F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 9 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JANE HUGGARD,
Plaintiff-Appellant,
v. No. 98-6112
(D.C. No. CIV-97-1130-C)
GOLDEN CORRAL CORPORATION, (W.D. Okla.)
a North Carolina Corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and LUCERO , Circuit Judges.
Plaintiff Jane Huggard seeks review of an order of the United States
District Court for the Western District of Oklahoma granting summary judgment
to defendant Golden Corral Corporation. 1
She brought suit against defendant
seeking damages for alleged wrongful discharge (1) in violation of Okla. Stat.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
tit. 85, §§ 5-7 for bringing a workers’ compensation claim against defendant, and
(2) in violation of public policy for reporting the use of illegal drugs by one of
defendant’s employees. The cause was based on diversity jurisdiction and
asserted only state law causes of action. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
The following facts are either undisputed or were assumed true for
purposes of the summary judgment motion. In January of 1996, plaintiff began
working at defendant’s restaurant in Midwest City, Oklahoma. In January of
1997, she reported the illegal use of drugs by a coworker to a supervisor
(Mr. Cox). According to plaintiff, this caused her supervisor (Mr. Rowaichi) to
exhibit hostility towards her, which in turn prompted her to seek a transfer to
another of defendant’s restaurants. On June 12, 1997, she met with the manager
of the other restaurant (Mr. Rivera) and explained her reasons for wanting the
transfer. Mr. Rivera allegedly hired her and told her to submit a two-week notice
of resignation to the Midwest City restaurant, which she did, in writing, the
following day. The written resignation read, “Please accept this note as my two
week notice—last day of work—27 June. [signed] Jane Huggard.” Appellant’s
App. at 17.
On June 15, 1997, plaintiff fell at work, injuring her right shoulder, back,
and right wrist. She stayed at work for awhile but eventually requested
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permission to leave to seek medical attention. On doctor’s orders, she did not
return to work immediately. Mr. Rowaichi witnessed the fall and knew a doctor
had advised her not to return to work. On June 18, 1997, plaintiff asked her
doctor for a return-to-work slip, which he gave her. She called Mr. Rivera to
schedule her start to work at the new restaurant. Mr. Rivera told her there were
no longer any positions available.
Plaintiff then called Mr. Rowaichi to cancel her resignation, but he refused.
Several days later, plaintiff’s daughter called Mr. Rivera, who told the daughter
he had openings for a night waitress and she should apply. In plaintiff’s
deposition, taken in December of 1997, she stated that she has been unable to
work since the June 15, 1997, accident.
“We review the grant of summary judgment de novo, applying the
customary legal standard under Fed. R. Civ. P. 56(c).” See Vice v. Conoco, Inc. ,
150 F.3d 1286, 1288 (10th Cir. 1998) (further citations omitted). “In applying
this standard, we examine the factual record and reasonable inferences therefrom
in the light most favorable to the party opposing summary judgment.” Mount
Olivet Cemetery Ass’n v. Salt Lake City , ___ F.3d ___, No. 97-4078, 1998 WL
869677, at *3 (10th Cir. Dec. 15, 1998).
Retaliatory Discharge
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Okla. Stat. tit. 85 § 5 2
provides as follows:
A. 1. No person, firm, partnership or corporation may
discharge any employee because the employee has in good faith filed
a claim, or has retained a lawyer to represent him in said claim,
instituted or caused to be instituted, in good faith, any proceeding
under the provisions of this title, or has testified or is about to testify
in any such proceeding.
2. No person, firm, partnership or corporation may
discharge an employee during a period of temporary total disability
solely on the basis of absence from work.
B. No employer shall be required to rehire or retain any employee
who is determined physically unable to perform his assigned duties.
The failure of an employer to rehire or retain any such employee
shall in no manner be deemed a violation of this section.
As we have recognized, Oklahoma law requires that
To establish a prima facie case of retaliatory discharge under
§ 5(A)(1), a discharged employee must prove the following four
elements: (1) employment; (2) on-the-job injury; (3) medical
treatment which put the employer on notice that treatment had been
rendered for a work-related injury; and (4) consequent termination.
Buckner v. General Motors Corp. , 760 P.2d 803, 806 (Okla. 1988).
If the discharged employee establishes a prima facie case, the burden
shifts to the employer to rebut the inference of a retaliatory motive
by articulating a legitimate, non-retaliatory reason for the
termination. Id. The employer’s burden is simply one of production,
not persuasion. Id. at 807. If the employer satisfies this burden, the
presumption of retaliatory motive is successfully rebutted. Id. At
that point, the discharged employee can only prevail by proving his
termination was significantly motivated by retaliation for his exercise
of statutory rights, or by proving the employer’s proferred reason for
the discharge was pretextual. Id.
2
This section was amended in November of 1998. The new provisions do
not alter the disposition of this appeal.
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Blackwell v. Shelter Mut. Ins. Co. , 109 F.3d 1550, 1554 (10th Cir. 1997).
The district court determined that plaintiff had established employment,
on-the-job injury, and her supervisor’s knowledge of the injury and medical
treatment before the job at the second restaurant was “rescinded.” In other words,
plaintiff had met her burden of establishing the first three Buckner factors. See
also Wallace v. Halliburton Co. , 850 P.2d 1056, 1059-60 (Okla. 1993) (applying
Buckner factors). The court further determined that defendant had shown “a
legitimate, non-retaliatory reason for discharge . . . by invoking § 5B, which
clarifies that no employee must be rehired or retained who is physically unable to
perform assigned duties.” Appellant’s App. at 88. Finally, the court concluded
that because it was undisputed that plaintiff was physically unable to return to
employment after the date of the accident, no violation of § 5 could be found
based on these facts. See id. at 89.
On appeal plaintiff argues that defendant could not have had a legitimate
reason for her June 1997 discharge under § 5B because defendant did not know
that she could not return to work after June 15 until the December deposition.
See Appellant’s Br. at 11-12. We need not address this issue, however, because
we are persuaded that plaintiff failed to establish the requisite fourth factor under
Buckner , i.e., consequent termination. See United States v. Sandoval , 29 F.3d
537, 542 n.6 (10th Cir. 1994) (“We are free to affirm a district court decision on
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any grounds for which there is a record sufficient to permit conclusions of law,
even grounds not relied on by the district court.”).
To establish a consequent termination, “plaintiff must produce evidence
sufficient to support a legal inference that the termination was ‘significantly
motivated’ by retaliation for exercising her statutory rights.” Blackwell , 109 F.3d
at 1554 (citing Wallace , 850 P.2d at 1058) (footnote omitted); see also Taylor v.
Cache Creek Nursing Ctrs. , 891 P.2d 607, 610 (Okla. Ct. App. 1994)).
In Taylor the court determined that in and of itself, the fact that plaintiff
was fired “immediately after returning from a two-week, doctor-ordered disability
leave . . . does not raise a legal inference that the firing was significantly
motivated by retaliation.” 891 P.2d at 610; see also Wallace , 850 P.2d at 1058
(“[E]vidence must be at least sufficient to support a legal inference the discharge
was significantly motivated by retaliation for exercising one’s statutory rights.”).
The Taylor court also found, as an example, that there was no evidence “showing
a pattern of termination of workers who filed [workers’ compensation] claims, or
of pressure put on workers not to file claims.” 891 P.2d at 610. Here, as in
Taylor , there is no suggestion that defendant has ever terminated an employee for
filing a workers’ compensation claim. See also Blackwell , 109 F.3d at 1555.
Likewise, in Thompson v. Medley Material Handling, Inc. , 732 P.2d 461,
464 (Okla. 1987), the court held that the connection between the plaintiff’s
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termination and the subsequent filing of a workers’ compensation claim failed to
do any more than establish that the two events happened approximately six weeks
apart. This, the court held, was insufficient to establish a prima facie case of
discriminatory discharge. “To hold otherwise would be to require any employer
laying off a worker who has at any time in the past filed a Workers’
Compensation action to submit to a jury trial based purely on the coincidence
of the layoff and the past filing.” Id.
Here, the only facts established are that plaintiff suffered an on-the-job
injury for which she sought medical attention and that several days later, on
June 18, 1997, the day her doctor released her to return to work, her anticipated
transfer to another restaurant was rescinded. She did not file a workers’
compensation claim until June 19, 1997. Appellant’s App. at 51.
Based on the determination in Taylor (where plaintiff was fired
immediately after returning from disability leave) and in Thompson (where
plaintiff was fired six weeks after filing for workers’ compensation) that
neither of those fact situations raised an inference of retaliation, we conclude
that plaintiff in this case has failed to establish the element of a consequent
termination. See Blackwell , 109 F.3d at 1556 (where reasonable jury could not
conclude discharge significantly motivated by retaliation for exercising rights
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under Workers’ Compensation Act, plaintiff failed to establish a nexus between
termination and any protected activity on her part). 3
Public Policy Violation
As her second claim, plaintiff argues she was terminated for reporting drug
use by her fellow employees. Plaintiff contends that after she reported the drug
use, her own supervisor became increasingly hostile toward her and that
defendant “failed to conduct any drug testing in response to her notice.”
Appellant’s Br. at 17.
In Hinson v. Cameron , 742 P.2d 549 (Okla. 1987), the Oklahoma Supreme
Court recognized the “public policy” exception to the at-will employment
doctrine, which allows either the employer or employee to terminate employment
without liability. See id. at 552. Claims recognized as actionable under the
public policy exception are those by employees dismissed for
(a) refusing to participate in an illegal activity; (b) performing an
important public obligation; (c) exercising a legal right or interest;
(d) exposing some wrongdoing by the employer; and (e) performing
an act that public policy would encourage or, for refusing to do
3
Plaintiff also argues that evidence of a pretextual reason for her separation
from employment prevents summary judgment and constitutes sufficient proof
that retaliation was a significant factor in defendant’s decision to terminate her.
Appellant’s Br. at 15. This argument must fail. An “employer is not required to
present a legitimate reason for the plaintiff’s discharge until after the plaintiff
proves a prima facie case,” Blackwell , 109 F.3d at 1554, n.2, which plaintiff has
failed to do.
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something that public policy would condemn, when the discharge is
coupled with a showing of bad faith, malice or retaliation.
Id. at 552-53 (footnotes omitted).
The court has further defined the public policy exception as “tightly
circumscribed” and requiring
circumstances which present an actionable tort claim under
Oklahoma law [as being] where an employee is discharged for
refusing to act in violation of an established and well-defined public
policy or for performing an act consistent with a clear and
compelling public policy.
See Burk v. K-Mart Corp. , 770 P.2d 24, 29 (Okla. 1989).
Plaintiff claims, without citation to any authority, that by reporting illegal
drug use she was “‘performing an important public obligation,’ ‘exposing some
wrongdoing by the employer,’ and ‘performing an act that public policy would
encourage.’” Appellant’s Br. at 17. Defendant argued and the district court
determined that none of the Hinson public policy concerns are raised by the facts
of this case.
The only facts asserted by plaintiff were that she reported drug use by a
fellow employee to a supervisor, that subsequently a different supervisor became
more hostile toward her, and that no drug testing was performed in response to
her notice. She does not claim she was ordered to perform an illegal act, refused
to do a bad act or was prevented from exercising her rights. Nor does she connect
the reporting of illegal drug use to her subsequent termination some five months
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later. The facts as stated by plaintiff are simply legally insufficient to state
a claim under the public policy language of Hinson .
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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