UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ADRIENNE WAGNER, Plaintiff - Appellant,

v. BANK OF AMERICA CORPORATION, d/b/a Bank of America N.A.; LANDSAFE APPRAISAL, Defendants - Appellees. No. 13-1347 (D.C. No. 1:12-CV-00381-RBJ) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , LUCERO , and HOLMES , Circuit Judges.

Adrienne Wagner appeals the district c ourt’s grant of summary judgment to Bank of America and its wholly owned subsidia ry, LandSafe Appraisal Services, Inc. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This 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. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 11, 2014

Elisabeth A. Shumaker Clerk of Court- 2 - I Wagner worked as a staff appraiser fo r LandSafe from Apr il 2008 until she was terminated on May 9, 2011. Wagner worked from home and communicated with supervisors largely via email. She receiv ed generally positive employee evaluations during her time at LandSafe, but she was adm onished on several occa sions by supervisors about the inappropriate and often combative tone of he r electronic communications starting in May 2009. On March 14, 2011, Wagner wa s issued a “FINAL Written Warning” for inappropriate behavior. The wa rning stated that Wa gner “continue[d] to

exhibit behavior that is considered in appropriate in the workplace,” including

“combative” and “insubordinate” communications . It specifically referenced an email exchange several days prior in which Wagner refused direction from a supervisor. The warning was signed by manager Clay Vescer a and Wagner herself, and stated that “[f]ailure to meet expectations may resu lt in further disciplinary action up to and including termination.” Approximately two months later, anot her of Wagner’s supervisors, Susan Schroeder, identified a number of issues with an apprai sal Wagner had submitted. Schroeder wrote, “can you let me know if the ‘play court’ w ith lights next door has any impact on marketability of the subject?” Wagner responded, “I can’t prove any, can you?” Schroeder replied, “[i]t is not my re sponsibility to ‘prove’ anything . . . it is your responsibility to, at the bare minimum to [sic] discuss play court with lights next door and that there is not market data to support a downward external obsolescence adjustment due- 3 - to a ‘nuisance’ impact.” Wagner’s respons e to Schroeder included the following: “I would like to remind you, Su san, to be careful about making false and malicious accusations against appraisers. Under the Rule of Law in this country, the burden of proof is upon you, my accuser. Any more ac cusations about fraud can cause you serious legal consequences.”

Schroeder forwarded that email to Vesc era and another manager, Conrad North. Vescera called Wagner for her side of the st ory. During a brief phone call, Wagner said she was “not at all comfortable having this conversation with you at this time,” and when Vescera stated that they could “catch up late r,” Wagner said she was “not sure that I’ll want to talk with you then, either.” Vesc era decided to terminat e Wagner, and did so on May 9. During the course of her employment, Wagner heard that two fellow appraisers received help from their spouses. 1 One of the appraisers told Wagner, during a

conversation that occurred be fore she began working for LandSafe, that his spouse assisted him. And in January 2009, she overheard another a ppraiser say that “his wife was doing work for him and he could turn in f our or five [appraisals] a day.” Wagner did not ask either appraiser for more detail a bout the kind of work their spouses were

1 The Uniform Standards of Professional Appraisal Practice (“USPAP”), the set of guidelines governing licensed appraisers, requi res that an appraiser report “significant appraisal assistance,” though it does not define that term. We assume, without deciding, that it would be unethical and violative of USPAP for a licensed appraiser to allow an unlicensed individual to perform appraisal work on his behalf.- 4 - performing. However, she made a total of fo ur reports to superiors regarding what she perceived as the improper assistance received by her coworkers: (1) a statement to North in January 2009; (2) a report to two differe nt supervisors on September 2, 2009; (3) a report to Vescera on November 22, 2010; and (4) a conversation with Vescera in late February 2011. Wagner claims that Vescer a said during the February 2011 conversation that he did not “see anything wrong with using wi ves to do appraisal work.” After she was terminated, Wagner submitted similar compla ints to a state licensing board and filed a whistle-blowing complain t with the Securities a nd Exchange Commission. Wagner filed suit in the United States Dist rict Court for the District of Colorado, alleging that LandSafe retaliated against her for making reports about the improper assistance received by her co-w orkers. She claimed that th e reasons given for her firing were a pretext and that she was actually terminated for reporting unlawful conduct in violation of 15 U.S.C. § 78u-6 (h)(1)(A), which provides: “No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in th e terms and conditions of employment because of any lawful act done by the whistleblower.” She also alleged that her termination constituted wrongful discharge in violation of public policy, a Colorado state-law claim. The district court granted summary judgmen t to Bank of America on both claims. Wagner filed a timely notice of appeal. On appeal, she challenges on ly the dismissal of

her state-law claim.- 5 - II “We review the district court’s summary judgment order de novo, and apply the same legal standards as the district court.” Doe v. City of Alb uquerque, 667 F.3d 1111, 1122 (10th Cir. 2012). Summary judgment is appropriate i f, viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Commercial Union Ins. Co. v. Sea Harvest Seafood Co., 251 F.3d 1294, 1298 ( 10th Cir. 2001). Wagner alleges that her firing violated Colorado law as a termination contrary to public policy. There are four elem ents to her prima facie case: [1] that the employer directed the empl oyee to perform an illegal act as part of the employee’s work-related duties or prohibited him from performing a public duty or exercising an important job-related right or privilege; [2] that the action directed by the employer woul d violate a specific statute on the public health, safety or welfare, or would undermine a clearly expressed public policy relating to the employee’ s basic responsibility as a citizen or his right or privilege as a worker. The plaintiff must also show [3] that the employee was terminated as the resu lt of refusing to perform the act directed by the employer, and [4] that the employer was aware or reasonably should have been aware th at the employee’s refusal to comply with the employer’s order was base d on the employee’s reasonable belief that the action ordered wa s illegal, contrary to clearly expressed statutory policy relating to the employee’s duty as a citizen, or violative of the employee’s legal right or privilege as a worker. Barlow v. C.R. England, In c., 703 F.3d 49 7, 507 (10th Cir. 2012 ) (quotation omitted, brackets in original); see also Martin Marietta Corp. v. Lo renz, 823 P.2d 100, 109 (Colo. 1992) (en banc).

The district court assumed without decidi ng that if Wagner had been fired because- 6 - she reported a significant USPAP violation, su ch a termination would be contrary to Colorado public policy. We too will assume that Wagner has satisfied the first two prongs of her prima facie case and proceed dire ctly to the third prong: whether Wagner was “terminated as the result of” her reporting. Barlow, 703 F.3d at 507. To survive summary judgment, Wagner was required to pr oduce evidence suggesting that her reports were at least part of a mixed motive for her firi ng. Id. at 510. We agree with the district court that Wagner did not do so. Wagner conceded below th at the timing of her termination was the only basis for her belief that she was fired for reporting that other appraisers were being assisted by their spouses. In analyzing causation in em ployment cases, we often rely on temporal proximity between the protected act and term ination. See Trujillo v. PacifiCorp, 524 F.3d 1149, 1157 (10th Cir. 2008 ) (“Close temporal proximity is important in establishing a prima facie case . . . .”). But this court has frequently granted summary judgment to employers on causation grounds based on temporal attenuation between protected

conduct and termination. See id. at 1157 n.5 (collecting cases) . The gap between Wagner’s final report in late February 2 011 and her terminati on on May 9, 2011 is

insufficient to establish a caus al connection absent other sup porting facts, particularly in light of the undisputed events that occurred in the interim. See Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (no reas onable inference of retaliatory motive in light of temporal gap of approximately two-and-one-half months and intervening actions). As in Meiners, we cannot ignor e the communications between plaintiff and- 7 - defendant in evaluating the su mmary judgment record. See id. (“any inference as to retaliatory motive raised by temporal prox imity is undermined by” a communication that occurred just prior to termination). On appeal, Wagner claims that the causa tion issue should have been resolved by a jury because “the condu ct leading up to her discharge be gan,” Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1137 (10t h Cir. 2013), with the issuance of the final warning from Vescera. We disagree. The final warning issued to Wagner referenced conduct that had previously been the subj ect of employee reviews, and there is no evidence linking the consistent warnings to Wagner about inappropriate tone to her reports about her fellow appraisers. Wagner also contends that LandSafe personnel intentionally baited her into responding inappropriately to several email communications so that her responses could be used as an excuse for termination. But she does not provide a record citation to support this assertion and our independent review of the record indicates no “specific fa cts showing that there remains a genuine issue for trial.” Hinds v. Sprint/United Mgmt. Co., 523 F. 3d 1187, 1198 n.6 (10th Cir. 2008) (quotation omitted).- 8 - III

AFFIRMED

.

Entered for the Court

Carlos F. Lucero Circuit Judge