person has the duty to conform his conduct to the local and national laws. Any good citizen having knowledge that a corporation is cheating the government has a duty to report such conduct. By reversing the judgment on the tort of outrage this court is in effect punishing the appellee for the alleged performance of his duty as a citizen. There is no need to point out additional evidence of the appellant’s conduct which constituted the tort of outrage because such facts are stated adequately in the majority opinion.
Certainly the conduct complained of in this case went well beyond the conduct found to be actionable in Hess v. Treece, 286 Ark. 434 , 693 S.W.2d 792 (1985), where there was no evidence whatsoever that Hess violated any law. Apparently the majority finds some sort of distinction between the conduct of Hess, lasting two years, and the conduct of the present appellant, lasting only eighteen months. I have found nothing in any decision to indicate that the duration of the conduct is required to last for any particular length of time. It is the outrageous conduct itself which gives rise to the cause of action. The duration is a matter to be considered in awarding damages.
I agree with the statement quoted by the majority that “[A] termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not in the best interests of the economic system or the public good and constitutes a breach of the employment contract.” However, I cannot agree with limiting the recovery in public policy wrongful discharge actions to contract damages. The majority admits only one other state holds such a view.
747 S.W.2d 579 To limit the recovery of damages for wrongful discharge to backpay is almost beyond belief. Employers exposed to no more liability than this will feel free to retaliate and discriminate at will without fear of penalty for their wilful and intentional conduct. On the other hand an unemployed individual, without prospect for a job, will scarcely be noticed by the system. The conduct by the employer in this case caused the appellee embarrassment, humiliation, physical and mental problems, and severe financial losses. None of these elements of damage are recoverable under the majority decision. Recovery limited to back wages is woefully inadequate to compensate for the damages resulting from wrongful discharge.
The opinion itself demonstrates the inherent difficulties in limiting damages for wrongful discharge to loss of wages and “other intangible employment benefits.” The cost of winning a suit limited to this recovery effectively denies most employees any relief. The majority states all the reasons this judgment should be affirmed and then turns right around and reverses it.
It makes no difference whether the appellee was, in fact, the person who reported the appellant to the government. There was no justification for the humiliation and wrongful discharge of the appellee. Such conduct by the appellant should not be condoned by this court under any theory.