                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 9 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JEBORAH DIEBOLD,

                Plaintiff-Appellant,

    v.                                                  No. 02-3195
                                                 (D.C. No. 01-CV-2554-KHV)
    SPRINT/UNITED MANAGEMENT                               (D. Kan.)
    COMPANY,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before LUCERO , McKAY , and BALDOCK , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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.
       Plaintiff/appellant Jeborah Diebold appeals from the district court’s order

dismissing, for failure to state a claim, her diversity action alleging retaliatory

discharge for whistleblowing. Our jurisdiction arises under 28 U.S.C. § 1291.

We conclude that Ms. Diebold failed to allege facts supporting her claim that

defendant Sprint terminated her in retaliation for reporting Sprint’s violation of

laws pertaining to public health, safety, or general welfare. Thus, we affirm.

       We review the dismissal under Fed. R. Civ. P. 12(b)(6) de novo, accepting

all well-pleaded factual allegations as true and viewing them in the light most

favorable to appellant.    Sutton v. Utah State Sch. for Deaf & Blind   , 173 F.3d

1226, 1236 (10th Cir. 1999). Dismissal is not proper “unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of [her] claim which

would entitle [her] to relief.”   Id. (quotation omitted).

       To state a claim for retaliatory discharge under Kansas law, Ms. Diebold

had to allege facts showing that she had a reasonable, good faith belief that Sprint

“was engaged in activities in violation of rules, regulations, or the law pertaining

to public health, safety, and the general welfare,” that she reported the violation

“to either company management or law enforcement officials,” and that she was

“discharged in retaliation for making the report.”      Palmer v. Brown , 752 P.2d 685,

690 (Kan. 1988). As the district court pointed out, Ms. Diebold did not allege

that Sprint violated any laws, however. She alleged only that Sprint required her


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to retract an e-mail that she sent to fellow employees regarding an alleged

Anthrax scare on threat of termination if she refused to retract it; that Sprint told

her its Public Relations and Corporate Security departments would handle its

public response to the Anthrax scare; that she sought to stop Sprint from some

unspecified “unlawful conduct” by communicating with “higher authorities of

Sprint regarding her concern for the health and safety of workers and the general

public,” and that, after she did so, Sprint told her she was terminated for reporting

“the Anthrax to others” without the authority to do so. Aplt. App. at 49-50. We

agree with the district court that these facts simply do not identify what Sprint did

to violate any policy, regulation, or law such that a claim has been stated for

retaliatory discharge.

      Ms. Diebold’s conclusory argument that “Sprint violated OSHA and other

state laws when it’s [sic] Lenexa facility and machine which sent out mail to

employees and the public was shut down for contamination of Anthrax,” Aplt. Br.

at 7, is frivolous. For a company to respond to an Anthrax scare by temporarily

shutting down a facility for investigation is not a violation of any law. Likewise,

her claim that “[t]he Lenexa facility as well as the machines created a hazardous

working environment which clearly violated OSHA,”       id. , does not allege that

Sprint violated the law. This is especially true given her factual allegations

(which we accept as true for purposes of our analysis) that Sprint “notified the


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Department of Health regarding the Anthrax,” “isolated the equipment in its

Lenexa, Kansas facility and tested and/or decontaminated the equipment for

Anthrax,” “shut down its Lenexa facility for a period of time after the equipment

[sic] to decontaminate the facility and/or the equipment,” and that “due to the

contamination of Anthrax and/or possible contamination of Anthrax, employees of

defendant . . . were provided with antibiotics and/or other medication for Anthrax

exposure.” Id. at 48-50.

       Although Ms. Diebold in her reply brief alleges that she was terminated for

reporting “unsafe working conditions (Anthrax in machine that sends out Mail to

Customers and Employees),” Reply Br. at 5, her amended complaint does not

make that allegation. In fact, the amended complaint establishes that Sprint

quickly responded to the Anthrax scare by shutting down the plant, isolating the

equipment, and testing and/or decontaminating it before Ms. Diebold even sent

her first e-mail.

       The judgment of the United States District Court for the District of Kansas

is AFFIRMED. Appellant’s motion to file reply brief out of time is granted.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge

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