                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             FEB 9 1999
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    JANE HUGGARD,

                Plaintiff-Appellant,

    v.                                                    No. 98-6112
                                                    (D.C. No. CIV-97-1130-C)
    GOLDEN CORRAL CORPORATION,                            (W.D. Okla.)
    a North Carolina Corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT             *




Before ANDERSON , KELLY , and LUCERO , Circuit Judges.



         Plaintiff Jane Huggard seeks review of an order of the United States

District Court for the Western District of Oklahoma granting summary judgment

to defendant Golden Corral Corporation.    1
                                               She brought suit against defendant

seeking damages for alleged wrongful discharge (1) in violation of Okla. Stat.

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
       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.
tit. 85, §§ 5-7 for bringing a workers’ compensation claim against defendant, and

(2) in violation of public policy for reporting the use of illegal drugs by one of

defendant’s employees. The cause was based on diversity jurisdiction and

asserted only state law causes of action. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

      The following facts are either undisputed or were assumed true for

purposes of the summary judgment motion. In January of 1996, plaintiff began

working at defendant’s restaurant in Midwest City, Oklahoma. In January of

1997, she reported the illegal use of drugs by a coworker to a supervisor

(Mr. Cox). According to plaintiff, this caused her supervisor (Mr. Rowaichi) to

exhibit hostility towards her, which in turn prompted her to seek a transfer to

another of defendant’s restaurants. On June 12, 1997, she met with the manager

of the other restaurant (Mr. Rivera) and explained her reasons for wanting the

transfer. Mr. Rivera allegedly hired her and told her to submit a two-week notice

of resignation to the Midwest City restaurant, which she did, in writing, the

following day. The written resignation read, “Please accept this note as my two

week notice—last day of work—27 June. [signed] Jane Huggard.” Appellant’s

App. at 17.

      On June 15, 1997, plaintiff fell at work, injuring her right shoulder, back,

and right wrist. She stayed at work for awhile but eventually requested


                                          -2-
permission to leave to seek medical attention. On doctor’s orders, she did not

return to work immediately. Mr. Rowaichi witnessed the fall and knew a doctor

had advised her not to return to work. On June 18, 1997, plaintiff asked her

doctor for a return-to-work slip, which he gave her. She called Mr. Rivera to

schedule her start to work at the new restaurant. Mr. Rivera told her there were

no longer any positions available.

      Plaintiff then called Mr. Rowaichi to cancel her resignation, but he refused.

Several days later, plaintiff’s daughter called Mr. Rivera, who told the daughter

he had openings for a night waitress and she should apply. In plaintiff’s

deposition, taken in December of 1997, she stated that she has been unable to

work since the June 15, 1997, accident.

      “We review the grant of summary judgment de novo, applying the

customary legal standard under Fed. R. Civ. P. 56(c).”    See Vice v. Conoco, Inc. ,

150 F.3d 1286, 1288 (10th Cir. 1998) (further citations omitted). “In applying

this standard, we examine the factual record and reasonable inferences therefrom

in the light most favorable to the party opposing summary judgment.”     Mount

Olivet Cemetery Ass’n v. Salt Lake City    , ___ F.3d ___, No. 97-4078, 1998 WL

869677, at *3 (10th Cir. Dec. 15, 1998).


                                 Retaliatory Discharge



                                           -3-
     Okla. Stat. tit. 85 § 5   2
                                   provides as follows:

     A.     1.   No person, firm, partnership or corporation may
     discharge any employee because the employee has in good faith filed
     a claim, or has retained a lawyer to represent him in said claim,
     instituted or caused to be instituted, in good faith, any proceeding
     under the provisions of this title, or has testified or is about to testify
     in any such proceeding.

            2.   No person, firm, partnership or corporation may
     discharge an employee during a period of temporary total disability
     solely on the basis of absence from work.

     B.     No employer shall be required to rehire or retain any employee
     who is determined physically unable to perform his assigned duties.
     The failure of an employer to rehire or retain any such employee
     shall in no manner be deemed a violation of this section.

     As we have recognized, Oklahoma law requires that

             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).
     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 proferred reason for
     the discharge was pretextual.    Id.


2
       This section was amended in November of 1998. The new provisions do
not alter the disposition of this appeal.

                                              -4-
Blackwell v. Shelter Mut. Ins. Co.    , 109 F.3d 1550, 1554 (10th Cir. 1997).

       The district court determined that plaintiff had established employment,

on-the-job injury, and her supervisor’s knowledge of the injury and medical

treatment before the job at the second restaurant was “rescinded.” In other words,

plaintiff had met her burden of establishing the first three   Buckner factors. See

also Wallace v. Halliburton Co. , 850 P.2d 1056, 1059-60 (Okla. 1993) (applying

Buckner factors). The court further determined that defendant had shown “a

legitimate, non-retaliatory reason for discharge . . . by invoking § 5B, which

clarifies that no employee must be rehired or retained who is physically unable to

perform assigned duties.” Appellant’s App. at 88. Finally, the court concluded

that because it was undisputed that plaintiff was physically unable to return to

employment after the date of the accident, no violation of § 5 could be found

based on these facts.   See id. at 89.

       On appeal plaintiff argues that defendant could not have had a legitimate

reason for her June 1997 discharge under § 5B because defendant did not know

that she could not return to work after June 15 until the December deposition.

See Appellant’s Br. at 11-12. We need not address this issue, however, because

we are persuaded that plaintiff failed to establish the requisite fourth factor under

Buckner , i.e., consequent termination.     See United States v. Sandoval , 29 F.3d

537, 542 n.6 (10th Cir. 1994) (“We are free to affirm a district court decision on


                                             -5-
any grounds for which there is a record sufficient to permit conclusions of law,

even grounds not relied on by the district court.”).

       To establish a consequent termination, “plaintiff must produce evidence

sufficient to support a legal inference that the termination was ‘significantly

motivated’ by retaliation for exercising her statutory rights.”       Blackwell , 109 F.3d

at 1554 (citing Wallace , 850 P.2d at 1058) (footnote omitted);        see also Taylor v.

Cache Creek Nursing Ctrs. , 891 P.2d 607, 610 (Okla. Ct. App. 1994)).

       In Taylor the court determined that in and of itself, the fact that plaintiff

was fired “immediately after returning from a two-week, doctor-ordered disability

leave . . . does not raise a legal inference that the firing was significantly

motivated by retaliation.” 891 P.2d at 610;         see also Wallace , 850 P.2d at 1058

(“[E]vidence must be at least sufficient to support a       legal inference the discharge

was significantly motivated by retaliation for exercising one’s statutory rights.”).

The Taylor court also found, as an example, that there was no evidence “showing

a pattern of termination of workers who filed [workers’ compensation] claims, or

of pressure put on workers not to file claims.” 891 P.2d at 610. Here, as in

Taylor , there is no suggestion that defendant has ever terminated an employee for

filing a workers’ compensation claim.       See also Blackwell , 109 F.3d at 1555.

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

464 (Okla. 1987), the court held that the connection between the plaintiff’s


                                              -6-
termination and the subsequent filing of a workers’ compensation claim failed to

do any more than establish that the two events happened approximately six weeks

apart. This, the court held, was insufficient to establish a     prima facie case of

discriminatory discharge. “To hold otherwise would be to require any employer

laying off a worker who has at any time in the past filed a Workers’

Compensation action to submit to a jury trial based purely on the coincidence

of the layoff and the past filing.”   Id.

       Here, the only facts established are that plaintiff suffered an on-the-job

injury for which she sought medical attention and that several days later, on

June 18, 1997, the day her doctor released her to return to work, her anticipated

transfer to another restaurant was rescinded. She did not file a workers’

compensation claim until June 19, 1997. Appellant’s App. at 51.

       Based on the determination in        Taylor (where plaintiff was fired

immediately after returning from disability leave) and in       Thompson (where

plaintiff was fired six weeks after filing for workers’ compensation) that

neither of those fact situations raised an inference of retaliation, we conclude

that plaintiff in this case has failed to establish the element of a consequent

termination. See Blackwell , 109 F.3d at 1556 (where reasonable jury could not

conclude discharge significantly motivated by retaliation for exercising rights




                                               -7-
under Workers’ Compensation Act, plaintiff failed to establish a nexus between

termination and any protected activity on her part).   3




                                 Public Policy Violation

       As her second claim, plaintiff argues she was terminated for reporting drug

use by her fellow employees. Plaintiff contends that after she reported the drug

use, her own supervisor became increasingly hostile toward her and that

defendant “failed to conduct any drug testing in response to her notice.”

Appellant’s Br. at 17.

       In Hinson v. Cameron , 742 P.2d 549 (Okla. 1987), the Oklahoma Supreme

Court recognized the “public policy” exception to the at-will employment

doctrine, which allows either the employer or employee to terminate employment

without liability.   See id. at 552. Claims recognized as actionable under the

public policy exception are those by employees dismissed for

       (a) refusing to participate in an illegal activity; (b) performing an
       important public obligation; (c) exercising a legal right or interest;
       (d) exposing some wrongdoing by the employer; and (e) performing
       an act that public policy would encourage or, for refusing to do


3
       Plaintiff also argues that evidence of a pretextual reason for her separation
from employment prevents summary judgment and constitutes sufficient proof
that retaliation was a significant factor in defendant’s decision to terminate her.
Appellant’s Br. at 15. This argument must fail. An “employer is not required to
present a legitimate reason for the plaintiff’s discharge until after the plaintiff
proves a prima facie case,” Blackwell , 109 F.3d at 1554, n.2, which plaintiff has
failed to do.

                                            -8-
       something that public policy would condemn, when the discharge is
       coupled with a showing of bad faith, malice or retaliation.

Id. at 552-53 (footnotes omitted).

       The court has further defined the public policy exception as “tightly

circumscribed” and requiring

       circumstances which present an actionable tort claim under
       Oklahoma law [as being] where an employee is discharged for
       refusing to act in violation of an established and well-defined public
       policy or for performing an act consistent with a clear and
       compelling public policy.

See Burk v. K-Mart Corp. , 770 P.2d 24, 29 (Okla. 1989).

       Plaintiff claims, without citation to any authority, that by reporting illegal

drug use she was “‘performing an important public obligation,’ ‘exposing some

wrongdoing by the employer,’ and ‘performing an act that public policy would

encourage.’” Appellant’s Br. at 17. Defendant argued and the district court

determined that none of the   Hinson public policy concerns are raised by the facts

of this case.

       The only facts asserted by plaintiff were that she reported drug use by a

fellow employee to a supervisor, that subsequently a different supervisor became

more hostile toward her, and that no drug testing was performed in response to

her notice. She does not claim she was ordered to perform an illegal act, refused

to do a bad act or was prevented from exercising her rights. Nor does she connect

the reporting of illegal drug use to her subsequent termination some five months

                                          -9-
later. The facts as stated by plaintiff are simply legally insufficient to state

a claim under the public policy language of      Hinson .

      AFFIRMED.

                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




                                          -10-
