                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    March 28, 2008
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    JAMES ECKMAN,

                Plaintiff-Appellant,
                                                          No. 07-3238
    v.                                            (D.C. No. 05-CV-2318-DJW)
                                                            (D. Kan.)
    SUPERIOR INDUSTRIES
    INTERNATIONAL,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, EBEL, and MURPHY, Circuit Judges.



         In this diversity action, James Eckman appeals the district court’s grant of

summary judgment in favor of his former employer, Superior Industries

International (Superior), on his Kansas common law retaliatory discharge claim.

Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                BACKGROUND

      Mr. Eckman’s version of the facts and the uncontroverted evidence

proffered by Superior provides the following abbreviated factual scenario. In

July 2000, Mr. Eckman began working for Superior. In February 2002, he was

promoted to team leader in Superior’s fettling department. 1

      On March 1 or 2, 2005, Mr. Eckman called Superior’s Human Resources

Manager, Leo Sievert, to express concern that the fettling department did not have

any emergency safety lighting. Mr. Sievert assured him that he would relay their

conversation to Superior’s Safety Supervisor, Tim Rakestraw. An hour later,

Mr. Eckman called Mr. Sievert back and informed him that, according to a

representative at the Pittsburgh City Codes Enforcement Department (with whom

he had just spoken), the fettling department needed at least two emergency safety

lighting units.

      Later that day, Mr. Sievert notified Mr. Rakestraw of Mr. Eckman’s

concern. When Mr. Rakestraw went to the fettling department to discuss the

matter, he allegedly observed Mr. Eckman not properly “locked out” of the robot

cell in which he was working. 2 In order to prevent injury, employees are required

1
       “Superior . . . . is one of the world’s largest OEM [original equipment
manufacturer] suppliers of cast and forged aluminum road wheels for the
automotive industry.” Superior Indus. Int’l, Inc.,
http://www.superiorindustries.com/about/main.aspx (last visited Mar. 27, 2008).
2
      Each robot cell, which is like a cage, contains two machines and a robot.
                                                                     (continued...)

                                        -2-
to “lock out” or terminate the energy supplied to a cell before entering it.

Mr. Eckman maintains that he was locked out. And he counters that

Mr. Rakestraw did not confront him about his alleged safety violation until five to

ten minutes after he had exited the cell, when it was too late for him to prove the

falsity of the allegation.

      Thereafter, Mr. Rakestraw called Mr. Eckman into a meeting with two

other Superior employees and advised him that he was being suspended for three

days, without pay, as discipline for the safety violation. Mr. Eckman repeatedly

denied the allegation and “became angry, upset, cursed, . . . refused to sign [the]

disciplinary [f]orm,” and walked out of the meeting. Aplt. Reply Br. at 7.

Mr. Rakeshaw called after him, asking that he relinquish his company

identification card. Mr. Eckman tossed it at Mr. Rakestraw, striking him in the

shoulder.

      On March 7, 2005, the day before Mr. Eckman was scheduled to return to

work from his suspension, he called Mr. Sievert, who informed him that an

investigation of his behavior during the suspension meeting was being conducted.

On March 8, Mr. Sievert called Mr. Eckman and told him he was being terminated

for his actions during the suspension meeting: insubordination, mistreatment of a


2
 (...continued)
R. Doc. 75, Eckman Deposition at 10. The robot picks up a wheel off a conveyer,
puts it in a fettling machine, and once it is done fettling the wheel, takes the
wheel back out and places it onto a conveyer. Id., Rakestraw Deposition at 39.

                                         -3-
fellow employee, and behaving in an argumentative manner. Mr. Eckman stated

that he was properly locked out at all times. Mr. Sievert responded that he was

not being terminated for the safety violation but for his inappropriate behavior at

the suspension meeting.

      Mr. Eckman sued Superior in federal district court contending Superior

discharged him in retaliation for contacting the Pittsburgh City Codes

Enforcement Department (that is, for “blowing the whistle” on Superior). The

district court concluded that Mr. Eckman was able to establish a prima facie case

of retaliatory discharge; Superior met its burden of articulating a legitimate,

non-retaliatory reason for discharging Mr. Eckman (his conduct during the

suspension meeting); but Mr. Eckman failed to assert specific facts establishing a

triable issue as to whether Superior’s reason for discharge was pretextual. As

such, the district court granted Superior’s motion for summary judgment.

Mr. Eckman then filed a Fed. R. Civ. P. 59(e) motion to alter or amend judgment.

The district court denied the motion, holding that Mr. Eckman had “failed to

demonstrate an intervening change in the controlling law, new evidence

previously unavailable, or the need to correct clear error or prevent manifest

injustice.” R. Doc. 99 at 3. Mr. Eckman appeals.

                                    ANALYSIS

      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

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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

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, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      When 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.

Simms, 165 F.3d at 1326 (citations, internal quotation marks, 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


                                         -5-
must demonstrate that he or she falls within one of the exceptions to the

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

817, 821 (Kan. 2003). One exception is “termination for whistleblowing.” Id.

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

      Because retaliatory discharge cases are rarely proven by direct evidence,

Kansas courts have adopted a three stage 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 do so, he has the burden of proving

      “‘[A] reasonably prudent person would have concluded the . . .
      employer was engaged in activities in violation of rules, regulations,
      or the law pertaining to public health, safety, and the general
      welfare; the employer had knowledge of the employee’s reporting of
      such violation prior to discharge of the employee; and the employee
      was discharged in retaliation for making the report.’”

Id. (quoting Palmer, 752 P.2d at 690). Once the employee makes a prima facie

case, then, at the second stage, “the employer . . . bears the burden of producing

evidence that the employee was terminated for a legitimate nondiscriminatory

reason. If that takes place, [then, at the third stage,] the burden . . . shifts back to

the employee to produce evidence that the employer’s motives were pretextual.”

Goodman, 78 P.3d at 821.

      On appeal, Mr. Eckman, whose pro se appellate filings we liberally

construe, Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998), first takes

issue with the district court’s conclusion that he failed to demonstrate pretext. In


                                           -6-
support of this position he asserts that Superior’s explanation was pretextual “due

to the direct causual [sic] connection between the Defendant’s retaliatory conduct

and Plaintiff’s reaction to the aforementioned conduct.” Aplt. Opening Br. at 7.

Thus, as best we can discern, his argument is that Superior’s explanation was

pretextual because Superior falsely alleged that he was not locked out, thereby

provoking him to behave inappropriately during the suspension meeting. But

whether the suspension was unjust is beside the point. To avoid summary

judgment, he “must assert specific facts establishing a triable issue as to whether

[Superior’s] reason for discharge [was] a mere cover-up or pretext for retaliatory

discharge.” Bracken v. Dixon Indus., Inc., 38 P.3d 679, 682 (Kan. 2002).

Mr. Eckman fails to do so. He offers no evidence or facts that show that he was

terminated for any reason other than because of his inappropriate behavior at the

suspension meeting. See Foster v. Alliedsignal, Inc., 293 F.3d 1187, 1195

(10th Cir. 2002). Indeed, he not only admits that he lost his temper and cursed,

but he also admits that such behavior would generally be grounds for termination.

R. Doc. 75, Eckman Deposition at 61, 63. 3




3
       To the extent that Mr. Eckman argues that the district court erroneously
granted Superior summary judgment because he established a prima facie case of
retaliatory discharge, his argument is without merit. See Aplt. Opening Br. at 4,
10-11. He must do more than make out a prima facie case. He must “produce
evidence that [Superior’s] motives were pretextual.” Goodman, 78 P.3d at 821.

                                         -7-
      Next, Mr. Eckman asserts that the district court erroneously denied his

Fed. R. Civ. P. 59(e) motion to alter or amend judgment because “Plaintiff did not

receive two or more of the Defendant’s filings.” Aplt. Opening Br. at 14.

Superior counters that

      to the best of their belief all copies of pleadings and filings have
      been submitted via first class mail to Eckman. Further, he has been
      notified by the District Court via mail of all filings . . . and
      Defendant was not made aware in a timely basis of this issue or
      Defendant would have provided additional copies to Eckman.

Aplee. Br. at 5-6.

      We review denial of a Rule 59(e) motion for abuse of discretion. See

Loughridge v. Chiles Power Supply Co., 431 F.3d 1268, 1275 (10th Cir. 2005).

“Grounds warranting a motion to reconsider include (1) an intervening change in

the controlling law, (2) new evidence previously unavailable, and (3) the need to

correct clear error or prevent manifest injustice.” Servants of the Paraclete v.

Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Because Mr. Eckman’s argument

was not based on newly discovered law or facts and does not implicate manifest

injustice or clear error, we hold that the district court did not abuse its discretion

in denying this motion. See id.

      Mr. Eckman also challenges the district court’s award of costs to Superior,

arguing that the award was erroneous because he “did not file or litigate this

action out of spite, malice, or jealousy, nor was this a frivolous lawsuit against

Defendant.” Aplt. Opening Br. at 17. But our review of the district court docket

                                           -8-
sheet reveals that the district court has not yet ruled on the bill of costs Superior

filed pursuant to Fed. R. Civ. P. 54(d)(1), but rather has stayed the matter pending

appeal. Because the district court has neither granted nor denied Superior’s bill

of costs, the issue is not ripe for review. See id. (“[C]osts other than attorneys’

fees shall be allowed as of course to the prevailing party unless the court

otherwise directs . . . .”).

       Finally, we decline to consider the handful of issues plaintiff raises for the

first time on appeal in his reply brief. Stump v. Gates, 211 F.3d 527, 533

(10th Cir. 2000) (“This court does not ordinarily review issues raised for the first

time in a reply brief.”); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.

1994) (observing that appellant’s pro se status does not excuse him from

“comply[ing] with the fundamental requirements of the Federal Rules of Civil and

Appellate Procedure.”).

                                   CONCLUSION

       The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      David M. Ebel
                                                      Circuit Judge




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