F I L E D

United States Court of Appeals

Tenth Circuit

APR 1 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KATHLEEN BLACKWELL,

Plaintiff-Appellant,

v.

SHELTER MUTUAL INSURANCE

COMPANY,

Defendant-Appellee.

No. 96-6169

Appeal from the United States District Court

for the District of W.D. Okla.

(D.C. No. CIV-95-704-C)

Laurie W. Jones of Welch, Jones & Smith, P.C., Oklahoma City, Oklahoma, for

Plaintiff-Appellant.

Stephen L. Olson (Kathleen J. Adler and Haven Tobias; and Pierce Couch

Hendrickson Baysinger & Green with him on the brief), Oklahoma City,

Oklahoma, for Defendant-Appellee.

Before BALDOCK, BRORBY and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.

In August 1994, Shelter Mutual Insurance Company ("Shelter Mutual")
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terminated Kathleen Blackwell from employment after twenty years of service

with the company. Thereafter, Ms. Blackwell filed suit against Shelter Mutual in

the United States District Court for the Western District of Oklahoma, alleging

her termination was in retaliation for exercising her rights under Oklahoma's

Workers' Compensation Act, Okla. Stat. Ann. tit. 85, §§ 1 - 9 (West 1992 & Supp.

1997). The district court determined Ms. Blackwell failed to establish a prima

facie case of retaliatory discharge and granted summary judgment in favor of

Shelter Mutual. Ms. Blackwell appeals the district court's entry of summary

judgment. We exercise jurisdiction over Ms. Blackwell's appeal pursuant to 28

U.S.C. § 1291 and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ms. Blackwell was employed by Shelter Mutual for approximately twenty

years, beginning in 1974. In January 1993, Ms. Blackwell injured her back while

lifting a ladder on the job. Ms. Blackwell sought medical treatment for her

injury, but continued working until March 1993. On March 1, 1993, Ms.

Blackwell's supervisor, Steve Duke, advised Ms. Blackwell to see a neurologist

regarding her back injury. Following her visit to the neurologist, Ms. Blackwell

missed approximately four months of work because of her injury. Ms. Blackwell 

continued to receive full salary during her leave of absence.
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While out of work, Mr. Duke called Ms. Blackwell and inquired as to when

she would be able to return to work. Although Mr. Duke informed her the

workload was heavy and she was needed back at the office, Mr. Duke did not

state her job was in jeopardy if she did not return to work. However, Ms.

Blackwell claims she "got the feeling" from Mr. Duke's "mannerism" that he did

not want Ms. Blackwell on workers' compensation. Furthermore, Ms. Blackwell

thinks other adjusters implied to her that her job would be in jeopardy if she did

not return to work. In addition, a Shelter Mutual employee in the Tulsa office

told Ms. Blackwell that he did not believe he was treated fairly by Shelter Mutual

after he filed a workers' compensation claim.

Ms. Blackwell returned to work at Shelter Mutual on July 6, 1993. In May

1994, Shelter Mutual branch manager Don Ridlon recommended a merit increase

in salary for Ms. Blackwell. However, Mr. Ridlon advised Shelter Mutual to

place a "hold" on the merit increase after he received some "strong allegations"

against Ms. Blackwell regarding her involvement in the improper handling of

salvage vehicles. Apparently Mr. Ridlon learned that several vehicles Ms.

Blackwell determined to be total losses were later owned by Ms. Blackwell's son

or processed through the business of Ms. Blackwell's husband. Mr. Ridlon also

became aware of allegations concerning an insurance claim Ms. Blackwell
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improperly paid after another agent had previously denied this same claim. Mr.

Ridlon learned that Ms. Blackwell may have removed or destroyed pictures in the

file related to this claim. This incident has been referred to as the "Schwartz

incident" throughout this litigation.

On May 24, 1994, Mr. Duke sent Ms. Blackwell a five-page written

reprimand outlining a number of problems with her job performance. Mr. Duke's

reprimand stated, in pertinent parts, as follows:

Your work product has been faltering and, as you have mostly failed

to respond to my verbal suggestions, you have left me no other

option but to outline the problems that have been created by your

work over the last few months....

....

The agents in your territory, not one, but a majority, are calling

in, expressing concern that they are having to cover for you way too

much. They feel your work over the last few months is causing

damage to the service reputation of their agencies, and [Mr. Ridlon]

and I feel their complaints to be valid.

....

[S]ervice is not being provided as required by your employer. Your

investigations are often haphazard; many times, either delayed or

incomplete.... We are seeing more and more people calling,

including agents, stating that you are not returning their calls....

....

Some of your files make me very nervous, as to their ability to

comply with requirements in [the Fair Claims Practice Act]. As a
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result, I feel that some of your investigations are not of an acceptable

standard. I need to see a speed and quality improvement immediately

in this very serious area of concern.

Mr. Duke's letter went on to list a number of procedures Shelter Mutual expected

Ms. Blackwell to "adhere to religiously" in order to improve her work

performance. In conclusion, Mr. Duke warned there would be "difficult decisions

for both of us to make" if Ms. Blackwell did not substantially improve her

performance.

On several occasions in May and June of 1994, Ms. Blackwell and Mr.

Ridlon discussed the Schwartz incident, as well as Ms. Blackwell's alleged

involvement in the misappropriation of salvage. Ms. Blackwell told Mr. Ridlon

she could not remember much about the circumstances surrounding the loss or the

adjustment of the Schwartz file. Ms. Blackwell also advised Mr. Ridlon she had

never profited from any of her salvage dealings. On July 14, 1994, Mr. Ridlon

sent a twenty-two-page memorandum concerning Ms. Blackwell to Ray Warner,

regional claims director of Shelter Mutual. The memorandum detailed Mr.

Ridlon's investigation into the Schwartz incident and the alleged misappropriation

of salvage by Ms. Blackwell. In the report, Mr. Ridlon stated he did not believe

Ms. Blackwell provided him with "straight answers" to many of his questions

surrounding the incidents.
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Mr. Duke evaluated Ms. Blackwell's job performance in July and August of

1994. In each of these evaluations, Mr. Duke noted Ms. Blackwell's performance

had improved in a number of areas. Also, in the July 14, 1994 memo to Mr.

Warner, Mr. Ridlon stated Ms. Blackwell had begun addressing the problems

detailed in Mr. Duke's letter of May 24, 1994.

On July 7, 1994, Ms. Blackwell informed Mr. Duke her back was still

causing her trouble. Mr. Duke advised Ms. Blackwell to schedule a follow-up

visit with her doctor.

According to a company memorandum, Shelter Mutual's Legal and Human

Resources department recommended terminating Ms. Blackwell on August 22,

1994, "due to numerous problems." The author of the company memorandum

noted he or she believed Ms. Blackwell would have a workers' compensation

claim.

On August 25, 1994, Don Ridlon terminated Ms. Blackwell's employment

with Shelter Mutual. Mr. Ridlon explained she was being terminated due to

"unresolved performance problems," problems with salvage, and the Schwartz

file. Approximately one month after her discharge, Ms. Blackwell filed a
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workers' compensation claim against Shelter Mutual.

In May 1995, Ms. Blackwell initiated this retaliatory discharge lawsuit

against Shelter Mutual. However, in April 1996, the district court entered

summary judgment in favor of Shelter Mutual, concluding Ms. Blackwell failed to

establish her termination was in retaliation for pursuing workers' compensation

relief.

II. ISSUES

Ms. Blackwell raises two issues on appeal: (1) whether she presented

sufficient evidence to establish the exercise of her rights under Oklahoma's

Workers' Compensation Act was a significant factor motivating Shelter Mutual's

decision to terminate her and, if so, (2) whether Ms. Blackwell presented

sufficient evidence to prove Shelter Mutual's proffered explanation for her

discharge was pretextual.

III. ANALYSIS

A. Standard of Review

We review the district court's order granting summary judgment de novo,

applying the same legal standard used by the district court pursuant to Fed. R.
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Civ. P. 56(c). Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.

1995). Under Rule 56(c), summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ.

P. 56(c). An issue of material fact is genuine where a reasonable jury could

return a verdict for the party opposing summary judgment. Wolf, 50 F.3d at 796

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In applying

the summary judgment standard, we must examine the factual record and

reasonable inferences therefrom in the light most favorable to the non-movant. 

Wolf, 50 F.3d at 796.

B. Prima Facie Case

Here, Ms. Blackwell contends the district court improperly concluded she

could not establish a prima facie case of retaliatory discharge. Specifically, Ms.

Blackwell argues she presented sufficient evidence to prove the exercise of her

rights under Okla. Stat. tit. 85, § 5(A) was a factor that significantly motivated

Shelter Mutual's decision to terminate her employment. Because this case arises

from diversity jurisdiction under 28 U.S.C. § 1332, we must look to Oklahoma

law to resolve Ms. Blackwell's contention. See Barrett v. Tallon, 30 F.3d 1296,
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1300 (10th Cir. 1994) (federal court sitting in diversity applies substantitve law of

forum state).

As an initial matter, we note it is undisputed Ms. Blackwell was an at-will

employee of Shelter Mutual. Under Oklahoma law, an at-will employment

relationship ordinarily may be terminated by either party at any time, without

liability. Hinson v. Cameron, 742 P.2d 549, 552 n.6 (Okla. 1987). However, an

exception to this doctrine is that an employer may not terminate an employee for

exercising her rights under the Oklahoma Workers' Compensation Act. Okla.

Stat. tit. 85, § 5(A); Taylor v. Cache Creek Nursing Centers, 891 P.2d 607, 609

(Okla. App. 1994). Okla. Stat. tit. 85, § 5(A)(1) prohibits any "person, firm,

partnership or corporation [from] discharg[ing] any employee because the

employee has ... instituted or caused to be instituted, in good faith, any

proceeding under the [Oklahoma Workers' Compensation Act]."

To establish a prima facie case of retaliatory discharge under § 5(A)(1), a

discharged employee must prove the following four elements: (1) employment;

(2) on-the-job injury; (3) medical treatment which put the employer on notice that

treatment had been rendered for a work-related injury; and (4) consequent

termination. Buckner v. General Motors Corp., 760 P.2d 803, 806 (Okla. 1988). 
1

 To the extent Shelter Mutual argues on appeal that Ms. Blackwell cannot

establish she "instituted or caused to be instituted" a worker's compensation

proceeding, see Okla. Stat. tit. 85, § 5(A)(1), we refuse to consider this issue. In

its motion for summary judgment, Shelter Mutual conceded the only issue in

dispute was whether a "consequent termination" occurred. It is too late for

Shelter Mutual to recant on its concession and seek review of an issue not raised

below. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992)

(in general, we refuse to consider issues not raised before the district court).

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If the discharged employee establishes a prima facie case, the burden shifts to the

employer to rebut the inference of a retaliatory motive by articulating a

legitimate, non-retaliatory reason for the termination. Id. The employer's burden

is simply one of production, not persuasion. Id. at 807. If the employer satisfies

this burden, the presumption of retaliatory motive is successfully rebutted. Id. At

that point, the discharged employee can only prevail by proving his termination

was significantly motivated by retaliation for his exercise of statutory rights, or

by proving the employer's proffered reason for the discharge was pretextual. Id.

Here, there is no dispute Ms. Blackwell can establish the first three

elements of a prima facie case.1 The focus of this appeal is on the fourth and

final element -- whether a consequent termination occurred. The district court

concluded Ms. Blackwell could not establish the occurrence of a consequent

termination and granted summary judgment in favor of Shelter Mutual. We turn

to Oklahoma law to determine if the district court's conclusion was proper.
2

 Ms. Blackwell argues, quoting Canady v. J.B. Hunt Transport, Inc., 970

F.2d 710, 714 (10th Cir. 1992), that to establish a consequent termination,

"evidence must be presented which either gives rise to a legal inference that the

firing was 'significantly motivated' by retaliation for the exercise of workers'

compensation rights or by showing indirectly that 'the employer's proferred

explanation is unworthy of credence.'" (Emphasis added.) We do not believe

Canady stands for the proposition that a plaintiff may establish a consequent

termination by proving her employer's proferred reason for the termination is

unworthy of credence. Since the employer is not required to present a legitimate

reason for the plaintiff's discharge until after the plaintiff proves a prima facie

case, it would be nonsensical to allow the plaintiff to establish a prima facie case

by proving the employer's yet to be articulated reason is pretextual. When read in

context, we believe the standard as set forth in Canady indicates a plaintiff may

only establish a consequent termination by proving her discharge was

significantly motivated by retaliation for exercising her statutory rights. Canady,

970 F.2d at 714-15. If the plaintiff proves a prima facie case, and the employer

articulates a legitimate reason for the plaintiff's termination, Canady holds that

the plaintiff can still prevail by showing the employer's proffered reason was not

worthy of credence or by showing the termination was significantly motivated by

retaliation for her exercise of statutory rights. Id.

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In order to establish a consequent termination under Oklahoma law, a

plaintiff must produce evidence sufficient to support a legal inference that the

termination was "significantly motivated" by retaliation for exercising her

statutory rights.2 Wallace v. Halliburton Co., 850 P.2d 1056, 1058 (Okla. 1993);

Taylor, 891 P.2d at 610. Although a plaintiff need not meet a "but for" standard,

she must present evidence that does more than show the exercise of her statutory

rights "was only one of many possible factors resulting in [her] discharge." 

Wallace, 850 P.2d at 1059.
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In Taylor, the defendant-employer fired the plaintiff immediately after the

plaintiff returned from a two-week, doctor-ordered disability leave. 891 P.2d at

609. The plaintiff filed suit against her employer, alleging retaliatory discharge

in violation of Okla. Stat. tit. 85, §§ 5 and 6. Id. The district court determined

the plaintiff could not establish a prima facie case, and granted summary

judgment in favor of the employer. Taylor, 891 P.2d at 609. The Oklahoma

Court of Appeals agreed, concluding the plaintiff failed to show a "consequent

termination" of employment. Id. at 610. Important to its decision, the court

found there was no evidence "showing a pattern of termination of workers who

filed claims, or of pressure put on workers not to file claims." Id. Furthermore,

the court determined the fact that the plaintiff was fired immediately after

returning from disability leave was insufficient to raise a legal inference that the

firing was significantly motivated by retaliation. Id.

Similarly, in Thompson v. Medley Material Handling, Inc., 732 P.2d 461,

464 (Okla. 1987), the defendant-employer fired the plaintiff six weeks after the

plaintiff filed a workers' compensation claim for an on-the-job injury. 

Notwithstanding the temporal proximity of the workers' compensation claim to

the plaintiff's termination, the Oklahoma Supreme Court held the plaintiff failed

to establish the filing of the claim had any effect on the employer's decision to
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terminate his employment. Id. at 463. The court found the plaintiff's evidence:

fail[ed] to do anymore [sic] to connect his termination to the filing of

the Workers' Compensation claim than to establish that the two

events happened approximately six weeks apart. [The plaintiff did]

not even allege that his supervisors or others at any time made any

reference regarding termination as a result of bringing the Workers'

Compensation action. From the evidence presented nothing [could]

be legally inferred. The reasons for [the plaintiff's] discharge, other

than those stated by [the defendant], could only be deduced by pure

speculation.

Id. at 464.

Here, as in Taylor and Thompson, there is no evidence Shelter Mutual

engaged in a pattern of terminating or otherwise discriminating against employees

who engaged in protected activity under Oklahoma's Workers' Compensation Act. 

Although Ms. Blackwell spent approximately twenty years with Shelter Mutual,

Ms. Blackwell has no evidence of any Shelter Mutual employee, other than

herself, who was terminated for initiating a workers' compensation action. 

Furthermore, Ms. Blackwell can refer to only one employee, other than herself,

who believed he was treated unfairly for filing a workers' compensation claim. 

Ms. Blackwell has presented no evidence concerning the specific unfair treatment

this employee allegedly received.

Also similar to Taylor and Thompson, the evidence in this case fails to
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show that Shelter Mutual sought to prevent Ms. Blackwell from filing a workers'

compensation claim. Although Ms. Blackwell claims she "got the feeling" from

Mr. Duke's "mannerism" that he did not want her on workers' compensation, Ms.

Blackwell does not allege any of her superiors ever advised her or put pressure on

her to not file a claim. The undisputed evidence reveals Shelter Mutual was

concerned about Ms. Blackwell's back injury and about Ms. Blackwell receiving

proper treatment for her injury. On more than one occasion, Mr. Duke advised

Ms. Blackwell to seek medical treatment. If Shelter Mutual truly sought to

prevent Ms. Blackwell from filing a workers' compensation claim, we doubt

Shelter Mutual would have repeatedly encouraged Ms. Blackwell to seek medical

treatment for her injury.

Nor do we believe the timing of Ms. Blackwell's termination raises an

inference of retaliatory discharge. In Taylor, the court determined there was no

inference of retaliation even though the plaintiff was fired immediately after

returning from a two-week, doctor-ordered disability leave. 891 P.2d at 610. 

Similarly, the court in Thompson determined the plaintiff, who was discharged six

weeks after filing for workers' compensation, could not establish a retaliatory

discharge claim. 732 P.2d at 463-64. Here, the temporal relationship between the

protected activity and Ms. Blackwell's discharge is even more attenuated. Shelter
3

 At oral argument, counsel for Ms. Blackwell cited Pytlik v. Professional

Resources, Ltd, 887 F.2d 1371 (10th Cir. 1989) in support of her argument that

Ms. Blackwell had established a prima facie case. In Pytlik, the plaintiff was

injured during the course of his employment with the defendant and hired an

attorney to pursue his rights under the workers' compensation laws. 887 F.2d at

1381. Less than two months after hiring an attorney, the defendant terminated the

plaintiff citing a reduction in the work force. Id. Thereafter, the district manager

informed the plaintiff that "it was very unfair that [the plaintiff] should be

terminated just because [he] asked for advice from a lawyer." Id. at 1382.

The plaintiff filed suit in federal district court alleging, inter alia,

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Mutual fired Ms. Blackwell thirteen months after her leave of absence from work.

Although Ms. Blackwell informed Shelter Mutual her back was still causing her

problems in July 1994, there is no evidence this information influenced her

termination. Since no inference of retaliation was raised in Taylor and Thompson,

we conclude the timing of the discharge in the present case does not raise an

inference of retaliation.

Looking to the entire evidence in the light most favorable to Ms. Blackwell,

we do not believe a reasonable jury could conclude her discharge was

significantly motivated by retaliation for exercising her rights under the Workers'

Compensation Act. Ms. Blackwell has simply failed to establish a nexus between

her termination and any protected activity on her part. Accordingly, we conclude

Ms. Blackwell cannot establish a prima facie case of retaliatory discharge under

§ 5(A) of the Oklahoma Workers' Compensation Act.3
retaliatory discharge. Id. at 1380-81. Although the district court directed a

verdict in the defendants' favor on the retaliation claim, we reversed, determining

the plaintiff presented sufficient evidence to establish a prima facie case of

retaliatory discharge. Id. at 1380-82. We found the district manager's statement

that the plaintiff was fired for hiring an attorney established a nexus between the

plaintiff's termination and his exercise of rights under Oklahoma's Workers'

Compensation Act. Id. at 1382.

Notwithstanding Ms. Blackwell's contentions to the contrary, Pytlik is

inapposite to the present case. Unlike the plaintiff in Pytlik, Ms. Blackwell failed

to present any statements by Shelter Mutual or any other evidence tending to

establish a nexus between Ms. Blackwell's termination and her participation in

protected activities. Consequently, Ms. Blackwell has not established a prima

facie case of retaliatory discharge under Oklahoma's Workers' Compensation Act.

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C. Pretext

Having determined Ms. Blackwell cannot prove a prima facie case, we have

no reason to decide whether Shelter Mutual's reasons for her termination were

really a pretext for unlawful retaliation. Nevertheless, our review of the record

indicates Ms. Blackwell has presented insufficient evidence to establish Shelter

Mutual's reasons for her discharge were pretextual.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's order granting

summary judgment in favor of Shelter Mutual Insurance Company.