                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                     PUBLISH
                                                                           AUG 5 1997
                      UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                               Clerk
                                   TENTH CIRCUIT



 STEVEN D. CONNER,

          Plaintiff - Appellant,

 v.                                                    No. 95-3408

 SCHNUCK MARKETS, INC.,

          Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Kansas
                                 (D.C. No. 94-2498)


Stephen J. Dennis of Dennis, Stanton & Relingshafer, Fairway, KS, for Plaintiff -
Appellant.

Dennis G. Collins of Greensfelder, Hemker & Gale of St. Louis, MO, (Lisa K.
Boyer of Greensfelder, Hemker & Gale, St. Louis, MO and J. Nick Badgerow and
Gregory L. Ash of Spencer Fane Britt & Browne, Overland Park, KS with him on
brief) for Defendant -Appellee.


Before PORFILIO, BARRETT, 1 and EBEL, Circuit Judges.


EBEL, Circuit Judge.


      1
         Honorable James E. Barrett, Senior Circuit Judge, was unable to attend
oral argument. However, Judge Barrett participated fully in the decision of the
case.
      Plaintiff-Appellant Steven D. Conner (“Conner”) appeals the district

court’s grant of summary judgment to Schnuck Markets, Inc. (“Schnuck”) on his

retaliatory discharge claims under the Fair Labor Standards Act (“FLSA”), 29

U.S.C. §§ 201-219 (1994 & Supp. 1997) and the public policy exception to

Kansas’ at-will employment doctrine. We agree with both the district court’s

determination that Conner has failed to produce sufficient evidence of retaliatory

motive to survive summary judgment on his FLSA claim and its determination

that Conner’s common law claim is precluded by the availability of statutory

relief. Accordingly, we AFFIRM the judgment of the district court.



                                I. BACKGROUND

      Conner was hired by Schnuck in January, 1991, as a food clerk at one of its

Kansas stores. In October, 1992, one of Conner’s co-employees reported to

Schnuck that she believed that it was not paying overtime in accordance with

federal law. After determining that it had violated federal overtime laws,

Schnuck distributed surveys that allowed employees to claim any unpaid overtime

hours. Conner received a survey but did not return it until he was told that he was

required to return the survey before he could receive his overtime back pay. In

January of 1993, Conner took his completed survey to Ken Ringkamp, the store

manager, claiming unpaid wages. Conner alleges that Ringkamp read the survey


                                        -2-
in Conner’s presence and said: “Are you sure that you filled this out

correctly? . . . If you want to go anywhere with the company, you’ll reconsider

this.” 2 Conner then filled out a new survey, took his paycheck and left.

      After his meeting with Ringkamp, Conner alleges a change in the way he

was treated on the job. Specifically, Conner claims that Ringkamp became cold

toward him, that he and his wife were no longer invited to social functions or

company sporting events, that his hours and responsibilities were changed, and

that he was not allowed to have lunch with vendors, although other employees

were allowed to do so.    In March, 1993, two months after Conner turned in his

overtime survey, Conner accepted a Tombstone Pizza jacket from a Tombstone

Pizza Representative, Mark Leisman. In April, 1993, Conner accepted another

jacket from Leisman. The acceptance of gifts or “premiums” from vendors is

purportedly prohibited by Schnuck, although Conner claims that he did not know

of such a policy and has never known of an employee who was investigated or

disciplined for accepting gifts from a vendor. Conner also claims to have seen

other employees openly wear items of clothing they had received from vendors,




      2
       Ringkamp denies that he threatened Conner in this way. However, because
we examine the factual record and reasonable inferences therefrom in the light
most favorable to the party opposing summary judgment, see Kaul v. Stephan, 83
F.3d 1208, 1212 (10th Cir. 1996), we assume for the purposes of this appeal that
Conner’s version of the story is correct.

                                        -3-
both inside and outside the workplace, and that he had been to sporting events

with other employees who had received tickets to those events from vendors.

      Other undisputed evidence points to Conner’s knowledge of Schnuck’s

policy against the acceptance of gifts from vendors, however. Upon the receipt of

each of the Tombstone Pizza jackets, Conner told Leisman not to bring the jacket

inside the store but to take his keys and put the jacket inside his car. Leisman had

earlier tried to bring jackets inside the store, but Ringkamp, the store manager,

had ordered Leisman to leave the store upon discovering his purpose. Conner and

a co-employee were present at this confrontation, at which time the co-employee

said to Conner, “That was a close one,” prompting Conner to respond, “No Shit.”

      Leisman told Ringkamp on May 7, 1993, that he had given jackets to

Conner, prompting a meeting between Ringkamp, Conner, and the produce

manager on the same day. Conner denied taking the jacket, at which time he was

suspended pending an investigation. The investigation yielded written statements

from Leisman and one of Conner’s co-employees alleging that Conner had, in

fact, taken the jackets. On May 12, 1993, Ringkamp asked Conner to meet with

him and Schnuck’s Loss Prevention Coordinator, Renee Dettmer. Again, Conner

was asked about the jackets, and again Conner denied that he had taken the

jackets. All told, Conner denied having taken the jackets seven times: twice at

the May 7th meeting, and five times at the May 12th meeting. Conner later


                                        -4-
admitted to these lies during his April 26, 1995 deposition, claiming he lied to

avoid “get[ting] in trouble.”

      Dettmer referred the Conner matter to her supervisor, Linda Walker, whose

office was located in the Schnuck headquarters in St. Louis, Missouri. Ms.

Walker recommended to Schnuck’s manager of security, Mike Panneri, that

Conner be terminated for two reasons: first, for violating the company’s policy in

accepting gifts from a vendor; and, second, for lying to various company

representatives during the subsequent investigation. Ms. Walker noted in support

of Schnuck’s past policy that a 14 year employee of Schnuck had been discharged

in 1988 for accepting beer from a vendor. Conner was then terminated.

      Conner subsequently initiated a four-count action, claiming that Schnuck:

“(1) breached its promise to pay him overtime compensation for hours he worked

in excess of eight hours per day; (2) violated the Fair Labor Standards Act by

failing to pay him overtime compensation for hours he worked in excess of 40

hours per week; (3) violated the Fair Labor Standards Act by terminating him for

asserting a claim for overtime compensation due him; and (4) also violated state

common law by terminating him for asserting such claim.”

      The first two counts were dismissed with prejudice on February 13, 1996,

upon the agreement of the parties to settle, and the last two counts were dismissed

as a matter of law on Schnuck’s motion for summary judgment. Conner now


                                        -5-
appeals the district court’s grant of summary judgment to Schnuck. Conner

argues that having presented a prima facie case of retaliatory discharge, he should

survive summary judgment without presenting any evidence with regard to the

employer’s articulated reasons for his discharge. In the alternative, Conner

argues that he has presented sufficient evidence of pretext to survive summary

judgment. We disagree with both of these contentions.



                                  II. DISCUSSION

A.    FLSA Retaliation Claim.

      Section 215(a)(3) of the FLSA provides that it is unlawful for any person

“to discharge or in any other manner discriminate against any employee because

such employee has filed any complaint or instituted or caused to be instituted any

proceeding under or related to [the FLSA] . . . . ” 29 U.S.C. § 215(a)(3) (1994).

The district court determined that Conner failed to produce sufficient evidence to

survive summary judgment on his section 215(a)(3) claim. We review the district

court’s grant of summary judgment de novo, Kaul v. Stephan, 83 F.3d 1208, 1212

(10th Cir. 1996).

      We have held that “[w]hen the ‘immediate cause or motivating factor of a

discharge is the employee’s assertion of statutory rights, the discharge is

discriminatory under § 215(a)(3) whether or not other grounds for discharge


                                         -6-
exist.’” Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984)

(quoting Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975)).

In a later case, we explained that Love’s “motivating factor” test is equivalent to

the “but for cause” test, so that “the discharge is unlawful only if it would not

have occurred but for the retaliatory intent.” Martin v. Gingerbread House, Inc.,

977 F.2d 1405, 1408 n.4 (10th Cir. 1992) (emphasis in original). Thus, if a jury

finds that a FLSA retaliation plaintiff “would have been terminated regardless of

her FLSA activity, then it [is] required to find in favor of the defendants.”

McKenzie v. Renberg’s, Inc., 94 F.3d 1478, 1484 (10th Cir. 1996), cert. denied,

117 S. Ct. 1468 (1997) (citing Reich v. Davis, 50 F.3d 962, 966 (11th Cir. 1995)).

       In analyzing FLSA retaliation claims, we apply the shifting burden of

proof scheme initially articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Richmond v. Oneok, Inc., ___ F.3d ___, No. 96-6228, 1997 WL

411505, at *2 (10th Cir. July 23, 1997) (citing Morgan v. Hilti, Inc., 108 F.3d

1319, 1323 (10th Cir. 1997)). Under this standard, a plaintiff must first establish

a prima facie case of retaliation. Id. The burden then shifts to the employer to

offer a legitimate reason for the plaintiff’s termination. Id. Once the employer

offers such a reason, “the burden then shifts back to the plaintiff to show that

‘there is a genuine dispute of material fact as to whether the employer’s proffered




                                         -7-
reason for the challenged action is pretextual.’” Id. (quoting Morgan, 108 F.3d at

1323).

         To establish a prima facie case of FLSA retaliation, a plaintiff must show

that: (1) he or she engaged in activity protected by the FLSA; (2) he or she

suffered adverse action by the employer subsequent to or contemporaneous with

such employee activity; and (3) a causal connection existed between the

employee’s activity and the employer’s adverse action. Id. (citing Archuleta v.

Colorado Dep’t of Insts., 936 F.2d 483, 486 (10th Cir. 1991)). We believe that

Conner has satisfied the first two prongs of the prima facie case, and we assume

arguendo for the purposes of this appeal that Conner has satisfied the third prong.

         With regard to the first prong, protected activity, we note that section

15(a)(3) of the FLSA, by its terms, only protects employees who have “filed any

complaint or instituted or caused to be instituted any proceeding under or related

to [the FLSA], or has testified or is about to testify in any such proceeding, or has

served or is about to serve on an industry committee.” 29 U.S.C. § 215(a)(3)

(1994). We have not read section 15(a)(3) literally, however, so that even the

“unofficial assertion of rights through complaints at work” is protected. Love v.

RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (finding that an

employee’s request for a raise pursuant to the Equal Pay Act was protected

activity).


                                           -8-
      In this case, Conner claimed that he was owed overtime wages under the

FLSA’s wage and overtime provisions, and we believe these requests involve the

“unofficial assertion of rights through complaints at work.” Id. In McKenzie v.

Renberg’s Inc., 94 F.3d 1478 (10th Cir. 1996), cert. denied, 117 S. Ct. 1468

(1997), we held that a plaintiff who had lodged complaints about wage and hour

practices had not engaged in protected activity, id., at 1486-87; however,

Conner’s claim is distinguishable from the one at issue in McKenzie. In

McKenzie, the plaintiff was employed as a personnel director who “never crossed

the line from being an employee merely performing her job as personnel director

to an employee lodging a personal complaint about the wage and hour practices of

her employer and asserting a right adverse to the company.” Id. at 1486. In this

case, Conner has no management responsibilities regarding the calculation of

overtime wages, and, therefore, Conner’s request for overtime wages was

“adverse to the company” and was a “personal complaint about the wage and hour

practices of [his] employer.” Id.

      We also believe that Conner satisfied the second prong of the prima facie

case because Schnuck terminated Conner subsequent to Conner’s participation in

the wage survey. Finally, we will assume arguendo for the purposes of this




                                        -9-
appeal that Conner has shown a causal connection between his participation in

protected conduct and Schnuck’s decision to terminate him. 3

      We have held that “[t]he causal connection may be demonstrated by

evidence of circumstances that justify an inference of retaliatory motive, such as

protected conduct closely followed by adverse action.” Burrus v. United Tel. Co.

of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982) (citing Grant v. Bethlehem Steel

Corp., 622 F.2d 43, 46 (2d Cir. 1980); Womack v. Munson, 619 F.2d 1292, 1296

& n.6 (8th Cir. 1980)). In this case, however, the four month time lag between

Conner’s participation in protected activity and his termination by itself would

not be sufficient to justify an inference of causation. Compare Richmond, 1997

WL 411505, at *3 (a “three-month period between the [protected] activity and

termination, standing alone, does not establish a causal connection”) with Love v.

RE/MAX of Am., Inc., 738 F.2d 383, 386 (1984) (a two-hour gap between

protected conduct and adverse employment action was sufficient to satisfy the

causation prong of the prima facie case).

      Unless the termination is very closely connected in time to the protected

conduct, the plaintiff will need to rely on additional evidence beyond mere


      3
        The district court found that, although the evidence was not strong, it was
sufficient to establish a prima facie showing of a causal relationship between the
protected conduct and the termination, based upon Ringkamp’s involvement in
both events, Ringkamp’s alleged change in attitude toward Conner, and all the
other circumstances in the case.

                                       - 10 -
temporal proximity to establish causation. For example, in Marx v. Schnuck

Markets, 76 F.3d 324 (10th Cir.), cert. denied, 116 S.Ct. 2552 (1996), we

determined that a plaintiff made a sufficient prima facie showing of causation to

avoid summary judgment when he showed that shortly after filing an FLSA

complaint a pattern of retaliatory conduct began that was apparently related to his

FLSA conduct even though he was not finally terminated until much later. Id. at

329.

       In this case, Conner claims to have suffered adverse employment action

before he was terminated. Specifically, Conner testified in his deposition that his

hours were changed to less desirable times some time after he claimed overtime

wages. 4 However, Conner does not relate in his deposition testimony exactly how

soon after he filled out the wage survey that his hours were changed. Thus, the

record is devoid of evidence from which causation can be inferred by the mere

proximity of time. Whether there are sufficient other circumstances to sustain

Conner’s burden of proving the causation element of his prima facie case we need


       4
         Conner also testified that he and his wife were snubbed by his co-workers
with regard to after work social events after he filled out his wage survey.
However, we do not believe such treatment constitutes adverse employment action
within the meaning of our employment retaliation cases. To constitute adverse
employment action, the action at issue must relate to the terms and conditions of
employment. We decline Conner’s invitation to extend the FLSA’s reach to the
guest lists of those who host social events after work hours.



                                       - 11 -
not decide because the district court opinion can be affirmed on the basis of its

holding at the next stage of the McDonnell Douglas analysis that Conner failed to

rebut Schnuck’s evidence of a non-retaliatory reason for terminating him. Thus,

we turn to that step in the analysis.

      We have explained that in a retaliation case,

      [i]f a prima facie case is established, then the burden of production
      shifts to the defendant to articulate a legitimate, nondiscriminatory
      reason for the adverse action. The defendant need not prove the
      absence of retaliatory motive, but only produce evidence that would
      dispel the inference of retaliation by establishing the existence of a
      legitimate reason. If evidence of a legitimate reason is produced, the
      plaintiff may still prevail if [he] demonstrates the articulated reason
      was a mere pretext for discrimination. The overall burden of
      persuasion remains on the plaintiff.

Burrus, 863 F.2d at 343 (internal citations and quote marks omitted). Thus, once

the “defendant carries its burden of producing legitimate, nondiscriminatory

reasons for its decision, the presumption of discrimination created by the

McDonnell Douglas framework ‘drops from the case,’ and ‘the factual inquiry

proceeds to a new level of specificity.’” Combs v. Plantation Patterns, 106 F.3d

1519, 1528 (11th Cir. 1997) (quoting Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 255 & n.10 (1981)). We believe the district court

correctly applied the shifting burdens framework to Conner’s claim.

      After the district court determined that Conner had established a prima

facie case, the court shifted the burden of production to Schnuck, who was asked


                                        - 12 -
to proffer a legitimate reason for its termination of Conner. Schnuck maintained

that it terminated Conner for violating the company’s policy against accepting

gifts from vendors and for lying to management during the subsequent

investigation. After Schnuck met its burden of production, the presumption of

discrimination raised by Conner’s prima facie case was dropped from the case in

accordance with the Supreme Court’s holding in Burdine, 450 U.S. at 255 & n.10.

      Consequently, to avoid summary judgment at this stage in the process,

Conner was required to produce evidence that his discharge was in retaliation for

his protected FLSA activity, either through the use of direct evidence or by

showing that Schnuck’s proffered non-retaliatory reasons for terminating him

were pretextual. Randle v. City of Aurora, 69 F.3d 441, 451-53 (10th Cir. 1995).

Conner asserts that he has no obligation to produce such evidence at the summary

judgment stage, arguing that “having presented a prima facie case, [he] should

have been permitted to present his case to the finder of fact.” (Aplt. Brief at 22).

Conner relies on the following quote from St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502 (1993), for the proposition that he has no obligation to rebut Schnuck’s

proffered reasons at the summary judgment stage because the jury might simply

disbelieve Schnuck’s proffered reasons at trial: “The factfinder’s disbelief of the

reasons put forward by the defendant . . . may, together with the elements of the




                                        - 13 -
prima facie case, suffice to show intentional discrimination.” Id. at 511. We

disagree with this interpretation of Hicks.

      Conner’s argument ignores the fact that after the defendant has carried its

burden of production by offering a legitimate, non-discriminatory reason for its

actions, “the presumption [of discriminatory motive] . . . simply drops out of the

picture.” Id. at 510-11. Thus, at the third stage of the McDonnell Douglas

analysis, a discrimination case looks like any other civil case where the plaintiff

“at all times bears the ultimate burden of persuasion.” Id. at 511 (internal

punctuation omitted). Accordingly, under ordinary summary judgment principles,

the plaintiff must produce evidence from which a reasonable jury could believe

that the defendant’s proffered reason is a false one in order to survive summary

judgment. 5 As one commentator has noted, “[t]he [Hicks] Court did not purport

to limit the availability of summary judgment to either party upon consideration

of all the evidence relevant to pretext . . . . [T]he Court stressed in Hicks that


      5
        Of course, evidence bearing upon the falsity of the defendant’s proffered
reason does not have to challenge the proffered reason directly. At the third stage
of McDonnell Douglas, the plaintiff can always produce direct evidence of
discriminatory motive, and in this way challenge the truth of the defendant’s
proffered reason. See EEOC v. Flasher, Co., 986 F.2d 1312, 1317 (10th Cir.
1992) (explaining that at the third stage of McDonnell Douglas, “[t]he plaintiff
can prevail either directly by proving that the employer acted with a
discriminatory motive or indirectly by showing that the stated reason for the
discharge was a ‘pretext for the sort of discrimination prohibited by [law]’”)
(quoting McDonnell Douglas, 411 U.S. at 804-05).


                                         - 14 -
once a McDonnell Douglas-Burdine case reaches the pretext stage, it is to be

treated like any other civil case.” Deborah C. Malamud, The Last Minuet:

Disparate Treatment After Hicks, 93 Mich. L. Rev. 2229, 2305 (1995).

      Indeed, we have stated in several post-Hicks cases that even though a

plaintiff has established a prima facie case, the defendant is entitled to summary

judgment unless the plaintiff produces either direct evidence of discrimination or

evidence that the defendant’s proffered reason for the action taken was pretextual.

See e.g., Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir.), cert. denied, 513

U.S. 819 (1994) (granting summary judgment even after plaintiff had established

a prima facie case of race discrimination on the grounds that plaintiff had “not

offered sufficient evidence to support a finding that [defendant’s] stated reason

was a pretext for discrimination.”); Randle v. City of Aurora, 69 F.3d 441, 451 &

n.14 (10th Cir. 1995) (explaining that “it [is] . . . 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 -- i.e., unworthy of

belief[,]” and thus, “the defendant would . . . be entitled to summary judgment if

plaintiff could not offer evidence tending to show the defendant’s innocent

explanation for his employment decision was false.”); Marx v. Schnuck Markets,

Inc., 76 F.3d 324, 328 (10th Cir.), cert. denied, 116 S.Ct. 2552 (1996) (granting

defendant summary judgment on an ADEA claim even though plaintiff had


                                         - 15 -
established a prima facie case on the grounds that plaintiff’s pretext evidence did

not allow for an inference of age discrimination). 6

      This is not to say that evidence introduced as part of the prima facie case

cannot also be used at the pretext stage of the analysis. See Burdine, 450 U.S. at

255 n.10 (“[i]n saying that the presumption drops from the case [at the third

stage], we do not imply that the trier of fact no longer may consider evidence

previously introduced by the plaintiff to establish a prima facie case.”) We



      6
         It is noteworthy that every other circuit has also held post-Hicks that a
plaintiff cannot survive summary judgment by simply producing a prima facie
case of discrimination. These courts hold that a plaintiff must produce either
direct evidence of discrimination or evidence that the defendant’s proffered
reason was pretextual in addition to establishing a prima facie case in order to
survive summary judgment. See Smith v. Stratus Computer, Inc., 40 F.3d 11, 16
(1st Cir. 1994), cert. denied, 514 U.S. 1108 (1995) (Title VII -- sex
discrimination); Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996),
cert. denied, 117 S. Ct. 1819 (1997) (§ 1981 and Title VII -- race and sex
discrimination); Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994) (Title VII --
national origin discrimination); Evans v. Technologies Applications & Serv. Co.,
80 F.3d 954, 960 (4th Cir. 1996) (Title VII -- sex discrimination); Bodenheimer v.
PPG Industries, Inc., 5 F.3d 955, 958 (5th Cir. 1993) (ADEA); Boyd v. Harding
Academy of Memphis, Inc., 88 F.3d 410, 414-15 (6th Cir. 1996) (Title VII --
pregnancy discrimination); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120,
1124-26 (7th Cir. 1994) (ADEA); Thomas v. Runyon,108 F.3d 957, 960-61 (8th
Cir. 1997) (Title VII -- race discrimination); Wallis v. J. R. Simplot Co., 26 F.3d
885, 890-91 (9th Cir. 1994) (Title VII -- retaliatory discharge; ADEA); Combs v.
Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997) (Title VII -- race
discrimination); Cf. Kolstad v. American Dental Ass’n, 108 F.3d 1431, 1437
(D.C. Cir. 1997) (Title VII -- sex discrimination) (denying employer summary
judgment after finding that plaintiff “introduced sufficient evidence for the jury to
conclude both that she had proven a prima facie case of discrimination and that
[defendant’s] proffered reasons were pretextual”) (emphasis added).

                                        - 16 -
simply reject Conner’s argument that the establishment of a prima facie case is

necessarily sufficient to survive summary judgment.

      Conner next argues that even if rebuttal evidence is needed in the ordinary

McDonnell Douglas case, the Marx decision stands for the proposition that in a

FLSA retaliation case, a showing of temporal proximity between protected

activity and adverse employment action is always sufficient to survive summary

judgment. 76 F.3d at 329. We disagree both with the breadth of this argument

and the factual predicate as applied to this case.

      In Marx, we considered the claim of one of Conner’s co-workers, Mr.

Marx, who was demoted, transferred, and ultimately terminated by Schnuck

Markets after he participated in the very overtime wage survey at issue in this

case. Id. at 326-27. Mr. Marx claimed in part that Schnuck took action against

him because of his participation in the wage survey, in violation of the FLSA. Id.

Schnuck responded with the claim that it demoted and transferred Mr. Marx

because he lied about whether he was harassing other employees into completing

the wage survey, and that it ultimately fired Mr. Marx when it discovered that Mr.

Marx had lied on his employment application. Id.     After applying the

McDonnell Douglas shifting burden framework to Mr. Marx’s FLSA retaliation

claim, the district court granted Schnuck summary judgment on the grounds that

Mr. Marx “failed to present sufficient evidence to create a question of fact as to


                                         - 17 -
whether defendant’s proffered reasons for its actions [were] pretextual.” Marx v.

Schnuck Markets, Inc., 863 F. Supp. 1489, 1497 (D. Kan. 1994), rev’d, 76 F.3d

324 (10th Cir. 1996).

      On appeal, we reversed with regard to Mr. Marx’s FLSA retaliation claim.

Marx, 76 F.3d at 329. In analyzing Mr. Marx’s FLSA claim, we did not address

the McDonnell Douglas framework but simply explained that “protected conduct

closely followed by adverse action may justify an inference of retaliatory motive,”

and that “[g]ranting plaintiff the benefit of every favorable inference, the pattern

of actions taken by defendant precludes summary judgment . . . .” Id. at 329

(emphasis added).         Conner would have us read Marx as holding that

protected conduct closely followed by adverse action always justifies an inference

of retaliatory motive, and thus summary judgment is always inappropriate when

temporal proximity is established. We refuse to read Marx in this way. See

Burrus, 683 F.2d at 343 (after explaining that a plaintiff may establish the causal

connection prong of the prima facie case by temporal proximity, we noted that it

was still necessary to allow the defendant the opportunity to articulate a

legitimate nondiscriminatory reason for the adverse action, and the plaintiff then

still was required to prove actual discrimination); see also Morgan, 108 F.3d at

1324-25 (after noting that the plaintiff established a prima facie case of Family

and Medical Leave ACT (FMLA) retaliation by establishing temporal proximity


                                        - 18 -
between protected conduct and adverse employment action, we upheld the district

court’s grant of summary judgment because plaintiff produced no evidence to

rebut the proffered reasons of the employer). 7 Each case turns on its facts, and in

this case, we believe that Conner has simply produced insufficient evidence of

retaliatory motive or pretext to rebut Schnuck’s proffered non-retaliatory reasons

for terminating him.

      Conner next argues that even if the production of pretext evidence is

required in his case, he has presented such evidence. Conner argues that his

observation of other employees wearing vendor-given clothes at work belies both

the assertion that there is a company policy against accepting gifts and that any

such policy is enforced impartially. We disagree. The district court correctly

observed that Conner’s assertions are “conclusory allegations without specific

supporting facts. . . . The plaintiff does not point to any specific instances, nor

does he indicate any similarly-situated employee who received vendor premiums

with impunity.” (Order, at 14-15).

      In Durham v. Xerox Corp., 18 F.3d 836, 839-40 (10th Cir. 1994), cert.

denied, 513 U.S. 819 (1994), we explained that mere allegations of impartial



      7
       Accord Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (granting
defendant summary judgment despite plaintiff’s ability to show temporal
proximity evidence because pretext evidence was lacking); Cross v. Bally’s
Health & Tennis Corp., 945 F. Supp. 883, 889 (D. Md. 1996) (same).

                                        - 19 -
treatment are not sufficient to survive summary judgment. Here, although Conner

claims that he knew of other employees who accepted gifts from vendors without

detection, he has neither claimed, nor produced any evidence showing, that

Schnuck knew of other employees who accepted gifts.

      Further, Conner has not presented any evidence showing that Schnuck

treated other employees differently if they discovered such violations. Indeed, the

only evidence presented with regard to this inquiry supports Schnuck, as it

consists of Schnuck’s showing that it terminated a 14 year employee in 1988 for

accepting beer from a beer vendor.

      Finally, Conner has not challenged Schnuck’s decision to terminate him

because of his dishonesty. Indeed, Conner admitted in his deposition that

Ringkamp told him that he was willing to forget about the violation of the no-

premium policy if Conner would simply admit to having taken the jackets.

Conner has not produced any evidence showing that Schnuck’s proffered reason

of dishonesty was pretextual. We believe that Conner’s failure to challenge

Schnuck’s proffered reason of dishonesty is fatal to Conner’s attempt to survive

summary judgment. We have explained that a “discharge is unlawful [under

§ 215(a)(3) of the FLSA] only if it would not have occurred but for the retaliatory

intent.” Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 n. 4 (10th Cir.

1992) (emphasis in original). By failing to challenge Schnuck’s proffered reason


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of dishonesty, Conner has failed to produce evidence indicating that he would not

have been terminated but for retaliatory intent.

      For these reasons, we AFFIRM the district court’s grant of summary

judgment to Schnuck on Conner’s FLSA claim.



B.    Kansas Common Law Claim

      In addition to his FLSA claim, Conner asserts a retaliatory discharge claim

under the public policy exception to Kansas’ employment-at-will doctrine, citing

Murphy v. City of Topeka, 630 P.2d 186, 187-88 (Kan. Ct. App. 1981). The

district court dismissed this claim as precluded by the alternative statutory remedy

available under the FLSA. The court relied on Polson v. Davis, 895 F.2d 705

(10th Cir. 1990), where we held the Kansas Supreme Court would not allow a

common law cause of action for retaliatory discharge when an adequate statutory

remedy exists under Kansas law. Id. at 709.

      Conner claims that the Polson rationale is limited to situations where the

plaintiff has an adequate statutory remedy under state law, and does not apply to

situations where the plaintiff seeks statutory relief under federal law. However,

we have expressly held that the Polson rationale extends to plaintiffs seeking to

assert a common law cause of action for retaliation when they have a federal

statutory right. Masters v. Daniels Int’l Corp., 917 F.2d 455, 457 (10th Cir. 1990).


                                        - 21 -
      Moreover, the district court determined that no reasonable jury could find

for Conner on a common law retaliation claim because the McDonnell Douglas

burden shifting approach is used for state as well as federal retaliatory discharge

claims. (citing Huffman v. Ace Elec. Co., Inc., 883 F. Supp. 1469, 1475 (D. Kan.

1995)). For the same reasons that Conner fails to survive summary judgment on

his FLSA claim if McDonnell Douglas is applied, he would fail to survive

summary judgment on his state claim, even if we were to recognize such a claim.

For these reasons, we affirm the district court’s grant of summary judgment to

Schnuck Markets with respect to Conner’s common law retaliation claim.



                                  CONCLUSION

      With respect to Conner’s FLSA retaliation claim, we AFFIRM the district

court’s ruling that Conner failed to produce sufficient evidence of retaliatory

motive to survive summary judgment. With respect to Conner’s common law

retaliation claim, we AFFIRM the district court’s ruling that under Kansas law, a

common law retaliation claim is precluded by an adequate statutory remedy.




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