                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS                March 6, 2008
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                  Clerk of Court




    UNITED STATES OF AMERICA,
    ex rel., KATHRYN ERICKSON,

               Plaintiff-Appellant,

         and                                           No. 07-4031
                                               (D.C. No. 2:02-CV-581-DAK)
    LONNIE HOGAN,                                        (D. Utah)

               Plaintiff,

    v.

    UINTAH SPECIAL SERVICES
    DISTRICT,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiff-appellant Kathryn Erickson, appearing pro se, appeals the district

court’s grant of summary judgment to defendant-appellee Uintah Special Services

District (USSD) on her claim of retaliatory discharge under the False Claims Act

(FCA). Ms. Erickson alleged that she was suspended and then terminated from

her job because, as USSD’s General Manager from June 1996 through January

2001, she brought to light several allegedly illegal and fraudulent practices of

USSD and Uintah County involving the alleged misuse of federal funds. USSD

countered that Ms. Erickson was lawfully terminated in response to a report

prepared by an independent auditor that contained questions and concerns

regarding various payments made by USSD that failed to conform with USSD’s

stated policies.

      The district court granted USSD summary judgment, holding that

Ms. Erickson had failed to prove her prima facie case of retaliation and, in the

alternative, that even if the prima facie case had been established, Ms. Erickson

failed to demonstrate that the audit report was not a legitimate,

non-discriminatory reason for termination.

      On appeal, Ms. Erickson argues that USSD failed to follow proper

procedures in suspending and terminating her, that she was terminated because

she insisted that USSD bring legal action against Uintah County, that the district

court’s grant of summary judgment was improper because material questions of

fact remained unanswered, that USSD’s reliance on the audit report was

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pretextual because the report was unfinished at the time of her termination, that

the district court erred in referencing her subsequent indictment as support for its

decision, and that USSD should have been required to defend and indemnify her

in regard to the criminal indictment.

      Exercising our jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

                                           I.

      Summary judgment “should be rendered if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

             We review the grant of a summary judgment motion de novo,
      applying the same standards as the district court. In reviewing the
      record, we view all evidence and draw reasonable inferences
      therefrom in the light most favorable to the nonmoving party. We
      will affirm a district court’s grant of summary judgment unless the
      evidence in the record demonstrates a genuine issue of material fact.

Proctor v. United Parcel Serv., 502 F.3d 1200, 1205-06 (10th Cir. 2007)

(citations omitted).

      Under 31 U.S.C. § 3730(h): “Any employee who is discharged [or]

suspended . . . by his or her employer because of lawful acts done by the

employee . . . in furtherance of an action under [the FCA] . . . shall be entitled to

all relief necessary to make the employee whole.” According to the legislative

history, this whistleblower protection statute:


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      provides relief only if the whistleblower can show by a
      preponderance of the evidence that the employer’s retaliatory actions
      resulted “because” of the whistleblower’s participation in a protected
      activity. Under other Federal whistleblower statutes, the “because”
      standard has developed into a two-pronged approach. One, the
      whistleblower must show the employer had knowledge the employee
      engaged in “protected activity” and, two, the retaliation was
      motivated, at least in part, by the employee’s engaging in protected
      activity. Once these elements have been satisfied, the burden of
      proof shifts to the employer to prove affirmatively that the same
      decision would have been made even if the employee had not
      engaged in protected activity.

S. Rep. No. 345 at 35, 99th Cong., 2d Sess. 35 (1986), reprinted in 1986

U.S.C.C.A.N. 5266, 5300.

      We need not recite the facts of the case in detail as the parties are well

aware of their respective claims. Ms. Erickson essentially claimed in the district

court that the timeline of her firing was sufficient proof of its retaliatory nature.

She claimed that when she initially began to bring her claims to light, USSD

defended her despite pressure applied by Uintah County to have her fired. She

claims that eventually, when she began pushing USSD to take legal action against

the County, USSD caved to the pressure and terminated her.

      The district court held that in order to make out her prima facie case,

Ms. Erickson had to prove that “(1) the employer is covered by the act at issue,

(2) the employee engaged in protected activity, (3) the employee suffered adverse

action, and (4) there is an inference of causation between the protected activity

and the adverse action.” R., Vol. VII, Doc. 73 at 4 (quoting Mann v. Olsten


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Certified Healthcare Corp., 49 F. Supp. 2d 1307, 1313 (M.D. Ala. 1999)). The

court held that Ms. Erickson failed to make out her prima facie case because,

considered as a whole, the record did not support an inference of causation.

      In the alternative, the district court applied the burden-shifting framework

of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), holding that

even if Ms. Erickson had established her prima facie case, the burden shifted to

USSD to articulate a facially nondiscriminatory reason for her termination. R.,

Vol. VII, Doc. 73 at 5 (citing Marx v. Schnuck’s Markets, 76 F.3d 324, 327 (10th

Cir. 1996), a case which applies the McDonnell Douglas framework in an ADEA

context). The court held that “[a]t the summary judgment stage, it then becomes

the plaintiff’s burden to show that there is a genuine dispute of material fact as to

whether the employer’s proffered reason for the challenged action is pretextual”

Id. (citing Ingels v. Thiokol Corp., 42 F.3d 616, 622 (10th Cir.1994)). The court

held that Ms. Erickson had failed to establish that the audit was merely a

pretextual reason for her termination by “showing either that a discriminatory

reason more likely motivated the employer or . . . that the employer’s proferred

explanation[, that she was fired because of the audit, was] unworthy of credence.”

Id. (quoting Marx, 76 F.3d at 327-28) (alteration in original).




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                                          II.

      Turning to Ms. Erickson’s appellate arguments, we agree with USSD that

she never properly argued in district court that USSD failed to follow proper

procedures in suspending and terminating her, that the pretextual nature of

USSD’s reliance on the audit report in terminating her was obvious because the

report was unfinished at the time of her termination, and that the USSD should

have been required to defend and indemnify Ms. Erickson in regard to her

criminal indictment. Her failure to raise these arguments in the district court

means we will not consider them on appeal. Sussman v. Patterson, 108 F.3d

1206, 1210 (10th Cir. 1997) (“In general, we will decline to consider issues first

raised on appeal.”).

      As to the remainder of Ms. Erickson’s claims, we need only consider the

district court’s determination that even if Ms. Erickson proved her prima facie

case, she failed to demonstrate that the audit report was not a legitimate,

non-discriminatory reason for her termination. In the district court, Ms. Erickson

attacked the charges made in the audit as both wrong and not worthy of belief by

USSD. The court found that the audit was the product of an outside, independent

auditor, and that “any one of its findings would be sufficient grounds for

terminating [Ms.] Erickson.” R., Vol. VII, Doc. 73 at 10. The court found that

“[i]n at least one case, the written contract appears to be an after-the-fact

fabrication. Another document appears to have been created specifically to

                                          -6-
conceal some of this misconduct from the grand jury investigation.” Id. Further

the court held:

      this court does “not sit as a kind of ‘super-personnel department,’
      free to second guess the propriety of an employer’s business
      decision.” Eilam v. Children’s Hospital Ass’n, 1999 U.S. App. Lexis
      5880, 10 (10th Cir. 1999[]). The burden is on [Ms.] Erickson to
      demonstrate that USSD’s stated basis for termination “is so weak,
      implausible, contradictory, inconsistent, or incoherent as to be
      unworthy of belief.” Stover[ v. Martinez], 382 F.3d [1064,] 1073
      [(10th Cir. 2004)].

Id. at 9. The court held that the fact that Ms. Erickson was later indicted for

obstruction of justice for knowingly falsifying USSD documents was relevant to

her argument that the audit’s findings were too weak to be believed. 1 To the

extent that Ms. Erickson renews this argument on appeal or argues that the

indictment was irrelevant, these arguments are denied for the reasons set forth in

the court’s decision.

      However, Ms. Erickson expends most of her time arguing that the audit

report was a pretextual reason for termination because two prior audits had shown

no wrong-doing, the independent auditor was not actually independent, and USSD

personnel falsified documents and took other actions to mislead the auditor.

Ms. Erickson failed to properly present any of these arguments in the district

court and they lack evidentiary support in the record.



1
     One of the documents Ms. Erickson was indicted for falsifying was a
document that the audit report also viewed with suspicion.

                                          -7-
      Ms. Erickson also argues that the audit report was not the USSD’s

proffered non-discriminatory reason for her termination. She claims that “[t]he

USSD Board never expressed a reliance on any audit report . . . as cause for my

dismissal.” Aplt. Br. at 14. It is too late for this argument. Ms. Erickson’s own

memorandum in opposition to summary judgment treats the audit report as

USSD’s proffered non-discriminatory reason. See R., Vol. V at xvii (“The audit

was a pretextual reason for her termination. The real reason was to retaliate for

her whistleblowing claims.”).

                                        III.

      The judgment of the district court is AFFIRMED. Ms. Erickson’s motion

to proceed in forma pauperis is GRANTED.


                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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