No. 06-5135.United States Court of Appeals, Tenth Circuit.
May 28, 2008.
Appeal from the United States District Court for the Northern District of Oklahoma, Payne, J., 2006 WL 1705138.
David Ray Blades, Charles C. Vaught, Armstrong Lowe, Tulsa, OK, for Plaintiff-Appellant.
Donn C. Meindertsma, Conners Winters, LLP, Washington, DC, Shelley Lambert Carter, David Ryan Cordell, Jason Sean Taylor, Conner
Winters, Tulsa, OK, for Defendant-Appellee.
Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.
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ORDER AND JUDGMENT[*]
MARY BECK BRISCOE, Circuit Judge.
This case began as two separate proceedings arising out of plaintiff Darrell Rollins’ termination from employment with defendant American Airlines, Inc. (American), allegedly in retaliation for reporting a subordinate’s misuse of spare aircraft parts. While pursuing administrative relief before the Department of Labor (DOL) under the federal aviation whistleblower statute, 49 U.S.C. § 42121, Mr. Rollins filed a state tort action in Oklahoma against American for wrongful discharge in violation of public policy under Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989). American removed that action to federal court based on diversity jurisdiction. In the meantime, an order of reinstatement had been issued in a preliminary stage of the DOL proceeding and, when the parties failed to agree on an acceptable arrangement, Mr. Rollins filed a second action in federal district court seeking enforcement of the reinstatement order. The two federal actions were consolidated. Ultimately, the district court ruled for American on all claims. It granted American summary judgment with respect to th Burk claim on several alternative grounds, later reaffirming its ruling when Mr. Rollins sought reconsideration. It denied the; enforcement claim after learning that Mr. Rollins’ administrative complaint had, on administrative review, been found untimely and dismissed, nullifying the reinstatement order. After entry of judgment disposing’ of all claims, Mr. Rollins timely filed this appeal.
Enforcement Claim
The district court held that the initial reinstatement order issued by an Occupational Safety and Health Administration (OSHA) officer was immediately nullified when an administrative law judge dismissed the underlying DOL complaint as untimely. See 29 C.F.R. § 1979.109(c) (ALJ decision “lifting an order of reinstatement . . . shall be effective immediately”). Anticipating this point, Mr. Rollins argued that the ALJ’s decision was itself nullified, leaving the reinstatement order standing, when the DOL’s Administrative Review Board heard his appeal under 29 C.F.R. § 1979.110(b), which states that once an appeal is accepted, “the decision of the [ALJ] shall be inoperative unless and until the Board issues an order adopting the decision, except that a preliminary order of reinstatement shall be effective while review is conducted by the Board.” The district court disagreed. Noting that § 1979.109(c) directs that a decision lifting an order of reinstatement “may not be stayed,” it read the regulations together to mean that “upon review, the ALJ decision is rendered inoperative, except for that portion . . . dealing with reinstatement,” so that “whatever Plaintiffs status was coming out of the ALJ proceedings is maintained for the duration of the DOL Administrative Review Board proceeding.” Aplt.App., Vol. II at 588. The court concluded that although plaintiff had been entitled to reinstatement under the OSHA order prior to the ALJ’s decision, the portion of that decision lifting the reinstatement order was “still in effect . . . [and] [t]he issue of reinstatement [was] therefore not properly before th[e] Court.” Id. at 589.
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Mr. Rollins challenges the district court’s refusal to enforce the preliminary reinstatement order, arguing that its construction of the governing regulations was erroneous. American contends that this aspect of Mr. Rollins’ appeal is moot. Noting that the Board has affirmed the ALJ’s decision, American argues that even if the reinstatement order had still been in effect when the district court refused to enforce it, any relief in this regard is now conclusively foreclosed in light of the Board’s subsequent decision finally resolving the administrative proceeding against Mr. Rollins.[1] See generally United States v. Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007) (“Where judicial relief will not remedy the appellant’s injury, the appellant can no longer satisfy the Article III case or controversy jurisdictional requirement and the appeal is moot.” (quotation omitted)).
Mr. Rollins attempts to avoid the force of this argument by suggesting that, even if he can no longer obtain reinstatement based on the vacated administrative order, if the district court erred in refusing to enforce the order when it was in effect, “[a]t a minimum, [he] would be entitled to a remedy for the Defendant’s failure to reinstate him from the time of OSHA’s Preliminary Order up until the time of the ALJ [decision].” Aplt. Br. at 21. American notes, however, that Mr. Rollins did not seek damages for delay in his reinstatement (and delay had already occurred when this action was filed), and argues that he should not be allowed to interject a request for such relief at this late date just to circumvent the mootness of the case he has pursued up until now. Cf. CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1277-78 (11th Cir. 2006) (holding otherwise mooted challenge to expired moratorium survived because claim for damages had been included in complaint and preserved for appellate review). We agree. This new claim is plainly late and there are good reasons not to excuse the deficiency. First of all, the governing statute does not even appear to authorize such a claim. While the section dealing with enforcement actions brought by the Secretary of Labor affords district courts “jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief and compensatory damages,” 49 U.S.C. § 42121(b)(5), the section dealing with private actions to enforce DOL orders states only that a party “may commence a civil action . . . to require compliance with such [an] order,” id., § 42121(b)(6)(A) (emphasis added). Moreover, given the dismissal of the underlying administrative action as untimely — demonstrating that the reinstatement order should not have been entered in the first place — damages for the delay in its effectuation would at this point reflect an unjustified windfall.[2] These considerations counsel against any exercise of our discretion that would allow Mr. Rollins to belatedly interject a damages request so
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as to resuscitate his moot enforcement claim.
Typically when a claim is mooted on appeal, the district court’s disposition is vacated. That is not necessary here, however, as the district court did not reach the merits but dismissed the enforcement claim as not properly before it. There is no functional inconsistency between that disposition and our conclusion that the matter is now moot and hence beyond the proper reach of any federal court.
Burk Public Policy Claim
Alleging he was discharged in retaliation for reporting another employee’s unauthorized removal of aircraft parts, Mr. Rollins asserted a claim in state court under Burk v. K-Mart Corp., which recognized a cause of action for employees terminated in violation of clearly articulated state public policy. 770 P.2d at 28. American removed the case to federal court based on diversity, [3] and later moved for summary judgment. The district court granted the motion for three alternative reasons: (1) Burk claim must be based on a discharge, actual or constructive, and Mr. Rollins, who elected to terminate his employment after receiving a disciplinary notice for poor job performance, was not actually or constructively discharged; (2) Mr. Rollins failed to show that his role in reporting the removed aircraft parts (as opposed to his job performance) in fact led to the disciplinary proceeding that prompted him to chose termination; and (3) Mr. Rollins failed to demonstrate that his conduct implicated a public policy on which a Burk claim could be based. We affirm on (1) and do not reach the issues raised in connection with (2) and (3).[4]
In Burk, the Oklahoma Supreme Court recognized a tort remedy “in a narrow class of cases in which the discharge [of an at-will employee] is contrary to a clear mandate of public policy.” 770 P.2d at 28 (emphasis added); see also Clinton v.
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State ex rel. Logan County Election Bd., 29 P.3d 543, 545 (Okla. 2001) (noting Burk “is a limited restriction on employers’ rights to discharge at-will employees”). The court extended Burk to constructive discharges in Collier v. Insignia Financial Group, 981 P.2d 321, 323-24 (Okla. 1999), but has never held that it is a remedy for adverse employment actions short of discharge. Rather, the court has stated that a Burk
plaintiff must prove (1) “that he or she was an at-will employee”; (2) “that he or she was actually or constructively discharged from employment”; and (3) “that the employer’s discharge decision violated [an] articulated public policy.” Barker v. State Ins. Fund, 40 P.3d 463, 468 (Okla. 2001) (emphasis added). Numerous decisions, by the intermediate state appellate court and several federal district court judges, have made the point even more explicit by holding that a Burk claim must involve “the actual termination of the employer-employee relationship.” Davis v. Bd. of Regents for Okla. State Univ., 25 P.3d 308, 310 (Okla.Civ.App. 2001) (holding Burk claim could not be based on retaliatory transfer); see Elliot v. Wyle Labs., Inc., No. CIV-07-942-F, 2007 WL 4564178, at *1 (W.D.Okla. Dec. 19, 2007) (unpub.) (holding that allegations of wrongful discipline/demotion did not state Burk claim, and collecting like decisions from other district judges in Oklahoma). While these latter decisions do not control here, they do inform our conclusion, based on extant state supreme court authority, that Burk did not create an omnibus remedy for adverse employment actions short of discharge that might be related to state public policy concerns.
Of course, if the adverse action in question led the plaintiff to terminate his employment, it could still be actionable provided the standard for constructive discharge was met. But that standard is very high. It requires that the employer knew or should have known of employment conditions “so intolerable that a reasonable person subject to them would resign.” Collier, 981 P.2d at 324. As the undisputed facts here do not reflect conditions approaching this level of objective intolerability, summary judgment on this ground was proper.
After concerns were raised about his job performance, as to his supervisory duties generally and oversight of the employee who had taken the aircraft parts in particular, Mr. Rollins received a Career Decision Day (CDD) Advisory. This notice specified “areas in which performance improvement is required” and gave Mr. Rollins a day off “to reflect upon the need to improve and to weigh the desire to continue an employment relationship with American,” after which he had “to choose one of three options: (1) a commitment to meet all company standards, and thus to continue employment with American [after a transfer to another supervisory position]; (2) voluntary resignation, with specified benefits, in exchange for which the employee agrees not to exercise his right to internally appeal or grieve the company’s determination; or (3) a refusal to choose Option 1 or Option 2, which results in termination with the ability to file a grievance or an appeal.” Aplt.App., Vol. I at 245, ¶¶ 20-21 (American’s statement of undisputed facts on summary judgment); see id. at 269, ¶ 1 (Rollins’ admission of cited undisputed facts in response to summary judgment[5] ). Mr. Rollins ultimately refused
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to sign the advisory, thereby accepting the termination option.[6]
Mr. Rollins has pointed to nothing in the advisory that remotely involves objectively intolerable conditions. Indeed, while he has debated peripheral points, he has not offered any argument to show that the conditions under which he would have continued in American’s employ after the advisory were such as to render his election to leave a constructive discharge.[7] Merely affirming a commitment to company standards certainly does not qualify. And, while he would have had to accept a transfer to another supervisory position, he admitted that the transfer was not objectionable. Id. at 247 ¶ 28; see id., Vol. II at 321 (deposition page 103). His objection to signing the advisory and continuing his employment was simply that it would imply an admission of American’s groundis for issuing the advisory. Id., Vol. II at 313 (deposition page 55). Even if that were true, Mr. Rollins has not cited any authority to support the facially dubious notion that, when required to sign an adverse performance review or disciplinary notice, an employee may simply elect to quit and claim a constructive discharge.
Mr. Rollins argues at some length that denying a Burk remedy for allegedly pretextual disciplinary action, so long as it does not constitute a discharge of the employee, still allows a malicious employer some means to retaliate against whistleblowers without check by state tort law. That is not an argument properly addressed to the federal courts.
When proceeding under diversity jurisdiction, federal courts have the duty to apply state law as announced by the state’s highest court. Where the state’s highest court has spoken, we accept its pronouncement . . . as defining state law unless it has later given clear and persuasive indication that its pronouncement will be modified, limited or restricted.
Salt Lake Tribune Publ’g Co. v. Mgmt. Planning, Inc., 454 F.3d 1128, 1134
(10th
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Cir. 2006) (internal quotations omitted) (citations omitted). The Oklahoma Supreme Court has, for reasons within its exclusive province, elected to create a state tort remedy for wrongful discharge, actual or constructive, and has thus far given no indication of any intention to expand the remedy to lesser forms of discipline or other adverse employment action taken in contravention of public policy.
Accordingly, the district court correctly concluded that Mr. Rollins’Burk claim was legally deficient for lack of an actual or constructive discharge. And that determination is sufficient to warrant the grant of summary judgment on the claim.
The judgment of the district court is AFFIRMED.
specifically to uphold removal based on plaintiff’s factual admission that claim for damages exceeded requisite jurisdictional amount).
Even if we were to follow Mr. Rollins’ view that he was involuntarily terminated by American in a distinct personnel action after his rejection of the advisory, that would not avail his cause here. He concedes that his “refusal to make the choice offered by [the advisory] led to his termination,” Aplt. Br. at 12, and makes no claim that his facially neutral treatment in this respect was different from any other employee refusing to accept a disciplinary advisory. In short, he has not advanced or substantiated any claim that enforcement of his advisory was itself a wrongful act. Rather, his argument — for which he concedes he can find no direct authority — is that Burk should apply where an employee refuses continued employment rather than accept what he considers to be improper discipline, see id. at 34-38 — in other words, that the strict standard for constructive discharge should not apply. But, as discussed above, the state supreme court has expressly imported the principles of constructive discharge into the Burk context, and we are not free to pursue a different course.
LUCERO, J., concurring in the judgment:
I fully join the majority with respect to its disposition of Rollins’ claim for enforcement of OSHA’s preliminary reinstatement order. I cannot, however, subscribe to the reasoning employed by the court in rejecting Rollins’ retaliatory discharge claim based on Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989).
As I view the matter, Rollins’ cause of action should be evaluated under the standards applicable to an actual discharge, rather than a constructive discharge. I do not agree that Rollins’ refusal to accept any of the options offered in the Career Decision Day Advisory amounted to a resignation. Rollins may have declined to select from the available options, but it was American, not Rollins, that made the final decision to end the employment relationship. Treating this actual discharge as a constructive one essentially flips the doctrine of constructive discharge on its head, and incorrectly forces Rollins to meet the high standard applicable to an employee who does resign, but subsequently argues that he or she was effectively discharged. See Collier v. Insignia Fin. Group, 981 P.2d 321, 324 (Okla. 1999) (“[A] constructive discharge occurs when an employer deliberately makes or allows the employee’s working conditions to become so intolerable that a reasonable person subject to them would resign.” (emphasis added)). This standard is plainly inapplicable to an employee who was, in fact, discharged. Moreover, American’s imposition of a performance advisory does nothing to change the fact that Rollins was discharged, and should not be the basis for allowing an employer such as American to prevent an employee from later stating a cognizable cause of action under Burk.
Nevertheless, I would affirm the judgment of the district court on the alternative ground that Rollins failed to carry his burden at summary judgment of establishing a genuine issue of material fact with respect to whether his role in reporting the removal of aircraft parts actually led to American’s decision to terminate him. I therefore concur in the court’s ultimate disposition of this claim and in its judgment.