Jeffrey Booth v. Home Depot, U.s.a., Inc.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JEFFREY BOOTH,
Plaintiff - Appellant,
v.
HOME DEPOT, U.S.A., INC.,
Defendant - Appellee.
No. 20-6074
(D.C. No. 5:20-CV-00216-J)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, PHILLIPS, and CARSON, Circuit Judges.
_________________________________
On October 14, 2021, we stayed this appeal and certified a question of state
law to the Oklahoma Supreme Court. See Booth v. Home Depot, U.S.A., Inc., No.
20-6074, 2021 U.S. App. LEXIS 31223 (10th Cir. Oct. 14, 2021). That court has
since resolved our question, and its answer requires us to affirm the district court’s
judgment dismissing Plaintiff’s claim. See Booth v. Home Depot, U.S.A., Inc.,
— P.3d —–, 2022 OK 16 ¶ 3 (Okla. 2022).
As explained more fully in our certification order, Defendant employed
Plaintiff as an installation service manager. Defendant fired Plaintiff shortly after
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 5, 2022
Christopher M. Wolpert
Clerk of Court
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Plaintiff reported to his supervisor his belief that Defendant fraudulently overcharged
customers in violation of Oklahoma’s Home Repair Fraud Act (“HRFA”), Okla. Stat.
tit. 15, § 765.3, and Consumer Protection Act (“OCPA”), Okla. Stat. tit. 15,
§ 753(15), (20). Plaintiff sued Defendant for wrongful termination under Burk v. K-
Mart Corporation, 770 P.2d 24 (Okla. 1989), a court-created cause of action for a
termination that violates “a clear mandate of public policy as articulated by
constitutional, statutory or decisional law.” Id. at 28.
The district court dismissed Plaintiff’s amended complaint for failure to state a
claim after determining that neither the HRFA nor the OCPA articulates a clear
mandate of Oklahoma public policy sufficient to sustain a Burk claim. On appeal,
Plaintiff asked us to certify that question to the Oklahoma Supreme Court. We
agreed that the question warranted certification because it raised a novel issue of
state law, could be outcome determinative, and implicated Oklahoma policy
considerations. So we certified the following question to the Oklahoma Supreme
Court:
Does the Oklahoma Home Repair Fraud Act, Okla. Stat. tit. 15,
§ 765.3, or the Oklahoma Consumer Protection Act, Okla. Stat. tit. 15,
§ 753(15), (20) articulate a clear mandate of Oklahoma public policy such
that an employer who terminates an employee for internally reporting the
employer’s violations of the statute is liable for wrongful termination
under Burk v. K-Mart Corporation, 770 P.2d 24 (Okla. 1989)? 1
Booth, 2021 U.S. App. LEXIS 31223, at *8.
1 The Oklahoma Supreme Court slightly reformulated our question to address
whether an employer is liable for wrongful termination after firing an employee for
reporting violations of the HRFA or OCPA in any manner—internally or otherwise.
See Booth, 2022 OK 16 ¶ 2.
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The Oklahoma Supreme Court answered our question in the negative.
Booth, 2022 OK 16 ¶ 3. The court explained that the HRFA and OCPA protect
individual consumers from individual harms caused by unlawful business
practices—not the health, safety, or welfare of the public at large. Id. ¶ 16. And
the HRFA and OCPA adequately protect the policy they advance by providing
civil and criminal remedies for consumers harmed by violations—no Burk tort
is necessary. See id. ¶ 17–18. Thus, an employee fired for internally reporting
his employer’s violations of the HRFA and OCPA has no cause of action under
Burk. See id. ¶ 19.
That answer resolves this appeal. The only cause of action in Plaintiff’s
amended complaint was his wrongful-termination claim under Burk alleging
that Defendant fired him for reporting violations of the HRFA and OCPA. The
district court dismissed Plaintiff’s amended complaint after holding that Burk
provides no cause of action based on those allegations. Because the Oklahoma
Supreme Court has now held the same, we exercise jurisdiction under 28 U.S.C.
§ 1291 and affirm the district court’s dismissal of Plaintiff’s amended
complaint.
AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
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