294 Ark. 239 (Ark. 1988)

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Sterling Drug, Inc. v. Oxford

Supreme Court of Arkansas

Apr 4, 1988

294 Ark. 239 (Ark. 1988)

Summary

holding that A.C.A. § 5-53-112 illustrates that there is an established public policy favoring citizen informants or crime fighters

Summary of this case from Opinion No. 1994-161

See 25 Summaries

Opinion

747 S.W.2d 579 (Ark. 1988) 294 Ark. 239 STERLING DRUG, INC. Appellant, v. Charles G. OXFORD, Appellee. No. 87-172. Supreme Court of Arkansas. April 4, 1988.

Appeal from Circuit Court, Garland County; Walter G. Wright, Judge.

M. Stephen Bingham, Little Rock, for appellant.

Bryan J. Reis, Ronald Naromore, Q. Byrum Hurst, Jr., Hot Springs, for appellee.

[294 Ark. 254-A] PER CURIAM.

Petition for rehearing is denied.

PURTLE, J., dissents.

DUDLEY, J., would grant rehearing.

PURTLE, Justice, dissenting.

I agree with the petitioner and amicus curiae that we should reconsider our opinion in this case 294 Ark. 239, 743 S.W.2d 380 and grant rehearing. Several independent attorneys, the Arkansas Trial Lawyers Association, and the [294 Ark. 254-B] AFL/CIO have joined in this impressive brief filed in support of the petition for rehearing. Their arguments are very persuasive.

The outstanding characteristic of the opinion in this case is that it clearly requires employees to suffer considerably more outrageous conduct by employers than is required of non-employees. This is a distinction not previously made by any court so far as I can determine. It is a result argued by no one and sought by no one.

I agree with petitioner that this court erroneously substituted its own view of the facts for that of the jury. The evidence presented to the jury concerning the employer's conduct toward this petitioner showed that the employer:

1. communicated the false message to other employees that the appellant blew the whistle on their overcharges to the government causing the company to pay over $1,000,000 in penalties or fines;

2. demoted him from highest paid sales position to that of a beginning salesman and transferred him to an especially created sales area in Texas;

3. wrote a letter to him setting up his termination (This typed letter had been used to get rid of others);

4. repeatedly and falsely accused him of misconduct when they knew he was under severe stress;

5. refused to issue stock he had earned;

6. sent him on many false sales leads;

7. made unauthorized deductions from his salary or commission;

8. threatened to sue him;

9. placed him under surveillance by other employers;

10. continued this type of conduct for eighteen months; and

11. admitted its conduct was intended as "harassment."

That's only eleven of the overt acts directed at the appellant. [294 Ark. 254-C] what course of action short of physical violence could be more outrageous? Obviously the appellee desired to inflict this humiliation and embarrassment upon the petitioner in order to get even with him because they thought he was a "whistle blower."

The tort of outrage was described by this court in Growth Properties v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984), where we stated:

[T]he essence of the tort of outrage is the injury to the plaintiff's emotional well-being because of outrageous treatment by the defendant. If the conduct is sufficiently flagrant to give rise to tort, then the injury the law seeks to redress is the anguish itself and it need not rest, parasitically, on more demonstrative loss or injury.... [T]he argument confuses the intent to cause suffering with the intent to do an act from which suffering can be expected to result. The former may be maliciously intended while the latter may be merely the result of conscious indifference to the consequences. But even the latter, if sufficiently wanton, will sustain the award. These words defining the tort of outrage describe well the activities of the employer in this case. In fact, the acts of the appellant in this case go beyond the wrongful acts in every case where we have recognized this tort.

"Wrongful discharge" by its very terms is a "tort." If based upon contract the suit would be for damages for breach of contract or for specific performance. Every charge in the complaint and every pleading and the judgment in this case relate to a tort. As if by "plain error" this court reached back into the past, pulling out an archaic ruling from the only jurisdiction so holding, to declare for the first time ever that this "tort" is a "contract". I agree with petitioner that: "For this court to adopt an exclusive contract remedy for wrongful discharge and then make the measure of damages back pay [up until] trial would not merely put Arkansas in a distinct minority but would, in fact, make it by far the most regressive state in protecting workers and the public welfare."

[294 Ark. 254-D] We should reconsider our opinion and grant a rehearing in order that our laws and decisions relating to the tort of outrage and the employment-at-will doctrine remain intact. It is not necessary to overrule any precedent or construe any statute to reach the just and fair result of granting rehearing.

Summaries of

Sterling Drug, Inc. v. Oxford

Supreme Court of Arkansas

Apr 4, 1988

294 Ark. 239 (Ark. 1988)

holding that A.C.A. § 5-53-112 illustrates that there is an established public policy favoring citizen informants or crime fighters

Summary of this case from Opinion No. 1994-161

upholding jury verdict in favor of plaintiff on public policy wrongful discharge claim where, in fact, plaintiff actually denied reporting any activity to anyone

Summary of this case from Gower v. Ikon Office Solutions, Inc.

upholding a wrongful discharge jury instruction based on substantial evidence of constructive discharge

Summary of this case from Touchard v. La-Z-Boy Inc.

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

Summary of this case from Cameron v. Beard

recognizing "public policy exception"

Summary of this case from Winfrey v. City of Forrest City

recognizing that the constitution also sets the state's public policy

Summary of this case from Moyer v. DVA Renal Healthcare, Inc.

recognizing exclusive contract approach

Summary of this case from Cameron v. Beard

In Sterling Drug, the Arkansas Supreme Court held that an at-will employee has a cause of action for wrongful discharge if the employee was discharged in violation of "well-established public policy of the state."

Summary of this case from Hughes v. Matthews

In Sterling Drug, the Supreme Court of Arkansas recognized an exception to the general rule that an employee at will may be terminated without cause.

Summary of this case from Silverman v. Trinity Vill.

explaining that a "public policy discharge action is essentially predicated on the breach of an implied provision that an employer will not discharge an employee for an act done in the public interest"

Summary of this case from Trotter v. Weyerhaeuser Corporation

explaining that an employer should not have the right to fire an employee for "an act done for the good of the public"

Summary of this case from Trotter v. Weyerhaeuser Corporation

In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), the Arkansas Supreme Court held that an at-will employee has a cause of action for wrongful discharge if terminated in violation of a well-established public policy of the state.

Summary of this case from Ross v. Selig

In Sterling Drug, the Court explained that "a public policy discharge action is essentially predicated on the breach of an implied provision that an employer will not discharge an employee for an act done in the public interest."

Summary of this case from Ross v. Selig

In Sterling Drug the court held that "an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state."

Summary of this case from Manson v. Little Rock Newspapers, Inc.

In Sterling Drug, the Arkansas Supreme Court found that where a corporate employer suspected that an employee had reported it to the General Services Administration for pricing violations, and had entered on an 18-month campaign to force the employee to resign even though agents of the employer knew that the employee was under pressure because of a recent divorce, the employer's conduct did not rise to a sufficient level to support a verdict for outrage.

Summary of this case from Poindexter v. Armstrong

In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988) (citing M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980)), we stated that one is subject to liability for outrage if he or she willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct: conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.

Summary of this case from Peoples Bank Trust v. Globe Intern.

In Sterling Drug, the public-policy exception applied when an employee was discharged for reporting a violation of federal law because a state statute prohibited retaliation against informants.

Summary of this case from Jenkins v. Mercy Hosp. Rogers

stating "[t]he fact that an employer continues unjustifiable conduct over a long period of time can be an important factor weighing in favor of a finding that the employer's conduct towards an employee was outrageous"

Summary of this case from McQuay v. Guntharp

In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988) (citing M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980)), for example, this court stated that one is subject to liability for outrage if he or she willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct — conduct that is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.

Summary of this case from Renfro v. Adkins

In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), we were confronted with the same problem. The tort of outrage had gone to the jury without sufficient evidence in support of it.

Summary of this case from Dillard Dept. Stores, Inc. v. Adams

discussing the policy concerns courts have relied on in creating an exception to the general rule that an employee at will may be discharged without good cause

Summary of this case from Cameron v. Beard

In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), we held that even though an employee was wrongfully discharged under one of the exceptions to the employment-at-will doctrine, the employee had no cause of action in tort for the wrongful discharge.

Summary of this case from Interstate Freeway Serv., Inc. v. Houser

Summary of this case from Ross v. Patterson

limiting damages to back pay only, but noting that if employer's conduct is sufficiently egregious, employee may bring separate tort action for "outrage"

Summary of this case from Adams v. George W. Cochran Co., Inc.

In Sterling Drug, Inc. v. Oxford, supra, 294 Ark. at 249, this Court considered whether the public policy exception to the employment at-will doctrine should be founded upon contract or tort.

Summary of this case from Wal-Mart Stores, Inc. v. Baysinger

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