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 court’s grant of summary judgment to Bank 

of America and its wholly owned subsidiary, 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* This order and judgment is not binding precedent, except under the doctrines of 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 estoppel. 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
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I 

Wagner worked as a staff appraiser for LandSafe from April 2008 until she was 

terminated on May 9, 2011. Wagner worked from home and communicated with 

supervisors largely via email. She received generally positive employee evaluations 

during her time at LandSafe, but she was admonished on several occasions by supervisors 

about the inappropriate and often combative tone of her electronic communications 

starting in May 2009. On March 14, 2011, Wagner was issued a “FINAL Written 

Warning” for inappropriate behavior. The warning stated that Wagner “continue[d] to 

exhibit behavior that is considered inappropriate 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 Vescera and Wagner herself, and stated that 

“[f]ailure to meet expectations may result in further disciplinary action up to and 

including termination.” 

 Approximately two months later, another of Wagner’s supervisors, Susan 

Schroeder, identified a number of issues with an appraisal Wagner had submitted. 

Schroeder wrote, “can you let me know if the ‘play court’ with 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 responsibility 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 
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to a ‘nuisance’ impact.” Wagner’s response to Schroeder included the following: “I 

would like to remind you, Susan, 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 accusations about fraud can cause you serious 

legal consequences.” 

 Schroeder forwarded that email to Vescera and another manager, Conrad North. 

Vescera called Wagner for her side of the story. 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 later,” Wagner said she was “not sure that I’ll 

want to talk with you then, either.” Vescera decided to terminate 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 before she began working for LandSafe, that his spouse 

assisted him. And in January 2009, she overheard another appraiser say that “his wife 

was doing work for him and he could turn in four or five [appraisals] a day.” Wagner did 

not ask either appraiser for more detail about the kind of work their spouses were 

 1

 The Uniform Standards of Professional Appraisal Practice (“USPAP”), the set of 

guidelines governing licensed appraisers, requires 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. 
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performing. However, she made a total of four 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 different 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 Vescera said during the February 2011 conversation 

that he did not “see anything wrong with using wives to do appraisal work.” After she 

was terminated, Wagner submitted similar complaints to a state licensing board and filed 

a whistle-blowing complaint with the Securities and Exchange Commission. 

 Wagner filed suit in the United States District Court for the District of Colorado, 

alleging that LandSafe retaliated against her for making reports about the improper 

assistance received by her co-workers. She claimed that the 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 the 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 judgment to Bank of America on both claims. 

Wagner filed a timely notice of appeal. On appeal, she challenges only the dismissal of 

her state-law claim. 
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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 Albuquerque, 667 F.3d 1111, 

1122 (10th Cir. 2012). Summary judgment is appropriate if, 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 elements to her prima facie case: 

[1] that the employer directed the employee 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 would 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 result of refusing to perform the act 

directed by the employer, and [4] that the employer was aware or 

reasonably should have been aware that the employee’s refusal to comply 

with the employer’s order was based on the employee’s reasonable belief 

that the action ordered was 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, Inc., 703 F.3d 497, 507 (10th Cir. 2012) (quotation omitted, 

brackets in original); see also Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo. 

1992) (en banc). 

 The district court assumed without deciding that if Wagner had been fired because 
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she reported a significant USPAP violation, such 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 directly 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 produce evidence suggesting that her reports 

were at least part of a mixed motive for her firing. Id. at 510. We agree with the district 

court that Wagner did not do so. 

 Wagner conceded below that 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 employment cases, we often rely on temporal 

proximity between the protected act and termination. 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 2011 and her termination on May 9, 2011 is 

insufficient to establish a causal connection absent other supporting 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 reasonable inference of retaliatory motive in 

light of temporal gap of approximately two-and-one-half months and intervening 

actions). As in Meiners, we cannot ignore the communications between plaintiff and 
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defendant in evaluating the summary judgment record. See id. (“any inference as to 

retaliatory motive raised by temporal proximity is undermined by” a communication that 

occurred just prior to termination). 

 On appeal, Wagner claims that the causation issue should have been resolved by a 

jury because “the conduct leading up to her discharge began,” Lockheed Martin Corp. v. 

Admin. Review Bd., 717 F.3d 1121, 1137 (10th 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 subject 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 facts 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). 
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III 

 AFFIRMED. 

 Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge