## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 18 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUANITA M. FOSTER,

Plaintiff - Appellant,

v. ALLIEDSIGNAL INC.,

Defendant - Appellee. No. 00-3243

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (No. 97-CV-4232-CM)
David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, Kansas, for Plaintiff-Appellant. Daniel B. Boatright (J. Nick Badgerow, with him on the brief), Spencer Fane Britt & Browne LLP, Overland Park, Kansas, for Defendant- Appellee.

Before HENRY , HOLLOWAY , and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

Plaintiff-Appellant Juanita M. Foster, an employee at AlliedSignal, Inc. since 1979, injured her arm and lower back in Novem ber 1995 while on the job.-2-

In December 1995, after being absent from work for several days, Foster was informed by AlliedSignal that she had been fired. Foster sued AlliedSignal in federal district court, claiming that her employmen t had been terminated in retaliation for her exercise of protected rights under the Kansas Workers Compensation Act, Kan. Stat. Ann. §§ 44-501 to -512 5. AlliedSignal moved for summary judgment, which the district court granted upon concluding that Foster “failed to present clear and convincing evidence th at she was not in violation of defendant’s attendance policies” (3 Appellant’s App . at 808) and that she “failed to set forth sufficient evidence to establish prete xt” on the part of AlliedSignal (id. at 809). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.
I On November 13, 1995, Foster injured her arm and ba ck when she reached for some parts in a tub that shifted and hit her ar m, causing her chair to roll out from under her. She reported her on-the-job injuryto an employee in the human resources department, who in turn called Robin Thompson, the company nurse. Nurse Thompson advised Foster to take some ibuprofe n, place heat or ice on the strain, and lie down for a few minutes. After this treatment, Foster returned to work and finished her shift. On November 16, Foster sought further treatment fro m Dr. Scott Steelman, the company physician. Although Dr. Steelman clear ed her to continue working1 Foster’s attorney submitted an affidavit claiming that Foster called

AlliedSignal on December 12. Attached to this affi davit was a telephone log (continued...) -3- in her current position, five days later Foster inf ormed Nurse Thompson that her back was hurting and that she wanted to go home. T he next day Foster visited her personal physician, Dr. April Bremby, who prescribe d medication and physical therapy. Foster continued to work for the month of November. On December 4, Foster’s attorney sent via certifiedmail a claim for workers compensation benefits; an unidentified empl oyee at AlliedSignal signed for the certified mail on December 7. On December 5, Foster again visited Dr. Bremby, who executed a form requesting that she be placed on medical leave from December 1, 1995, through January 1, 1996, bec ause of work-related injuries; that day, Foster delivered this request t o an unidentified AlliedSignal employee at the front desk. On December 7, she was again examined by Dr. Steelman, this time in the presence of Nurse Thomps on. After concluding that Foster was able to continue performing her job, Dr. Steelman denied her request for a medical leave of absence and, according to Dr . Steelman and Nurse Thompson, informed Foster of the denial at that tim e. Foster did not report to work on December 8, Decemb er 11, or December 12, and testified in deposition that she did not ca ll anyone at AlliedSignal on any of those days seeking to be excused from work. 1 AlliedSignal’s attendance policy1 (...continued)

from Southwestern Bell Telephone Company for Decemb er 1995 showing that Foster called AlliedSignal twice on December 12. The district court determined that the affidavit su bmitted by Foster’s attorney set forth facts about which he had no pers onal knowledge, that such facts were inadmissible as evidence, and that they should therefore not be considered in support of a Fed. R. Civ. P. 56(e) motion for summary judgment. (3 Appellant’s App. at 800–01.) Moreover, the court determined th at the attorney was incompetent to testify about the telephone log beca use he lacked personal knowledge of the information contained therein, the document’s source, and its authenticity. Having concluded that the unauthenti cated phone log was inadmissible, the district court did not consider i t in its summary judgment decision. We thus do not consider the affidavit orphone log in our review of the court’s summary judgment order. -4- provides for the discharge of an employee when the employee is absent for three consecutive days and has not called, or when the employee is absent for eight or more days within the last 180 days of employment. Foster was absent from work on September 11 and 29, October 5, and December 1, 5, 6, 7, 8, 11, and 12. Bob Trageser, Foster’s supervisor, and James P. William s, an AlliedSignal human resources team leader, jointly decided to terminate Foster—allegedly pursuant to AlliedSignal’s attendance policy—with Trageser call ing Foster on December 13, 1995, to tell her she had been fired. Although bot h men knew that Foster was trying to obtain a medical leave of absence, they c laim not to have been aware either that she was requesting medical leave due to a work-related injury or that she had filed a workers compensation claim. Fostercontends that the explanation given for her termination was pretextual and that s he was fired in retaliation for-5-

exercising her rights under the Kansas Workers Comp ensation Act.
II We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by the distri ct court. Cooperman v. David , 214 F.3d 1162, 1164 (10th Cir. 2000). Summary judg ment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this standard we view the evidence a nd draw reasonable inferences therefrom in the light m ost favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). To avoid summary judgment, the party opposing the motion must establish, at a minimum, an inference of the e xistence of each essential element to the case. Hulsey v. Kmart, Inc. , 43 F.3d 555, 557 (10th Cir. 1994). Kansas generally follows the employment-at-will doc trine, meaning that employment is terminable at will by either the empl oyer or the employee for any reason or for no reason at all. Moriss v. Coleman Co. , 738 P.2d 841, 846 (Kan. 1987). There are exceptions, however, and under Ka nsas law an employer cannot fire an employee in retaliation for the employee’s filing of a workers compensation claim. Murphy v. City of Topeka , 630 P.2d 186, 192 (Kan. 1981).-6-

Moreover, an employee cannot be discharged “for bei ng absent or failing to call in an anticipated absence as the result of a work-r elated injury,” because this would allow an employer an indirect method of firin g an employee for filing a workers compensation claim. Coleman v. Safeway Sto res, Inc. , 752 P.2d 645, 652 (Kan. 1988). Thus, “any absences caused by [anemployee’s] work-related injury should not be counted against” the employee by her employer. Id. This rule applies even to employees who have not yet fil ed a workers compensation claim. Ortega v. IBP, Inc. , 874 P.2d 1188, 1191 (Kan. 1994). Foster can recover by “proving that [her] discharge was ‘based on,’ ‘because of,’ ‘motivated by,’ or ‘due to’ the emplo yer’s intent to retaliate.” Sanjuan v. IBP, Inc. , 160 F.3d 1291, 1298 (10th Cir. 1998) (quoting Bro wn v. United Methodist Homes for the Aged , 815 P.2d 72, 88 (Kan. 1991)). However, she does “not need to show that retaliation was the employer’s sole motive or reason for the termination.” Id. Nor must she provide direct proof of retaliatory intent. “Retaliatory discharge cases must generall y be proven by circumstantial rather than direct evidence because rarely will an employer admit to having discharged an employee in retaliation for exercisin g a right.” Chaparro v. IBP,
Inc. , 873 F. Supp. 1465, 1472 (D. Kan. 1995), aff’d , 104 F.3d 367 (10th Cir. 1996) (unpublished table decision); Marinhagen v. B oster, Inc. , 840 P.2d 534, 540 (Kan. Ct. App. 1992).2 McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). -7- Because such cases are rarely proven by direct evid ence, the Kansas courts have adopted the McDonnell Douglas 2 burden-shifting framework for analyzing retaliatory discharge cases. See Sanjuan v. IBP, Inc. , 275 F.3d 1290, 1294 (10th Cir. 2002). At the first stage, a plaintiff makes out a prima facie case raising a rebuttable presumption of retaliatory intent by sho wing that (1) he or she filed a claim for workers’ compensati on benefits, or sustained an injury for which he might assert a future claim for such benefits; (2) that the employer had knowledge of pl aintiff’s compensation claim, or the fact that he had sustain ed a work-related injury for which the plaintiff might file a future claim for benefits; (3) that the employer terminated the plaintiff’s employment; and (4) that a causal connection existed between the pr otected activity or injury, and the termination. Sanjuan , 160 F.3d at 1298. Once a plaintiff establishes aprima facie case, the burden shifts to the defendant to articulate a legi timate, non-retaliatory justification for the discharge. Bausman v. Inters tate Brands Corp. , 252 F.3d 1111, 1116 (10th Cir. 2001). “If the employer meet s this burden, the burden shifts back to the plaintiff but the plaintiff mustshow clear and convincing evidence that he or she was terminated in retaliati on for exercising rights under the Workers’ Compensation Act.” Id. (quotation omitted). AlliedSignal does not dispute that Foster suffered a work-related injury for which she might file a claim, that it had knowledge of the injury, or that it3 Citing no authority, AlliedSignal contends that t he fourth, causalconnection element of a prima facie case must be es tablished by “clear and convincing” evidence. (Appellee’s Br. at 16.) Hol ding a plaintiff to such a standard at the prima facie stage would pervert the logic of the McDonnell Douglas burden-shifting scheme adopted by the Kansas court s. See Rebarchek v. Farmers Coop. Elevator & Mercantile Assoc. , 35 P.3d 892, 901 (Kan. 2001) (“A claimant’s ‘prima facie case is not an onerous burd en under the McDonnell Douglas burden-shifting scheme’” (quoting Robinson v. Wils on Concrete Co. , 913 F. Supp. 1476, 1483 (D. Kan. 1996)). -8- terminated Foster’s employment. The company conten ds, however, that it is entitled to summary judgment because “there is simp ly no evidence to support the fourth element of plaintiff’s prima facie case.” 3 (Appellee’s Br. at 17.) AlliedSignal is mistaken. To establish a causal connection, a plaintiff must establish that the individual or individuals who actually undertook th e alleged retaliatory acts were aware or should have been aware of plaintiff’s part icipation in the protected activity. See Gunnell v. Utah Valley State Coll. , 152 F.3d 1253, 1265 (10th Cir. 1998) (holding that a retaliatory discharge claim m ust be predicated on intentional and knowing retaliation); see also Fenton v. HiSAN, Inc. , 174 F.3d 827, 832 (6th Cir. 1999); Cohen v. Fred Meyer, Inc. , 686 F.2d 793, 797 (9th Cir. 1982). Foster must therefore show that at the time of her dischar ge the AlliedSignal decisionmakers responsible for her firing knew or s hould have known that the absences for which she was discharged were the resu lt of her work-related injury. The two company personnel directly responsible for Foster’s-9-

firing—supervisor Trageser and human resources mana ger Williams—both claim not to have been aware either that Foster was reque sting medical leave due to a work-related injury or that she had filed a workers compensation claim . Foster has provided no direct evidence that they were, in fact, cognizant of these circumstances. Nonetheless, AlliedSignal admits th at Trageser knew Foster had been injured on the job (Appellee’s Br. at 3), thatboth Trageser and Williams knew she had sought a medical leave of absence (id. at 6, 8), and that both men knew the leave had been denied by the company’s med ical department (id. ). Together with the timing of Foster’s firing—during an absence occasioned by a work-related injury, days after she indicated she w as filing for workers compensation benefits—this evidence establishes a c ausal connection sufficient to round out Foster’s prima facie case. See Rebarchek v. Farmers Coop. Elevator & Mercantile Assoc. , 35 P.3d 892, 899 (Kan. 2001) (“Proximity in time between the claim and discharge is a typical point for proof of a causal connection.”). We thus conclude that Foster has sufficiently made outa prima facie case of retaliation. The burden thus shifts to AlliedSignal to articulat e a legitimate, nonretaliatory justification for its termination of Foster’s employment. The company has sufficiently done so by contending thatFoster was fired because she violated the company’s attendance rules. The burde n now shifts back to Foster to-10-

demonstrate that the justification articulated by A lliedSignal is pretextual. To avoid summary judgment after an employer has art iculated a legitimate, non-retaliatory reason for the termination, “the employee must assert specific facts establishing a triable issue as to whether th e employer’s reason for discharge is a mere cover-up or pretext for retaliatory disch arge.” Bracken v. Dixon Indus.,
Inc. , 38 P.3d 679, 682 (Kan. 2002) (citing Rea v. Marti n Marietta Corp. , 29 F.3d 1450, 1455 (10th Cir. 1994)). “Although the presumption of discrimination ‘drops out of the picture’ once the defendant meets its burden of production, the trier of fact may still consider the evidence estab lishing the plaintiff’s prima facie case ‘and inferences properly drawn therefrom . . . on the issue of whether the defendant’s explanation is pretextual.’” Reeves v. Sanderson Plumbing Prods. , 530 U.S. 133, 143 (2000) (internal citation omitted and ellipses in original) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 255 n.10 (1981)). The employee’s ultimate burden is to establish reta liation “by a preponderance of the evidence, but the evidence must be clear and co nvincing in nature.” Ortega , 874 P.2d at 1198. Evidence is clear “if it is cert ain, unambiguous, and plain to the understanding,” and it is convincing “if it is reasonable and persuasive enough to cause the trier of facts to believe it.” Id. Clear and convincing evidence is “not a quantum of proof, but rather a quality of pr oof.” Id. ; see Barbara Oil Co. v. Kan. Gas Supply Corp. , 827 P.2d 24, 32 (Kan. 1992).-11-

Foster correctly notes that under Kansas law a plai ntiff in a retaliation case “need not meet the clear and convincing standard atthe summary judgment stage of the proceedings,” Rebarchek , 35 P.3d at 898, and that a plaintiff “can successfully oppose a motion for summary judgment b y a preponderance of the evidence,” Bracken , 38 P.3d at 683. Thus, she argues, in the presentaction she is likewise relieved of having to meet this evidentiary standard. On this latter point she is mistaken. Although it is true that a Kansas court will not apply the clearand-convincing standard at the summary judgment sta ge in an action for retaliation in the state’s own courts, a federal co urt sitting in diversity will be guided by federal-law standards governing summary j udgment procedure. As the Supreme Court explained in Anderson v. Liberty Lobb y, Inc. , [I]n ruling on a motion for summary judgment, the j udge must view the evidence through the prism of the substantive e videntiary burden. This conclusion is mandated by the nature of the de termination. The question here is whether a jury could reasonably fi nd eitherthat the plaintiff proved his case by the quality and quanti ty of evidence required by the governing law orthat he did not. Whether a jury could reasonably find for either party, however, ca nnot be defined except by the criteria governing what evidence woul d enable the jury to find for either the plaintiff or the defendant .

. . . 477 U.S. 242, 254 (1986). The Court thus concludedthat “the determination of whether a given factual dispute requires submissionto a jury must be guided by the substantive evidentiary standards that apply to the case. This is true at both the directed verdict and summary judgment stages.” Id. at 255. Given the-12-

Court’s clear directions, we hold that a plaintiff in federal court who opposes a summary judgment in a retaliatory discharge case ba sed on Kansas law must set forth evidence of a clear and convincing nature that, if believed by the ultimate factfinder, would establish that plaintiff was more likely than not the victim of illegal retaliation by her employer. AlliedSignal contends that under this standard the district court was correct in finding that Foster cannot survive summary judgm ent with the evidence that she has proffered. We disagree. Viewing Foster’s evidence in the light most favorable to her and drawing reasonable inferences therefrom, we conclude that the district court should not have granted summary judgment to defendant. A federal court’s responsibility to apply the clear-a nd-convincing standard of proof at the summary judgment stage is not a license to e ngage in a mini-trial. Indeed, as the Supreme Court explained in Anderson ,

Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary j udgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, t he weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. Th e evidence of the nonmovant is to be believed, and all justifiable in ferences are to be drawn in his favor. Neither do we suggest that the trial courts should act other than with caution in granting summary jud gment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be t o proceed to a full trial.-13-

Anderson , 477 U.S. at 255 (citations omitted). Because ourresponsibility to apply the clear-and-convincing standard of proof atsummary judgment does not authorize us to perform jury functions, our role is simply to determine whether the evidence proffered by plaintiff would be sufficient , if believed by the ultimate factfinder, to sustain her claim. Foster has provided sufficient evidence to survive summary judgment. At the very least, she has presented evidence that, if believed, would be sufficient for a factfinder to conclude that (1) her December abse nces were due to her workrelated injury, (2) the company personnel responsib le for firing her either knew or should have known that her absences were related to a work injury, and (3) her employment was terminated within a week of AlliedSi gnal’s receipt of notice that she had filed a workers compensation claim. In ord er to affirm summary judgment for AlliedSignal, we must conclude that Fo ster “failed to produce any evidence from which a reasonable inference could be drawn” that AlliedSignal’s proffered reasons for her firing were pretextual. Stewart v. Adolph Coors Co. , 217 F.3d 1285, 1291 (10th Cir. 2000), cert. denied , 531 U.S. 1077 (2001). Particularly given that “[c]lose proximity in time may provide some probative evidence of retaliatory intent,” Sanjuan , 160 F.3d at 1299, we cannot conclude that Foster has failed to meet her burden at the su mmary judgment stage. See also Gertsch v. Cent. Electropolishing Co. , 26 P.3d 87, 90 (Kan. Ct. App.) (reversing-14-

summary judgment for defendant because plaintiff “p resented evidence of a retaliatory motive. The trial court agreed that Ge rtsch presented evidence of close temporal proximity to his discharge and the protect ed activity. This is highly persuasive evidence of retaliation.”), review denie d , 2001 Kan. LEXIS 722 (Kan. Sept. 26, 2001). In its grant of summary judgment to AlliedSignal, t he district court held that Foster had failed to set forth any evidence th at the company’s articulated reasons for her discharge were a pretext for a reta liatory motive, and seemed to require Foster to show by “clear and convincing evi dence that she was not in violation of [AlliedSignal’s] attendance policies.” (3 Appellant’s App. at 808.) We have already noted that Foster presented substantial circumstantial evidence from which one might derive an inference of retaliatory intent. In addition, we reiterate that a plaintiff does “not need to show that retaliation was the e mployer’s sole motive or reason for the termination.” Sanjua n , 160 F.3d at 1298. Accordingly, a plaintiff in a retaliatory discharge case need not prove that her employer’s proffered, nonretaliatory motive for ter minating her employment was a factual impossibility. Rather, plaintiff can simpl y demonstrate that her discharge “was ‘based on,’ ‘because of,’ ‘motivated by,’ or ‘ due to’ the employer’s intent to retaliate.” Id. (quoting Brown , 815 P.2d at 88). Foster’s evidence, if believed by the jury, is sufficient to do so.-15- III The district court’s grant of summary judgment to d efendant AlliedSignal is
REVERSED , and this case is REMANDED

.