## 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., Okla homa City, Oklahoma, for Plaintiff-Appellant. Stephen L. Olson (Kathleen J. Adler and Haven Tobia s; 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")-2-

terminated Kathleen Blackwell from employment aftertwenty years of service with the company. Thereafter, Ms. Blackwell filed suit against Shelter Mutual in the United States District Court for the Western Di strict of Oklahoma, alleging her termination was in retaliation for exercising h er 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 distric t court's entry of summary judgment. We exercise jurisdiction over Ms. Blackw ell's appeal pursuant to 28 U.S.C. § 1291 and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND Ms. Blackwell was employed by Shelter Mutual for ap proximately twenty years, beginning in 1974. In January 1993, Ms. Bla ckwell injured her back while lifting a ladder on the job. Ms. Blackwell sought medical treatment for her injury, but continued working until March 1993. OnMarch 1, 1993, Ms. Blackwell's supervisor, Steve Duke, advised Ms. Bla ckwell 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 o f absence.-3-

While out of work, Mr. Duke called Ms. Blackwell an d 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 o ffice, 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. Duk e's "mannerism" that he did not want Ms. Blackwell on workers' compensation. F urthermore, 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 t reated fairly by Shelter Mutual after he filed a workers' compensation claim.

Ms. Blackwell returned to work at Shelter Mutual onJuly 6, 1993. In May 1994, Shelter Mutual branch manager Don Ridlon reco mmended a merit increase in salary for Ms. Blackwell. However, Mr. Ridlon a dvised Shelter Mutual to place a "hold" on the merit increase after he recei ved some "strong allegations" against Ms. Blackwell regarding her involvement in the improper handling of salvage vehicles. Apparently Mr. Ridlon learned th at 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-4-

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 j ob 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 c reated by your work over the last few months....

.... The agents in your territory, not one, but a majori ty, are calling in, expressing concern that they are having to cove r 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 youremployer. Your investigations are often haphazard; many times, eit her delayed or incomplete.... We are seeing more and more people calling, including agents, stating that you are not returnin g their calls....

.... Some of your files make me very nervous, as to thei r ability to comply with requirements in [the Fair Claims Practi ce Act]. As a-5-

result, I feel that some of your investigations are not of an acceptable standard. I need to see a speed and quality improv ement immediately in this very serious area of concern. Mr. Duke's letter went on to list a number of proce dures Shelter Mutual expected Ms. Blackwell to "adhere to religiously" in order t o 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 su bstantially improve her performance.

On several occasions in May and June of 1994, Ms. B lackwell 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 als o advised Mr. Ridlon she had never profited from any of her salvage dealings. O n July 14, 1994, Mr. Ridlon sent a twenty-two-page memorandum concerning Ms. Bl ackwell to Ray Warner, regional claims director of Shelter Mutual. The me morandum detailed Mr. Ridlon's investigation into the Schwartz incident and the alleged misappropriation of salvage by Ms. Blackwell. In the report, Mr. Ri dlon stated he did not believe Ms. Blackwell provided him with "straight answers" to many of his questions surrounding the incidents.-6-

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 Ju ly 14, 1994 memo to Mr. Warner, Mr. Ridlon stated Ms. Blackwell had begun a ddressing the problems detailed in Mr. Duke's letter of May 24, 1994.

On July 7, 1994, Ms. Blackwell informed Mr. Duke he r back was still causing her trouble. Mr. Duke advised Ms. Blackwel l 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. Bl ackwell on August 22, 1994, "due to numerous problems." The author of th e company memorandum noted he or she believed Ms. Blackwell would have aworkers' 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 sa lvage, and the Schwartz file. Approximately one month after her discharge, Ms. Blackwell filed a-7-

workers' compensation claim against Shelter Mutual.

In May 1995, Ms. Blackwell initiated this retaliato ry discharge lawsuit against Shelter Mutual. However, in April 1996, th e district court entered summary judgment in favor of Shelter Mutual, conclu ding Ms. Blackwell failed to establish her termination was in retaliation for pu rsuing workers' compensation relief.

II. ISSUES Ms. Blackwell raises two issues on appeal: (1) whe ther she presented sufficient evidence to establish the exercise of he r rights under Oklahoma's Workers' Compensation Act was a significant factor motivating Shelter Mutual's decision to terminate her and, if so, (2) whether M s. Blackwell presented sufficient evidence to prove Shelter Mutual's proff ered 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 distri ct court pursuant to Fed. R.-8-

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 appro priate "if the pleadings, depositions, answers to interrogatories, and admiss ions on file, together with the affidavits, if any, show that there is no genuine i ssue 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 whe re a reasonable jury could return a verdict for the party opposing summary jud gment. 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 f avorable to the non-movant. Wolf , 50 F.3d at 796.

B. Prima Facie Case Here, Ms. Blackwell contends the district court imp roperly 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 fact or that significantly motivated Shelter Mutual's decision to terminate her employme nt. 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,-9-

1300 (10th Cir. 1994) (federal court sitting in div ersity 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, anat-will employment relationship ordinarily may be terminated by eitherparty 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' C ompensation 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] anyemployee because the employee has ... instituted or caused to be institu ted, in good faith, any proceeding under the [Oklahoma Workers' Compensatio n Act]."

To establish a prima facie case of retaliatory discharge under § 5(A)(1), a discharged employee must prove the following four e lements: (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 inju ry; 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 institute d" a worker's compensation proceeding, see Okla. Stat. tit. 85, § 5(A)(1), we refuse to consid er this issue. In its motion for summary judgment, Shelter Mutual con ceded the only issue in dispute was whether a "consequent termination" occu rred. It is too late for Shelter Mutual to recant on its concession and seekreview 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 raise d before the district court).

-10- If the discharged employee establishes a prima facie case, the burden shifts to the employer to rebut the inference of a retaliatory mo tive by articulating a legitimate, non-retaliatory reason for the terminat ion. 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 prevai l 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 establi sh 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 o ccurred. The district court concluded Ms. Blackwell could not establish the occ urrence of a consequent termination and granted summary judgment in favor o f Shelter Mutual. We turn to Oklahoma law to determine if the district court' s conclusion was proper.2Ms. Blackwell argues, quoting Canady v. J.B. Hunt Transport, Inc. , 970

F.2d 710, 714 (10th Cir. 1992), that to establish aconsequent 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 profe rred explanation is unworthy of credence.'" (Emphasis added.) We do not believe Canadystands for the proposition that a plaintiff may es tablish a consequent termination by proving her employer's proferred rea son for the termination is unworthy of credence. Since the employer is not re quired to present a legitimate reason for the plaintiff's discharge until after th e plaintiff proves a prima facie case, it would be nonsensical to allow the plaintif f to establish a prima facie case by proving the employer's yet to be articulated rea son is pretextual. When read in context, we believe the standard as set forth in Canadyindicates a plaintiff may only establish a consequent termination by proving her discharge was significantly motivated by retaliation for exercisi ng 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, Canadyholds that the plaintiff can still prevail by showing the empl oyer's proffered reason was not worthy of credence or by showing the termination wa s significantly motivated by retaliation for her exercise of statutory rights. Id.

-11- In order to establish a consequent termination unde r Oklahoma law, a plaintiff must produce evidence sufficient to suppo rt a legal inference that the termination was "significantly motivated" by retali ation 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 resul ting in [her] discharge." Wallace , 850 P.2d at 1059.-12-

In Taylor , the defendant-employer fired the plaintiff immedi ately 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 f ailed 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 t ermination 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 wa s 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 a n on-the-job injury. Notwithstanding the temporal proximity of the worke rs' compensation claim to the plaintiff's termination, the Oklahoma Supreme C ourt held the plaintiff failed to establish the filing of the claim had any effecton the employer's decision to-13-

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 brin ging the Workers' Compensation action. From the evidence presented n othing [could] be legally inferred. The reasons for [the plaintif f'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 di scriminating against employees who engaged in protected activity under Oklahoma's Workers' Compensation Act. Although Ms. Blackwell spent approximately twenty y ears with Shelter Mutual, Ms. Blackwell has no evidence of any Shelter Mutual employee, other than herself, who was terminated for initiating a worker s' compensation action. Furthermore, Ms. Blackwell can refer to only one employee, other than herself, who believed he was treated unfairly for filing a w orkers' compensation claim. Ms. Blackwell has presented no evidence concerning the specific unfair treatment this employee allegedly received.

Also similar to Taylorand Thompson , the evidence in this case fails to-14-

show that Shelter Mutual sought to prevent Ms. Blac kwell 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 everadvised her or put pressure on her to not file a claim. The undisputed evidence r eveals Shelter Mutual was concerned about Ms. Blackwell's back injury and abo ut Ms. Blackwell receiving proper treatment for her injury. On more than one occasion, Mr. Duke advised Ms. Blackwell to seek medical treatment. If Shelte r Mutual truly sought to prevent Ms. Blackwell from filing a workers' compen sation 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 ter mination 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, couldnot establish a retaliatory discharge claim. 732 P.2d at 463-64. Here, the te mporal relationship between the protected activity and Ms. Blackwell's discharge is even more attenuated. Shelter3 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 th e defendant and hired an attorney to pursue his rights under the workers' co mpensation laws. 887 F.2d at 1381. Less than two months after hiring an attorne y, 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 , -15- Mutual fired Ms. Blackwell thirteen months after he r 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 in formation influenced her termination. Since no inference of retaliation was raised in Taylorand Thompson , we conclude the timing of the discharge in the pres ent 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 exercisi ng 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 p art. Accordingly, we conclude Ms. Blackwell cannot establish a prima facie case of retaliatory discharge under § 5(A) of the Oklahoma Workers' Compensation Act. 3retaliatory 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 esta blish a prima facie case of retaliatory discharge. Id. at 1380-82. We found the district manager's state ment 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 plainti ff 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 terminati on and her participation in protected activities. Consequently, Ms. Blackwell has not established a prima facie case of retaliatory discharge under Oklahoma's Work ers' Compensation Act.

-16- C. Pretext Having determined Ms. Blackwell cannot prove a prima facie case, we have no reason to decide whether Shelter Mutual's reason s for her termination were really a pretext for unlawful retaliation. Neverth eless, 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 Insuran ce Company.