                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 12, 2014
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                    TENTH CIRCUIT


 RANDALL LYKINS,

          Plaintiff - Appellant,

 v.                                                      No. 12-3308
                                            (D.C. No. 2:11-CV–02133-JTM-DJW)
 CERTAINTEED CORPORATION;                                 (D. Kan.)
 SAINT-GOBAIN CORPORATION,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, EBEL, and BACHARACH, Circuit Judges.


      Plaintiff-Appellant Randall Lykins appeals the district court’s grant of

summary judgment on his retaliatory discharge claim. Lykins v. CertainTeed

Corp. (“Lykins I”), No. 11-2133, 2012 WL 5471254 (D. Kan. Nov. 9, 2012). He

also appeals the district court’s reversal of the magistrate judge’s award of

sanctions for discovery abuses by Defendants. Lykins v. CertainTeed, No. 2:11-

cv-02133-JTM-DJW, ECF No. 178 (D. Kan. Nov. 9, 2012), rev’g Lykins v.

CertainTeed Corp. (“Lykins II”), No. 11-2133, 2012 WL 3542016 (D. Kan. Aug.


      *
        This order and judgment is not binding precedent, except under the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 with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
16, 2012). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm in part

and reverse in part.

                                    Background

      Mr. Lykins was employed by Defendants-Appellees CertainTeed

Corporation and its parent company, Saint-Gobain Corporation, in their Kansas

City, Kansas, fiberglass plant for approximately 12 years. Aplt. Br. 4; Aplt. App.

446. He worked as both a production supervisor and a shift manager, supervising

up to 75 employees at times. Aplt. Br. 3; Aplt. App. 446. According to Mr.

Lykins, from May to August 2010, he witnessed numerous employees unlawfully

handling and disposing of waste materials containing hexavalent chromium:

primarily, the improper clean up of spilled electrostatic precipitator pellets and

the use of a portable pump—known as the Godwin pump—to pump unfiltered

waste water from a drainage area directly into the municipal sewer. Aplt. Br. 4-

11; Aplt. App. 394, 549-51. It is undisputed that Mr. Lykins reported his

allegations to various supervisors at the plant, including plant manager, Eric

Schramm, and also raised his concerns during morning production meetings.

Aplt. Br. 4; Aplt. App. 394, 557-59. His complaints were “repeatedly met with

indifference and/or hostility.” Aplt. Br. 4. In addition, Mr. Lykins admitted in

deposition testimony that (1) although he took pictures of conditions at the plant,

he never showed them to anyone, Aplee. Br. 14; Aplt. App. 400; (2) he wrote

down the number of “Kansas EPA” in his day planner, although he never

                                        -2-
contacted it or any outside environmental enforcement agency prior to his

termination, Aplee. Br. 15; Aplt. App. 377; (3) he received an employee

handbook with information about the company’s anonymous, 24-hour hotline for

employees to report known or suspected company violations; a number he never

called, Aplee. Br. 15; Aplt. App. 388; and (4) he never read Defendants’

wastewater discharge permit and did not know how much, if any, discharge was

allowed; rather, he was “going with his gut” in suspecting that the handling of

wastes was unlawful, Aplee. Br. 13; Aplt. App. 386, 393.

      On August 16, 2010, Mr. Lykins was given a poor work performance letter

that he refused to sign and was told that if he did not sign it, he would be

terminated. Aplt. App. 559. The following day, which was also the date of a

planned state environmental inspection, Mr. Lykins was called into a meeting

with plant management where he voiced his concerns of retaliation for his

complaints at the plant, after which he was fired. Aplt. Br. 5.

      In March 2011, Mr. Lykins filed his complaint claiming retaliatory

discharge for reporting his environmental concerns to upper management.

Following discovery, Defendants moved for summary judgment, arguing that Mr.

Lykins failed to establish two elements of his prima facie case because he failed

to (1) identify any specific laws allegedly violated, and (2) make his reports to

any authority higher than the alleged wrongdoers at the plant. Aplt. App. 287.

The district court agreed, Lykins I, 2012 WL 5471254, at *6-8, granted summary

                                         -3-
judgment in Defendants’ favor, and also reversed the magistrate judge’s earlier

award of sanctions in favor of Mr. Lykins, ECF No. 178.



                                     Discussion

      Mr. Lykins argues that (1) he properly established a prima facie case of

retaliatory discharge because (a) he did not have to identify any precise statutory

violation in his complaints, and (b) he satisfied the higher authority requirement

by reporting the violations to the supervisors of those mishandling the waste; and

(2) the district court erred in reversing the sanctions award based solely on the

grant of summary judgment in favor of Defendants. For the following reasons,

we affirm summary judgment on the merits but reverse on sanctions.



A. Retaliatory Discharge

      We first address whether the district court erred in granting summary

judgment based on Mr. Lykins’ failure to establish two of the elements of his

retaliatory discharge claim. Though not filed with his brief-in-chief as envisioned

by our rules, 10th Cir. R. 27.1(C), Mr. Lykins has filed a motion to certify various

issues to the Kansas Supreme Court, arguing that they are of first impression.

Lykins v. CertainTeed, No. 12-3308, ECF No. 10080551 (10th Cir. June 10,

2013). We generally decline to certify questions when the movant only requests

certification in this court after an adverse district court decision. Zurich Am. Ins.

                                         -4-
Co. v. O’Hara Reg’l Ctr. for Rehab., 529 F.3d 916, 926 (10th Cir. 2008).

Moreover, we think the path in this case is “reasonably clear and principled”

based upon extant Kansas law and decline to certify. See Pino v. United States,

507 F.3d 1233, 1236 (10th Cir. 2007).

      We review an order granting summary judgment de novo. Helm v. Kansas,

656 F.3d 1277, 1284 (10th Cir. 2011). Summary judgment is appropriate if “there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Given a material issue, we

view the evidence and reasonable inferences in the light most favorable to the

nonmoving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009).

      Under Kansas law, in order to establish a retaliatory discharge claim under

the whistleblower exception to at-will employment, the employee must first make

a prima facie case by clear and convincing evidence that:

       (1) a reasonably prudent person would have concluded that the
      employer or a coworker was engaged in activities that violated rules,
      regulations, or the law pertaining to public health and safety and the
      general welfare; (2) the employer had knowledge that the employee
      reported the violation prior to his or her discharge; and (3) the
      employee was discharged in retaliation for making the report.

Shaw v. Sw. Kan. Groundwater Mgmt. Dist. Three, 219 P.3d 857, 862 (Kan. Ct.

App. 2009) (citing Goodman v. Wesley Med. Ctr., L.L.C., 78 P.3d 817, 821 (Kan.

2003)).

      On the first element, the district court held that Mr. Lykins’ prima facie


                                        -5-
case was insufficient because he “unequivocally admitted” that he did not know

any of the details of the plant’s discharge permit but was only “going on his gut”

that the discharge was unlawful, Lykins I, 2012 WL 5471254, at *6; and, on the

second element, Mr. Lykins reported the alleged violations only to the

wrongdoers themselves in contravention of Kansas law, id. at *7-8. Because we

agree with the second holding, we need not consider the first.

      Although the second element requires that the employer have knowledge of

the employee’s reporting of illegal activity prior to termination, Kansas courts

have interpreted this to mean that the employee must “seek to stop unlawful

conduct through the intervention of a higher authority, either inside or outside the

company.” Shaw, 219 P.3d at 863; see also Palmer, 752 P.2d at 690; Fowler v.

Criticare Home Health Servs., Inc., 10 P.3d 8, 15 (Kan. Ct. App. 2000) aff’d, 26

P.3d 69 (Kan. 2001). Reporting to a non-complicit higher authority is necessary

because “not every workplace dispute over the water cooler on company practices

equates to whistleblowing.” Shaw, 219 P.3d at 863 (internal quotation marks and

citation omitted).

      Mr. Lykins argues that he satisfied the “higher authority” requirement

because he reported the unlawful conduct to an authority higher than the

subordinates committing the improper waste disposal. Aplt. Br. 38. We are not

persuaded.

      Kansas law makes clear that reporting to a higher authority means taking

                                        -6-
actions to stop the illicit activity by reporting it to someone higher than the

wrongdoer, either inside the company, if available, or outside the company, when

internal channels are unavailing. See Fowler, 10 P.3d at 14-15 (rejecting a

whistleblower claim by an employee who refused a supervisor’s request to ship a

handgun and ammunition in the mail); Shaw, 219 P.3d at 863 (reversing a grant of

summary judgment in favor of an employer where the employee reported a

supervisor’s alleged unlawful conduct to the board overseeing that supervisor);

see also Conrad v. Bd. of Johnson Cnty. Comm’rs, 237 F. Supp. 2d 1204, 1268

(D. Kan. 2002) (rejecting a whistleblower claim by a nurse who complained about

patient care only to her supervisor, who was responsible for patient-care

decisions); Goenner v. Farmland Indus., Inc., 175 F. Supp. 2d 1271, 1280-81 (D.

Kan. 2001) (rejecting a whistleblower claim by an employee who complained

about the misreporting of a crude oil spill to his supervisor, who was complicit in

the misreporting by the refinery’s general manager); Boe v. AlliedSignal Inc., 131

F. Supp. 2d 1197, 1204 (D. Kan. 2001) (rejecting a whistleblower claim when an

employee refused to sign company letters but upholding the claim based on the

employee’s reports to other managers and calling the company hotline). Mr.

Lykins admits that he never made his reports to anyone outside of plant

management, even though he had tools at his disposal to do so, including the

employee hotline number. Simply reporting to a higher-level wrongdoer is

insufficient.

                                         -7-
      Mr. Lykins argues that his complaints were addressed to a higher authority,

not the wrongdoer, because upper management was ultimately responsible for the

wrongful actions of the subordinates. However, Mr. Lykins consistently

identified the perpetrators of the wrongdoing as upper management, including in

his answer to interrogatories. Aplt. App. 458-460. Fowler addressed a similar

situation in which the employee thought that the supervisor’s illegal conduct was

approved by the company’s owner; nonetheless, the Fowler court rejected the

claim because the employee did not reach out to law enforcement when company

reporting avenues were closed to him. Fowler, 10 P.3d at 15.

      Mr. Lykins also relies on Connelly v. State Highway Patrol, 26 P.3d 1246

(Kan. 2001), to argue that a higher authority includes a company’s chain of

command. Aplt. Reply Br. 20. His reliance is misplaced. The Connelly court

found that a state trooper’s whistleblowing claim was properly submitted to a jury

because the trooper openly denounced and protested to his supervisors the

selective enforcement of vehicle load laws, concluding that the trooper’s chain-

of-command protests were made to “other ‘law enforcement officials.’” Id. at

1249-50; 1266. No such reporting to law enforcement—either internally or

externally—occurred here.

      Mr. Lykins also argues that denying him whistleblower status would be a

“direct onslaught” to the public policy considerations in Palmer that protect

citizens from reprisal when they uphold health and safety laws because it would

                                        -8-
dissuade employees from internal reporting. Aplt. Br. 43; Aplt. Reply Br. 21.

While we understand Mr. Lykins’ concern, allowing an employee to claim

whistleblower protection for simply raising issues with a superior would permit

the exception to swallow the “at will” rule. Ordinary dialogue and disagreement

between management and employees would become the substance of

whistleblowing claims. Obviously, something more is required to differentiate

internal dissatisfaction from the protected act of whistleblowing.

      Finally, Mr. Lykins argues that the district court erred by making

impermissible evidentiary inferences in Defendants’ favor and by disregarding his

evidence without conducting a sham analysis, as required by Law Co. v. Mohawk

Const. & Supply Co., 577 F.3d 1164, 1169 (10th Cir. 2009). Aplt. Br. 33-36, 44.

Although Mr. Lykins is correct in noting that the district court “exclude[d]

requested facts” in its order, Lykins I, 2012 WL 5471254, at *1, it explained that

those facts were not “materially relevant,” were unsupported by admissible

evidence, or failed to “reflect evidence based on personal knowledge,” id. We

agree with the district court that Defendants’ motion for summary judgment

rested primarily on Mr. Lykins’ own admissions in deposition testimony. To

whom Mr. Lykins made his reports is uncontroverted, and Mr. Lykins offers no

evidence that he reported his allegations to anyone else before his termination.

Thus, we reject Mr. Lykins’ claim that the district court made impermissible

inferences or disregarded pertinent facts in reaching its conclusion. Because Mr.

                                        -9-
Lykins cannot make the prima facie case on the second element, all other facts are

immaterial, and summary judgment is warranted. See Ricci, 557 U.S. at 586.



B. Discovery Violations

      We next address the issue of sanctions.

      On August 16, 2012, the magistrate judge responded to a lingering

discovery dispute between the parties by granting in part Mr. Lykins’ motion to

compel, requiring Defendants to produce both testimony and documents from a

Rule 30(b)(6) witness. Lykins II, 2012 WL 3542016, at *15. The magistrate

judge also awarded Mr. Lykins sanctions—attorneys fees and reasonable expenses

in bringing the motion to compel—because (1) Defendant CertainTeed

impermissibly instructed its Rule 30(b)(6) witness to not answer questions on

certain topics during a deposition, Lykins II, 2012 WL 3542016, at *3-4; and (2)

Defendant Saint-Gobain Corporation failed to produce a Rule 30(b)(6) witness at

all, based on its objections to the discovery request, id. at *2-3. Both Defendants

had previously filed formal objections to Mr. Lykins’ Rule 30(b)(6) requests,

arguing, inter alia, that several of the discovery topics were overbroad, vague, and

irrelevant; arguments the magistrate judge rejected. Id. at *2, *5-12.

      Defendants sought review of the magistrate’s discovery order in district

court, arguing in relevant part that sanctions were improper because Defendants

justifiably relied on an earlier ruling by the magistrate, Sprint Commc’ns Co.,

                                        - 10 -
L.P. v. Vonage Holdings Corp., No. 05-243, 2007 WL 2333356, at *2 (D. Kan.

Aug. 15, 2007), which did not require the filing of a motion for a Rule 26(c)

protective order under similar circumstances. Aplee. Supp. App. 665-66. See

Epling v. UCB Films, Inc., No. 98-4226-RDR, 2001 WL 584355 (D. Kan. Apr. 2,

2001) (reversing the imposition of sanctions because the party’s reliance on

unsettled case law was substantially justified). The district court agreed, granting

Defendants’ motion for review and reversing the magistrate judge’s award of

sanctions in a text-only docket entry, noting that “under all of the circumstances

of the case, including the award of summary judgment, that no sanctions should

issue against Defendants.” ECF No. 178. 1

      Mr. Lykins challenges the district court’s reversal, arguing that it

improperly concluded summary judgment rendered sanctions moot because the

two issues should have been addressed independently. Aplt. Br. 54. See Murphy

v. Klein Tools, Inc., 123 F.R.D. 643, 645 (D. Kan. 1988). For the following

reasons, we agree with Mr. Lykins.

      Although we review the district court’s discovery order for an abuse of

discretion, Martinez v. Carson, 697 F.3d 1252, 1256 (10th Cir. 2012), a district

court reviews a magistrate judge’s order under a clearly erroneous or contrary to


      1
        The text-only docket entry constitutes the order. See Administrative
Procedures for Filing, Signing, and Verifying Pleadings and Papers by Electronic
Means in the United States District Court for the District of Kansas, § II(E)(4) at
16 (D. Kan. 2013). Such entries are used for routine matters. Id.

                                        - 11 -
law standard. 2 Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1465 (10th

Cir. 1988) (citing 28 U.S.C. § 636(b)(1)(A)). The imposition of sanctions is

discretionary based on the particular circumstances of the case. See AdvantEdge

Bus. Grp. v. Thomas E. Mestmaker & Assoc., Inc., 552 F.3d 1233, 1236 (10th

Cir. 2009).

      Here, the magistrate judge imposed sanctions because Defendants

instructed a Rule 30(b)(6) witness not to answer questions on specific topics

during a deposition and also failed to provided a Rule 30(b)(6) witness at

all—finding that both actions violated discovery rules. Lykins II, 2012 WL

3542016, at *3. On appeal, Defendants do not argue that the magistrate

misapplied the federal discovery rules. See Aplee. Br. 60-61. Rather, Defendants

argue that the district court properly concluded that under all the circumstances,

sanctions were not warranted—primarily because Defendants relied on a contrary

ruling by the magistrate judge in Sprint, leading to confusion. Aplee. Br. 61.

Recognizing that discretion is a fluid concept bounded by a range of

reasonableness, we are not persuaded that a district court may substitute its

discretion for that of the magistrate judge absent a factual predicate that is clearly

erroneous or an application of the law that amounts to legal error.


      2
         The concurrence and dissent suggests that application of the clear error
standard to the magistrate judge’s ruling was not raised, and therefore we should
decline to reverse on that ground. Obviously, the standard of review is a
threshold legal issue which we must consider.

                                        - 12 -
      First, a district court does not review a magistrate’s sanctions order based

on a totality of the circumstances standard. Rather, clear error must occur, either

in fact or in law, Ocelot, 847 F.2d at 1465, neither of which occurred here. As

the magistrate judge noted, Rule 30(c)(2) provides the limited circumstances in

which a witness may be instructed not to answer deposition questions: “when

necessary to preserve a privilege, to enforce a limitation order by the court, or to

present a motion under Rule 30(d)(3).” Lykins II, 2012 WL 3542016, at *3

(citing Fed. R. Civ. P. 30(c)(2)). As the magistrate judge explained, because

Defendants’ objections fell outside of these three exceptions, Defendants were

required to limit discovery by seeking a protective order under Rule 26(c),

moving to limit the scope of the deposition under Rule 30(d), or moving to limit

the extent of discovery under Rule 26(b)(1)(C). Id. 3

      Second, Defendants’ reliance on Sprint is misplaced, even overlooking the

weight of authority that must inform a lawyer’s judgment. In Sprint, counsel

instructed a Rule 30(b)(6) witness not to answer questions about a certain topic

based on its prior written objections. Sprint, 2007 WL 2333356, at *1-2.

However, the magistrate judge did not specifically address the impropriety of

instructing a witness not to answer. Id. at *3-5. Instead, the magistrate addressed

objections to the Rule 30(b)(6) notice in general, id. at *2, and that such

      3
       The Federal Rules of Civil Procedure make clear that a Rule 30(b)(6)
deponent “must testify about information known or reasonably available to the
organization.” Fed. R. Civ. P. 30(b)(6) (emphasis added).

                                        - 13 -
objections “should be considered in the context of a motion to compel,” id. Even

if we assume arguendo that Sprint created confusion, that confusion could have

been dispelled by resorting to the federal rules and case law, neither of which

support Defendants’ actions here. See Resolution Trust Corp., 73 F.3d at 266;

Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1147-48 (10th

Cir. 2007).

      Finally, the district court erred by relying in part on the grant of summary

judgment to render sanctions moot. As Defendants noted in their motion to

review the magistrate judge’s order, Aplee. Supp. App. 654 n.3, the grant of

summary judgment rendered moot the motion to compel additional discovery but

not the award of sanctions, which is addressed independently. Thus, the district

court erred in relying on summary judgment, in part, to reverse the magistrate

judge’s sanctions award. On remand, the district court should reinstate the award.

      AFFIRMED in part and REVERSED in part, and REMANDED. The

motion for certification is DENIED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                       - 14 -
12-3308, Lykins v. CertainTeed Corp., et al.

BACHARACH, J., Circuit Judge, concurring in part and dissenting in part.



         I join the majority opinion on the merits (Part A). On the sanctions issue

(Part B), however, I respectfully dissent.

         I interpret the Plaintiff’s argument on sanctions differently than the

majority does. In my view, the Plaintiff made only one argument in his appeal on

the sanctions: that the district court erroneously regarded the sanctions issue as

moot in light of the summary judgment ruling. This argument rests on a

misreading of the district court’s ruling. The district judge applied mootness to

the underlying discovery issue, not to the sanctions issue.

         The district judge reasoned that sanctions were inappropriate based on the

totality of circumstances. That determination was appropriate, for the court can

decline to impose sanctions when circumstances would render them unjust. See

Fed. R. Civ. P. 37(d)(3). One of these circumstances was that the district judge

granted summary judgment to the Defendants before ruling on the discovery

issue.

         The majority concludes that the district judge failed to apply the clear-error

standard to the magistrate judge’s assessment of sanctions. But, the Plaintiff

challenged the ruling based on a misunderstanding of what the judge had

said—not a misapplication of the clear-error standard. And, in my view, we
should decline to reverse on a ground not raised by the parties. See Richison v.

Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011). 1

      Accordingly, I respectfully dissent on the majority’s decision regarding

sanctions.




      1
              The majority opinion notes that the standard of review is
“[o]bviously . . . a threshold legal issue which we must consider.” Majority Op.
at 12 n.2. I agree when the issue involves our standard of review. But here, the
clear-error standard applied to the district judge’s review, not our own. As the
majority notes, we review the district judge’s ruling for an abuse of discretion. In
any event, we apply our standard of review to arguments made by the parties, not
to those the parties could have made. Here, the Plaintiff’s argument is simply
wrong because it rests on a misreading of the district judge’s order. In my view,
this argument cannot justify reversal even if we were to consider the district
judge’s application of his own standard of review.

                                       -2-
