{ "id": 210162, "name": "Sandra PALMER v. ARKANSAS COUNCIL on ECONOMIC EDUCATION, RPL Management Resources, Inc., Jim Glenn, Sonya Schmidt, and Polly Jackson", "name_abbreviation": "Palmer v. Arkansas Council on Economic Education", "decision_date": "2001-04-19", "docket_number": "00-333", "first_page": "461", "last_page": "478", "citations": [ { "type": "official", "cite": "344 Ark. 461" }, { "type": "parallel", "cite": "40 S.W.3d 784" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "309 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906103 ], "weight": 5, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0401-01" ] }, { "cite": "275 Ark. 370", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753682 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0370-01" ] }, { "cite": "268 Ark. 269", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715529 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/268/0269-01" ] }, { "cite": "326 Ark. 605", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12023791 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "agent acting within the scope of his authority on behalf of a contracting party was not a separate third party capable of tortious interference" }, { "parenthetical": "agent acting within the scope of his authority on behalf of a contracting party was not a separate third party capable of tortious interference" } ], "opinion_index": 0, "case_paths": [ "/ark/326/0605-01" ] }, { "cite": "297 Ark. 444", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891352 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/297/0444-01" ] }, { "cite": "333 Ark. 3", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703843 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0003-01" ] }, { "cite": "247 Ark. 521", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1600547 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ark/247/0521-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 21-5-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 21-5-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 19-4-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 19-1-601", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "314 Ark. 221", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912752 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/314/0221-01" ] }, { "cite": "281 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742330 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0175-01" ] }, { "cite": "311 Ark. 450", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1897007 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0450-01" ] }, { "cite": "317 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443778 ], "weight": 3, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0166-01" ] }, { "cite": "154 F.3d 892", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11707425 ], "weight": 6, "year": 1998, "opinion_index": 0, "case_paths": [ "/f3d/154/0892-01" ] }, { "cite": "Ark. Code Ann. \u00a7 21-3-203", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "opinion_index": 0 }, { "cite": "294 Ark. 239", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895759 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0239-01" ] }, { "cite": "327 Ark. 256", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922865 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0256-01" ] }, { "cite": "341 Ark. 558", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257721 ], "weight": 4, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0558-01" ] }, { "cite": "29 U.S.C. \u00a7\u00a7 621-634", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 21-3-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "cite": "859 F.2d 1251", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10536414 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/f2d/859/1251-01" ] }, { "cite": "29 U.S.C.A. \u00a7 630", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 1 }, { "cite": "338 Ark. 752", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243426 ], "weight": 2, "year": 1999, "opinion_index": 1, "case_paths": [ "/ark/338/0752-01" ] }, { "cite": "261 Ark. 728", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678872 ], "weight": 2, "year": 1977, "opinion_index": 1, "case_paths": [ "/ark/261/0728-01" ] }, { "cite": "281 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742330 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark/281/0175-01" ] }, { "cite": "154 F.3d 892", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11707425 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/f3d/154/0892-01" ] }, { "cite": "Ark. Code Ann. \u00a7 21-3-203", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(a)(i)" } ], "opinion_index": 1 }, { "cite": "294 Ark. 239", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895759 ], "weight": 3, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/294/0239-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 21-3-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 1 } ], "analysis": { "cardinality": 1139, "char_count": 30107, "ocr_confidence": 0.733, "pagerank": { "raw": 3.548837412184352e-07, "percentile": 0.8851643474194828 }, "sha256": "1e9f81d35945538e5e33002002467e35fd9cd77cb9f5b2a2a47a996aef5e5fe1", "simhash": "1:776a770056bda41b", "word_count": 4826 }, "last_updated": "2023-07-14T20:48:00.616095+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "GLAZE, J., concurs in part; dissents in 'part.", "Imber, J., not participating." ], "parties": [ "Sandra PALMER v. ARKANSAS COUNCIL on ECONOMIC EDUCATION, RPL Management Resources, Inc., Jim Glenn, Sonya Schmidt, and Polly Jackson" ], "opinions": [ { "text": "Ray Thornton, Justice.\nAppellant, Sandra B. Palmer, was employed with the Arkansas Council on Economic Education (\u201cCouncil\u201d) from October 11, 1965 until October 3, 1995, when sbe was terminated at fifty-four years of age by the Council\u2019s acting chairman, Jim Glenn (\u201cChairman\u201d), and its executive director, Sonya Schmidt (\u201cDirector\u201d), with the approval of the assistant director, Polly Jackson (\u201cJackson\u201d). The appellees include the Council, Chairman, Director, Jackson, and RPL Management Resources, Inc. (\u201cRPL\u201d), a human resources consulting firm hired by the Council. Upon termination, appellant brought an action against the Council for age discrimination under the Arkansas Public Employer Age Discrimination Act, Ark. Code Ann. \u00a7\u00a7 21-3-201 to 21-3-205 (Repl. 1996). She also asserted common-law claims of wrongful discharge, tortious interference with employment relations, and the tort of outrage against all appellees. The trial court granted appellees\u2019 summary-judgment motion, and we affirm.\nI. Background\nOn October 11, 1965, appellant began working for the Council as an at-will employee and held the position of secretary. She eventually was promoted to administrative assistant for the Council. Appellant\u2019s duties and responsibilities as the Council\u2019s administrative assistant included maintaining the Council\u2019s financial records, including certificates of deposit, depositing funds, handling various accounts, and working with the Council\u2019s accountants to prepare financial statements. Appellant also prepared mailings for workshops and performed other related administrative tasks. During her thirty-year career before July of 1995, appellant was never disciplined for fading to properly perform any of her duties.\nThe Council is chartered with the State of Arkansas as a private, nonprofit corporation that was formed for the purpose of promoting economic education in elementary and secondary schools in Arkansas. The Council\u2019s five employees are paid-by the Council rather than through the state payroll, and its employees are not entided to state benefits. The Arkansas Department of Education (\u201cADE\u201d) exercises no control over the Council\u2019s employees, and the Director of the Council is responsible for hiring and firing its employees.\nThe Council\u2019s operations are subsidized through the use of the State\u2019s postal services and telephone services, and beginning in 1979, the Council leased space in the Arch Ford Education Building. The Council\u2019s yearly funding included a $200,000 state grant from the Department of Education\u2019s budget and from workshops that are conducted at state universities. The Council also receives funding through local businesses and individuals. The Council\u2019s annual revenues for 1995 aggregated $455,047.63.\nThe Council\u2019s Director assumed her position on July 5, 1995. During the Director\u2019s first staff meeting, appellant challenged the Director for disallowing a day off of work for appellant\u2019s beauty shop appointment. On August 3, 1995, appellant confronted Jackson about a memo written several years earlier concerning appellant\u2019s work performance. Jackson became upset over this confrontation and threatened to resign. During this time, appellant also voiced her concerns to the Chairman and the Director over their decision to deposit the Council\u2019s state and private funds into one bank account.\nOn August 4, 1995, the Director placed appellant on probation, citing her for insubordination, specifically \u201clack of respect,\u201d \u201cno[t] buying into [the] new office culture,\u201d and \u201c\u00a1lack of] mutual trust \u2014 no hidden agendas.\u201d Before August 4, 1995, the Chairman retained the services of a human resources consultant, R. Landerville (\u201cLanderville\u201d) at RPL. On August 9, 1995, Landerville came to Little Rock to assist the Council in a review of its personnel policies, job descriptions, and general office procedures. On August 16, 1995, the Chairman and the Director specifically discussed with Landerville their employment problem with appellant. Landerville suggested various ways to handle appellant\u2019s performance problems, and on August 25, 1995, appellant was removed from her probationary status.\nAfter removing appellant from probation, the Director again encountered problems with appellant and informed the Chairman and Landerville that appellant undermined her authority, that she no longer trusted appellant, and that she did not feel comfortable being away from the office when appellant was there. On September 6, 1995, the Director recommended to the Chairman that the Council terminate appellant\u2019s employment. The Chairman again asked for Landerville\u2019s advice, and a memo documenting appellant\u2019s performance was edited by the Director, the Chairman, and Landerville. Appellant was then terminated on October 3, 1995.\nFollowing her termination, appellant filed a charge of age discrimination with the Equal Employment Opportunity Commission (\u201cEEOC\u201d). The EEOC issued a right-to-sue letter and found that the Council did not have the requisite number of employees for jurisdiction under the Age Discrimination in Employment Act (\u201cADEA\u201d), pursuant to 29 U.S.C. \u00a7\u00a7 621-634 (1994 and Supp. 1995, 1996, 1997, 1998). After receiving the right-to-sue letter, appellant brought suit in federal court against the Council, the ADE, and the State of Arkansas. The United States District Court for the Eastern District of Arkansas granted the Council\u2019s motion to dismiss. Appellant appealed the decision to the Eighth Circuit Court of Appeals, and the case was affirmed. On appeal, the Eighth Circuit upheld the district court\u2019s ruling that the Council was not an agency or instrumentality of the State of Arkansas.\nAppellant filed the present lawsuit in state court, alleging that the Council had violated the Arkansas Public Employer Age Discrimination Act, Ark. Code Ann. \u00a7\u00a7 21-3-201 to 21-3-205. Further, appellant alleged that the Director, Chairman, Jackson, and RPL interfered with a business relationship, and committed the tort of outrage. The Second Division of Pulaski County Circuit Court granted appellees\u2019 motion for summary judgment. From this order, appellant brings her appeal.\nII. Standard of review\nOur standard of review for summary-judgment appeals was set forth in Crockett v. Essex Home, Inc., 341 Ark. 558, 19 S.W.3d 585 (2000), where we stated:\nIn these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law\nOnce a moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof.\nFurthermore, the moving party may present pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, to support the burden of showing entitlement to summary judgment as a matter of law.\nCrockett, supra (quoting Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997)) (citations omitted); see also Ark. R. Civ. P. 56.\nIII. Wrongful-discharge claims\nOur well-established rule is that when an employee\u2019s employment is for an indefinite term, either party may terminate the relationship without cause or at-will. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). We modified the employment-at-will doctrine to provide that where an at-will employee (one employed for an indefinite term) relies on a personnel manual or employment agreement that expressly states that he or she cannot be discharged except for cause, the employee may not be arbitrarily discharged in violation of such a provision. Id.\nIn Sterling, supra, we stated:\n[W]e have no hesitancy in concluding that Arkansas law would recognize at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state.\nId. In Sterling, supra, we recognized the public-policy exception to the employment-at-will doctrine when we stated:\nA[n] employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Therefore, we hold 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. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interests.\nId. (citations omitted). In finding a violation of public policy, we have stated that \u201cit is generally recognized that the public policy of a state is found in its constitution and statutes.\u201d Id.\nAppellant contends that two areas of public policy under the Arkansas Age Discrimination Act and the Fiscal Responsibility Act support her claims for wrongful discharge. As her first allegation for wrongful discharge, appellant contends that the trial court erred in determining that the Council is not a \u201cpublic employer\u201d under the Arkansas Age Discrimination Act. She argues that the Council is a public employer, and therefore, the Council should be subject to the public policy against age discrimination as set forth in Ark. Code Ann. \u00a7 21-3-203, which prohibits a public employer from discriminating against an employee on the basis of his or her age. The statute provides:\n(a) It shall be unlawful for a public employer:\n(1) To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of the individual\u2019s age[.]\nId.\nIn making its ruling, the trial court relied upon Palmer v. Arkansas Council on Economic Education, 154 F.3d 892 (1998), where the Eighth Circuit held that the Council was a private employer within the definition of the Age Discrimination in Employment Act (\u201cADEA\u201d) under 29 U.S.C. \u00a7 621-634. Palmer, supra. In answering the question, the court first addressed the issue whether the Council fit under the definition of employer under the act:\n(b) The term \u201cemployer\u201d means a person engaged in an industry affecting commerce who has twenty or more employees. . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a state ...[.]\nId.\nBecause the Council did not have the requisite number of employees to qualify as an employer under the first part of the definition, the court then determined whether the Council qualified as \u201can agency or instrumentality of the ADE or the State of Arkansas.\u201d Id.'Citing federal case law, the court held that the Council was neither an agency nor an instrumentality of ADE or the State of Arkansas. Id. The Eighth Circuit stated:\nThe facts of this case show that the ACEE is a private employer. The ACEE\u2019s employees do not share in the ADE\u2019s or state\u2019s employee pension funds, and they are not subject to a common civil service employment or grievance policy. While Palmer has shown that the ACEE\u2019s creation included the involvement of people closely tied to the ADE, she has not shown that either the State of Arkansas or the ADE ever controlled the terms of employment for the ACEE\u2019s employees. Although the ADE provides significant funding for the ACEE, the ADE does so with the expectation of receiving value from the ACEE. The fact that the ADE and State of Arkansas rely on the ACEE to provide services to Arkansas\u2019 citizens does not transform the ACEE into an agency of the ADE or State of Arkansas under the ADEA.\nId.\nWe are called upon to decide the same issue in this case. Under the Arkansas Age Discrimination Act, a threshold question is whether the Council qualifies as an agency of the State. Arkansas Code Annotated \u00a7 21-3-201 states:\nFor the purposes of this subchapter, unless the context otherwise requires, \u201cpublic employer\u201d shall mean any agency, department, board, commission, bureau, council, institution, or other entity of the state supported by appropriation of state or federal funds, or any county or municipality or other political subdivision of this state. \u201cPublic employer\u201d specifically includes public universities, colleges, and public school districts.\nId.\nBecause the Eighth Circuit has already decided the issue whether the Council is an agency or instrumentality of the State, we first consider whether our review of the same issue in a dispute between the same parties is barred from appellate review under the doctrine of collateral estoppel. Collateral estoppel, or issue preclusion, bars relitigation of issues of law or fact previously litigated by the parties. Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994). When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties. Id. The elements of collateral estoppel are: (1) the issue sought to be precluded must be the same as tbat involved in the prior litigation; (2) the issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). A federal court judgment may preclude relitigation of issues in state court. Scogin v. Tex-Ark Joist Co., 281 Ark. 175, 662 S.W.2d 819 (1984).\nWe conclude that appellant is precluded under the doctrine of collateral estoppel from rearguing the issue whether the Council is an agency of the State, and consequently a \u201cpublic employer.\u201d Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993) (per curiam) (holding that appellant cannot reassert the issue on appeal and is precluded from doing so under the doctrine of collateral estoppel). It follows that because the Council is not a \u201cpublic employer,\u201d the argument that appellant is entitled to the protection of Ark. Code Ann. \u00a7 21-3-203 must fail.\nAs her second allegation for wrongful discharge, appellant argues that she was wrongfully discharged from her employment with the Council as a matter of public policy because she voiced her concern over the Council\u2019s placing both state and private funds in the same bank account. Specifically, appellant argued that the commingling of the funds is prohibited by the public policy of fiscal responsibility. In support of her argument, appellant cites the Fiscal Responsibility Act and general state accounting laws found at Ark. Code Ann. \u00a7\u00a7 19-1-601 to 19-1-612 (Repl. 1998), Ark. Code Ann. \u00a7\u00a7 19-4-101 to 19-4-2202 (Repl. 1998 and Supp. 1999), Ark. Code Ann. \u00a7\u00a7 21-5-101 to 21-5-107 (Repl. 1996 and Supp. 1999), and Ark. Code Ann. \u00a7\u00a7 21-5-201 to 21-5-219 (Repl. 1996 and Supp. 1999).\nWe have stated that an at-will employee cannot be terminated if he or she is fired in violation of a well-established public policy of the State under Counce, supra, but that such public policy must be outlined in our statutes. Appellant voiced her concern in a staff meeting over commingling state and private funds in the same bank account. She later testified:\nThere was talk at a staff meeting of depositing the state and private funds into the same account at a staff meeting. ... I tried to explain why we had never done that \u2014 because state grant money was subject to audit at any time .... [The Chairman] thought we should have one checkbook and put the monies together. I suggested to [him] to check with Senator Keet and Senator Russ because they would know where it was written and how it came about. I was terminated before I knew what happened.\nIn order to support her argument, appellant must offer statutory authority to show that her dispute with the Chairman is based upon a violation of the public policy of Arkansas. Based upon our standard of review in evaluating an order granting summary judgment under Crockett, supra, we cannot say that appellant has demonstrated a genuine issue of material fact by meeting proof with proof. Here, the argument fails because there are no state statutes, including those statutes cited by appellant, that prohibit an entity from combining state and private funds. Appellant conceded this point during her deposition. Because appellant has not demonstrated that she was wrongfully discharged because of her opposition to commingling state and private funds, we affirm on this point.\nIV Tortious interference\nFor her next point on appeal, appellant argues that the Director, Chairman, Jackson, and RPL tortiously interfered with her business relationship with the Council. Under Arkansas law, a malicious and wilful interference with contractual rights and relationships of another has been recognized as an actionable tort. Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969). In order to establish a claim for tortious interference with a contract, a plaintiff must establish (1) the existence of a valid contractual relationship; (2) knowledge of the relationship on the part of the third party; (3) intentional and improper interference by that third party inducing or causing a breach or termination of the relationship; and (4) resulting damage to the plaintiff. See Mason v. Wal-Mart Stores, Inc., 333 Ark. 3, 969 S.W.2d 160 (1998). We have also said that a successful claim for interference with a contractual relation must allege and prove that a third person did not enter into or failed to continue a contractual relationship with the claimant as a result of the unauthorized conduct of the defendant. Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989).\nAn action for tortious interference with a contractual relationship is based upon a defendant\u2019s conduct toward a third party. See Mason, supra. Here, it is undisputed that the Director, Chairman, and Jackson are employees of the Council and are not third parties for the purposes of appellant\u2019s tortious interference claim.\nAppellant also contends that RPL was a third party that tortiously interfered with her business relationship with the Council. We then must determine whether RPL is a third party. It is well settled that a party to a contract, and its agents acting in the scope of their authority, cannot be hable for interfering with the party\u2019s own contract. St. Joseph\u2019s Regional Health Center v. Munos, 326 Ark. 605, 934 S.W.2d 192 (1996) (agent acting within the scope of his authority on behalf of a contracting party was not a separate third party capable of tortious interference).\nIn the present case, the employment relationship was between appellant and the Council. However, Landerville, on behalf of RPL, acted as agent in the scope of his capacity as advisor to the Council on personnel matters. Landerville and RPL were hired by the Council, and provided consulting services to the Council. They were not third parties, but throughout the period beginning in August, 1995, the Council sought advice and consultation from RPL. It is clear that RPL acted as an agent for the Council. Therefore, RPL cannot be held liable for interfering with an employment relationship between appellant and the Council because it was an agent acting at the request of and on behalf of the Council. Accordingly, we affirm on this point.\nV. Tort of outrage\nAs her third point on appeal, appellant alleges that appellees committed the tort of outrage with respect to her termination from the Council. We first recognized a cause of action for the tort of outrage in an employment setting in M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). In Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982), we cited the Restatement (Second) of Torts \u00a7 46 Cmt. d (1965), with approval when we stated, \u201cLiability has been found only where the conduct has been 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 a civilized community.\u201d Id. Under the framework set forth in Counce, supra, we have outlined four elements that are necessary to establish liability for the tort of outrage:\n1. The actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct;\n2. The conduct was \u201cextreme and outrageous,\u201d was \u201cbeyond all possible bounds of decency,\u201d and was \u201cutterly intolerable in a civilized community\u201d;\n3. The actions of the defendant were the cause of the plaintiffs distress; and\n4. The emotional distress sustained by the plaintiff was so severe that no reasonable [person] could be expected to endure it.\nDietsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). The trial court must determine as a matter of law whether the conduct may reasonably be regarded as so outrageous as to permit recovery, id. Merely describing conduct as outrageous does not make it so. Id.\nApplying these well-established principles to the present case, it is clear that appellant fails to state a claim for the tort of outrage. Appellant merely alleges that she disagreed with the Director and the Chairman over the use of the Council\u2019s funds. She also alleges that she was improperly written up for performance problems, that she was improperly placed on probation, and that she was wrongfully terminated. Appellant fails to show the Council\u2019s intent to inflict emotional distress, and her allegations do not meet the strict requirements in Dietsch, supra for a claim for tort of outrage in an employment termination situation. In order for appellant to prevail on this claim, she must have proven that her emotional distress was much more severe, that such conduct was \u201cextreme and outrageous,\u201d was \u201cbeyond all possible bounds of decency,\u201d and was \u201cutterly intolerable in a civilized community.\u201d Id. The allegation made by appellant does not meet the requirements of Dietsch, supra.\nAccordingly, we affirm the trial court\u2019s grant of summary judgment.\nAffirmed.\nGLAZE, J., concurs in part; dissents in 'part.\nImber, J., not participating.", "type": "majority", "author": "Ray Thornton, Justice." }, { "text": "Tom Glaze, Justice,\nconcurring in part; dissenting in part. I concur with most of the majority court\u2019s decision, but I disagree with the court\u2019s holding that the doctrine of collateral estoppel applies to bar appellant Sandra Palmer\u2019s arguing whether appellee Arkansas Council on Economic Education is a \u201cpublic employee\u201d as described under Ark. Code Ann. \u00a7 21-3-201 (Repl. 1996) of the Arkansas Public Employer Age Discrimination Act.\nIn Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977), we stated the following rule on collateral estoppel when identical cases have been filed in federal district court and state court:\nFederal district courts and state courts are separate jurisdictions. Identical cases between the same parties can be pending in each court at the same time. (Citation omitted.) It is the same situation as if identical cases between the same parties were pending in different states. In such a situation, the first forum to dispose of the case by trial enters a judgment that is binding on the parties.\nSee also National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999); Scogin v. Tex-Ark Joist Co., 281 Ark. 175, 662 S.W.2d 819 (1984).\nHere, the majority court misapplies the foregoing rule. The parties to the litigation were first in the federal courts where the Eighth Circuit ultimately held the Council was a \u201cprivate employer\u201d within the definition of the federal Age Discrimination in Employment Act (ADEA). Palmer v. Arkansas Council on Econ. Educ., 154 F.3d 892 (8th Cir. 1998). The ADEA, at 29 U.S.C.A. \u00a7 630(b), defines \u201cemployer\u201d as follows:\n. . . means a person engaged in an industry affecting commerce who has twenty or more employees .... The term also means (1) any agent of such a person, and (2) a state or political subdivision of a state and any agency or instrumentality of a state or a political subdivision of a state ....\nCiting the federal case of Schaefer v. Transportation Media, Inc., 859 F.2d 1251 (7th Cir. 1988), the Eighth Circuit Court held that, to show that a defendant institution is an agency of a state or political subdivision of a state for ADEA purposes, a plaintiff must show that the state or political subdivision had some supervisory control over the plaintiff. (Emphasis added.)\nThe instant case involves the Arkansas Age Discrimination Act, not the ADEA, and for purposes of this state Act, a \u201cpublic employer\u201d is defined as an agency, . . . counsel, ... or other entity of the state supported by appropriation of state or federal funds, or any county of municipality or other political subdivision of this state. \u201cPublic employer\u201d specifically includes public universities, colleges, and public school districts.\nAs can be readily seen, the term \u201cemployer\u201d differs by definition and significance depending upon whether one is interpreting and applying either the ADEA or the state Age Discrimination Act. In short, Palmer\u2019s suit in the federal courts is clearly not identical to the one Palmer now brings in the state courts involving a different act. Consequently, those federal decisions do not answer whether the council is, or is not, a public employer under the state Act, and collateral estoppel does not prevent Palmer from attempting to invoke that state Act. That specific legal issue is not addressed in this appeal.\nWhile Palmer, in my opinion, is not precluded from arguing the Council is a public employer under the Arkansas Age Discrimination Act, she does not show how this might allow her a right of action under the state Act. As the trial court found in its order, granting the Council summary judgment, Palmer has failed to demonstrate where the language of that Act gives her a private right of action.\nNonetheless, Palmer asserts she has shown the Council is a public employer as defined under the Act because the Council\u2019s budget is comprised of over 55% in monies from the Arkansas Department of Education, and because it also receives indirect subsidiaries through lease arrangements. In addition, she argues that evidence was presented which by inference showed the Council terminated Palmer because of her age. As a result, Palmer maintains she has an action for wrongful discharge because she was discharged in violation of the public policy of this state. That public policy, Palmer submits, is reflected by the terms set out in Ark. Code Ann. \u00a7 21-3-203(a)(i), which in relevant part reads: \u201cIt shall be unlawful for a public employer ... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of the individual\u2019s age.\u201d\nArkansas recognizes at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state. (Emphasis added.) Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). Our court has stated that it is generally recognized that the public policy of a state is found in its constitution and statutes. Id. In Sterling Drug, we held:\n[A]n employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Therefore, we hold 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. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interests.\nAlthough I agree with the majority opinion that the trial court was correct in granting the Council and the other appellees summary judgment regarding the claims of tortious interference and tort of outrage, I cannot agree that Palmer has failed to show material fact issues exist for a jury determination as to whether she was wrongfully discharged.\nFor example, appellee RPL issued a letter to the Council\u2019s chairman and director stating that before the Council could terminate an employee for age, it should insure the employee be given an opportunity to salvage her retirement and related benefits. RPL also stated that if Palmer filed a claim, she would likely win.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Eichenbaum, Liles & Hester, P.A., by: James H. Penick, III, for appellant.", "Cross, Gunter, Witherspoon & Galchus, PC., by: Dona S. Galchus and Abraham W Bogoslavsky, for appellees.", "Wright, Lindsey & Jennings, by: Bettina E. Brownstein and William Stuart Jackson, for appellee RPL Management Resources, Inc." ], "corrections": "", "head_matter": "Sandra PALMER v. ARKANSAS COUNCIL on ECONOMIC EDUCATION, RPL Management Resources, Inc., Jim Glenn, Sonya Schmidt, and Polly Jackson\n00-333\n40 S.W.3d 784\nSupreme Court of Arkansas\nOpinion delivered April 19, 2001\n[Petition for rehearing denied May 31, 2001.]\nEichenbaum, Liles & Hester, P.A., by: James H. Penick, III, for appellant.\nCross, Gunter, Witherspoon & Galchus, PC., by: Dona S. Galchus and Abraham W Bogoslavsky, for appellees.\nWright, Lindsey & Jennings, by: Bettina E. Brownstein and William Stuart Jackson, for appellee RPL Management Resources, Inc.\nGLAZE, J., would grant. IMBER, J., not participating." }, "file_name": "0461-01", "first_page_order": 491, "last_page_order": 508 }