                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 14 1999
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    LARRY DON SIMS,

                  Plaintiff-Appellant,

    v.                                                   No. 98-6300
                                                   (D.C. No. CIV-97-1778-C)
    HALLIBURTON COMPANY,                                 (W.D. Okla.)

                  Defendant-Appellee.




                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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. 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.
      Defendant Halliburton Co. hired plaintiff Larry Don Sims, at the age of

forty-nine, to be an environmental technologist at its Duncan, Oklahoma facility.

Sims’ duties included visiting sites that Halliburton intended to sell, assessing any

environmental hazards at the sites that needed to be remedied before sale, and

working with the outside contractors hired to do the remediation. Halliburton

terminated Sims five years later, in the wake of an audit of one of the outside

contractors. Sims brought suit against Halliburton, contending he was terminated

in retaliation for reporting violations of environmental law and because of his

age. He sought redress for the alleged retaliation through a state law claim for

discharge in violation of public policy, and he sought redress for the alleged age

discrimination through a state law claim under the Oklahoma Anti-Discrimination

Act, Okla. Stat. tit. 25, §§ 1101-1901 (OADA), and through a federal claim under

the Age Discrimination in Employment Act, 29 U.S.C. §§621-634 (ADEA).

      Halliburton filed a motion for judgment on the pleadings under

Fed. R. Civ. P. 12(c) as to Sims’ two state law claims. Halliburton challenged

Sims’ retaliation claim on the ground that it alleged he was discharged for making

internal reports of federal law violations, which is not sufficient to establish a

violation of Oklahoma public policy. Halliburton challenged Sims’ OADA claim

on the ground that the statute does not provide an express private right of action

for age discrimination and the controlling law does not support an implied right


                                         -2-
of action. Sims, in turn, asked the district court to certify to the Oklahoma

Supreme Court the question whether an implied right of action for age

discrimination exists under the OADA.      See Okla. Stat. tit. 20, § 1602 (giving

Oklahoma Supreme Court power to answer question of law certified to it by

federal court).

       The district court denied Sims’ motion to certify and granted Halliburton’s

motion for judgment on the pleadings as to both state law claims. Thereafter,

Halliburton moved for summary judgment under Fed. R. Civ. P. 56(c) on Sims’

federal age discrimination claim, which the district court also granted. Sims

now appeals the district court’s rulings and asks that we certify several questions

to the Oklahoma Supreme Court concerning both of his state law claims. We

exercise jurisdiction under 28 U.S.C. § 1921 and affirm.

       Turning first to the disposition of the two state law claims, we review the

district court’s determination of Oklahoma law de novo.      See May v. National

Union Fire Ins. Co. , 84 F.3d 1342, 1345 (10th Cir. 1996). Our task is to achieve

the same result in federal court that would have been reached in state court had

the state claims been pursued there.    See Perlmutter v. United States Gypsum Co.    ,

54 F.3d 659, 662 (10th Cir. 1995). To that end, “[w]e must apply Oklahoma law

as announced by the Oklahoma Supreme Court.”         Fields v. Farmers Ins. Co. ,

18 F.3d 831, 834 (10th Cir. 1994). While we are not bound by the rulings of the


                                           -3-
lower Oklahoma courts, we will generally follow them absent compelling reasons

not to. See Perlmutter , 54 F.3d at 662. If the Oklahoma Supreme Court has not

decided the issues presented, “our job is to predict how that court would rule.”

Carl v. City of Overland Park, Kan.    , 65 F.3d 866, 872 (10th Cir. 1995).

       Although we apply Oklahoma law to the substantive legal issues presented

by Sims’ two state law claims, we review the grant of judgment on the pleadings

under federal standards.     See Perlmutter , 54 F.3d at 662. We apply the same

standard of review to the entry of judgment on the pleadings under Rule 12(c)

as we do to the dismissal of a complaint under Rule 12(b)(6).     See Bishop v.

Federal Intermediate Credit Bank      , 908 F.2d 658, 663 (10th Cir. 1990). We

review a Rule 12(b)(6) dismissal de novo, “confining our review to the

allegations of the complaint and taking them as true.”     Doyle v. Oklahoma Bar

Ass’n , 998 F.2d 1559, 1566 (10th Cir. 1993).


         State Claim for Wrongful Discharge in Violation of Public Policy

       Sims’ first state claim is for wrongful discharge in violation of public

policy, which he refers to as a “whistleblower” claim. To state a claim for

wrongful discharge in violation of public policy, the employee must show that

his discharge was either “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.”     Burk v. K-Mart Corp. , 770 P.2d 24, 29 (Okla. 1989).

                                            -4-
The public policy must be clearly articulated by “constitutional, statutory or

decisional law.”   Id. at 28. “[A] federal statute cannot serve as an articulation

of Oklahoma public policy, absent a specific Oklahoma decision, statute or

constitutional provision.”     Griffin v. Mullinix , 947 P.2d 177, 179 (Okla. 1997).

       “[T]he initial determination of public policy is a question of law to be

resolved by the court.”      Hayes v. Eateries, Inc. , 905 P.2d 778, 785 (Okla. 1995).

“[C]ourts will be able to screen cases on motions to dismiss for failure to state

a claim or for summary judgment if the discharged employee cannot allege a

clear expression of public policy.”     Burk , 770 P.2d at 29 (quotation omitted).

In determining whether Sims has alleged a clear expression of public policy,

we are mindful of the Oklahoma Supreme Court’s caution that we “tightly

circumscribe public policy exceptions to the employment-at-will doctrine and

not create causes of action in an effort to create policy outside the legislative

channels charged with that responsibility.”         Griffin , 947 P.2d at 180 (quotation

omitted); see also Marshall v. OK Rental & Leasing, Inc.         , 939 P.2d 1116, 1119

(Okla. 1997) (“[W]e must strictly construe the claimed public policy to see if a

clear mandate of public policy exists.”).

       The allegations of Sims’ complaint relating to his whistleblower claim are

few, and consist entirely of the following: “Plaintiff’s action is one . . . for

retaliation for making internal reports of violation of federal law.” Appellant’s


                                              -5-
App. at 1 (Compl. ¶ 3). “Retaliation for internally opposing violation of federal

[law] is prohibited by Oklahoma’s public policy.”      Id. “One determining factor

in the decision to terminate the Plaintiff was Plaintiff’s age. Another significant

factor was Plaintiff’s continued opposition to the actions of the Defendant in

violation [of] Environmental Protection laws.”      Id. at 2 (Compl. ¶ 7). “Plaintiff’s

termination, which was also motivated in significant part by his continued internal

reports of and opposition to violations of the environmental protection laws is

contrary to Oklahoma’s public policy and gives rise to the tort of wrongful

discharge.” Id. at 3 (Compl. ¶ 13).

      Construing the relevant allegations of Sims’ complaint together, and

assuming them to be true, they establish that Sims was discharged in retaliation

for reporting to other Halliburton employees that Halliburton had violated federal

environmental law. In Richmond v. ONEOK, Inc. , 120 F.3d 205 (10th Cir. 1997),

we rejected a plaintiff’s claim for discharge in violation of public policy that was

based on her internal reports of illegal and unethical conduct of her supervisor,

stating: “This court has already held that there is no clear mandate of Oklahoma

public policy against terminating employees for whistleblowing activity.”       Id.

at 210-11 (citing Burk v. K Mart Corp. , 956 F.2d 213, 214 (10th Cir. 1991)).

Sims argues that Richmond ’s seemingly broad holding should be limited to

factually similar cases, where the plaintiff’s allegations do not indicate that the


                                           -6-
wrongdoing he or she reported implicated public, rather than purely private,

interests. See Hayes , 905 P.2d at 786-87 (distinguishing between whistleblowing

on conduct that impacts only private or proprietary interests of employer and

whistleblowing on conduct that impacts public interests). Because Sims’ claim

involves whistleblowing on violations of environmental law, Sims contends that

the district court should not have relied on our holding in   Richmond to dismiss

his claim.

       We need not decide whether      Richmond ’s holding should apply here,

because Sims’ claim suffers from another fatal flaw: his whistleblowing related

to violations of federal environmental laws, which, standing alone, do not embody

a clear expression of Oklahoma public policy.       See Griffin , 947 P.2d at 179. Sims

raises several arguments on appeal in an attempt to circumvent this deficiency.

       First, Sims simply denies that his complaint makes any reference to

violations of federal law and argues, therefore, that his claim should not be so

limited. See Appellant’s Opening Br. at 13. As our previous quotations from the

complaint indicate, this is a blatant misrepresentation of the record. In his reply

brief, Sims tries a slightly different tack: he argues that the allegations referring

to violations of federal law have no effect on his whistleblower claim because

those allegations occur only in an earlier portion of the complaint concerning

jurisdiction and venue.    See Appellant’s Reply Br. at 8. This argument is


                                             -7-
disingenuous,   1
                    and we see no compelling reason to deviate from “the rule that

appellate courts will not entertain issues raised for the first time on appeal in an

appellant’s reply brief.”    Headrick v. Rockwell Int’l Corp.   , 24 F.3d 1272, 1277-78

(10th Cir. 1994).

       Next, Sims argues that because Oklahoma has its own body of

environmental law, some of which incorporates standards taken from federal law,

the district court should have broadly construed his whistleblower allegations as

encompassing violations of Oklahoma environmental law. Sims’ complaint,

however, does not contain any factual allegations from which a court could

reasonably infer that any of the Oklahoma statutes Sims now cites would apply.

The complaint does not specify the nature of the environmental law violations,

or even allege that the violations occurred in Oklahoma. Therefore, we cannot

reasonably construe Sims’ whistleblowing claim to implicate any public policy

expressed in Oklahoma law, clearly or otherwise.

       By way of comparison, we note that the complaint in       Todd v. Frank’s Tong

Service, Inc. , 784 P.2d 47 (Okla. 1989),    a case upon which Sims relies, alleged

that “[the plaintiff’s] termination was a direct result of his refusal to operate



1
      Among other things, Count II of the complaint, which sets forth Sims’
claim for wrongful discharge in violation of public policy, begins by
incorporating all the previous allegations of the complaint. See Appellant’s
App. at 3.

                                            -8-
‘motor vehicles with defective brakes, headlights and turnsignals,’” and it also

cited the Oklahoma statutes that expressed the public policy the plaintiff refused

to violate, id. at 50. Sims’ complaint contains neither an explicit reference to

Oklahoma public policy, nor any historical facts from which we could even infer

the applicable public policy.   2



       Finally, Sims argues that the Oklahoma Supreme Court’s decision in

Wheless v. Willard Grain & Feed, Inc.    , 964 P.2d 204 (Okla. 1998), which was

decided after the district court entered final judgment here, establishes the

validity of his claim. In   Wheless , the plaintiff was discharged after upper

management learned that he had falsified data that was submitted to the State of

Oklahoma in various environmental reports.       Id. at 205. The plaintiff argued that

his termination was wrongful because he was directed to falsify the reports by

plant managers, who would have fired him had he refused.       Id. The Oklahoma

court rejected the plaintiff’s claim, concluding that “[p]ublic policy commitment

to environmental safety and protection is not advanced by an employee who

participates in violating a state statute and keeps silent concerning the violation,

even when his motivation is fear of being discharged.”     Id. at 206.


2
       In his reply brief, Sims argues that the district court should have granted
his request to amend his complaint to add specific references to Oklahoma’s
environmental laws. Again, however, we see no reason to deviate from our
general practice of not considering arguments raised for the first time in an
appellant’s reply brief. See Headrick , 24 F.3d at 1277-78.

                                           -9-
       Sims contends that Wheless establishes that “whistleblowing protection

for reporting environmental law violations” exists under Oklahoma law and,

therefore, the district court should not have dismissed his claim. Appellant’s

Opening Br. at 13. We reject Sims’ suggestion that the rationale employed in

Wheless somehow obviates the need for an employee to “allege a clear expression

of public policy,” Burk , 770 P.2d at 29 (quotation omitted), when the employee

claims he was discharged for reporting a violation of environmental law. The

Oklahoma Supreme Court has specifically refused to make any broad statements

about when a discharge resulting from the “internal or external good faith

reporting of employer or co-employee infractions of rules, regulations or the law

pertaining to the public health safety or general welfare” may give rise to an

actionable tort claim.   Hayes , 905 P.2d at 787 n.7.

       Instead, “the decision as to whether a certain situation does or does not fall

under the Burk umbrella must be made to a large degree on a case-by-case basis.”

Id. Here, the allegations of Sims’ complaint, if true, are inadequate to establish

that he was discharged either “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.”    Burk , 770 P.2d at 29. Therefore, the district

court properly granted Halliburton’s motion for judgment on the pleadings as to

Sims’ claim that he was discharged in violation of Oklahoma public policy.


                                          -10-
                State Claim for Age Discrimination under the OADA

       The OADA prohibits discrimination in employment, public accommodation,

and housing on the basis of a person’s race, color, national origin, sex, religion,

handicap, or age.   See Okla. Stat. tit. 25, § 1302 (employment), § 1402 (public

accommodation), § 1452 (housing). As originally enacted, the statute did not

provide a private right of action for any victim of discrimination in employment.

See Duncan v. City of Nichols Hills    , 913 P.2d 1303, 1307 (Okla. 1996). In 1990,

the legislature added § 1901, which provides an express right of action to victims

of employment discrimination based on a handicap. Sims contends that we should

imply a private right of action under the statute for victims of other types of

employment discrimination, including age discrimination. Sims contends that

implying a private right of action under the OADA is consistent with the test

adopted by the Oklahoma Supreme Court in          Holbert v. Echeverria , 744 P.2d 960,

962-65 (Okla. 1987), for implying a private right of action under a public,     i.e. ,

regulatory, statute. He also argues that if the OADA is not construed to provide a

private right of action for victims of all types of prohibited discrimination, it will

contravene Okla. Const. art. 5, § 46. The district court concluded that no implied

right of action for age discrimination in employment existed under the OADA.

Based upon our review of Oklahoma law, we agree.



                                           -11-
       Putting aside for the moment the constitutionality of the OADA’s remedial

scheme, we consider whether implying a private right of action comports with

Oklahoma law. The Oklahoma Supreme Court has adopted the following

three-pronged test for determining whether a public statute implies a private right

of action. “First, the plaintiff must belong to that class for whose especial benefit

the statute was enacted and the class must be narrower than the public at large.”

Walker v. Chouteau Lime Co. , 849 P.2d 1085, 1086 (Okla. 1993) (quotations

omitted). “The determination of a special class is to be effected by a narrow

construction.”   Holbert , 744 P.2d at 963.     “Second, the statute must either

explicitly or implicitly give some indication the legislature intended to create

a private remedy rather, than to deny one.”          Walker , 849 P.2d at 1086. This

second prong is the central factor in the test; the other two prongs assist our

search for the legislature’s intent.   See Holbert , 744 P.2d at 963 n.9, 964 & n.12.

“Finally, the private remedy must not be inconsistent with the underlying

purposes of the legislative scheme.”     Walker , 849 P.2d at 1087.



       Applying the three-prong test to the statute before us, it appears that Sims

satisfies the first prong. The employment discrimination provisions of the OADA

provide protection to employees of businesses that have fifteen or more

employees. See Okla. Stat. tit. 25, §§ 1301(1), 1302(A). While this class of


                                              -12-
protected people is admittedly broad, it is not as broad as the public at large.

See Holbert , 744 P.2d at 963 (holding that when a statute “is for the benefit of

the general public, no special class is established for whose especial benefit it

was created”). The parties do not dispute that Halliburton employs more than

fifteen people, so Sims is a member of the class protected by the statute.

       We turn, then, to the second prong: legislative intent. “Legislative intent

is ascertained by looking at the precise wording of the Act and studying its

history. Established rules of statutory construction are then applied to resolve any

ambiguity.” Id. at 964. In interpreting the OADA, we give weight to Oklahoma’s

own rules of statutory construction.   See Phelps v. Hamilton , 59 F.3d 1058, 1071

(10th Cir. 1995).

       As originally enacted, the OADA provided only administrative remedies to

victims of employment discrimination. The Oklahoma Human Rights

Commission was given “the power to receive, investigate, seek to conciliate, hold

hearing on, and decide complaints alleging the [OADA’s] violation.”      Tate v.

Browning-Ferris, Inc. , 833 P.2d 1218, 1227 (Okla. 1992). The Commission also

was given the power to grant affirmative relief to aggrieved persons, including

“hiring or reinstatement of employees with or without back pay.” Okla. Stat.

tit. 25, § 1505(C)(1).




                                         -13-
       In 1990, the legislature added § 1901, which gives a person who has filed

an administrative charge of handicap discrimination in employment the right to

bring suit in state court if the Commission does not resolve the discrimination

charge to the party’s satisfaction within 180 days.    Id. § 1901(A). If the charging

party brings suit, he has a right to a jury trial and he may recover nominal or

actual damages and reasonable attorney fees if he prevails.    Id. § 1901(C), (D).

       The plain language of the OADA, prior to its amendment in 1990, does not

suggest any intent on the part of the legislature to create a private right of action

for any discrimination in employment. Nor does the subsequent addition of an

express right of action for victims of handicap discrimination suggest an intent

to provide a private right of action for victims of other types of employment

discrimination. To the contrary, applying the maxim that “the mention of one

thing in a statute implies exclusion of another,” as the Oklahoma Supreme Court

did in Holbert , 744 P.2d at 965, leads to the conclusion that the Oklahoma

legislature did not intend to provide a private right of action for victims of

employment discrimination other than those who suffer discrimination because

of a handicap.

       Sims contends that legislative intent to provide a private right of action for

victims of age discrimination in employment can be found in the legislature’s

statement that the general purpose of the OADA is to provide for execution within


                                            -14-
Oklahoma of the policies embodied in various federal civil rights statutes,

including the Age Discrimination in Employment Act.      See Okla. Stat. tit. 25,

§1101(a). As the Oklahoma Supreme Court recently noted, however, the text of

the OADA evidences the legislature’s intent to distinguish between policies and

remedies. See Collier v. Insignia Fin. Group    , No. 90,482, 1999 WL 326277, at *3

(Okla. May 25, 1999). While the legislature did intend to incorporate the policies

of the ADEA in the OADA, the legislature did not intend to adopt the ADEA’s

remedial scheme as the OADA’s primary remedial scheme.        See id. Sims also

contends that we can find legislative intent to provide a private right of action for

all victims of employment discrimination in the language of Okla. Stat. tit. 12,

§ 1101.1, which the legislature adopted in August 1995. Section 1101.1 relates to

offers of judgment in “a civil action . . . brought for the recovery of money as a

result of a claim for personal injury, wrongful death or pursuant to Chapter 21 of

Title 25 or Section 5 of Title 85 of the Oklahoma Statutes.” Sims contends this

reference to Chapter 21 of Title 25, which is the OADA, “would be meaningless

if the [OADA] provided no remedy in money.” Appellant’s Opening Br. at 18.

He further argues that the legislature must, therefore, have intended to provide

a private right of action for all victims of employment discrimination under the

OADA.




                                         -15-
      We agree with Sims’ initial proposition that the reference to the OADA in

§ 1101.1 would make little sense if suits for money damages could not be brought

under any provisions of the OADA. The remainder of Sims’ argument, however,

overlooks the fact that by 1995, when the legislature adopted § 1101.1, the OADA

expressly provided that a civil action for money damages could be maintained by

any victim of discrimination in housing and by a victim of handicap

discrimination in employment.    See Okla. Stat. tit. 25, §§ 1502.14-.15, 1901.

Therefore, we need not construe the OADA as implying a private right of action

for all victims of discrimination in employment to give meaning to the language

of § 1101.1.

      Nor do we find any recognition in the opinions of the Oklahoma Supreme

Court that the OADA provides a private right of action for victims of employment

discrimination other than those who are handicapped. In    Tate v. Browning-Ferris ,

upon which Sims relies heavily, the Oklahoma Supreme Court considered the

remedies available to an alleged victim of racial discrimination and retaliation.

At the heart of its analysis was its determination that

      [t]he Act here in contest [the OADA] does not provide a private right
      of action to a person aggrieved by racially discriminatory practices if
      the Commission does not resolve the claim to his satisfaction. In
      contrast, it does afford a private right of action for discrimination
      based on handicap.




                                         -16-
Tate , 833 P.2d at 1229. While it is true that the court viewed the OADA’s

provision of disparate remedies to victims of discrimination in employment as

potentially violative of the Oklahoma Constitution,     id. at 1229-30, it is equally

true that the court did not resolve the problem by construing the OADA to imply

a private right of action for all victims of employment discrimination. Rather, the

court construed the OADA as not establishing “the sole remedy for racially

discriminatory practices,” which left victims of racial discrimination free to

pursue common-law claims, including a      tort claim for wrongful discharge in

violation of public policy.   Id. at 1230-31.

       The Oklahoma Supreme Court has since reiterated that victims of

employment discrimination other than handicap discrimination are limited to

administrative remedies under the OADA.         See, e.g. , Collier , 1999 WL 326277,

at *4 (“[W]hile the Act gives discharged victims of handicap discrimination

a private cause of action against the offending employer, it only provides an

administrative remedy for victims of quid pro quo sexual harassment.”) (footnote

omitted); Atkinson v. Halliburton Co. , 905 P.2d 772, 777 (Okla. 1995) (“The

statute [OADA] provided no private cause of action, therefore, an aggrieved party

could not vindicate his rights in court without having a common-law claim.”);

Brown v. Ford , 905 P.2d 223, 227 (Okla. 1995) (“Work-related sexual

discrimination is remediable against an employer in an administrative proceeding


                                           -17-
brought under the provisions of 25 O.S. 1991 §§ 1101 et seq.”) (footnote

omitted).

       Based upon our careful review of the OADA and of the cases interpreting

it, we discern no intent on the part of the Oklahoma legislature to imply a private

right of action for victims of discrimination in employment, other than as

expressly provided in § 1901 for victims of handicap discrimination. We may

imply a private right of action in the OADA only if all three prongs of the test

are met. See Welty v. Martinaire of Okla., Inc.    , 867 P.2d 1273, 1275-76 (Okla.

1994). Because Sims has not established the second, and central, prong of the

test, we need not consider whether the third prong would be met here.

       Our conclusion that the OADA does not provide a private right of action

for age discrimination in employment ends our analysis of whether the district

court properly granted Halliburton judgment on Sims’ OADA claim. We need not

consider whether, in the absence of an implied right of action, the OADA violates

Oklahoma’s Constitution. Sims has not sought a declaration on the

constitutionality of the OADA, and that issue is not properly before us.   3



       Based upon our analysis of Sims’ OADA claim, we also conclude that the

district court did not abuse its discretion in refusing to certify the issue to the

Oklahoma Supreme Court for decision.        See Coletti v. Cudd Pressure Control   ,


3
      Nor has the Attorney General of Oklahoma been notified of a constitutional
challenge to the OADA, as required by Fed. R. Civ. P. 24(c).

                                           -18-
165 F.3d 767, 775 n.7 (10th Cir. 1999) (“The decision whether to certify a

question of state law to the state supreme court is left to the discretion of the

district court.”). “[I]t has from the first been deemed to be the duty of the federal

courts, if their jurisdiction is properly invoked, to decide questions of state law

whenever necessary to the rendition of a judgment.”     Meredith v. City of Winter

Haven , 320 U.S. 228, 234 (1943). While “[c]ertification is a useful procedure,”

it “is not to be routinely invoked whenever a federal court is presented with an

unsettled question of state law.”   Copier By & Through Lindsey v. Smith &

Wesson Corp. , 138 F.3d 833, 838 (10th Cir. 1998) (quotation omitted). Although

no Oklahoma court has issued a decision directly addressing whether there is an

implied right of action for age discrimination in employment under the OADA,

the issue is not unusually difficult to decide under Oklahoma law, and it does not

appear likely that the Oklahoma Supreme Court would recognize Sims’ right of

action. Therefore, we conclude the district court did not abuse its discretion in

refusing to certify the issue to the Oklahoma Supreme Court.




                                          -19-
               Federal Claim for Age Discrimination under the ADEA

       We review the district court’s grant of summary judgment on Sims’ ADEA

claim de novo, applying the same standards as the district court under

Fed. R. Civ. P. 56(c).   See Diamond Bar Cattle Co. v. United States   , 168 F.3d

1209, 1211 (10th Cir. 1999). Pursuant to Rule 56(c), summary judgment is

appropriate only when there is no genuine dispute as to any material fact and the

moving party is entitled to judgment as a matter of law. Although “[w]e view the

evidence and draw any inferences in a light most favorable to the party opposing

summary judgment, . . . the nonmoving party must make a showing sufficient to

establish an inference of the existence of each element essential to the case.”

Aramburu v. Boeing Co. , 112 F.3d 1398, 1402 (10th Cir. 1997) (quotations and

citation omitted).

       Sims contends his age was a determining factor in his termination, while

Halliburton contends Sims was terminated in connection with his violation of

a work rule. To establish a prima facie case of discriminatory discharge, Sims

had to show that he is a member of the protected class, that the reason given for

his discharge was violation of a work rule, and that similarly situated younger

employees were treated differently.    See id. at 1403.

       “Once the plaintiff has established a prima facie case, the burden of

production shifts to the defendant to articulate some legitimate, nondiscriminatory


                                          -20-
reason for the employee’s rejection.”     EEOC v. Flasher , 986 F.2d 1312, 1316

(10th Cir. 1992) (quotation omitted). “[T]he defendant does not at this stage of

the proceedings need to litigate the merits of the reasoning, nor does it need to

prove that the reason relied on was bona fide, nor does it need to prove that the

reasoning was applied in a nondiscriminatory fashion.”     Id.

       Once the defendant meets its burden of production, the plaintiff “must then

present evidence raising a genuine issue that his termination was the result of his

[protected status] or that the reason offered by [the employer] was a mere

pretext.” Aramburu , 112 F.3d at 1403. “At the summary judgment stage, if the

plaintiff can show a prima facie case of discrimination and present evidence that

the employer’s proffered nondiscriminatory reason is a mere pretext, the case

should go to the factfinder.”   Id.

       For purposes of our analysis, we will assume without deciding that Sims

established a prima facie case of age discrimination.    See id. (assuming without

deciding that Title VII plaintiff established prima facie case). Next, we consider

whether Halliburton articulated a legitimate, nondiscriminatory reason for

terminating Sims. Halliburton presented evidence that Sims was discharged for

accepting gifts from an outside vendor of more than nominal value, in violation

of company policy, and then failing to reveal his receipt of the gifts during two

subsequent audits of the vendor conducted by Halliburton. This is a legitimate


                                           -21-
and nondiscriminatory reason for Sims’ termination. Halliburton having met

its burden of production, “the presumption of discrimination established by the

prima facie showing simply drops out of the picture.”     Id. (quotation omitted).

We turn, then, to the dispositive inquiry in this case: whether Sims presented

evidence raising a genuine issue that his termination was the result of his age

or that the reason advanced by Halliburton was a mere pretext.     See id.

      Halliburton contends that Sims’ claim fails at this step because Sims stated

repeatedly in his deposition that the real reason he was fired was because of his

whistleblowing activities. Sims testified that he and his supervisor, Mark

Kehnemund, had a personality conflict, that Kehnemund thought he was a “loose

cannon,” and that he was a major thorn in the side of Kehnemund and others at

Halliburton because of his forceful and continuous insistence that Halliburton fix

a host of environmental problems at sites throughout the country before selling

the sites. In Marx v. Schnuck Markets, Inc. , 76 F.3d 324, 328 (10th Cir. 1996),

we stated that “if a civil rights plaintiff concedes, for purposes of establishing

pretext, that the sole reason for the discharge was a motive prohibited by a law

entirely different from the one under summary judgment scrutiny, such

a concession mandates grant of summary judgment as to the latter claim.”

      In his deposition, Sims conceded that the primary reason he was fired was

because of his unpopular whistleblowing activities, but he did not abandon his


                                          -22-
claim that age was also a motivating factor. To prevail on his ADEA claim, Sims

need not show that his age was “the sole motivating factor in the employment

decision;” he need show only that his age “was also a reason for the employer’s

decision and that it was the factor that made a difference.”     Elmore v. Capstan,

Inc. , 58 F.3d 525, 530 (10th Cir. 1995) (quotations omitted). While some

portions of Sims’ testimony cast doubt on his age having made a difference in

the termination decision, other portions support his age discrimination claim,

so we will proceed with our analysis of pretext.

       “[I]n a disparate treatment case, pretext may be shown by reference to other

similarly situated non-minority employees receiving disparate discipline.”        Id.

“The infractions giving rise to the comparison need not involve exactly the same

offenses; they need only be of comparable seriousness.”        Flasher , 986 F.2d at

1316. “Similarly situated employees are those who deal with the same supervisor

and are subject to the same standards governing performance evaluation and

discipline.” Aramburu , 112 F.3d at 1404 (quotation omitted). Although “[t]he

younger employee need not be outside the ADEA-protected class[, he or she]

cannot be insignificantly younger because evidence that such an employee was

[treated differently] would be insufficient to create an inference of illegal

discrimination.”   Beaird v. Seagate Tech., Inc. , 145 F.3d 1159, 1167 n.4

(10th Cir.), cert. denied , 119 S. Ct. 617 (1998).


                                            -23-
      The evidence showed that one of the outside contractors Sims worked with

extensively in making environmental reports and doing remediation on the sites

was OVAC, the owner and president of which was Kirby Vinson. Halliburton

audited OVAC in 1995 and found that some Halliburton employees had violated

a company policy prohibiting employees from accepting gifts of more than a

nominal value from an outside vendor. Kehnemund issued letters of reprimand to

Sims and two other employees for accepting shrimp and steak from OVAC. In the

letter, Kehnemund warned Sims that accepting gifts worth more than $25.00 was

a violation of company policy and could result in his termination. The two other

employees who received letters of reprimand were Ron Bechtel, who was Sims’

age, and Matt Ratliff, who was considerably younger.

      In 1996, Halliburton performed a follow-up audit of OVAC and discovered

a 1992 bill for a $228.00 golf club that Sims had purchased and Kirby Vinson had

paid for. Sims had not told the auditors about the golf club during the 1995 audit,

and although the auditors gave him an opportunity to disclose all gifts during the

1996 audit, he again failed to disclose that he had received the golf club until the

auditors confronted him with the bill. In November 1996, Kehnemund terminated

Sims for what he perceived as Sims’ violations of company policy and his

dishonest response to the audits.




                                         -24-
      Sims contends that the stated reason for his termination is unworthy of

belief and is a mere pretext. First, he contends that other employees committed

equally or more serious offenses without being disciplined. As evidence, Sims

points to his deposition testimony that Jed DiPaolo (the Vice President of

Halliburton), Zeke Zeringue, Dale Jones, Ron Bechtel, and Matt Ratliff all

received gifts from outside vendors. This testimony does not constitute

appropriate evidence. First, Sims did not indicate that he had any firsthand

knowledge that these employees received outside gifts, other than Ron Bechtel.

See Aramburu , 112 F.3d at 1405 (rejecting deposition testimony not based on

firsthand knowledge). Second, Sims’ testimony did not indicate that any of these

employees, other than Ratliff, was younger and similarly situated to him.

Although we draw all reasonable inferences in Sims’ favor, we may not infer

from Sims’ testimony that either DiPaolo, Zeringue, or Jones was a younger,

similarly-situated employee.   4
                                   See id. Finally, Sims admitted that he had no idea

whether Ratliff or any of the others he identified reported their receipt of the gifts

to management, either before or after they received them.

      Next, Sims argues that pretext can be inferred from the fact that Ratliff

was merely given a warning for the same conduct that led to Sims’ termination.

The undisputed evidence shows, however, that both Ratliff and Sims were treated


4
      Although Bechtel was similarly situated, he was the same age as Sims.

                                            -25-
similarly in connection with infractions revealed in the 1995 audit. Sims was

discharged only after he also failed to disclose the receipt of gifts in the 1996

audit. Ratliff was not implicated in the 1996 audit.

       Sims contends the distinction between the 1995 and 1996 audits is

immaterial because he received the golf club long before he received

Kehnemund’s 1995 letter of reprimand, and he did not commit a new infraction

of company policy before the 1996 audit. This argument overlooks the fact that

Sims’ discharge was based in part on his failure to disclose his receipt of gifts

during the 1996 audit. Sims’ evidence simply “does not allow for a comparison

which eliminates nondiscriminatory reasons for differential treatment.”     Id.

at 1406.

       Sims also contends that pretext can be inferred from the fact that the

auditors did not discover the bill for the golf club until the 1996 audit. Sims did

not offer any evidence suggesting there was anything nefarious in the auditors’

discovery of the bill during the 1996 audit, however. He merely expressed his

own suspicion that the auditors planted the bill to catch him. Mere speculation

cannot create a genuine issue of material fact.    See Conaway v. Smith , 853 F.2d

789, 793 (10th Cir. 1988). Moreover, Sims did not offer any evidence connecting

the auditors’ actions with Kehnemund, who was the sole decisionmaker in Sims’

discharge.


                                            -26-
      Sims argues a jury also could infer pretext from Halliburton’s failure to cite

to any company policy that approves, much less mandates, termination for Sims’

infractions. Sims cites no legal authority for his suggestion that a company policy

must mandate termination before it can form the basis for termination. Further,

he admits there was a company policy against the acceptance of gifts of more than

nominal value, that he was well aware of the policy, that he knew Kehnemund

interpreted the policy to mean gifts in excess of $25.00, and that Kehnemund had

warned him that he could be terminated for accepting gifts in excess of $25.00.

Sims also admits that the golf club he received from Kirby Vinson was worth

substantially more than $25.00 and that he failed to disclose his receipt of that

gift during either of the two audits.

      Finally, Sims argues a jury could infer pretext from evidence that he was

not involved in deciding with which vendors Halliburton would contract, that he

had no motive to lie about the golf club, and that he had simply forgotten about

the gift. Again, however, these facts do not cast doubt on the credibility of

Halliburton’s articulated reason for Sims’ discharge. “The ADEA does not

require [the employer’s] business decisions to be wise–just nondiscriminatory.”

Beaird , 145 F.3d at 1169. While “there may be circumstances in which a claimed

business judgment is so idiosyncratic or questionable that a factfinder could




                                         -27-
reasonably find that it is a pretext for illegal discrimination,”    id. , this case does

not present such circumstances.

       Sims does not contend that he presented any direct evidence of age

discrimination, and our review of the record reveals no genuine issue of material

fact as to whether Halliburton’s stated reason for discharging Sims was unworthy

of belief. Therefore, we conclude the district court properly entered summary

judgment in favor of Halliburton on Sims’ claim for age discrimination under

the ADEA.

       The judgment of the district court is AFFIRMED. Appellant’s motion to

certify questions of state law is DENIED.



                                                           Entered for the Court



                                                           Mary Beck Briscoe
                                                           Circuit Judge




                                              -28-
