                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       April 24, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    PA U L BER GER SEN ,

                Plaintiff-Appellant,

    v.                                                  No. 06-3209
                                                 (D.C. No. 05-CV-1044-JTM )
    SHELTER M UTUAL INSURANCE                             (D . Kan.)
    C OM PA N Y , SH ELTER GEN ERAL
    INSU RANCE COM PA NY, and
    SHELTER LIFE INSURANCE
    C OM PA N Y ,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.




         Paul Bergersen appeals the district court’s grant of summary judgment in

favor of his former employer Shelter M utual Insurance Company, Shelter General

Insurance Company, and Shelter Life Insurance Company (Shelter), on his Kansas




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
common law retaliatory discharge claim. Our jurisdiction arises under 28 U.S.C.

§ 1291, and we affirm.

                                         I

      M r. Bergersen’s version of the facts and the uncontroverted evidence

proffered by Shelter provide the following abbreviated factual scenario.

M r. Bergersen was an at-will multi-line sales agent with Shelter from M ay 1999

until July 2003, when Shelter terminated him. His responsibilities included the

sale of home, auto, life and other insurance products. He was also responsible for

the fulfillment of administrative obligations, such as maintaining a premium trust

fund account, policy and customer files, and the agency accounting system.

      In early summer 2002, M r. Bergersen suspected that Shelter was

discriminating against its Hispanic insureds. In August, Shelter canceled three

auto policies of an Hispanic client. M r. Bergersen subsequently referred the

client to the Kansas Insurance Department (KID). 1 In November, M r. Bergersen

was contacted by the KID regarding the client’s complaint.

      In January 2003, M r. Bergersen anonymously contacted the KID regarding

what he believed to be Shelter’s violations of state law. In either January or

February, M r. Bergersen reported to Shelter management his belief that the




1
       The KID is responsible for regulating Kansas’s insurance companies to
ensure they “comply with insurance laws and regulations.” KID W ebsite,
http://www .ksinsurance.org/about/mission.htm.

                                        -2-
company was discriminating against its Hispanic insureds. Then, on M ay 8,

M r. Bergersen filed a formal complaint with the KID claiming that Shelter was

discriminating against its Hispanic insureds. Later that month, Shelter’s in-house

counsel advised M r. Bergersen in writing that Shelter had investigated his

allegations but found no evidence of discrimination. On M ay 30, Shelter placed

M r. Bergersen on a probation plan, detailing the specific areas in which he was

instructed to improve in the next thirty days. On July 1, a little more than seven

weeks after M r. Bergersen formally reported Shelter to the KID, Shelter

terminated his employment.

      M r. Bergersen sued Shelter in Kansas state court contending that Shelter

discharged him in retaliation for reporting— “blow ing the w histle” on— Shelter’s

discriminatory practices. Shelter removed the case to federal court based on

diversity of citizenship and filed a motion for summary judgment. The district

court framed the “central issue” as “when did plaintiff engage in protected

activity, that being reporting alleged discriminatory practices at Shelter[?]” Aplt.

App. at 357. The court acknowledged that the fourth element of M r. Bergersen’s

prima facie case (causation) would be much stronger if it were to consider the

temporal proximity between his M ay 8, 2003, formal complaint, and his discharge

on July 1, 2003. See id. at 358. But the court found that M r. Bergersen’s earlier

report to management was “the date from which the court [should] measure[]

temporal proximity.” Id. Relying on the earlier report to management, the court

                                         -3-
held the several-month temporal connection between the report and the discharge

was insufficient, standing alone, to establish causation. Id. at 359. 2 The court

held in the alternative that “even if [it] were to find that plaintiff satisfied the

requirement[s] of a prima facie case . . . , plaintiff would not ultimately prevail”

because he failed to establish that Shelter’s motive for terminating him was

pretextual. Id. at 359-60. Specifically, M r. Bergersen failed “to present any

evidence to rebut . . . performance questions” or to demonstrate “that he

responded to his supervisors’ concerns.” Id. at 360. M r. Bergersen appeals.

                                           II

      This diversity action is governed by Kansas’s substantive law , “but we are

governed by federal law in determining the propriety of the district court’s grant

of summary judgment.” Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016

(10th Cir. 2001). Accordingly, “[w]e review the district court’s grant of summary



2
      The court went on to observe:

             Besides the temporal connection, plaintiff presents limited
      evidence of retaliatory discharge. . . . Plaintiff points to [a] sales
      award and ranking as an agent, but he has not shown that he took
      steps to correct administrative problems, respond to the concerns
      expressed by underwriting, or meet the expectations of his
      supervisors. . . . His supervisors requested to be copied on his
      e-mails and had to come up with a procedure to deal with his
      unresponsiveness. . . . [T]here is little or no evidence of satisfactory
      work performance or supervisory evaluations either before or after he
      engaged in a protected activity.

Aplt. App. at 359.

                                           -4-
judgment de novo, applying the same legal standard used by the district court.”

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.,

165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

      W hen applying this standard, we view the evidence and draw
      reasonable inferences therefrom in the light most favorable to the
      nonmoving party.

             Although the movant must show the absence of a genuine issue
      of material fact, he or she need not negate the nonmovant’s claim.
      Once the movant carries this burden, the nonmovant cannot rest upon
      his or her pleadings, but must bring forward specific facts showing a
      genuine issue for trial as to those dispositive matters for which he or
      she carries the burden of proof. The mere existence of a scintilla of
      evidence in support of the nonmovant’s position is insufficient to
      create a dispute of fact that is genuine; an issue of material fact is
      genuine only if the nonmovant presents facts such that a reasonable
      jury could find in favor of the nonmovant.

Sim m s, 165 F.3d at 1326 (citations, quotations, and brackets omitted).

      “Kansas follows the common-law employment-at-will doctrine, which

allows employers to terminate employees for good cause, for no cause, or even

for the wrong cause. To prevail on a retaliatory discharge claim, an employee

must demonstrate that he or she falls within one of the exceptions to the

employment-at-will doctrine.” Goodman v. Wesley M ed. Ctr., L.L.C., 78 P.3d



                                          -5-
817, 821 (Kan. 2003). Two such exceptions are “termination for

whistleblowing,” id. (citing Palmer v. Brown, 752 P.2d 685, 689-90 (Kan. 1988)),

and termination for filing a workers compensation claim, see Bracken v. Dixon

Indus., Inc., 38 P.3d 679, 682 (Kan. 2002). 3

      Because retaliatory discharge cases are rarely proven by direct evidence,

Kansas courts have adopted a burden-shifting approach for analyzing such claims.

See Goodman, 78 P.3d at 821. At the first stage, the employee must establish a

prima facie case. Id. To make out a prima facie case, M r. Bergersen has the

“burden of proving by clear and convincing evidence” that: (1) “a reasonably

prudent person would have concluded . . . [Shelter] was engaged in activities in

violation of rules, regulations, or the law pertaining to public health, safety, and

the general welfare”; (2) he, in “good faith,” reported Shelter’s violation “to

either [Shelter] management or law enforcement officials”; (3) Shelter “had

knowledge of [his] report[]” before it discharged him; and (4) Shelter discharged

him “in retaliation for making the report” (i.e., a causal connection exists between

the report and the discharge). Palmer, 752 P.2d at 690; see also Goodman,



3
       W e mention the second exception only to highlight the Kansas Supreme
Court’s recognition that workers compensation retaliatory discharge actions are
fairly similar to whistleblower retaliatory discharge actions. Ortega v. IBP, Inc.,
874 P.2d 1188, 1194 (Kan. 1994) (“Both are tort actions for the same type of
conduct of the employer: firing an employee in retaliation for something the
employee has done. . . . Both exceptions . . . developed to control the actions of
employers which violate public policy. . . . The basis of both . . . is the
employer’s bad motive in discharging the employee.”).

                                         -6-
78 P.3d at 821. “Proximity in time between the claim and discharge is a typical

beginning point for proof of causal connection.” Rebarchek v. Farmers Co-Op.

Elevator, 35 P.3d 892, 899 (Kan. 2001) (w orkers compensation case); see also

Boe v. AlliedSignal Inc., 131 F. Supp. 2d 1197, 1204 (D. Kan. 2001) (“W hen

evaluating whether causation has been established, Kansas courts look to whether

close temporal proximity existed between the whistleblowing activity and the

discharge.”). Once M r. Bergersen makes a prima facie case, Shelter “then bears

the burden of producing evidence that [M r. Bergersen] was terminated for a

legitimate nondiscriminatory reason.” Goodman, 78 P.3d at 821. “If that takes

place, the burden then shifts back to [M r. Bergersen] to produce evidence that

[Shelter’s] motives were pretextual.” Id. “To avoid summary judgment,

[M r. Bergersen] must assert specific facts disputing [Shelter’s] motive for

termination.” Id.

      On appeal, M r. Bergersen first asserts that the district court should have

relied on his M ay 8, 2003, formal complaint filed with the KID because his earlier

report to Shelter management was not a protected act. See Aplt. Br. at 16-17.

M r. Bergersen misapprehends the law. Both reports constituted protected

activity. See Palmer, 752 P.2d at 690 (explaining that a w histleblower’s report

may be “to either company management or law enforcement officials”). But for

this very same reason, it was also inappropriate for the district court to “find[]

that the earlier date . . . [was] the date from which . . . temporal proximity”

                                          -7-
should be measured. Aplt. App. at 358. Rather, in evaluating whether

M r. Bergersen was able to demonstrate a causal connection between a protected

act and his termination, the district court was obliged to consider the temporal

proximity between both of his acts of protected activity and his July termination.

      Although the Kansas Supreme Court has not specifically addressed how

close together a claimant’s report and his termination must be, standing alone, to

establish causation, the Court in Rebarchek, 35 P.3d at 899, cited with approval

Anderson v. Coors Brewing Co., 181 F.3d 1171 (10th Cir. 1999), where we held

that twelve weeks, standing alone, was insufficient to establish causation, but that

six weeks “may, by itself, establish causation,” 181 F.3d at 1179. The facts of

this case, then, where just over seven weeks separated M r. Bergersen’s report to

the KID and his termination, seemingly fall between two stools. Though we may,

in cases w here we lack “definitive direction” from the forum state’s highest court,

seek to predict how that court might rule, Vanover v. Cook, 260 F.3d 1182, 1186

(10th Cir. 2001), we need not do so to resolve this case.

      Even if M r. B ergersen had satisfied the causation element of his claim, we

agree with the district court’s alternative holding that he failed to present

evidence that Shelter’s stated reasons for his termination were pretextual. To

avoid summary judgment at this point, M r. Bergersen “must assert specific facts

disputing [Shelter’s] motive for termination.” Goodman, 78 P.3d at 821. Instead,

M r. Bergersen “submits that the temporal proximity between his report to the KID

                                          -8-
and Shelter placing him on probation and ultimately terminating him satisfied his

burden.” Aplt. Br. at 21. But the Kansas Supreme Court in Wilkins v. Kmart

Corp., a K ansas w orkers compensation retaliatory discharge action, expressly

held that: “Temporal proximity is sufficient to establish the causal connection

element of a prima facie case, but is not sufficient— standing alone— to raise a

genuine issue of pretext.” No. 05-4074-SA C, 2006 W L 3333744, at *4 (D. Kan.

Nov. 16, 2006) (quotations omitted). M oreover, this court has echoed that

sentiment in a variety of related contexts. See, e.g., Annett v. Univ. of Kan.,

371 F.3d 1233, 1240 (10th Cir. 2004) (observing in Title VII retaliation case that

“close temporal proximity is a factor in showing pretext, yet is not alone

sufficient to defeat summary judgment”); Anderson, 181 F.3d at 1180 (holding

that absent other evidence, temporal proximity alone did not establish pretext for

retaliation under the ADA); Conner v. Schnuck M kts., Inc., 121 F.3d 1390, 1397-

98 (10th Cir. 1997) (noting that temporal proximity alone does not constitute

pretext for retaliatory discharge under the FLSA); see also Hysten v. Burlington

N. Santa Fe Ry., 372 F. Supp. 2d 1246, 1257 (D. Kan. 2005) (stating that to the

extent that Foster v. AlliedSignal, Inc., 293 F.3d 1187 (10th Cir. 2002), “implies

that temporal proximity is sufficient for purposes of the pretext analysis, it would

appear to be inconsistent with both prior and subsequent Tenth Circuit opinions”).

Thus, we conclude that M r. Bergersen’s claim of temporal proximity is




                                          -9-
insufficient, standing alone, to raise a genuine issue of pretext. See Vanover,

260 F.3d at 1186.

         To be sure, M r. Bergersen also asserts that pretext can be inferred from the

fact that he “won an award in M arch, 2003,” and “in September, 2002, his State

M anager told him he was proud of his production.” A plt. Br. at 21. But to avoid

summary judgment, M r. Bergersen must do more than make conclusory assertions

about his successes w hile employed by Shelter. H e “must assert specific facts

disputing the employer’s motive for termination.” Goodman, 78 P.3d at 821.

That M r. Bergersen received an award, in and of itself and without any further

explanation, does not controvert Shelter’s legitimate non-discriminatory reasons

for terminating him. Similarly, that a superior was “proud” of his performance on

a particular day does not, without more, help us overcome Shelter’s proffered

non-discriminatory reasons for terminating M r. Bergersen. (Indeed, it appears

that at the very time M r. Bergersen’s State M anager complimented his production,

the manager also asked to be copied on all correspondence with underwriting and

expressed concern about incomplete work. See Aplt. Br. at 7 (citing Aplt. App. at

204)).




                                           -10-
                                 ***

For the foregoing reasons, the judgment of the district court is affirmed.



                                              Entered for the Court


                                              Neil M . Gorsuch
                                              Circuit Judge




                                  -11-
