                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PUBLISH
                                                                     DEC 23 1998
                     UNITED STATES COURT OF APPEALS
                                                                 PATRICK FISHER
                                 TENTH CIRCUIT                             Clerk



 DAVID FLENKER,

          Plaintiff-Appellant,

 v.                                           No. 96-3242

 WILLAMETTE INDUSTRIES, INC.,

          Defendant-Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
                         (D.C. No. 95-2480-KHV)


Stephen J. Dennis, Dennis, Stanton & Redlingshafer, L.L.C., Fairway, Kansas,
for Plaintiff-Appellant.

Rody P. Biggert (Andrew M. Altschul with him on briefs), Seyfarth, Shaw,
Fairweather & Geraldson, Chicago, Illinois, for Defendant-Appellee.


Before HENRY , LUCERO , and MILES-LAGRANGE , * Circuit Judges.


HENRY , Circuit Judge.


      This is an appeal from a summary judgment entered in favor of an


      *
            The Honorable Vicki Miles-LaGrange, United States District Judge
of the Western District of Oklahoma, sitting by designation.
employer, Willamette Industries, Inc. (“Willamette”), in a tort action under

Kansas law for retaliatory discharge.   The district court held that plaintiff-

appellant Mr. Flenker's retaliatory discharge claim was precluded because section

11(c) of the Occupational Safety and Health Act (“OSHA”), 29 U.S.C. § 660 (c)

(1994), provided him an adequate alternative remedy. Mr. Flenker appealed.

      Because we determined that resolution of the appeal turned on an unsettled

issue of Kansas law, we certified the following question to the Kansas Supreme

Court: “Does the remedy provided by OSHA § 11(c) for employees who allege

that they have been discharged in retaliation for filing complaints under that

statute preclude the filing of a Kansas common law wrongful discharge claim

under Kansas's public policy exception to at-will employment?” The Kansas

Supreme Court, under the facts submitted to it in our certification, answered

“no.” Flenker v. Willamette Industries, Inc.   , No. 80408, 1998 WL 771624, at *5,

*10 (Kan. Nov. 6, 1998) .

      Applying the Kansas Supreme Court's answer here, we hold that OSHA §

11(c) does not preclude Mr. Flenker's Kansas common law wrongful discharge

claim. Thus, with the benefit of this decision previously unavailable to the

district court, we now VACATE the grant of summary judgment to Willamette

and REMAND for further proceedings.




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