Barker v. State Insurance Fund

KAUGER, J.,

with whom OPALA, J. joins, concurring in part and dissenting in part:

T1 I agree with the majority's resolution of the blacklisting claims and that both internal and external whistle-blowers establishing public policy violations should be protected from retaliatory discharge. Nevertheless, I dissent from the portion of the opinion indicating that the plaintiffs/appellants, Gary Bova (Bova), Linda Foreman (Foreman), Carla Snipes (Snipes) and Greg Valley (Valley) (collectively, employees), failed to articulate any well-defined public policy violation in support of their wrongful termination claims.

12 What the Court describes as appropriate issues in the case represents a flawed analysis of the employees' claims. What the employees meed to prove is that they were discharged because they were present or potential whistle blowers for the agency's mismanagement. This cause involves much more than mere complaints voiced around the water cooler about the defendant/appel-lee's, State Insurance Fund (Fund), internal managerial operations or style. Rather, important, statutorily based, public policy mandates are at issue-identified in the whistle blower statute, 74 0.8. Supp.1997 § 840-2.5 1 and whose genesis arises from other statutory prohibitions. 2

*473 13 Specifically, material fact questions exist concerning: 1) whether the defendant/appellee's, State Insurance Fund (Fund), Commissioner condoned the payment of kickbacks in return for the services of John Yoder (Yoder), an individual characterized as an employee of a third party administrator (TPA), in violation of the Anti-Kickback Act of 1974, 74 0.8.1991 § 3401 et seq; and 2) whether state contracts were let for legal services in violation of the Oklahoma Central Purchasing Act, 70 0.8.1991 § 3401 et seq. Further, material questions of fact also exist as to: 1) whether the employees actually reported wrongdoing; or, 2) if they did not, whether the Commissioner or other Fund supervisors prohibited the Fund employees from: a) making public disclosure without prior approval; or b) discussing the Fund's operations with the elected representatives in violation of the whistle-blower statute.

T4 Here, the employees allege that there were activities at the Fund which violated public policy and which were done in an illegal manner. Under such circumstances, this Court may resolve a public policy issue neither advanced below nor on appeal. 3 We take judicial notice of public policy established through statutory enactments. 4 Whether the Fund operated against public policy presents a controversy that we may resolve on a theory supported by the record although not tendered on certiorari. 5 Rather than doing so, the majority emasculates the whistle blower statute and ignores statutorily-based public policy issues prohibiting kickbacks 6 and the letting of contracts without *474 the protection of the competitive bidding process. 7

115 Whistle blower statutes are legislative expressions intended to encourage and protect the reporting of wrongful governmental activities and to effectively deter retaliation for such reporting. They provide redress for damages suffered as a consequence of the specific use of official power to limit a particular protected activity-the proper reporting of on-the-job or job-related wrongful actions. 8 Oklahoma's whistle blower statute not only prohibits disciplinary actions for protected employee reporting activities, it also restricts managers from denying employees the opportunity to discuss agency operations and functions with their elected representatives. 9 Such directives have been determined to be unenforceable under similar statutory provisions. 10

16 Although the majority characterizes the cause as a controversy over questions of managerial style, there is much more alleged here-criminal wrongdoing in the form of condoning kickbacks for services rendered to the Fund and the Fund's letting of state contracts outside the competitive bidding process. The materials, taken together, are certainly sufficient to raise a question in a reasonable person's mind about whether illegalities were occurring with public monies and whether discharges occurred because Fund employees reported the alleged wrongdoing.

17 The Anti-Kickback Act, 74 0.8.1991 § 3401 et seq., prohibits monetary incentives for the obtaining of state contracts to any state employee or any person holding a higher tier contract with the state for the purpose of maintaining the contractual relationship. 11 A party making or receiving a kickback, directly or indirectly, is guilty of a felony and may face a fine of $10,000 or double the amount of the financial gain and be imprisoned for up to five years. 12

8 The Oklahoma Central Purchasing Act (Purchasing Act), 74 0.8. Supp.1998 § 85.1 et seq., has been amended since the occurrences involved here. During the period the Fund was undergoing its reorganization, the Purchasing Act mandated that any acquisition or contract in excess or $2,500.00 could not be completed without the State Purchasing Director submitting competitive bids. 13 Parties violating the Purchasing Act are guilty of a misdemeanor and subject to a fine of not less than $100.00 and not more than $500.00. In addition, violators may face a term in county jail of up to six months. 14

19 Bova believed that kickbacks were occurring because of personal conversations with Yoder. 15 While Bova may not have directly reported allegations of graft or kick *475 back, he did believe the Commissioner was aware that Yoder had been accused of accepting kickbacks from TPAs in exchange for out-sourcing files either because it had been reported to him by another employee 16 or because of conversations taking place during staff meetings. 17

1 10 Bova's beliefs are supported by Bradford's testimony that the Commissioner told her that he was aware that Yoder was getting a three percent kickback from the . TPAs. 18 In addition, Valley testified that he believed he was included in the reduction in foree because he reported that kickbacks were being solicited for the outsourcing of files. 19 Finally, Foreman expressed concerns that files were being referred out to private firms on a guid pro quo basis in return for *476 political favors. 20

T11 Yoder testified that he understood that, in order to get paid, the Commissioner was going to direct monies through an actuary for his benefit. Evidently, this was done to avoid the Fund having to engage in a competitive bidding process. 21 Yoder also indicated that some 9,000 files were outsourced to firms without a bidding process having been instigated at all. 22

112 Bradford testified the she assumed there were files outsourced in violation of the competitive bidding statutes 23 and that more files were referred out than the State Insur *477 ance Fund's Board of Managers (Board) 24 agreed should be outsourced. 25 She also indicated that the Commissioner limited her access to materials the Board requested and that he "controlled" the information that was submitted to the Board. 26 A portion of the information Bradford alleged was withheld from the Board involved the outsourcing of files without having engaged in the competitive bidding process. 27

1 13 It is clear from the record that Fund employees could attend the Board's meetings only after obtaining supervisory approval. 28 There is also testimony in the record indicating that the Commissioner issued a memorandum prohibiting Fund attorneys from communicating with legislators about the occurrences at the Fund. 29 Further, one employee testified that he was instructed to keep his complaints "within the chain of command" by the Fund's general counsel 30 while another indicated that he did not talk to the Commissioner because only two of the super *478 visory attorneys had access to him 31 Although it is true that Snipes testified that she voiced her worries only to other employees, friends and family, she alleged that her supervisor prevented her from appearing at the Board's meeting by directing her not to attend. 32 Valley, also testified that he was prohibited from attending Board meetings on the Commissioner's instructions. 33

I 14 Yoder testified that the Commissioner intentionally delayed firing the Fund's lawyers to keep them from having an opportunity to direct concerns to Senators and Representatives while the Legislature was in session. 34 Further, Yoder stated that although the Commissioner sent out letters indicating that the law firms receiving outsourced files were free to hire former Fund attorneys, he was instructed to make certain that these firms knew they were not to hire any former Fund employees. Yoder stated that the Commissioner's reason for opposing such hires was that he did not want the Fund attorneys to have access to billing ree-ords which would reflect that the Fund was paying more for legal work being outsourced than it had formerly paid for in-house counsel. 35

*479 ¶ 15 In Oklahoma, summary judgment is proper only when the pleadings, affidavits, depositions, admissions, or other evidentiary materials establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. 36 All inferences drawn from the evidentiary materials submitted to the trial court are viewed in the light most favorable to the party opposing the motion. Before a motion for summary judgment under Rule 18, 12 O.S. Supp.19983, Ch. 2, App., Rules for the District Courts, may properly be granted, the movant must show that there is no disputed issue of material fact. 37

1 16 Even when basic facts are undisputed, motions for summary judgment should be denied if, under the evidence, reasonable persons might reach different conclusions. 38 Only when a party shows that there is no material fact in dispute and the law favors the movant's claim or defense should summary judgment be entered. 39 To defeat a motion for summary judgment, the nonmov-ant merely must present "something" showing that, at trial, there will be proof of the allegations. 40 Materials relating to summary judgment need not rise to the level of admissibility. 41

1 17 The standard for summary process in the federal courts differs substantially. Federal litigants must provide more persuasive evidence to support a proffered position. 42 Trial judges are free to inquire whether a jury could reasonably find the evidence *480 "clearly convincing." 43 Further, the movant need not bear the burden of producing evidence sufficient to establish a defense if the issue is one on which the party does not bear the burden of proof at trial. 44 Proffered evidence in the federal courts must rise to the level of the substantive evidentiary standard for trial. 45 Federal judges may consider only admissible evidence 46 and they need not seour the record in the search of disputed fact questions. 47 The federal approach to summary process has been characterized as the judiciary's intrusion into an area formerly viewed as almost exclusively within the jury's province. Further, it may adversely impact a civil litigant's constitutional right to jury trial. 48

1 18 Speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of public officials concerns a matter of public policy. 49 Further, allegations of wrongful termination based on reporting of an employer's kickback activities have been found sufficient to support an employee's cause of action on public policy grounds. 50 In Vannerson v. Board of Regents, 1989 OK 125, ¶ 11 , 784 P.2d 1053 (1989), this Court determined that allegations of the illegal disposition of state property invoked public policy concerns. Here, there are allegations of illegal kickbacks and circumvention of the competitive bidding statutes-certainly, both involve the possibility that state property has been dealt with improperly.

1 19 With the above principles in mind and our decision in Vammerson, the only plausible explanation for the majority's determination that summary judgment was properly entered is that it has chosen to take the federal approach to summary process 51 -a position not binding on this Court. 52 It certainly is *481 not applying well-settled principles of Oklahoma law regarding both summary judgment and our obligation to take judicial notice .of public policy established through statutory enactments. 53

1120 I express no opinion on whether any or all of the employees would succeed if given the opportunity to present their claims to a fact finder. Nevertheless, I will not usurp their opportunity to exercise a constitutional right to a jury trial when evidence has been presented to demonstrate material questions of fact concerning 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. Therefore, I dissent.

. Title 74 O.S. Supp.1997 § 840-2.5 provides in pertinent part:

"A. For purposes of this section, 'agency' means any office, department, commission or institution of the state government. No officer or employee of any state agency shall prohibit or lake disciplinary action against employees of such agency, whether subject to the provisions of the Merit System or in unclassified service, for:

1. Disclosing public information;

2. Reporting any violation of state or federal law, rule or policy; mismanagement; a gross waste of public funds; an abuse of authority; or a substantial and specific danger to public health or safety;

3. Reporting such information without giving prior notice to the employee's supervisor or anyone else in the employee's chain of command;

4. Discussing the operations and functions of the agency, either specifically or generally, with the Governor, members of the Legislature or others...."

Because the language quoted is identical to that contained in the statute's 1995 counterpart, references are to the current statute.

. See, the Anti-Kickback Act of 1974, 74 O.S. 1991 § 3401 et seq. Specifically, 74 0.5. Supp. 1999 § 3404 providing:

"Any person who shall knowingly make or receive, either directly or indirectly a kickback shall be guilty of a felony, and upon conviction shall be fined not more than Ten Thousand Dollars ($10,000.00) or double the amount of *473 the financial gain or be imprisoned for not more than five (5) years, or both."

The language of the quoted statute is identical to that of it's 1991 counterpart. Therefore, references are to the current statute.

See, the Oklahoma Central Purchasing Act, 74 0.8.1991 § 85.1 et seq. Specifically, 74 O.S. Supp.1996-85.7 providing in pertinent part:

"A. No acquisition or contract shall be made without the submission of competitive bids by the State Purchasing Director, except as provided in this section.

1. Any acquisition or contract for an amount of Two Thousand Five Hundred Dollars ($2,500.00) or less shall be exempted from competitive bidding procedures. Separate contracts or acquisitions for the individual components of a total project or service or split purchasing for the purpose of evading the requirement of competitive bidding shall be deemed a felony...."

We note that the current version of the statute contains a cap of $25,000.00 as opposed to the $2,500.00 cap imposed in its 1996 counterpart. Title 74 0.S.1991 § 85.15 provides:

"All persons, agents, officers and employees of the state included within the provisions of this act are required to conform strictly to the provisions of this act, and any such persons, agents, officers or employees violating any provision of this act shall be deemed guilty of a misdemeanor unless herein otherwise provided, and upon conviction shall be fined not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00) or be imprisoned in the county jail not to exceed six (6) months or by both such fine and imprisonment."

Further, employees were prohibited from freely expressing their opinions-a constitutionally protected right. The United States Const., amend. 1 provides:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The Okla. Const., art. 2, § 22 provides:

"Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libel, the truth of the matter alleged to be libelous may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous be true, and was written or published with good motives and for justifiable ends, the party shall be acquitted."

. Davis v. GHS Health Maintenance Organ., Inc., 2001 OK 3, ¶ 25 , 22 P.3d 1204 ; In re Initiative Petition No. 349, 1992 OK 122, ¶ 4 , 838 P.2d 1 ; Matter of McNeely, 1987 OK 19, ¶ 4 , 734 P.2d 1294 .

. Title 12 0.8.1991 § 2201 provides in pertinent part:

"A. Judicial notice shall be taken by the court of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States...."

Davis v. GHS Health Maintenance Organ., Inc., see note 3, supra.

. Russell v. Board of County Commissioners, 1997 OK 80, ¶ 10 , 952 P.2d 492 .

. Title 74 0.8. Supp 1999 § 3404, see note 2, supra.

. Title 74 0.5.1991 § 85.15, see note 2, supra.

. Shoemaker v. Myers, 52 Cal.3d 1 , 276 Cal.Rptr. 303 , 801 P.2d 1054, 1066 (1990).

. Title 74 0.8. Supp.1997 § 8$40-2.5, see noté 1, supra.

. Lanes v. O'Brien, 746 P.2d 1366, 1370-72 (Colo.App.1987). See also, Gasparinetti v. Kerr, 568 F.2d 311 (3d Cir.1977), cert. denied, 436 U.S. 903 , 98 S.Ct. 2232 , 56 L.Ed.2d 401 (1978).

. Title 74 0.5.1991 § 3402 provides in pertinent part:

"As used in this act:

1. Kickback means the giving of money or any other thing of value either directly or indirectly by or on behalf of any person, or the agent of any person, holding a contract or bidding to obtain a contract with the state for the furnishing of goods or services of any kind to any state employee or any person holding a higher tier contract with the state for the furnishing of goods or services, when the giving of which is for the purpose of acquiring or holding such contract with the state ..."

Title 74 0.5.1991 § 3403 provides:

"No person, holding a contract with the state for the furnishing of goods or services of any kind, shall give or offer to give a kickback to any person holding a higher tier contract with the state or to any state employee."

. Title 74 O.S. Supp.1999 § 3404, see note 2, supra.

. Title 74 O.S. Supp.1996 § 85.7, see note 2, supra.

. Title 74 0.5.1991 § 85.15, see note 2, supra.

. Deposition of Gary Bova providing in pertinent part at pp. 194-95:

"... Q My slippage in that last question reminds me. Should I-did John Yoder tell you that he was receiving money presently from the TPAs, or was he going to receive money at a later date from the TPAs?

*475 A No. The way John would-it was-he was kind of a cocky, condescending guy. And he-it would be like that, you know, this is small potatoes, you know, I don't even work here. I make my money from my consulting fees through these TPAs. And, you know, he never said I'm receiving money now or I'm going to receive money in the future. It's just that the way he earned his money was through the TPAs.

Q So you're unclear as to whether he was receiving money from any TPAs at the time of your conversation?

A Well, you know, I could only tell you what I assumed from what I heard.... And I assumed that he was receiving money from them.

Q And you understood that to be at the time present at the time of the conversation?

A At the time of the conversation. But, you know, I could-you know, with John, you don't know, you know. He was a bit of a bragger..."

. Deposition of Gary Bova providing in pertinent part at pp. 185-86:

"... Q That's fair enough. Why didn't you tell Terry Tyree about the statements John Yoder had made to you, that he was receiving money from the third-party administrators?

A You know, I assumed he knew it.

Q What led you to assume that Mr. Tyree knew that?

A Well, based on just a brief conversation with Greg Valley in passing, you know.... But I do recall Greg saying he was going to or did have that conversation with Terry...."

. Deposition of Gary Bova providing in pertinent part at p. 192;

"... Q Did you tell Elizabeth Bradford about the conversations you had with John Yoder, that he was receiving money from the third-party administrators? _

A I'm sure it came up in a staff meeting. ...' »

. Deposition of Elizabeth Bradford providing in pertinent part at pp. 166-67:

"... Q Has Mr. Tyree ever told you he knew about Mr. Yoder's contracts with the TPAs?

A Yes.....

Q (By Mr. Keller) When did he tell you that, if you remember?

A We had a special meeting in December of 1996, which I believe was on a Friday. It was the following Monday, and so it would have been December 16th. And as I was leaving his office, he told me, after discussing the newspaper article that had come out about John Yo-der, he told me that everybody knew about John's contracts.

Q And was that the contracts that involved him getting the 3 percent kickback from the TPAs?

THE WITNESS: I presume. That was what was in the newspaper, so that's what we had been discussing, so I-..."

. Deposition of Greg A. Valley providing in pertinent part:

at p. 136 "... Q Okay. What leads you to believe that the conversation you had with Terry Tyree in January of 1996 in any way influenced the decision to include you in the reduction in force?

A All my job duties were cut back severely after that. I mean I was not to do hardly anything. ..."

at p. 121 "... Q To the best of your memory, please tell us everything that was said by you and Mr. Tyree in that meeting.

A 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 nexi 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, 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.

... Q Did you tell Terry Tyree that Archie Anderson had used the percentage of 3 percent as the amount being requested?

A I don't know if I did nor not.

Q Did you tell Terry Tyree that Yoder had requested 2 to $3,000 up front cash money?

A I told him that he was asking for money up front...."

. Deposition of Linda S. Foreman providing in pertinent part at pp. 164-65:

o .. Q What additional concerns or complaints did you voice that were not represented in the memos you brought with you today?

A I voiced concerns to Mr. Sleeper, my managing attorney, and I believe to Terry Tyree in our meeting that any reorganization-and that what I saw happening with files being outsourced to various attorneys, very specific attorneys, that there was perhaps a quid pro quo occurring.

Q And what is a quid pro quo? .

A I would-it seemed as though political favors were changing hands....

Q Is it your testimony you told Mr. Tyree about this concern?

A At our first meeting I expressed concerns about the political overtones of what was occurring. ...

Q Would you now tell us what was said at your meeting with Terry Tyree?

A I expressed concerns about the feasibility study, I expressed concerns that feasibility does not stand on its own, I expressed concerns that the attorneys were going to be fired and that someone would benefit monetarily and politically from this activity...."

. Sworn statement of John Yoder taken November, 27, 1996, providing in pertinent part at p. 15:

"... A and since-Well, Terry said, 'Okay. We can't pay you we can't pay the TPAs without going through an RFP and a bid process. We can pay MacLean-Oddy because they're actuaries.' And so I said, 'Fine. We'll just-we'll package the whole deal. You make the check to MacLean-Oddy. MacLean-Oddy knows what my fee is. They know what the fee is for the TPAs. That's how we'll do it.'. ..."

. Sworn statement of John Yoder taken 27, 1996, providing in pertinent part:

at pp. 55-56 "... Q How many files all together, approximately?

A Nine-those three clients of mine have 92,000 files....

Q Well, how are the TPA-who's paying the TPAs?

A State Fund.

Q And did the TPAs, to get the cow bids that Terry Tyree sent out to get it done, he got you to get those people to come in and do the work for him?

A That's right. And I-I went to my three clients. I did not go to Claims Risk Services.

Q They did not bid for any of that work through a State process?

A There was never as bid. There was never an RFP written. There were never interviews. There were never contracts. There was nothing...."

at p. 79 "... Q But the work that you describe as emergency work, that Tyree came to you, that was all assigned out when? What date?

A That was assigned out beginning the-I think the second week or third week of April of '96-

Q There was no bid?

A-without bid, without RFP, without contract...."

. Deposition of Elizabeth Bradford providing in pertinent part at pp. 126-27:

"... Q I would like to read to you a portion of Title 74, Section 85.7, as shown in the supplement.

And, quote 'A., [sic] No acquisition or contract shall be made without the submission of competitive bids by the state purchasing director except as provided in this section.

1., [(sic) any acquisition or contract for an amount of $2,500 or less shall be exempted from competitive bidding procedures. Separate contracts or acquisitions for the individual components of a total project or service or split purchasing for the purpose of evading the requirement of competitive bidding shall be deemed a felony.

The state purchasing director may waive or increase the $2,500 limit up to but not to exceed a contract or purchase price of 10 percent above the open market limit to perfect an otherwise valid acquisition or contract inadvertently exceeding the $2,500 limit due to administrative error or for unforeseeable circumstances.'

... Q Did the outsourcing the cases to TPAs include them receiving fees that exceeded $2,500?

A I believe so, yes, sir.

Q Do you know how much their fees were for the first year, for example? I'm sure there's a year-end budget or expense showing how much they were paid....

THE WITNESS: I'm sure there is, but to be honest, I don't know. It would be an educated guess, based on just the number of files. I would have to assume it was in excess of $2,500 ...."

. The Board of Managers of the State Insurance Fund has supervision over the Fund's operations. Title 85 0.5. $upp.1996 § 131a provides in pertinent part:

"A. There is hereby created a Board to be known as the 'Board of Managers of the State Insurance Fund', which Board shall have supervision over the administration and operation of the State Insurance Fund ..."

. Deposition of Elizabeth Bradford providing in pertinent part at pp. 126-27:

"... Q You were aware of the minutes of the April 23, 1996 board meeting of the board of managers wherein they said that-they made a motion that passed that stated that not more than 15 percent of their cases after the transition would be outsourced. You were aware of that minute?

A Yes, sir....

Q Did they outsource more than 15 percent of the cases?

A Yes...."

. Deposition of Elizabeth Bradford providing in pertinent part at pp. 162-63:

"... Q (By Mr. Keller) I notice that one or more of the board members of whom we've taken their deposition have indicated about-when asked about your competency, that you don't provide them information. Your answer indicates that you've been unable to get information from the State Insurance Fund that you represent.

... Q I assume you can't provide it to the board members if you're not able to get it yourself.

A That's right. ...

Q And what person or persons in the State Insurance Fund is refusing to give you information?

A Mr. Tyree,...

Q The information you wanted, has he given that information to the boaid members himself?

A No, sir....

Q (By Mr. Keller) Do you believe that Mr. Tyree is trying to control what information gets to the board?

A Yes, sir, very much...."

. Deposition of Elizabeth Bradford providing in pertinent part at p. 164:

"... Q (By Mr. Keller) Was the board ever advised at those open meetings by Mr. Tyree or anybody on his behalf that they were going to outsource a great number of contracts or cases to TPAs through a letter-type contract without any bidding?

... THE WITNESS: No, sir...."

. Memorandum dated March 29, 1995, from Commissioner Tyree to all employees, marked as exhibit 2 to answer to the motion for summary judgment, providing in pertinent part:

"... In recognition of the Fund's heavy workloads, employees should not attend monthly meetings of the Board of Managers unless a specific request is made by the Board, the Administration or unless prior written approval for annual leave is obtained from your Division Administrator or Branch Office Manager....

Deposition of Elizabeth Bradford providing in pertinent part at p. 59:

"... Q Were [attorneys] advised not to go to any board meetings unless they got prior permission?

A There was a directive to all State Insurance Fund employees prior to my coming on board to that effect. ..."

. Deposition of Jerry Frank Hatley providing in pertinent part at p. 24:

"... Q Tell me about this memo you've referenced now twice from Commissioner Tyree. A A memo circulated sometime early '96. I first heard about it verbally, and then I believe I remember seeing it. I'm not positive I saw it, but I believe I did. Basically saying that attorneys with the Fund should not be communicating with anyone in the state legislature about what was going on at the Fund...."

. Deposition of James Leo Gaston, Jr. providing in pertinent part at p. 48:

"... Q Okay. When did Ms. Bradford instruct you to keep your complaints within the chain of command?

A I would say that comment was made at the second mandatory meeting that I went to. ..."

. Deposition of Gary Bova providing in perti-neni part at p. 122:

"... Q Okay. Did you ever talk to Mr. Tyree about this?

A No, they-no, I didn't. The way they set it up, you know, the only people that were supposed to talk to Terry on those kind of things were Liz and Gary. They set up Gary as kind of a presiding guy so that Terry wouldn't have to be dealing with all of us...."

. Deposition of Carla Snipes providing in pertinent part:

at pp. 70-71 "... Q Which board meeting were you not permitted to attend?

A The meeting before I was terminated. I wanted to go. I planned on going. I had information to present. I had my chart to present. And I was told I could not go. I was even willing to take my own time.

Q Who told you couldn't go?

A Well, I told Gary Sleeper what I planned on doing, and he was my immediate supervisor. And I remember-the only part-you know, I remember leaving there knowing that I could not go based upon our conversation. But I remember him shaking his head and he looked real worried and he said, no, I wouldn't do thai if I were you. And he made it clear that I could not go. And I said, well, I believe I have the right to go. And I said, it's my understanding it's a public meeting and I can go. And he-and I was told I could not go. And I really, really wanted to be there. ..."

at pp. 86-87 "... Q Did the board members ever hear your complaints.

A I doubt it. I don't know any of the board members.

Q Did Commissioner Tyree ever hear your complaints?

A I don't believe I've ever had a conversation with Mr. Tyree ever.

Q Did Elizabeth Bradford hear your complaints?

A No.

Q Okay. So the basis of your lawsuit then is that your inability to express your complaints to management; is that true?

A Yes. My-

Q In essence, the roadblock that was put in front of you-

A Right...."

. Deposition of Greg A, Valley providing in pertinent part at p. 76:

"... Q Did you ever request annual leave to attend a board meeting?

A I asked Mr. McRae about attending the board meeting, and he said that we were not to attend, period.

... Q Did he explain why? Did you ask why? A He said according-he said Terry Tyree does not want anyone attending the board meetings, period. That's why...."

. Sworn statement of John Yoder taken November 27, 1996, providing in pertinent part at p. 84:

4 . A Yeah. But Tyree expressed multiple times his real concern, that if they didn't get it done right away, get that stuff done, the atior-neys would have time to mobilize the legislature and get going. And he wanted the files out. He didn't want the attorneys kicked out until the legislature went back out of session. Q So he planned on firing the lawyers after the legislature was out of session, which he did after May 1. Is that right?

A Yeah. The-the train just-Originally, the shutdown was to occur the last of May. The shutdown really has never occurred. He had hoped to delay the announcement on the legal department. And your peers can tell you all of the rumors about what was going to happen in the legal department, but it's my recollection that very litlle specific happened to the legal department until just about the time the legislature went out of session...."

. Sworn statement of John Yoder taken 27, 1996, providing in pertinent part at pp. 88-90:

"... Q Did Tyree ever instruct you that none of the TPAs were to hire or send work out to any *479 lawyers that had previously been with the State Insurance Fund?

A Yes. In fact, he told me that he was going to send out memos to the TPAs that said, 'You're free to hire anybody you want.' But then I was to immediately personally sit down with the manager of each TPA, which I did, and tell them, 'That's what he said. This is what he wants.'

Q And what was-

A 'You don't-you don't hire Sleeper, Bova or anybody else.' Ann Pittman had wanted-We were getting calls from-from the TPAs and from various law firms wanting to hire former Fund attorneys, and he had a standard letter response. And any time that response went out, he would instruct me or instruct Beth Herron to instruct me to make sure that that TPA knew, You're [sic] not going to hire them. They are not going to work for the Fund. They are not going to work on the Fund files....

Q Did Tyree have a reason for that? Did he tell you why he did that? He just didn't want them?

A He was afraid that they would undermine the project. He was afraid that they would have-that the attorneys, former attorneys at the Fund, would, by joining a firm, be able to gain access to billing records that would prove the cost of the attorneys who were hired by the TPAs and that the cost of those attorneys would exceed the cost of having kept those-In other words, if an attorney is going to bill $75 an hour, 75 times 40 is 3,200, 3,150 a week. That would buy him for a month at the Fund. And what he was most fearful of is that one of them would come back to a board meeting or to a board member and say, I billed you 12,000 for the last quarter, or four months-or excuse me-four weeks-

Q Four weeks, yeah.

A-four weeks. You used to pay me that for three months. Where are you headed with this, and what do you mean 'saving money?" That was his biggest fear...."

. K & K Food Serv., Inc. v. S & H, Inc., 2000 OK 31, ¶ 16 , 3 P.3d 705 ; Skinner v. Braum's Ice Cream Store, 1995 OK 11, ¶ 9 , 890 P.2d 922 ; Buck's Sporting Goods, Inc. v. First Nat'l Bank & Trust Co., 1994 OK 14 , ¶ 11, 868 P.2d 693 .

. K & K Food Serv., Inc. v. S & H, Inc., see note 36, supra; Phelps v. Hotel Management, 1996 OK 114, ¶ 8 , 925 P.2d 891 ; Roper v. Mercy Health Center, 1995 OK 82, ¶ 4 , 903 P.2d 314 .

. Prichard v. City of Oklahoma City, 1999 OK 5, ¶ 19 , 975 P.2d 914 ; Krokowski v. Henderson Nat'l Corp., 1996 OK 57, ¶ 8 , 917 P.2d 8 ; Carris v. John R. Thomas & Assoc., 1995 OK 33, ¶ 16 , 896 P.2d 522 ; Roach v. Atlas Life Ins. Co., 1989 OK 27, ¶ 15 , 769 P.2d 158 .

. Copeland v. Lodge Enterprises, Inc., 2000 OK 36, ¶ 8 , 4 P.3d 695 .

. Copeland v. Lodge Enterprises, Inc., see note 39, supra; Davis v. Leitner, 1989 OK 146, ¶ 13 , 782 P.2d 924 ; Weeks v. Wedgewood Village, Inc., 1976 OK 72, ¶ 12 , 554 P.2d 780 .

. Seitsinger v. Dockum Pontiac, Inc., 1995 OK 29, ¶ 16 , 894 P.2d 1077 .

. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 , 106 S.Ct. 1348, 1356 , 89 L.E.2d 538 (1986). [Court weighed evidence, concluded it inadequate and required plaintiffs to come forward with more persuasive evidence to support their claim than would otherwise be necessary.]. See also, Federal Trade Comm'n, v. Gill, 265 F.3d 944 (2001) [Evidence must be more than "significantly probable" or more than "merely colorable" to avoid summary judgment.].

. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 106 S.Ct. 2505, 2513-14 , 91 L.Ed.2d 202 (1986).

. Celotex Corp v. Catrett, 477 U.S. 317 , 106 S.Ct. 2548, 2552 , 91 L.Ed.2d 265 (1986).

. Anderson v. Liberty Lobby, Inc., see note 43, supra.

. Nora Beverages, Inc. v. Perrier Group of America, Inc., 269 F.3d 114 (2nd Cir.2001).

. Greer v. Board of Educ., 267 F.3d 723 (7th Cir.2001); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir.1994).

. D. Hostsenpiller, Comment, "Anderson v. Liberty Lobby, Inc.: Federal Rules Decision or First Amendment Case," 59 U.Colo.L.Rev. 933, 953-55. The Okla. Const. Art. 2, § 19, provides in pertinent part:

''The right of trial by jury shall be and remain inviolate. ..."

. Prager v. LaFaver, 180 F.3d 1185, 1190 (10th Cir.1999), cert. denied, 528 U.S. 967 , 120 S.Ct. 405 , 145 L.Ed.2d 315 (1999); Erickson v. Board of County Comm'rs, 801 F.Supp. 414 , 419 (D.Colo.1992).

. See, Antinerella v. Rioux, 229 Conn. 479 , 642 A.2d 699, 705 (1994); Texas Dept. of Human Services v. Green, 855 S.W.2d 136, 145-46 (Ct.App.Tx.1993); Collier v. Superior Court, 228 Cal.App.3d 1117 , 279 Cal.Rptr. 453, 455 (1991).

. Further, at least one federal court has determined that in a wrongful termination cause, the whistle blower need only point to "some" evidence raising a doubt about the employer's proffered explanation for the adverse employment decision to avoid summary disposition. McCullough v. City of Atlantic City, 137 F.Supp.2d 557, 573 (D.N.J.2001).

. Gasperini v. Center for Humanities, Inc., 518 U.S. 415 , 116 S.Ct. 2211, 2222 , 135 L.Ed.2d 659 (1996) [The 7th Amendment governs proceedings in federal court, but not in state court.]. See also, Pearson v. Yewdall, 95 U.S. 294 , 24 L.Ed. 436 (1877); Walker v. Sauvinet, 92 U.S. 90, 92 , 23 L.Ed. 678 (1875); Harada v. Burns, 50 Haw. 528 , 445 P.2d 376, 380 (1968). The Court of Civil Appeals has specifically addressed the issue of the applicability of the federal approach to Oklahoma summary judgment procedure and found it inapplicable. Kating v. City of Pryor, 1999 OK CIV APP 26, ¶ 8 , 977 P.2d 1142 . The same position has been taken by a number of other state courts. See, Berner v. Caldwell, 543 So.2d 686 -88 (Ala.1989); Jarboe v. Landmark Community Newspapers of Indiana, Inc., 644 N.E.2d 118, 123 (Ind.1994); Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 479-80 (Ky.1991); Lesbrookton, Inc. v. Jackson, 796 S.W.2d 276, 286 (Tex.App.1990). See also, C. Adams, "Recent Developments in Oklahoma Civil Procedure," 33 Tulsa L.J. 539 , 544 (1997) [The Oklahoma Supreme Court has not adopted federal standard for summary judgment. Instead, the Court continues to place the burden on the mov-ant to demonstrate that there is no substantial controversy as to any material fact.}; C. Adams, "Developments in Oklahoma Civil Procedure 1997-98", 34 Tulsa L.J. 501 (1999) [The Oklahoma Supreme Court has not adopted the federal standard for summary judgment.].

. Title 12 0.5.1991 § 2201, see note 4, supra; Davis v. GHS Health Maintenance Organ., Inc., see note 3, supra.