                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1217
                                   ___________

Robert Tupper,                          *
                                        *
                   Appellant,           *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Minesota.
Boise Cascade Corporation,              *
                                        *
                   Appellee.            *
                                   ___________

                             Submitted: November 15, 2004
                                Filed: January 7, 2005
                                 ___________

Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.
                         ___________

FAGG, Circuit Judge.

       Robert Tupper worked for the Boise Cascade Corporation in a Minnesota paper
mill. During his employment, Tupper received several warnings about his chronic
absenteeism. In May 2001, Boise required Tupper to sign a last chance agreement,
which provided Tupper could not miss any part of a scheduled workday for the next
six months. Tupper understood that failure to comply with the agreement could result
in his immediate termination. In a Sunday in October 2001, Tupper broke a tooth
while eating a sandwich during his morning shift. Tupper spoke with his supervisor
and insisted that he needed medical attention. The supervisor expressed concern
about the consequences of Tupper’s departure under the agreement, and being
uncertain of its duration, allowed Tupper to go home to check the agreement. Tupper
departed and did not return that day. Tupper’s dentist’s office was closed, and he did
not seek immediate medical care. Instead, Tupper went to his dentist the following
day over his lunch hour.

        After the incident, Tupper did not seek workers’ compensation benefits or
suggest to Boise he would do so. Tupper’s health insurance carrier paid his medical
bill. Two days after Tupper broke his tooth, Boise terminated his employment for
leaving work during his shift in violation of the agreement. After his union declined
to file a grievance, Tupper filed this diversity action for retaliatory discharge, alleging
Boise wrongfully terminated him in violation of Minn. Stat. § 176.82, which states
any person who discharges an employee for seeking workers’ compensation benefits
is liable in a civil action for the employee’s damages. Applying Minnesota law, the
district court* granted summary judgment to Boise, holding Tupper could not
establish a prima facie case of retaliatory discharge because he had not shown he
engaged in conduct protected by § 176.82. The district court noted Tupper admitted
he did not seek workers’ compensation benefits or suggest to anyone at Boise that he
would do so.

       Tupper appeals asserting he was protected by § 176.82. Having reviewed the
grant of summary judgment de novo, we conclude there was no genuine issue of
material fact and Boise is entitled to judgment as a matter of law. We are satisfied
that the district court properly analyzed Minnesota law, and affirm on the basis of the
district court’s memorandum opinion and order. See 8th Cir. R. 47B.




      *
      The Honorable Richard D. Kyle, United States District Judge for the District
of Minnesota.

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HEANEY, Circuit Judge, dissenting.

       I respectfully dissent. The district court based its grant of summary judgment
to the defendant on Tupper’s failure to file a claim seeking workers’ compensation
benefits. This is not fully consistent with Minnesota law.

       The Minnesota Supreme Court has not directly addressed whether a claim or
retaliatory discharge under Minn. Stat. § 176.82 requires an employee to file a
workers’ compensation claim. In Flaherty v. Lindsay, 467 N.W.2d 30 (Minn. 1991),
the Minnesota Supreme Court stated that two types of conduct were prohibited by the
statute: “retaliatory discharges (or threatened discharges) and obstructions of
workers’ compensation benefits.” Id. at 32. The court held that obstruction involved
“some actual denial or disruption in the receipt of benefits” but did not indicate
whether this applied to retaliatory discharge cases. Id.

        The Minnesota Court of Appeals have issued inconsistent opinions on this
issue. Compare Randall v. Northern Milk Prod., Inc., 519 N.W.2d 456, 460 (Minn
Ct. App. 1994) (upholding a finding of retaliatory discharge where employee intended
to file a workers’ compensation claim, but did not actually file the claim until two
months after his discharge), with Furrer v. Campbell’s Soup Co., 403 N.W.2d 658,
660 (Minn. Ct. App. 1987) (affirming summary judgment where employee only filed
claim after her discharge). The more recent case, Randall, shows that a retaliatory
discharge claim does not necessarily fail if the employee has not filed a claim at the
time of his discharge. In that case, the employee reported a back injury to his
employer, but initially stated that he was unsure whether the injury occurred at work.
Randall, 519 N.W.2d at 458. After further questioning, he stated that he was injured
at work, and was immediately fired. Id. The court held that this conversation
provided a sufficient basis for a fact-finder to infer that the employee was terminated
because he intended to file a workers’ compensation claim. Id. at 460.



                                         -3-
       The relevant question in this case is not whether Tupper actually filed a
workers’ compensation claim, but whether he has presented a prima facie case that
he was discharged because of his perceived intent to seek workers’ compensation
benefits. Tupper has shown that he was injured while at work, that his employer was
aware of his injury, and that his termination occurred shortly after he reported his
injury. While Tupper did not specifically raise the issue of workers’ compensation
and did not seek benefits after his termination, this does not foreclose his claim as a
matter of law. Breitenfeldt v. Long Beach Packing Co., 48 F. Supp. 2d 1170, 1180
(D.Minn. 1999) (holding that an employee’s failure to seek benefits “go[es] to the
weight of the evidence” and did not preclude his claim).

      I would reverse the district court and remand this case for trial.
                      ______________________________




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