                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                     UNITED STATES COURT OF APPEALS                    May 28, 2008
                                                                    Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                       Clerk of Court




    DARRELL ROLLINS, an individual,

                Plaintiff-Appellant,

    v.                                                   No. 06-5135
                                                (D.C. No. 04-CV-224-JHP-SAJ)
    AMERICAN AIRLINES, INC.,                             (N.D. Okla.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.



         This case began as two separate proceedings arising out of plaintiff Darrell

Rollins’ termination from employment with defendant American Airlines, Inc.

(American), allegedly in retaliation for reporting a subordinate’s misuse of spare

aircraft parts. While pursuing administrative relief before the Department of

Labor (DOL) under the federal aviation whistleblower statute, 49 U.S.C. § 42121,


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Mr. Rollins filed a state tort action in Oklahoma against American for wrongful

discharge in violation of public policy under Burk v. K-Mart Corp., 770 P.2d 24

(Okla. 1989). American removed that action to federal court based on diversity

jurisdiction. In the meantime, an order of reinstatement had been issued in a

preliminary stage of the DOL proceeding and, when the parties failed to agree on

an acceptable arrangement, Mr. Rollins filed a second action in federal district

court seeking enforcement of the reinstatement order. The two federal actions

were consolidated. Ultimately, the district court ruled for American on all claims.

It granted American summary judgment with respect to the Burk claim on several

alternative grounds, later reaffirming its ruling when Mr. Rollins sought

reconsideration. It denied the enforcement claim after learning that Mr. Rollins’

administrative complaint had, on administrative review, been found untimely and

dismissed, nullifying the reinstatement order. After entry of judgment disposing

of all claims, Mr. Rollins timely filed this appeal.

                                Enforcement Claim

      The district court held that the initial reinstatement order issued by an

Occupational Safety and Health Administration (OSHA) officer was immediately

nullified when an administrative law judge dismissed the underlying DOL

complaint as untimely. See 29 C.F.R. § 1979.109(c) (ALJ decision “lifting an

order of reinstatement . . . shall be effective immediately”). Anticipating this

point, Mr. Rollins argued that the ALJ’s decision was itself nullified, leaving the

                                          -2-
reinstatement order standing, when the DOL’s Administrative Review Board

heard his appeal under 29 C.F.R. § 1979.110(b), which states that once an appeal

is accepted, “the decision of the [ALJ] shall be inoperative unless and until the

Board issues an order adopting the decision, except that a preliminary order of

reinstatement shall be effective while review is conducted by the Board.” The

district court disagreed. Noting that § 1979.109(c) directs that a decision lifting

an order of reinstatement “may not be stayed,” it read the regulations together to

mean that “upon review, the ALJ decision is rendered inoperative, except for that

portion . . . dealing with reinstatement,” so that “whatever Plaintiff’s status was

coming out of the ALJ proceedings is maintained for the duration of the DOL

Administrative Review Board proceeding.” Aplt. App., Vol. II at 588. The court

concluded that although plaintiff had been entitled to reinstatement under the

OSHA order prior to the ALJ’s decision, the portion of that decision lifting the

reinstatement order was “still in effect . . .[and] [t]he issue of reinstatement [was]

therefore not properly before th[e] Court.” Id. at 589.

      Mr. Rollins challenges the district court’s refusal to enforce the preliminary

reinstatement order, arguing that its construction of the governing regulations was

erroneous. American contends that this aspect of Mr. Rollins’ appeal is moot.

Noting that the Board has affirmed the ALJ’s decision, American argues that even

if the reinstatement order had still been in effect when the district court refused to

enforce it, any relief in this regard is now conclusively foreclosed in light of the

                                          -3-
Board’s subsequent decision finally resolving the administrative proceeding

against Mr. Rollins. 1 See generally United States v. Vera-Flores, 496 F.3d 1177,

1180 (10th Cir. 2007) (“Where judicial relief will not remedy the appellant’s

injury, the appellant can no longer satisfy the Article III case or controversy

jurisdictional requirement and the appeal is moot.” (quotation omitted)).

      Mr. Rollins attempts to avoid the force of this argument by suggesting that,

even if he can no longer obtain reinstatement based on the vacated administrative

order, if the district court erred in refusing to enforce the order when it was in

effect, “[a]t a minimum, [he] would be entitled to a remedy for the Defendant’s

failure to reinstate him from the time of OSHA’s Preliminary Order up until the

time of the ALJ [decision].” Aplt. Br. at 21. American notes, however, that

Mr. Rollins did not seek damages for delay in his reinstatement (and delay had

already occurred when this action was filed), and argues that he should not be

allowed to interject a request for such relief at this late date just to circumvent the

mootness of the case he has pursued up until now. Cf. CAMP Legal Defense

Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1277-78 (11th Cir. 2006) (holding

otherwise mooted challenge to expired moratorium survived because claim for

damages had been included in complaint and preserved for appellate review). We

agree. This new claim is plainly late and there are good reasons not to excuse the


1
     The Board’s decision in this regard was recently affirmed in Rollins v.
Admin. Review Bd., 2008 WL 904729 (10th Cir. Apr. 3, 2008) (unpub.).

                                          -4-
deficiency. First of all, the governing statute does not even appear to authorize

such a claim. While the section dealing with enforcement actions brought by the

Secretary of Labor affords district courts “jurisdiction to grant all appropriate

relief including, but not limited to, injunctive relief and compensatory damages,”

49 U.S.C. § 42121(b)(5), the section dealing with private actions to enforce DOL

orders states only that a party “may commence a civil action . . . to require

compliance with such [an] order,” id. § 42121(b)(6)(A) (emphasis added).

Moreover, given the dismissal of the underlying administrative action as

untimely–demonstrating that the reinstatement order should not have been entered

in the first place–damages for the delay in its effectuation would at this point

reflect an unjustified windfall. 2 These considerations counsel against any

exercise of our discretion that would allow Mr. Rollins to belatedly interject a

damages request so as to resuscitate his moot enforcement claim.

      Typically when a claim is mooted on appeal, the district court’s disposition

is vacated. That is not necessary here, however, as the district court did not reach

2
       Indeed, practical concerns of this sort have informed some judicial views
holding that § 42121(b)(6) does not grant district courts jurisdiction to enforce
preliminary reinstatement orders. See Bechtel v. Competitive Techs., Inc.,
448 F.3d 469, 474 (2d Cir. 2006) (Jacobs, J., with one judge concurring in
result); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552, 558-59
(W.D. Va. 2006). In light of our disposition on mootness grounds, we need not
resolve this other jurisdictional concern. Because jurisdictional issues need not
be decided in any particular order, a mootness analysis may obviate resolution
of an unsettled question of subject matter jurisdiction. Boyce v. Ashcroft,
268 F.3d 953, 955 (10th Cir. 2001); Kaw Nation v. Norton, 405 F.3d 1317, 1323
(Fed. Cir. 2005).

                                          -5-
the merits but dismissed the enforcement claim as not properly before it. There is

no functional inconsistency between that disposition and our conclusion that the

matter is now moot and hence beyond the proper reach of any federal court.

                            Burk Public Policy Claim

      Alleging he was discharged in retaliation for reporting another employee’s

unauthorized removal of aircraft parts, Mr. Rollins asserted a claim in state court

under Burk v. K-Mart Corp., which recognized a cause of action for employees

terminated in violation of clearly articulated state public policy. 770 P.2d at 28.

American removed the case to federal court based on diversity, 3 and later moved

for summary judgment. The district court granted the motion for three alternative

reasons: (1) a Burk claim must be based on a discharge, actual or constructive,


3
       Mr. Rollins moved for remand, contending removal was improper because
the notice of removal (1) was filed more than thirty days after American should
have known the requirements of diversity jurisdiction were satisfied and (2) did
not include a sufficient factual basis showing that the value in controversy
exceeded the minimum for diversity jurisdiction. The district court denied the
motion, holding that Rollins’ formal factual admission in discovery that the
amount in controversy exceeded $75,000, which was recited in and attached to the
notice of removal, was sufficient to support jurisdiction where the complaint had
not specified a damage amount, and that American timely sought removal within
thirty days of the admission. We agree. See Huffman v. Saul Holdings Ltd.
P’ship, 194 F.3d 1072, 1078 (10th Cir. 1999) (holding plaintiff’s deposition
testimony regarding damages sought established amount in controversy and
commenced thirty-day removal period); Singer v. State Farm Mut. Auto. Ins. Co.,
116 F.3d 373, 376 (9th Cir. 1997) (holding plaintiff’s admission in open court
established amount in controversy); Green v. Harsco Corp., No. 99-5139, 2000
WL 745353, at **2-4 (10th Cir. May 25, 2000) (unpub.) (following Huffman and
Singer specifically to uphold removal based on plaintiff’s factual admission that
claim for damages exceeded requisite jurisdictional amount).

                                         -6-
and Mr. Rollins, who elected to terminate his employment after receiving a

disciplinary notice for poor job performance, was not actually or constructively

discharged; (2) Mr. Rollins failed to show that his role in reporting the removed

aircraft parts (as opposed to his job performance) in fact led to the disciplinary

proceeding that prompted him to chose termination; and (3) Mr. Rollins failed to

demonstrate that his conduct implicated a public policy on which a Burk claim

could be based. We affirm on (1) and do not reach the issues raised in connection

with (2) and (3). 4

       In Burk, the Oklahoma Supreme Court recognized a tort remedy “in a

narrow class of cases in which the discharge [of an at-will employee] is contrary

to a clear mandate of public policy.” 770 P.2d at 28 (emphasis added); see also

Clinton v. State ex rel. Logan County Election Bd., 29 P.3d 543, 545 (Okla. 2001)

(noting Burk “is a limited restriction on employers’ rights to discharge at-will

employees”). The court extended Burk to constructive discharges in Collier v.


4
       American briefly argues that Mr. Rollins has failed to challenge the grant
of summary judgment insofar as it rested on grounds (1) and (2) and that,
therefore, appellate relief is foreclosed regardless of the strength of his appeal in
other respects. See, e.g., Metzger v. Unum Life Ins. Co. of Am., 476 F.3d 1161,
1168 (10th Cir. 2007) (following Murrell v. Shalala, 43 F.3d 1388, 1389-90
(10th Cir. 1994), to hold that appellant must challenge all bases for district court
ruling in order to preserve meaningful appeal therefrom). We note, however, that
Mr. Rollins’ appeal does encompass the cited grounds, largely in connection with
his challenge to the district court’s later denial of his motion to reconsider the
grant of summary judgment. See Aplt. Br. at 34-41. It is, therefore, necessary for
us to confirm at least one of the grounds given for granting (and later refusing to
reconsider) summary judgment.

                                          -7-
Insignia Financial Group, 981 P.2d 321, 323-24 (Okla. 1999), but has never held

that it is a remedy for adverse employment actions short of discharge. Rather,

the court has stated that a Burk plaintiff must prove (1) “that he or she was an

at-will employee”; (2) “that he or she was actually or constructively discharged

from employment”; and (3) “that the employer’s discharge decision violated

[an] articulated public policy.” Barker v. State Ins. Fund, 40 P.3d 463, 468

(Okla. 2001) (emphasis added). Numerous decisions, by the intermediate state

appellate court and several federal district court judges, have made the point even

more explicit by holding that a Burk claim must involve “the actual termination of

the employer-employee relationship.” Davis v. Bd. of Regents for Okla. State

Univ., 25 P.3d 308, 310 (Okla. Civ. App. 2001) (holding Burk claim could not be

based on retaliatory transfer); see Elliott v. Wyle Labs., Inc., No. CIV-07-942-F,

2007 WL 4554178, at *1 (W.D. Okla. Dec. 19, 2007) (unpub.) (holding that

allegations of wrongful discipline/demotion did not state Burk claim, and

collecting like decisions from other district judges in Oklahoma). While these

latter decisions do not control here, they do inform our conclusion, based on

extant state supreme court authority, that Burk did not create an omnibus remedy

for adverse employment actions short of discharge that might be related to state

public policy concerns.

      Of course, if the adverse action in question led the plaintiff to terminate his

employment, it could still be actionable provided the standard for constructive

                                         -8-
discharge was met. But that standard is very high. It requires that the employer

knew or should have known of employment conditions “so intolerable that a

reasonable person subject to them would resign.” Collier, 981 P.2d at 324.

As the undisputed facts here do not reflect conditions approaching this level of

objective intolerability, summary judgment on this ground was proper.

      After concerns were raised about his job performance, as to his supervisory

duties generally and oversight of the employee who had taken the aircraft parts in

particular, Mr. Rollins received a Career Decision Day (CDD) Advisory. This

notice specified “areas in which performance improvement is required” and gave

Mr. Rollins a day off “to reflect upon the need to improve and to weigh the desire

to continue an employment relationship with American,” after which he had “to

choose one of three options: (1) a commitment to meet all company standards,

and thus to continue employment with American [after a transfer to another

supervisory position]; (2) voluntary resignation, with specified benefits, in

exchange for which the employee agrees not to exercise his right to internally

appeal or grieve the company’s determination; or (3) a refusal to choose Option 1

or Option 2, which results in termination with the ability to file a grievance or an

appeal.” Aplt. App., Vol. I at 245, ¶¶ 20-21 (American’s statement of undisputed

facts on summary judgment); see id. at 269, ¶ 1 (Rollins’ admission of cited




                                          -9-
undisputed facts in response to summary judgment 5). Mr. Rollins ultimately

refused to sign the advisory, thereby accepting the termination option. 6

      Mr. Rollins has pointed to nothing in the advisory that remotely involves

objectively intolerable conditions. Indeed, while he has debated peripheral

points, he has not offered any argument to show that the conditions under which



5
       We note Mr. Rollins now asserts he was not given an opportunity to pursue
a grievance after electing to terminate his employment. Aplt. Br. at 39 & n.5.
Aside from obvious waiver problems, this assertion is simply immaterial to our
constructive-discharge analysis, which turns on the tolerability of the conditions
Mr. Rollins had to accept to continue his employment, not the consequences of
his decision to end it.
6
       Mr. Rollins insists he did not choose termination, because he “would not
accept any of the options offered” in the advisory, Aplt. App., Vol. I at 247, ¶ 30
(emphasis added), and hence his case involves an involuntary-termination claim
as opposed to one for constructive discharge. We disagree. A blanket refusal to
accept the advisory was manifestly a choice to terminate employment. Whether
Mr. Rollins may pursue a Burk claim under the circumstances depends entirely on
whether his choice was prompted by conditions so objectively intolerable as to
constitute a constructive discharge, as we discuss above.

        Even if we were to follow Mr. Rollins’ view that he was involuntarily
terminated by American in a distinct personnel action after his rejection of the
advisory, that would not avail his cause here. He concedes that his “refusal to
make the choice offered by [the advisory] led to his termination,” Aplt. Br. at 12,
and makes no claim that his facially neutral treatment in this respect was different
from any other employee refusing to accept a disciplinary advisory. In short, he
has not advanced or substantiated any claim that enforcement of his advisory was
itself a wrongful act. Rather, his argument–for which he concedes he can find no
direct authority–is that Burk should apply where an employee refuses continued
employment rather than accept what he considers to be improper discipline, see
id. at 34-38–in other words, that the strict standard for constructive discharge
should not apply. But, as discussed above, the state supreme court has expressly
imported the principles of constructive discharge into the Burk context, and we
are not free to pursue a different course.

                                        -10-
he would have continued in American’s employ after the advisory were such as to

render his election to leave a constructive discharge. 7 Merely affirming a

commitment to company standards certainly does not qualify. And, while he

would have had to accept a transfer to another supervisory position, he admitted

that the transfer was not objectionable. Id. at 247 ¶ 28; see id., Vol. II at 321

(deposition page 103). His objection to signing the advisory and continuing his

employment was simply that it would imply an admission of American’s grounds

for issuing the advisory. Id., Vol. II at 313 (deposition page 55). Even if that

were true, Mr. Rollins has not cited any authority to support the facially dubious

notion that, when required to sign an adverse performance review or disciplinary

notice, an employee may simply elect to quit and claim a constructive discharge.

      Mr. Rollins argues at some length that denying a Burk remedy for allegedly

pretextual disciplinary action, so long as it does not constitute a discharge of the

employee, still allows a malicious employer some means to retaliate against

whistleblowers without check by state tort law. That is not an argument properly

addressed to the federal courts.

      When proceeding under diversity jurisdiction, federal courts have the
      duty to apply state law as announced by the state’s highest court.
      Where the state’s highest court has spoken, we accept its
      pronouncement . . . as defining state law unless it has later given

7
      While Mr. Rollins complains that he had inadequate notice in advance of
summary judgment that his claim was potentially deficient in this fundamental
(and obvious) respect, we note that he has since had the opportunity to make his
case on the point both in his motion for reconsideration below and on this appeal.

                                         -11-
      clear and persuasive indication that its pronouncement will be
      modified, limited or restricted.

Salt Lake Tribune Publ’g Co. v. Mgmt. Planning, Inc., 454 F.3d 1128, 1134

(10th Cir. 2006) (internal quotations omitted) (citations omitted). The Oklahoma

Supreme Court has, for reasons within its exclusive province, elected to create a

state tort remedy for wrongful discharge, actual or constructive, and has thus far

given no indication of any intention to expand the remedy to lesser forms

of discipline or other adverse employment action taken in contravention of

public policy.

      Accordingly, the district court correctly concluded that Mr. Rollins’

Burk claim was legally deficient for lack of an actual or constructive discharge.

And that determination is sufficient to warrant the grant of summary judgment

on the claim.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                        -12-
06-5135; Rollins v. American Airlines, Inc.

LUCERO J., concurring in the judgment:

      I fully join the majority with respect to its disposition of Rollins’ claim for

enforcement of OSHA’s preliminary reinstatement order. I cannot, however,

subscribe to the reasoning employed by the court in rejecting Rollins’ retaliatory

discharge claim based on Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989).

      As I view the matter, Rollins’ cause of action should be evaluated under the

standards applicable to an actual discharge, rather than a constructive discharge.

I do not agree that Rollins’ refusal to accept any of the options offered in the

Career Decision Day Advisory amounted to a resignation. Rollins may have

declined to select from the available options, but it was American, not Rollins,

that made the final decision to end the employment relationship. Treating this

actual discharge as a constructive one essentially flips the doctrine of constructive

discharge on its head, and incorrectly forces Rollins to meet the high standard

applicable to an employee who does resign, but subsequently argues that he or she

was effectively discharged. See Collier v. Insignia Fin. Group, 981 P.2d 321, 324

(Okla. 1999) (“[A] constructive discharge occurs when an employer deliberately

makes or allows the employee’s working conditions to become so intolerable that

a reasonable person subject to them would resign.” (emphasis added)). This

standard is plainly inapplicable to an employee who was, in fact, discharged.

Moreover, American’s imposition of a performance advisory does nothing to

change the fact that Rollins was discharged, and should not be the basis for
allowing an employer such as American to prevent an employee from later stating

a cognizable cause of action under Burk.

      Nevertheless, I would affirm the judgment of the district court on the

alternative ground that Rollins failed to carry his burden at summary judgment of

establishing a genuine issue of material fact with respect to whether his role in

reporting the removal of aircraft parts actually led to American’s decision to

terminate him. I therefore concur in the court’s ultimate disposition of this claim

and in its judgment.




                                         -2-
