* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### APR 29 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MICHAEL C. BINGHAM,

Plaintiff-Appellant,

v. DYNAIR FUELING INC.,

Defendant-Appellee. No. 96-6270 (D.C. No. 95-CV-448-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Michael C. Bingham sued his former employ er, DynAir Fueling, Inc., in Oklahoma state court, claiming he was wron gfully discharged in violation of Okla. Stat. Ann. tit. 38, § 35 (West 1992) for h is absence from employment due to jury service. Alleging diversity jurisdiction, DynAir, a Delaware corporation, removed the case to federal district court under 28 U.S.C. § 1332. Bingham then amended his complaint to allege further that DynAirwrongfully terminated him in order to avoid its safety and maintenance responsib ilities in violation of Oklahoma and federal public policy. The district c ourt’s order granted summary judgment in favor of DynAir on all claims, and Bing ham appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
BACKGROUND Bingham had been employed by DynAir as an aircraft refueler for eight years when DynAir terminated him in September 1994. In May 1994, Bingham had been selected for jury service on a lengthy mur der trial which did not end until October 1994. While on jury duty, Bingham pe rformed his jury service on Monday through Thursday, and worked at DynAir on Saturday and Sunday of each week. On August 27, 1994, while Bingham was w orking, Bingham overloaded a fuel truck, causing five gallons of je t fuel to spill. DynAir terminated Bingham a few days later, claiming his n egligence had caused the spill.-3- 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. Civ. P. 56(c). Wolf v. Prudential Ins. Co. of Amer ica , 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, 248 (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.

JURY SERVICE RETALIATION CLAIM

Analytical Framework To establish a prima facie case of wrongful dischar ge under Okla. Stat. Ann. tit. 38, § 35, the discharged employee must sh ow (1) employment; (2) absence from employment by reason of the employee's having been required to serve as a juror; and (3) discharge from employmentbecause of absence due to-4-

jury service. Brown v. MFC Fin. Co. of Oklahoma , 838 P.2d 524, 526 (Okla. Ct. App. 1992). After a plaintiff establishes a prima facie case, the burden then shifts to the employer to rebut the inference that its mot ives were retaliatory by articulating that the discharge was for a legitimat e, non-retaliatory reason. See Buckner v. General Motors Corporation , 760 P.2d 803, 806 (Okla. 1988) (explaining burdens of production and persuasion inworkers’ compensation retaliatory discharge claims under Okla. Stat. Ann. tit. 85, § 5, adopted by Brown , 838 P.2d at 527, for application to jury service re taliatory discharge claims under Okla. Stat. Ann. tit. 38, § 35). Once the employercomes forward with a nonretaliatory reason for the discharge, the employee may carry the burden of persuading the trier of fact that the discharge was retaliatory in nature if he or sh e proves the discharge was ‘significantly motivated’ by retaliat ion for [his] exercise of statutory rights or by showing that the employer's proffered reason for the discharge is a pretext.

Brown , 838 P.2d at 527 (citing Buckner , 760 P.2d at 807, 810.) The district court held that Bingham failed to esta blish a prima facie case. As we will discuss below, this conclusion is correc t, but the district court mistakenly permitted plaintiff to attempt to establ ish the third element of a prima face case, that is, discharge from employment becau se of absence due to jury service, by presenting evidence either that the dis charge was “significantly motivated” by retaliation for the employee’s jury s ervice orthat the employer's-5-

proffered reason for the discharge is a pretext, ci ting Brown , 838 P.2d at 527.
Brownhad summarily adopted the analytical framework des cribing the burdens of production and persuasion articulated in workers’ c ompensation retaliatory discharge claim cases under Okla. Stat. Ann. tit. 8 5, § 5, without describing that framework in any detail. See Brown , 838 P.2d at 527. It is clear from Oklahoma’s workers’ compensation retaliatory discharge cases that in order to establish a prima facie case of retaliatory dischar ge, a plaintiff must first present evidence sufficient to support a “legal inference” that his or her termination was “significantly motivated by retaliation for the emp loyee’s exercise of statutory rights,” here, the performance of jury duty. Buck ner , 760 P.2d at 810; see also Wallace v. Halliburton Co. , 850 P.2d 1056, 1058 (Okla. 1993); Taylor v. Cache Creek Nursing Ctrs. , 891 P.2d 607, 610 (Okla. Ct. App. 1994). A plaintiff may not establish a prima facie claim merely by showing that the employer’s proffered reason is unworthy of credence. See Blackwell v. Shelter Mutual Ins. Co. , No. 96-6169, 1997 WL 150061, at *4 n.2 (10th Cir. Apr. 1, 1997) (holding same, interpreting Oklahoma’s workers’ compensation retal iatory discharge cases). Only if the plaintiff has proven a prima facie case and the employer has articulated a legitimate reason for the plaintiff’s termination, may the plaintiff still prevail by meeting the burden of persuading t he trier of fact that the discharge was retaliatory in nature by proving eith er that the discharge was-6-

“significantly motivated” by the plaintiff’s absenc e due to jury service orthat the employer's proffered reason for the discharge is a pretext. See id. Evidence Presented The evidence Bingham presented in an attempt to dem onstrate a legal inference that he was discharged from employment be cause of absence due to jury service consisted solely of the fact that DynAir wa s obligated to pay overtime to workers covering for Bingham while he was on jury s ervice, and Bingham’s testimony that he thought his supervisor, Bruce Jon es, became “short and surly” with him after he started jury service, and once me ntioned that he could not go to the race track on his usual day off because he had to work those days in order to cover for Bingham’s absence. We agree with the dis trict court that nothing can be legally inferred from this evidence. The mere fact DynAir had to pay overtime to cover f or Bingham, by itself, does not raise an inference that Bingham was termin ated for his jury service. Bingham’s belief that Jones’ attitude towards him c hanged after he began jury service is “pure speculation.” See Thompson v. Medley Material Handling, Inc. , 732 P.2d 461, 464 (Okla. 1987); see also Blackwell , 1997 WL 150061, at *6 (plaintiff’s claims that she “got the feeling” from her supervisor’s “mannerism” that he did not want her to file a workers’ compens ation claim insufficient to raise inference of retaliatory discharge under Okla. Stat . Ann. tit. 85, § 5). Nor does-7-

the statement by Jones that he could not go to the race track raise an inference that Bingham’s subsequent termination was related t o his jury service because it did not relate to Bingham’s job or the subsequent t ermination decision, nor was Jones the decision-maker in the termination. See Cone v. Longmont United Hosp.
Ass'n , 14 F.3d 526, 531-32 (10th Cir. 1994). There was no evidence Bingham’s supervisors or othe rs at DynAir pressured Bingham about his jury service or otherwi se sought to prevent him from performing his jury duty, see Reuther v. Fowler & Williams, Inc. , 386 A.2d 119, 121 (Pa. 1978) (jury question where plaintiff prese nted evidence his employer fired him for not trying harder to get excused from jury service), or ever mentioned or indicated in any way that his job was in jeopardy because of his jury service, see Thompson , 732 P.2d at 464, and Taylor , 891 P.2d at 610 (both concluding prima facie case of workers’ compensatio n retaliatory discharge claim not established where no evidence that supervisors made any reference to termination as a result of filing claim). In compa rison, in Brown , the only Oklahoma decision applying Okla. Stat. Ann. tit. 38 , § 35, the Oklahoma Court of Appeals held that a jury question was presented whe re plaintiff presented evidence that the defendant-employer, who had fired the plaintiff while she was on jury duty, told her to return to work or else sh e would lose her job. 838 P.2d at 527. Bingham must do more than show that his te rmination occurred at the-8-

same time as his jury service. See Large v. Acme Eng’g & Mfg. Corp. , 790 P.2d 1086, 1088 (Okla. 1990); Thompson , 732 P.2d at 464 and Taylor , 891 P.2d at 610 (all Oklahoma workers’ compensation retaliatory dis charge claims holding that the evidence that the employee was fired contempora neously with a workers’ compensation claim, by itself, is insufficient to r aise a legal inference that the firing was significantly motivated by retaliation). The facts alleged by Bingham provide no inference of a causal connection between his termination and his jury service. Thus, the district court correctly conclu ded Bingham failed to establish a prima facie case of termination for jury service in violation of Okla. Stat. Ann. tit. 38, § 35. Even assuming Bingham’s evidence had been sufficient to demonstrate a prima facie case, DynAir responded by presenting ev idence of a facially non-retaliatory reason for terminating Bingham’s employment: that Bingham negligently caused a jet fuel spill. Bingham faile d to create a genuine issue of material fact that DynAir’s stated basis was pretext. Pretext is shown by “such weaknesses, implausibilities, inconsistencies, inco herences, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of crede nce and hence infer that the employer did not act for the asserted non-discrimin atory reasons.” Morgan v. Hilti, Inc. , No. 96-5111, 1997 WL 118531, at *3 (10th Cir. Mar . 18, 1997)-9-

(quotation omitted)). “[M]ere conjecture that [the ] employer's explanation is a pretext for intentional discrimination is an insuff icient basis for denial of summary judgment.” Id. (quoting Branson v. Price River Coal Co. , 853 F.2d 768, 772 (10th Cir. 1988)). Bingham based his pretext claim on his assertions that (1) he was not negligent in spilling the fuel, pointing to a dispu te as to whether he performed the required precheck of the automatic shut-off valve w hich might have determined the valve was not operable; (2) DynAir’s stated rea son for firing him conflicts with Jones’ testimony that he might not have been f ired if he had reported the spill; and (3) he could not have complied with DynA ir’s reporting requirements because he was not aware of the oil spill. We agre e with the district court that this evidence did not raise a factual issue regardi ng pretext. The disputes over whether Bingham did the required precheck of the valve or knew about the fuel spill do not raise genuine i ssues as to material facts because there is no evidence that DynAir did not be lieve Bingham negligently caused the spill. The relevant inquiry is whether Mr. Estrella, DynAir’s executive vice president responsible for the termination deci sion, reasonably believed Bingham was negligent in failing to take adequate s teps to prevent the oil spill. There is no evidence that Estrella did not actually believe Bingham was negligent and instead used the spill as a pretext for an othe rwise retaliatory discharge.-10-

Bingham may disagree with DynAir’s decision, but su ch disagreement does not constitute pretext. Bingham’s evidence regarding h is performance shows, at most, that DynAir may have exercised its business j udgment erroneously; however, “an employer's exercise of erroneous or ev en illogical business judgment does not constitute pretext.” Reynolds v. School Dist. No. 1 , 69 F.3d 1523, 1535 (10th Cir. 1995). In the absence of evi dence of an improper motive, Bingham has not met his burden of showing that DynA ir’s reason was a pretext for retaliation. Finally, as to Jones’ statement that Bingham might not have been terminated if he had reported the spill, while it i s true that this court has inferred pretext when an employer changed its reason for terminating an employee, Cole v. Ruidoso Mun. Schs. , 43 F.3d 1373, 1380-81 (10th Cir. 1994), there is no evidence in this case that DynAir ever changed its position that Bingham was fired for negligently causing the spill. Even assuming that Jones’ statement was more than a purely speculative remark and actually reflected DynAir’s position, the two explanations would not constitute “fundamentally di fferent justifications” for DynAir’s action such as “would give rise to a genui ne issue of fact with respect to pretext.” See Washington v. Garrett , 10 F.3d 1421, 1434 (9th Cir. 1993). We conclude that no reasonable jury could find pretextbased upon the evidence Bingham presented.-11- PUBLIC POLICY CLAIM Under Oklahoma law, when an employment contract is of indefinite duration, it is terminable at will by either party, and “an employer may discharge an employee for good cause, for no cause or even fo r cause morally wrong, without being thereby guilty of legal wrong,” Burk v. K-Mart Corp. , 770 P.2d 24, 26 (Okla. 1989). However, Oklahoma recognizes a ju dicial exception to the employment-at-will doctrine where an employee is di scharged for refusing to act in violation of an established and well-defined pub lic policy or for performing acts consistent with clear and compelling public po licy. See Burk , 770 P.2d at 29. The exception only applies “in a narrow class of ca ses in which the discharge is contrary to a clear mandate of public policy as art iculated by constitutional, statutory or decisional law” and the public policy exception must be “tightly circumscribed.” Id. at 28-29. Bingham asserts he was terminated in order to coverup evidence that DynAir continued to use trucks with inoperable auto matic shut-off valves allegedly in violation of federal safety and mainte nance laws and regulations. However, there is no evidence in this case that Bin gham ever refused to act in violation of any safety or maintenance laws or regu lations, ever complained to any supervisor about any illegal safety or maintena nce violations, reported any such violations to any outside law enforcement offi cials, or performed any act1 Moreover, even if Bingham had reported these allege d violations,

Oklahoma has not concluded whether good faith reporting of employer infractions of rules, regulations or the law pertaining to the public health, safety or general welfare would state a Burkclaim. See Hayes v. Eateries, Inc. , 905 P.2d 778, 787 n.7 (Okla. 1995). -12- consistent with a clear and compelling public inter est with respect to the alleged violations. 1 We agree with the district court that Bingham fai led to present evidence sufficient to state a Burkclaim. As Bingham raised no separate argument regarding his federal public policy claim, our conclusions concerning his state public policy claims dispose of this clai m as well. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge