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 grounds 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
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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 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.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
06-5135; Rollins v. American Airlines, Inc.
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
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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.
[ENDNOTES]
* 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. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 The Board's decision in this regard was recently affirmed in Rollins v. Admin. Review Bd., 2008 WL 904729 (10th Cir. Apr. 3, 2008) (unpub.).
2 Indeed, practical concerns of this sort have informed some judicial views holding that § 42121(b)(6) does not grant district courts jurisdiction to enforce preliminary reinstatement orders. See Bechtel v. Competitive Techs., Inc., 448 F.3d 469, 474 (2d Cir. 2006) (Jacobs, J., with one judge concurring in result); Welch v. Cardinal Bankshares Corp., 454 F. Supp. 2d 552, 558-59 (W.D. Va. 2006). In light of our disposition on mootness grounds, we need not resolve this other jurisdictional concern. Because jurisdictional issues need not be decided in any particular order, a mootness analysis may obviate resolution of an unsettled question of subject matter jurisdiction. Boyce v. Ashcroft, 268 F.3d 953, 955 (10th Cir. 2001); Kaw Nation v. Norton, 405 F.3d 1317, 1323 (Fed. Cir. 2005).
3 Mr. Rollins moved for remand, contending removal was improper because the notice of removal (1) was filed more than thirty days after American should have known the requirements of diversity jurisdiction were satisfied and (2) did not include a sufficient factual basis showing that the value in controversy exceeded the minimum for diversity jurisdiction. The district court denied the motion, holding that Rollins' formal factual admission in discovery that the amount in controversy exceeded $75,000, which was recited in and attached to the notice of removal, was sufficient to support jurisdiction where the complaint had not specified a damage amount, and that American timely sought removal within thirty days of the admission. We agree. See Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1078 (10th Cir. 1999) (holding plaintiff's deposition testimony regarding damages sought established amount in controversy and commenced thirty-day removal period); Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997) (holding plaintiff's admission in open court established amount in controversy); Green v. Harsco Corp., No. 99-5139, 2000 WL 745353, at **2-4 (10th Cir. May 25, 2000) (unpub.) (following Huffman and Singer specifically to uphold removal based on plaintiff's factual admission that claim for damages exceeded requisite jurisdictional amount).
4 American briefly argues that Mr. Rollins has failed to challenge the grant of summary judgment insofar as it rested on grounds (1) and (2) and that, therefore, appellate relief is foreclosed regardless of the strength of his appeal in other respects. See, e.g., Metzger v. Unum Life Ins. Co. of Am., 476 F.3d 1161, 1168 (10th Cir. 2007) (following Murrell v. Shalala, 43 F.3d 1388, 1389-90 (10th Cir. 1994), to hold that appellant must challenge all bases for district court ruling in order to preserve meaningful appeal therefrom). We note, however, that Mr. Rollins' appeal does encompass the cited grounds, largely in connection with his challenge to the district court's later denial of his motion to reconsider the grant of summary judgment. See Aplt. Br. at 34-41. It is, therefore, necessary for us to confirm at least one of the grounds given for granting (and later refusing to reconsider) summary judgment.
5 We note Mr. Rollins now asserts he was not given an opportunity to pursue a grievance after electing to terminate his employment. Aplt. Br. at 39 & n.5. Aside from obvious waiver problems, this assertion is simply immaterial to our constructive-discharge analysis, which turns on the tolerability of the conditions Mr. Rollins had to accept to continue his employment, not the consequences of his decision to end it.
6 Mr. Rollins insists he did not choose termination, because he "would not accept any of the options offered" in the advisory, Aplt. App., Vol. I at 247, ¶ 30 (emphasis added), and hence his case involves an involuntary-termination claim as opposed to one for constructive discharge. We disagree. A blanket refusal to accept the advisory was manifestly a choice to terminate employment. Whether Mr. Rollins may pursue a Burk claim under the circumstances depends entirely on whether his choice was prompted by conditions so objectively intolerable as to constitute a constructive discharge, as we discuss above.
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.
7 While Mr. Rollins complains that he had inadequate notice in advance of summary judgment that his claim was potentially deficient in this fundamental (and obvious) respect, we note that he has since had the opportunity to make his case on the point both in his motion for reconsideration below and on this appeal.