* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Myron H. Bright, Senior Circuit Judge, Un ited States Court of Appeals for the Eighth Circuit, sitting by designat ion.

UNITED STATES COURT OF APPEALS Filed 7/26/96 FOR THE TENTH CIRCUIT

BRYAN DOZIER,

Plaintiff-Appellant,

v. WOLVERINE TUBE INC.,

Defendant-Appellee. No. 95-6390 (D.C. No. CIV-94-1952-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO, BRIGHT, ** and KELLY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff appeals the district court’s grant of sum mary judgment on his claims of retaliatory discharge and discriminatory employment practice in violation of the public policy of the State of Okla homa. The district court held that plaintiff failed to show he had been discharge d. We disagree and reverse. The parties are familiar with the facts of this cas e, and we will not repeat them here. In summary, however, and construed in f avor of plaintiff, the following facts have either been established or are genuinely disputed: plaintiff was injured while working for defendant in Septembe r 1992; he returned to work after back surgery and a period of physical therapyand resumed his job without incident; upon learning that plaintiff had hired anattorney to assist him with his Workers’ Compensation claim and that a doctor had r ated him as having a fortyfour percent permanent partial impairment to the wh ole body, defendant placed plaintiff on indefinite unpaid suspension; plaintif f understood it to be the company’s responsibility to obtain clarification of his medical status, but no clarification was ever forthcoming; during a discus sion with defendant’s personnel manager, plaintiff was informed that the company did not like it when attorneys got involved in the Workers’ Compensationprocess and that plaintiff better not “get caught in the middle;” plaintiff ha d been referred by defendant’s attorney for vocational rehabilitation, an action t hat is taken, among other instances, after an employee is determined to be “u nable to perform the same1 In reaching this result, the district court relied on Lenz v. Dewey , 64 F.3d

547 (10th Cir. 1995), and Parker v. Board of Regent s , 981 F.2d 1159 (10th Cir. 1992). Lenz and Parker , however, involved actions brought under 42 U.S.C. § 1983, alleging deprivation of property interests in employment without due process. In Parker , this court held that if the plaintiff had resigned of her own free will, even though doing so due to actions of defendants, she voluntarily relinquished her property interest and was not deprived of her property interest without due p rocess. If, however, her resignation was so involuntary it amou nted to a constructive discharge, defendants did deprive her of her property interest without due process. 981 F.2d at 1162 (citations omitted); see also Lenz , 64 F.3d at 552 (“offering an employee a choice between resignation and terminati on does not violate an employee’s due process of law, as long as the resig nation is ‘voluntary’”). This line of analysis makes sense in due process ca ses where the issue is whether the plaintiff received the process to whichhe was due. An employee in this situation has an alternative to resignation: he can refuse to resign and thus trigger the firing process which will presumably be accompanied by certain procedural safeguards. If such safeguards (i.e., d ue process) are denied, plaintiff (continued...) -3- occupational duties he was performing prior to the injury,” Okla. Stat. Ann. tit. 85, § 16(A); plaintiff’s attorney told plaintiff th at defendant would not allow him back to work; defendant’s attorney did not object t o plaintiff’s attorney’s letter stating that vocational rehabilitation was needed b ecause defendant had refused to allow him back to work, and plaintiff knew that he would have to resign in order to get his retirement benefits. The district courtconcluded that, because plaintiff had submitted a statement to defendant reciting that he was voluntarily resigning, he could not show that he had been discharged, thus dooming his claims. 11 (...continued)

may have a due process claim. If someone resigns f rom employment voluntarily, he is waiving his right to whatever process would h ave been forthcoming had he stuck it out.
The crux of the issue facing the district court, ho wever, was whether plaintiff’s resignation was voluntary. Even the Le nz/Parkerline of cases recognizes that some resignations may be “so involu ntary [they may] amount[] to a constructive discharge.” Parker , 981 F.2d at 1162. As discussed later, however, under certain circumstances, an employee f aced with a choice between resigning and being fired may be able to demonstrat e constructive discharge. -4- Plaintiff does not suggest that he was actually dis charged. He does argue, however, that the circumstances of his departure fr om defendant’s employ constitute constructive discharge. In Oklahoma, pr oof of constructive discharge can, in some cases, support a claim of retaliatory discharge. Wilson v. HessSweitzer & Brant, Inc. , 864 P.2d 1279, 1282-84 (Okla. 1993). Constructive discharge occurs when an employer deli berately makes or allows the employee’s working conditions to beco me so intolerable that the employee has no choice but to quit. A finding of constructive discharge must additionally be justifi ed by the existence of aggravating factors. The Plaintiffs (sic) own v iews of the intolerableness of their working conditions is (sic ) not sufficient to prove a constructive discharge. The test is whethe r a reasonable person would view the working conditions as intoler able and would feel compelled to resign. Id. at 1283 (approving quoted jury instruction). If an employee can show that he was faced with a choice of resigning or being fired , he can prove a constructive discharge. Burks v. Oklahoma Publishing Co. , 81 F.3d 975, 978 (10th Cir. 1996);2 As an aside, we note that should plaintiff ultimate ly prevail on the merits,

the vested retirement monies paid to him upon his d eparture from defendant’s employ may have to be repaid to defendant’s retirem ent plan. -5- Acrey v. American Sheep Indus. Ass’n , 981 F.2d 1569, 1573-74 (10th Cir. 1992); Spulak v. K Mart Corp. , 894 F.2d 1150, 1154 (10th Cir. 1990). Whether an employee’s job was terminated by the employer and w hether that termination was retaliatory are questions for the jury. Wilson , 864 P.2d at 1284. Given evidence that defendant informed plaintiff’s attorney that plaintiff would not be allowed to return to work and that def endant’s attorney implicitly agreed that plaintiff would not be allowed back on the job, we conclude that plaintiff has marshaled enough disputed issues of m aterial fact to withstand a motion for summary judgment on the issue of whether“a reasonable person would view the working conditions as intolerable and woul d feel compelled to resign,” Wilson , 864 P.2d at 1283 (quoting jury instruction); see Spulak , 894 F.2d at 1154 (holding that employee who faced choice between ret iring and being fired demonstrated constructive discharge). 2 Appellee’s request for costs and fees on appeal is denied. The judgment of the United States District Court for the Western Di strict of Oklahoma is-6-

REVERSED, and this case is REMANDED for further pro ceedings consistent with this order and judgment.

Entered for the Court

Myron H. Bright Senior Circuit Judge