Green v. Board of County Commissioners

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 2, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JEN N IFER GR EEN ,

Plaintiff-Appellant,

v. No. 05-6297

BO AR D O F COU NTY
C OM M ISSIO N ER S, C AN A D IAN
C OU N TY , STA TE O F O K LA HOMA;
BILLIE LINAM in her individual
capacity; GARY E. M ILLER in his
individual capacity,

Defendants-Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D .C . No. CIV-04-1121-C)

Submitted on the briefs: *

Rand C. Eddy, Eddy Law Firm, Oklahoma City, Oklahoma, for
Plaintiff-A ppellant.

Jodi S. Casey, Collins, Zorn & W agner, P.C., Oklahoma City, Oklahoma, for
Defendants-A ppellees Board of Commissioners for Canadian County and Billie
Linum.

*
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.
Angela K . M artin, Assistant Attorney General, Oklahoma A ttorney General’s
Office, Oklahoma City, Oklahoma, for Defendant-Appellee Gary E. M iller.

Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.

M cK A Y, Circuit Judge.

Jennifer Green appeals the district court’s grant of summary judgment to

defendants in her employment-related 42 U.S.C. § 1983 and state-law action. W e

have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM in part and REVERSE

in part.

I.

M s. Green was employed at Canadian County’s Juvenile Justice Center as a

drug-lab technician and detention officer. Her primary duties were in the drug

lab. As part of her job, she performed drug-screening tests, which the Center

makes available free of charge to county residents involved with the juvenile

courts, child welfare, or substance abuse treatment programs. The individual

defendants allegedly have supervisory authority over the Center, Gary E. M iller

as a Canadian County Associate District Judge with administrative authority over

the Center and Billie Linum as the director of the Center.

M s. Green became concerned that the Center did not have a confirmation

testing policy, and she raised her concerns w ith her direct supervisor, Bill

-2-
Alexander, and with Judge M iller. Neither appeared responsive to the issue, with

Judge M iller allegedly stating that if clients did not like the results, they could go

elsewhere to be tested. In the summer of 2003, M s. Green suspected that a

particular drug test had yielded a false positive, as the client repeatedly advised

M s. Green that she was not taking drugs, positive results notw ithstanding.

W ithout consulting her supervisors, M s. Green contacted the manufacturer of the

drug-testing equipment with questions about confirmation testing and arranged for

a confirmation test by an outside hospital. She also spoke with representatives of

the Department of Human Services about the client and the confirmation test and

arranged for a case worker to transport the sample to the hospital. The

confirmation test indicated that the Center’s initial test was a false positive.

M s. Green communicated this information to M r. Alexander, and soon thereafter

the Center adopted a formal confirmation testing policy.

M s. Green alleges that, after this episode, her supervisors began treating

her less favorably. In the fall of 2003, the drug lab was divided into two areas

because construction prevented clients from walking through the Center to the

drug lab. Instead of having the clients come to the lab area in the rear of the

building, employees collected samples in an area at the front of the Center and

then transported them to the drug lab. Thus, M s. Green was required to walk

through the detention center, opening and closing seven or eight heavy jail doors

each way, to collect samples and bring them to the drug lab. She and

-3-
M r. Alexander proposed two alternatives to save her and other employees having

to make this trip. First, instead of walking, clients could drive around the

building to the back of the Center (avoiding the construction) and give samples

near the testing area, as they did before construction started. Second, the testing

machine could be moved to the front of the Center, to the sample-taking area. To

M s. Green’s understanding, M s. Linum rejected the first alternative, and Judge

M iller rejected the second.

On February 19, 2004, M s. Green notified M r. Alexander that she had

injured her shoulder from having to open and close the jail doors so many times

every day. She made a worker’s compensation claim and was off work, on a

medical release, from February 20 through M arch 24, 2004. W hile M s. Green

was off work, M s. Linum, with Judge M iller’s knowledge, instructed

M r. Alexander to move her out of the lab and back to a detention officer position

and replace her with another employee. The only available shifts for a detention

officer, however, were a 3 p.m. to 11 p.m. shift left open by the replacement

employee and a floating shift. M s. Green was not willing to accept these shifts

because she needed to care for her children in the evenings. M r. Alexander knew

that M s. Green would be unwilling to accept those shifts, because M s. Green

previously had been employed by the C enter and quit because she could not work

a 3 p.m. to 11 p.m. shift.

-4-
 A few days before M s. Green was released for work, she spoke with

M r. Alexander and told him that she could not work the proposed shifts because

of her family situation. She also wrote tw o letters to M s. Linum, with copies to

Judge M iller and M r. Alexander, explaining why she could not work the proposed

shifts and asking why they would not implement the accommodations she had

proposed. Ultimately, M s. Green did not show up for the 3-11 shift, and her

employment was terminated.

M s. Green brought suit under § 1983, alleging that the County

Commissioners, Judge M iller, and M s. Linum had retaliated against her for her

conduct and speech, in violation of her First Amendment rights. She also asserted

claims for retaliatory discharge under the Oklahoma w orker’s compensation

statute, Okla. Stat. tit. 85, §§ 5-7, and for wrongful discharge in violation of

Oklahoma public policy. The district court granted summary judgment to

defendants on M s. Green’s claims, and she appealed.

II.

W e review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court. M ontgomery v. City of

Ardmore, 365 F.3d 926, 934-35 (10th Cir. 2004). Summary judgment is

appropriate where “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

-5-
 A.

M s. Green first appeals the grant of summary judgment to defendants on

her § 1983 claim of retaliation for exercise of her First Amendment rights. The

district court held that she had failed to show that her speech was a matter of

public concern.

“‘[T]he theory that public employment which may be denied altogether may

be subjected to any conditions, regardless of how unreasonable, has been

uniformly rejected.’” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)

(quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 605-06 (1967)). On the other

hand, “[g]overnment employers, like private employers, need a significant degree

of control over their employees’ words and actions; without it, there would be

little chance for the efficient provision of public services.” Garcetti v. Ceballos,

126 S. Ct. 1951, 1958 (2006). “The problem in any case is to arrive at a balance

between the interests of the [employee], as a citizen, in commenting upon matters

of public concern and the interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its employees.” Pickering,

391 U.S. at 568. Thus, the initial inquiries for courts in government-employment

First Amendment cases are whether a public employee “spoke as a citizen on a

matter of public concern.” Garcetti, 126 S. Ct. at 1958 (emphasis added); see

Connick v. M yers, 461 U.S. 138, 147 (1983); Pickering, 391 U.S. at 568.

-6-
 In Garcetti, which was decided after the district court’s decision in this

case, the Court evaluated the First Amendment claims of a deputy district

attorney (Ceballos). Believing that a search warrant affidavit contained

misrepresentations, Ceballos wrote a memorandum recommending the dismissal

of pending charges and then a second memorandum about the matter. Id. at

1955-56. He was later transferred from his calendar deputy position to a trial

deputy position and assigned to work at another location. Id. at 1956. He sued

under § 1983, alleging retaliation for his exercise of his First Amendment rights.

Id. Focusing on the “citizen” prong of the First Amendment analysis, the C ourt

determined that Ceballos “wrote his disposition memo because that is part of what

he, as a calendar deputy, was employed to do.” Id. at 1960. His expression was

“pursuant to” his official duties, and thus he was not speaking as a citizen for

First A mendment purposes. Id. The Court stated, “[r]estricting speech that owes

its existence to a public employee’s professional responsibilities does not infringe

any liberties the employee might have enjoyed as a private citizen. It simply

reflects the exercise of employer control over what the employer itself has

comm issioned or created.” Id. It continued:

Refusing to recognize First Amendment claims based on government
employees’ w ork product does not prevent them from participating in
public debate. The employees retain the prospect of constitutional
protection for their contributions to the civic discourse. This
prospect of protection, however, does not invest them with a right to
perform their jobs however they see fit.

-7-
Id. In light of Garcetti, the crux of our inquiry in this case is whether

M s. Green’s activities in arranging for a confirmation test were pursuant to her

duties as a drug lab technician. 1

In Garcetti, the parties did not dispute that the deputy district attorney’s

memorandum was part of his official duties. Thus, the Court had “no occasion to

articulate a comprehensive framew ork for defining the scope of an employee’s

duties in cases where there is room for serious debate.” 126 S. Ct. at 1961. The

Ninth, the Eleventh, and the Seventh Circuits, however, have begun tackling this

issue.

In the Ninth Circuit, Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006),

involved a prison guard who was the target of inappropriate, sexually explicit

inmate behavior. W hen she submitted disciplinary forms documenting the

conduct, prison authorities ignored them or acted too slowly for the inmates to be

disciplined. Id. at 533. The guard wrote various memoranda and letters

complaining of her supervisors’ undermining her authority and allowing the

1
Generally we do not consider new issues on appeal, but we have the
discretion to consider new arguments based on “changes in governing law arising
during the pendency of the appeal.” Anixter v. Home-Stake Prod. Co., 77 F.3d
1215, 1222 (10th Cir. 1996). Garcetti embodies such a change. Because the
opinion was issued after briefing in this appeal, we requested the parties to file
supplemental briefs regarding the potential impact of Garcetti. In their briefs, all
the parties assert that the appellate record is sufficient to allow this court to
undertake a Garcetti analysis, without the need to remand to the district court.
W e agree, and thus we proceed to the Garcetti analysis as part of our de novo
review of the district court’s judgment.

-8-
hostile environment and harassment. Id. at 533-34. Later, she filed a

discrimination charge with a state agency and wrote tw o letters to her state

senator. Id. at 534-35. The senator requested that the California Office of the

Inspector General (IG) investigate the situation; the IG’s report substantiated the

guard’s allegations. Id. at 535. Subsequently, her employment was terminated,

and she brought suit. The Ninth Circuit held that she was acting as a citizen in

her communications with her senator and the IG , but under Garcetti her internal

complaints (with one potential exception, which it left open for the district court

to consider) were not protected because they were submitted pursuant to her

duties as a correctional officer. Id. at 545-46.

In the Eleventh Circuit, Battle v. Board of Regents, 468 F.3d 755 (11th Cir.

2006) (per curiam), involved a university employee who reported to university

officials improprieties in her supervisor’s handling and management of federal

financial aid funds. Id. at 757. The employee’s contract was not renewed, and

she sued for retaliation. Id. at 758-59. The court noted that the employee

admitted “she had a clear employment duty to ensure the accuracy and

completeness of student files as well as to report any mismanagement or fraud she

encountered in the student financial aid files,” and that federal guidelines also

required her to report suspected fraud. Id. at 761. Consequently, she acted

“pursuant to her official employment responsibilities,” and her retaliation claim

failed under Garcetti. Id. at 761-62.

-9-
 Finally, in the Seventh Circuit, M ills v. City of Evansville, 452 F.3d 646

(7th Cir. 2006), involved a police sergeant who criticized a proposal to reorganize

the department. Her remarks occurred during a gathering of senior police officers

following an official meeting to discuss the plans, when she was on duty and in

uniform. Id. at 647-48. The Seventh Circuit held that the communications were

made “in her capacity as a public employee contributing to the formation and

execution of official policy,” not as a citizen. Id. at 648.

As a starting point for our own analysis, we determine what speech and

conduct is at issue. The district court determined that the speech at issue was:

(1) communication with the client regarding how to obtain a
confirmation test; (2) communication with the testing equipment
manufacturer about a confirmation test; (3) communication with
another individual to ensure chain of custody for the sample to be
used in the confirmation test; and (4) communication with
Defendants regarding the confirmation test’s determination of a false
positive.

Aplt. App. Vol. 2 at 467. Green argues on appeal that she also set forth other

instances of speech that occurred prior to the obtaining of the confirmation test,

including voicing concerns to her superiors about the lack of a confirmation

policy, and she generally asserts that the district court approached the issue too

narrowly. For purposes of our summary judgment review, we construe the record

in the light most favorable to M s. Green, so we evaluate the speech identified by

the district court in light of the other instances of speech and conduct upon which

-10-
M s. Green relies, particularly her conversations with her supervisors prior to the

confirmation test incident.

Next, we examine M s. Green’s job description, keeping in mind that

inclusion of a job duty in a formal job description “is neither necessary nor

sufficient to demonstrate that conducting the task is within the scope of the

employee’s professional duties for First Amendment purposes.” Garcetti,

126 S. Ct. at 1962. The written job description for a Drug Lab Technician

provides:

1. Individual will collect and test urine samples as per [the
equipment manufacturer’s] protocal [sic].
2. Individual will enter client data on EDM S computer program.
3. Individual will calibrate and maintain [the testing] equipment as
per manufacturers’ instruction.
4. Individual will ensure that [the] supply inventory is sufficient to
meet operational demands.
5. Individual will maintain drug laboratory records to include: client
files, invoices, specimen reports, maintenance log of the [testing]
machine, load list book, month end report for court, weekly subject
report for local agencies.
6. Individual will submit reports to [the Department of Human
Services] when requested.
7. Individual will perform alcohol swabs when requested.
8. Individual will relieve frontdesk receptionist one hour a week and
perform any other duties that might be directed by the Detention
Director and/or Program Coordinators.
9. W hen not performing duties of Drug Lab Technician, individual
will assist in Detention as a Detention Officer.

Aplt. App. Vol. 2 at 265. Appellees Linum and the County Commissioners add

that M s. Green’s job duties required her to “w ork closely” with drug lab clients,

the equipment manufacturer, and various governmental agencies. See id. at 266.

-11-
They also state that it was part of her job to tell clients what to do if they did not

like the results of the Center’s test. See id. Vol. 1 at 87; id. Vol. 2 at 258.

On the one hand, the speech and conduct at issue can be categorized as

activities undertaken in the course of M s. Green’s job. She had the responsibility

for collecting samples and testing them, and by extension, making sure the tests

were as accurate as possible (including the responsibility for ensuring that the

testing machines were calibrated and operating correctly). She also had the

responsibility for communicating with clients and with third parties regarding

testing. Under this view, by making arrangements for the confirmation test

without consulting her supervisors, M s. Green decided to ignore her supervisors’

instructions (that the Center was not required to have a formal confirmation

policy, and if clients were dissatisfied, they could have another test done

elsewhere), and thereby properly should be subject to discipline.

On the other hand, one could argue that M s. Green was not a policymaker

and her job responsibilities focused on the logistics of taking tests and keeping

records, so she was not required to improve the Center’s system by advocating for

a confirmation policy or obtaining the confirmation test. Under this view, by

arranging for the confirmation test to underline the validity of her previously

expressed concerns, M s. Green was not doing the job she w as hired to do, but was

acting outside her day-to-day job responsibilities for the public good.

-12-
 Having considered the arguments pro and con, we conclude that this case is

more similar to Garcetti, Battle, M ills, and the non-protected activities in Freitag

than to activities undertaken by employees acting as citizens. M s. Green was not

comm unicating with newspapers or her legislators or performing some similar

activity afforded citizens; rather, even if not explicitly required as part of her

day-to-day job responsibilities, her activities stemmed from and were the type of

activities that she w as paid to do. Particularly, it was part of her job to ensure

that the testing machines w ere working correctly, and it was part of her job to

interact with her supervisors, clients, and third parties regarding testing policies

and issues. Her disagreement with her supervisors’ evaluation of the need for a

formal testing policy, and her unauthorized obtaining of the confirmation test to

prove her point, inescapably invoke Garcetti’s admonishment that government

employee’s First Amendment rights do “not invest them with a right to perform

their jobs however they see fit.” 126 S. Ct. at 1960.

The Garcetti Court sought to avoid “judicial oversight of communications

between and among government employees and their superiors in the course of

official business” and “displacement of managerial discretion by judicial

supervision.” Id. at 1961. M s. Green’s conduct is inextricably intertwined with

these types of concerns. Further, Garcetti speaks in terms of “official

comm unications” that may cause consequences for government, and notes that

“[s]upervisors must ensure that their employees’ official communications are

-13-
accurate, demonstrate sound judgment, and promote the employer’s mission.” Id.

at 1960. M s. Green’s communications with third parties about confirmation

testing are the types of communications that would be attributable to the Center.

Thus, the Center has an interest in controlling them.

Admittedly, M s. Green’s decision to arrange for the confirmation test

apparently succeeded where her previous comments urging adoption of a

confirmation policy had failed; after her superiors were faced w ith the false

positive, they adopted a formal confirmation policy. But Garcetti, Battle,

Freitag, and M ills also involved employees trying to focus attention on apparently

misguided actions or improper situations. Nonetheless, their conduct was not

protectable under the First Amendment. As stated in Battle:

Although the Court acknowledged that “[e]xposing governmental
inefficiency and misconduct is a matter of considerable
significance,” the Court concluded the public interest was protected
by other means, including a “powerful network of legislative
enactments – such as whistle-blower protection laws and labor
codes” – not by permitting First Amendment retaliation claims based
on “expressions employees make pursuant to their professional
duties.”

468 F.3d at 761 (quoting Garcetti, 126 S. Ct. at 1962).

For these reasons, we conclude that, in connection with the unauthorized

confirmation test, M s. Green did not speak or act in her capacity as a citizen, but

as a government employee. In light of this decision, we need not consider the

district court’s holding that the issue was not a matter of public concern. W e

-14-
affirm the district court’s grant of summary judgment to defendants on

M s. Green’s § 1983 claim.

B.

M s. Green also brought against the Board of County Commissioners a

state-law claim of retaliation for making a worker’s compensation claim. 2 The

district court held that M s. Green’s case was most analogous to Large v. Acme

Engineering & Manufacturing Corp., 790 P.2d 1086, 1089 (Okla. 1990), in which

the Oklahoma Supreme Court held that a worker who was transferred to another

position could not state a claim for retaliatory constructive discharge. The district

court concluded that the evidence showed that M s. Green was offered a different

position, and that her employment ended only because she refused to return to

work. “Consequently, no reasonable jury could find that Plaintiff’s worker’s

compensation claim was a significant motivating factor in the termination of her

2
Commonly, once a federal claim has dropped out of an action, supplemental
state-law claims are no longer “supplemental” and thus are dismissed without
prejudice. See Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995). Here the
district court chose not to dismiss M s. Green’s tw o state-law claims, and at this
point, it appears that M s. Green would be barred from bringing the claims in
Oklahoma state court. See G ibson v. City of Tulsa, 880 P.2d 429, 430 (Okla. Civ.
App. 1994) (noting that Oklahoma’s savings statute, Okla. Stat. tit. 12, § 100,
does not save claims under the Governmental Tort Claims Act, because the time
requirements therein are part of the cause of action rather than merely a
limitations period); Ceasar v. City of Tulsa, 861 P.2d 349, 350-51 (Okla. Civ.
App. 1993) (same). Thus, we believe it is in the interest of justice that
M s. Green’s state claims continue to be adjudicated in federal court. See Ball,
54 F.3d at 669 (noting that “compelling reasons” may justify federal resolution of
state-law claims even after the federal claim has been resolved).

-15-
employment.” Aplt. App. Vol. 2 at 471. M s. Green contends that the district

court misconstrued her retaliation claim, as the evidence supports a finding that

the County directly terminated her employment. She further argues that the

district court erred as a matter of law in concluding that Oklahoma w ould not

recognize a constructive discharge claim in this situation.

The district court ruled on this claim under a constructive discharge theory.

Assuming for purposes of this decision, without deciding, that M s. Green’s claim

presents a case of constructive discharge, we conclude that the district court

misplaced its reliance on Large. It appears that a key factor in Large was that the

worker’s employment had not actually ended. See Large, 790 P.2d at 1088 (“It is

significant in this case that the trial court was not presented with facts showing an

actual cessation of employment.”). In contrast, M s. Green’s employment did end

with her transfer. Further, under the facts most favorable to her, a factfinder

could determine that the termination of her employment was her supervisors’

ultimate goal in transferring her, as they actually knew of her need to care for her

children at night and that she could not work the proposed shifts.

Importantly, while Large declined to recognize a cause of action for

constructive discharge “under the facts presented in [that] case,” id. at 1089, the

Oklahoma Supreme Court later recognized the validity of a constructive discharge

theory in a worker’s compensation retaliation case. See Wilson v. Hess-Sweitzer

& Brant, Inc., 864 P.2d 1279, 1284 (Okla. 1993); see also Buchanan v. Sherrill,

-16-
51 F.3d 227, 229 (10th Cir. 1995) (“Constructive discharge is now a recognized

cause of action in Oklahoma, at least when the plaintiff’s employment has

terminated.” (citing Wilson, 864 P.2d at 1284)).

In Wilson, the plaintiffs were scheduled to testify in a fellow employee’s

worker’s compensation wrongful discharge suit. 864 P.2d at 1280. The

plaintiffs’ working hours were then reduced or stopped, so that they were forced

to look for other jobs. Id. The trial court instructed on constructive discharge as

being included in the term “discharge,” and the Oklahoma Supreme Court found

no error, “because in the case at bar, the employment of the plaintiffs was

terminated, unlike the situation in Large.” Id. at 1280, 1284. “W hether the

plaintiffs’ employment was terminated by the employer and, if so, whether it was

in retaliation for their upcoming testimony, were questions of fact for the jury.”

Id. at 1284.

W e find the facts alleged here to be more akin to Wilson than Large. Like

the Wilson plaintiffs, M s. Green alleges that her employer deliberately left her

with no work she was able to do because of her worker’s compensation claim, and

her employment then ended. Thus, without expressing any opinion on the proper

resolution of this claim, we reverse the grant of summary judgment to the B oard

of County Commissioners on this claim and remand for further proceedings

consistent with this opinion.

-17-
 C.

Finally, M s. Green appeals the district court’s grant of summary judgment

to the Board of County Commissioners on her state-law tort claim of wrongful

discharge in violation of public policy. This claim is referred to as a Burk claim,

as the Oklahoma Supreme Court first recognized it in Burk v. K-M art Corp.,

770 P.2d 24, 29 (Okla. 1989). The district court held that Burk claims are only

available to plaintiffs w ithout other remedies, and M s. Green had an adequate

federal remedy. M s. Green argues that Oklahoma has limited the availability of a

Burk claim only in cases arising from the plaintiff’s status (such as gender or

age), not the plaintiff’s actions.

In Burk, the Oklahoma Supreme Court held that an employee states a valid

tort claim where he or she “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.” 770 P.2d at 29. The Burk public

policy exception, however, is narrow. In List v. Anchor Paint M anufacturing Co.,

910 P.2d 1011, 1014-15 (Okla. 1996), the court held that the Burk tort was not

available to a plaintiff who has an adequate statutory remedy. As the court later

stated, “[w]hen a statutory remedy adequately accomplishes the goal of protecting

Oklahoma public policy, a common law remedy is not needed.” Clinton v. State

ex rel. Logan County Election Bd., 29 P.3d 543, 546 (Okla. 2001).

-18-
 It appears, though, that in cases denying a Burk claim on the basis of an

adequate statutory remedy, the court’s decisions may have rested on the fact that

plaintiffs brought status-based claims rather than conduct-based claims. In List,

the court concluded by stating:

M r. List has adequate statutory remedies, and his claim is not based
on retaliation for anything that he did. Instead, M r. List’s claim is
based solely upon his status, his age. Because M r. List’s statutory
remedies are adequate and his common law claim is based solely on
his status, his statutory remedies are exclusive.

910 P.2d at 1015. Similarly, in M arshall v. OK Rental & Leasing, Inc., 939 P.2d

1116, 1119 (Okla. 1997), the court held that an employee alleging sexual

harassment “has not stated a w rongful discharge claim under Burk because she

brings this claim based upon her status rather than her conduct.” It continued,

“[w]e find this matter is governed by List . . . , where we found that Oklahoma

does not recognize a common law claim for wrongful constructive discharge in

violation of public policy where the claim is predicated upon the employee’s

status rather than conduct.” Id. at 1120. And in citing other cases regarding

discharges in violation of public policy, M arshall also stated, “[w ]e mention these

only to note that each one pertains to actions taken or refused to be taken by the

employee. None relate to the employee’s status – race, age, gender, etc.” Id. at

1121 n.2. Finally, in Clinton, while the court restated the certified question

presented to it by the federal district court, it retained a specific reference to a

discharge “based on the employee’s status.” 29 P.3d at 546.

-19-
 In matters involving the application of state law, where the state’s highest

court has not directly spoken on an issue, we determine w hat decision that court

would make were it presented with the issue. Oliveros v. M itchell, 449 F.3d

1091, 1093 (10th Cir. 2006). It is possible that, when faced squarely with the

question, the Oklahoma Supreme Court may determine that a plaintiff asserting a

conduct-based wrongful discharge claim has no need of a Burk claim if he or she

already has an adequate statutory remedy. W ithout further guidance from that

court, however, we are unwilling to ignore its specific references distinguishing

between status-based and conduct-based claims. In light of these references, it

appears that the Oklahoma Supreme Court would allow M s. Green to pursue a

Burk claim, as her wrongful discharge allegations are predicated upon her conduct

rather than her status. This conclusion is reinforced by Groce v. Foster, 880 P.2d

902, 905-06 (Okla. 1994), in which the Oklahoma Supreme Court allowed a

plaintiff who alleged retaliation for his actions (refusing to dismiss a negligence

action against his employer’s customer) to proceed with a Burk claim. See also

List, 910 P.2d at 1015 (pointing to Groce as an example of a discharge arising

from retaliation for conduct, rather than status).

For these reasons, we hold that the district court erred in granting summary

judgment to the B oard of County Commissioners on the ground that M s. Green’s

Burk claim is precluded as a matter of law. Thus, again without expressing any

-20-
opinion on the proper resolution of this claim, we remand for further proceedings

consistent with this opinion.

III.

The judgment of the district court is A FFIRM ED with regard to

M s. Green’s § 1983 claim for retaliation in violation of the First Amendment.

The judgment is REVERSED with regard to M s. Green’s state-law claims for

retaliation in violation of the worker’s compensation laws and wrongful discharge

in violation of public policy, and those claims are REM ANDED for further

proceedings consistent with this opinion.

-21-