Painter v. Midwest Health ( 2022 )

Appellate Case: 21-3195 Document: 010110775497 Date Filed: 11/30/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
WENDY L. PAINTER,
Plaintiff - Appellant,
v. No. 21-3195
(D.C. No. 2:19-CV-02336-DDC)
MIDWEST HEALTH, INC.; PIONEER (D. Kan.)
RIDGE NURSING FACILITY
OPERATIONS, LLC, d/b/a Pioneer Ridge
Health & Rehab,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges.
_________________________________
Wendy L. Painter appeals from the district court’s grant of summary judgment
to her former employer, Pioneer Ridge Nursing Facility Operations, LLC (Pioneer).
Ms. Painter had brought employment claims alleging reverse race discrimination and
retaliation under Title VII, 42 U.S.C. §§ 2000e-2(a)(1) & 2000e-3(a), and 42 U.S.C.
§ 1981, as well as tortious interference with prospective contractual relationships or
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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expectancies and blacklisting under Kansas law. In addition to appealing the district
court’s summary judgment order, Ms. Painter moves to certify questions of state law
to the Kansas Supreme Court. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm the district court’s judgment and deny the motion for certification.1
I
Pioneer is an assisted-living nursing facility. Ms. Painter, who identifies as
Caucasian, was hired by Pioneer in 2006 as a licensed practical nurse. During her
tenure, she received several disciplinary warnings, including one on March 7, 2017,
for failing to assess a resident’s skin condition. Pioneer asserted this infraction
“caused potential harm to a resident” for which it was fined more than $24,000.
Aplt. App., vol. II at 99.
Sometime at the end of 2016 or in early 2017, Ms. Painter spoke to Pioneer’s
administrator, Ann Bell, who also identifies as Caucasian. Ms. Painter was frustrated
with her job and felt she was being “questioned about [her] job performance” by the
director of nursing, Kathleen King-Alvoid, who identifies as African-American. Id.,vol. I at 101. Ms. Painter complained that while other nurses made errors and were
insubordinate with impunity, Ms. King-Alvoid reprimanded her for eating a cookie at
1
Ms. Painter named Midwest Health, Inc., as a defendant, but the district court
concluded that she failed to establish a triable issue showing that Midwest Health
was her employer, and consequently, she could not prevail on her Title VII and
§ 1981 claims against Midwest Health. Ms. Painter does not challenge the district
court’s grant of summary judgment to Midwest Health on those claims. See Aplt.
Opening Br. at 6. To the extent Ms. Painter advances her state-law claims against
Midwest Health, we consider them in conjunction with our discussion of those claims
against Pioneer.
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the nurse’s station while another nurse was allowed to eat “a sucker at the nurse’s
station.” Id.
Ms. Painter spoke to Ms. Bell a second time in October 2017, complaining that
she felt “picked on” and that her job performance was being questioned on a daily
basis. Id. at 102. She told Ms. Bell she was denied time off, had to find coverage
when she was absent, and was “treated unfairly.” Id. at 103. Ms. Painter explained
that she was always assigned to the Rapid Recovery Unit (RRU), where residents
recovered following surgery or severe illness. She felt it was “belittling” to be
assigned to the RRU, where her primary responsibility was to “pass[] the medications
and provide[] treatment,” because she was “a nurse, not a medication passer.” Id.,
vol. II at 76-77. Ms. Painter told Ms. Bell she felt “it was somewhat discriminating
how [she] was being treated differently than other nurses.” Id. at 75.
On February 16, 2018, Ms. Painter was involved in an argument with a
resident’s son, who accused her of failing to take the resident’s vitals. During the
argument, “both [Ms.] Painter and [the] resident’s son raised their voices.” Id., vol. I
at 30, ¶ 5. Ms. Painter’s direct supervisor, Debbie Garrett, took the resident’s vitals
and determined he had low oxygen levels. The resident was transported to a hospital
where he was diagnosed with sepsis.
“As a result of the resident’s condition and [Ms.] Painter’s acknowledgment of
an argument with the resident’s son, and Pioneer[’s] . . . belief that [Ms.] Painter
refused to take the resident’s vital signs, Pioneer . . . reported an Allegation of
Neglect to [the] Kansas Department of Aging and Disability Services (‘KDADS’).”
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Id., ¶ 6. Pioneer was obligated to report the allegation of abuse or neglect to
KDADS. See id. at 134 (King-Alvoid depo.) (testifying that “anytime” there is an
allegation of abuse or neglect, “it’s merely the allegation that triggers the process”
for Pioneer to report it to KDADS, and “it doesn’t matter if at that time it’s been
substantiated or determined[] that it was an actual claim of abuse or neglect”); id. at
139 (Vogel, vice-president of skilled nursing, depo.) (testifying that reporting
allegations of abuse, neglect, or exploitation to KDADS is “an absolute mandate”).
Pioneer suspended Ms. Painter while it investigated the incident. On February
22, 2018, Pioneer reported its findings to KDADS. It found “that there was no
neglect to the resident and that the changes in the resident’s condition were [timely]
assessed and addressed,” but that Ms. Painter was terminated “for failing to meet a
family member’s reasonable request.” Id. at 30, ¶¶ 9-10. That same day, February
22, 2018, Ms. Bell notified Ms. Painter she was terminated because she “neglected
patient care duties related to the health and physical comfort of a resident when she
failed to follow a reasonable request from a family member related to the care of his
father and when she conducted herself unprofessionally in a manner that adversely
[a]ffected the facility.” Id., ¶ 12 (internal quotation marks omitted).
KDADS independently investigated and proposed to find Ms. Painter’s actions
constituted abuse and neglect as defined by state law. KDADS sent Ms. Painter a
“Notice of Finding of Abuse and Neglect.” Id., vol. III at 74. The notice gave her an
opportunity to challenge the proposed finding and informed her that federal law
prohibits nursing facilities from employing individuals with such findings entered
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into the state registry concerning abuse and neglect. But Ms. Painter did not receive
the notice until months later because it was sent to an outdated address listed on
Pioneer’s records. Ms. Painter eventually sought judicial review of KDADS’
proposed finding of abuse and neglect in a Kansas state court, which determined the
proposed finding was not a final decision because Ms. Painter was not properly
served.
Based on these events, Ms. Painter filed this action, claiming reverse race
discrimination and retaliation under Title VII and § 1981. She also asserted state-law
claims for tortious interference with prospective contractual relationships or
expectancies and blacklisting. The district court granted summary judgment to
Pioneer on all claims, and Ms. Painter appealed.
II
“We review the district court’s summary-judgment order de novo, applying the
same standard that the district court is to apply.” Singh v. Cordle, 936 F.3d 1022,
1037 (10th Cir. 2019). “Summary judgment is appropriate ‘if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Twigg v. Hawker Beechcraft Corp., 659 F.3d 987,
997 (10th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). Under this standard, we “view
facts in the light most favorable to the non-moving party and draw all reasonable
inferences in her favor.” DeWitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir.
2017) (brackets, ellipsis, and internal quotation marks omitted).
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“[S]ummary judgment will not lie if the dispute about a material fact is
‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). But the nonmoving “party must identify sufficient evidence which would
require submission of the case to a jury,” meaning she “must make a showing
sufficient to establish an inference of the existence of each element essential to the
case.” Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997) (internal
quotation marks omitted). “Mere allegations . . . are insufficient to survive a motion
for summary judgment.” Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004).
A. Reverse Race Discrimination under Title VII and § 1981
We first consider Ms. Painter’s claims of reverse race discrimination, which
are premised solely on her termination. The analysis for these claims under Title VII
and § 1981 is the same; because Ms. Painter can point to no direct evidence of
discrimination, it requires her to make out a prima facie case under the McDonnell-
Douglas burden-shifting framework.2 See Kendrick v. Penske Transp. Servs., Inc.,
220 F.3d 1220, 1225 & n.4 (10th Cir. 2000). If the plaintiff “establish[es] a prima
facie case of . . . discrimination, . . . the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the discharge, and then back to the plaintiff
to show that the stated reason is pretextual.” Argo v. Blue Cross & Blue Shield of
Kan., Inc., 452 F.3d 1193, 1201 (10th Cir. 2006). Ordinarily, to establish a prima
2
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
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facie case, a plaintiff must “show that (1) [s]he belongs to a protected class; (2) [s]he
was qualified for [her] job; (3) despite [her] qualifications, [s]he was discharged; and
(4) the job was not eliminated after [her] discharge.” Singh, 936 F.3d at 1037
(internal quotation marks omitted).
However, where, as here, a plaintiff alleges reverse discrimination, “a prima
facie case of discrimination requires a stronger showing.” Argo, 452 F.3d at 1201.
In a reverse discrimination case, a plaintiff “must, in lieu of showing that [s]he
belongs to a protected group, establish background circumstances that support an
inference that the defendant is one of those unusual employers who discriminates
against the majority.” Id. (internal quotation marks omitted). “Alternatively, a
plaintiff may produce facts sufficient to support a reasonable inference that but for
plaintiff’s status the challenged decision would not have occurred.” Id. (internal
quotation marks omitted). This alternative formulation of the prima facie case
requires a plaintiff to “allege and produce evidence to support specific facts that are
sufficient to support a reasonable inference that but for plaintiff’s status the
challenged decision would not have occurred.” Notari v. Denver Water Dep’t,
971 F.2d 585, 590 (10th Cir. 1992). “[I]t is not enough, under this alternative
formulation, for a plaintiff merely to allege that [s]he was qualified and that someone
with different characteristics was the beneficiary of the challenged employment
decision.” Id.7
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Ms. Painter attempts to satisfy this latter alternative formulation of the prima
facie test by repeating her contention, which the district court rejected, that
Ms. King-Alvoid, who is African-American,
showed favoritism toward Black, African-American and African
employees who were similarly situated to Plaintiff. That favoritism
expressed itself in disparate treatment in time-off requests, requiring the
Plaintiff but not the favored employees to find substitutes for time-off
requests; and disparity in matters of discipline, resulting in no discipline
for the favored employees when they made mistakes or refused
assignments, but false allegations against the Plaintiff for her work
performance, or nitpicking her performance.
Aplt. Opening Br. at 8.
This contention fails. As the district court explained, Ms. Painter has
produced no evidence to support specific facts from which it could be reasonably
inferred that but for her status as Caucasian she would not have been fired.3 Rather,
she makes unsupported allegations that Ms. King-Alvoid exhibited favoritism—not
by firing similarly situated Caucasians or refusing to discharge similarly situated
Black, African-American, or African employees—but by allowing Black,
African-American, or African employees time off without requiring them to find
coverage during their absences and not disciplining them while Ms. Painter was
criticized and nitpicked. Yet none of these things are associated with Ms. Painter’s
3
Ms. Painter’s opening brief repeats, at times verbatim, her summary
judgment arguments. Compare, e.g., Aplt. Opening Br. at 7-8, with Aplt. App., vol.
II at 43-44. “It thus inherently fails to address in a direct way the decision under
review and, as a result, does not effectively come to grips with the district court’s
analysis of the deficiencies in [her] case.” Semsroth v. City of Wichita, 555 F.3d
1182, 1186 n.5 (10th Cir. 2009).
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termination, which is the only employment action she challenges. Thus, her
allegations of favoritism for time off and reprimands do not create an inference that
but for Ms. Painter’s race, she would not have been fired. She therefore fails to
satisfy the alternative formulation of her prima facie case.4
Further, Pioneer offered a legitimate, non-discriminatory reason for firing
Ms. Painter, and she has not produced sufficient evidence to raise a genuine issue of
material fact that the proffered reason was pretext for discrimination. Pioneer says it
fired Ms. Painter because she “neglected patient care duties related to the health and
physical comfort of a resident when she failed to follow a reasonable request from a
family member related to the care of his father” and because she “conducted herself
unprofessionally in a manner that adversely [a]ffected the facility.” Aplt. App., vol.
V at 52. She stipulated to that fact. Id., vol. I at 29, 30, ¶ 12. To show pretext,
Ms. Painter must “produc[e] evidence of such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101,
1106 (10th Cir. 2008) (internal quotation marks omitted).
4
Ms. Painter also asserts she can satisfy several elements of the traditional
prima facie case, see Aplt. Opening Br. at 8-11, but those elements are not applicable
here, where she alleged reverse discrimination and attempted to satisfy the alternative
formulation of the prima facie case, see Notari, 971 F.2d at 590-91.
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Ms. Painter attempts to establish a fact issue on pretext by arguing that Pioneer
has given inconsistent reasons for terminating her. She cites Pioneer’s response to
her charge of discrimination filed with the Equal Employment Opportunity
Commission (EEOC), where Pioneer stated it “terminated [her] employment for
resident neglect” and noted she had previous disciplinary infractions, including the
instance of causing “potential harm to a resident” for which Pioneer was fined more
than $24,000. Aplt. App., vol. II at 99-100. Ms. Painter characterizes Pioneer’s
EEOC response as providing multiple distinct reasons for terminating her based on
“[v]iolations of work rules, prior violations of policies, . . . incurring a large expense
for [Pioneer],” and “resident neglect.” Aplt. Opening Br. at 13 (internal quotation
marks omitted). But the EEOC response clearly states the reason she was fired was
“a family complaint regarding resident neglect.” Aplt. App., vol. II at 99; see also id.
at 100 (“Pioneer . . . terminated Ms. Painter for resident neglect.”). Pioneer’s
reference to her history of other disciplinary infractions was not an inconsistent basis
for terminating her; it was a recitation of her previous disciplinary record.
Ms. Painter also contends the reason Pioneer gave for terminating her in its
EEOC response—resident neglect—contradicts the reason it gave for terminating her
in its report to KDADS, where Pioneer found there was no neglect. But, as
Ms. Painter stipulated, Pioneer’s report to KDADS was that “there was no neglect to
the resident” because the resident’s condition was assessed and addressed in a timely
manner. Id., vol. I at 29, 30, ¶ 9 (emphasis added). The evidence confirms that
immediately after the argument between Ms. Painter and the resident’s son,
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Ms. Painter’s supervisor, Ms. Garrett, tended to the resident. See id., vol. II at 105-
06 (Garrett investigation statement); id. at 110 (Painter investigation statement).
Hence, Pioneer reported its belief to KDADS that there was no neglect to the
resident. Yet Pioneer also reported to KDADS that Ms. Painter was terminated “for
failing to meet a family member’s reasonable request.” Id., vol. I at 30, ¶ 10. And
Ms. Painter stipulated that Pioneer terminated her because she “neglected patient
care duties related to the health and physical comfort of a resident when she failed to
follow a reasonable request from a family member related to the care of his father
and when she conducted herself unprofessionally in a manner that adversely
[a]ffected the facility.” Id. at 29, 30, ¶ 12 (emphasis added) (internal quotation marks
omitted). There is no inconsistency in this evidence, and Ms. Painter fails to
establish a fact issue on pretext.5
5
Ms. Painter also contends “[s]ome of the stated work rule violations are
incoherent,” citing as an example that she was disciplined for photographing a
resident. Aplt. Opening Br. at 14. But Ms. Painter’s claims are premised on her
termination, not work-rule violations. Moreover, she attempts to support this
argument by citing “Ex. 3 Employee Disciplinary Action Record,” id., but she does
not provide any specific citation to the record on appeal where we might locate this
exhibit. Although the district court referenced “Ex. 3” as “Doc. 81-4,” Aplt. App.
vol. V at 194, the district court’s docket indicates that “Doc. 81-4” is sealed, see id.,
vol. I at 14. Under these circumstances, we decline to consider this contention any
further. See Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 908 (10th Cir. 2009) (“[A]n
appellant who provides an inadequate record does so at his peril.” (internal quotation
marks omitted)).
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B. Retaliation under Title VII and § 1981
We next consider Ms. Painter’s retaliation claims under Title VII and § 1981,
which, like her previous claims, also employ the same analysis. See Twigg, 659 F.3d
at 998. To make out a prima facie case of retaliation, Ms. Painter had to show
“(1) that she engaged in protected opposition to discrimination, (2) that a reasonable
employee would have found the challenged action materially adverse, and (3) that a
causal connection existed between the protected activity and the materially adverse
action.” Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th Cir. 2021) (brackets
and internal quotation marks omitted). “To establish a causal connection, a plaintiff
must present evidence of circumstances that justify an inference of retaliatory
motive.” Bekkem v. Wilkie, 915 F.3d 1258, 1271 (10th Cir. 2019) (internal quotation
marks omitted). “If the protected conduct is closely followed by the adverse action,
courts have often inferred a causal connection.” Id. (internal quotation marks
omitted). But “we have held that a three-month period, standing alone, is insufficient
to establish causation.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179
(10th Cir. 1999).
Ms. Painter’s claims falter on the causation element. She relies on her October
2017 conversation with Ms. Bell to establish that she engaged in protected opposition
to discrimination.6 During that conversation, she complained that she felt “it was
6
In the district court, Ms. Painter also relied on her conversation with Ms. Bell
at the end of 2016 or in early 2017 to establish she engaged in protected activity.
The district court determined that first conversation was a general, unprotected
complaint, not protected activity. See Aplt. App., vol. V at 199-200 & n.19.
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somewhat discriminating how [she] was being treated differently than other nurses.”
Aplt. App., vol. II at 75. As a result, she says she suffered two adverse actions: she
continued to be assigned to the RRU and she was terminated. She failed to establish
causation via her assignments to the RRU, however, because as the district court
correctly recognized, she produced no evidence indicating when she was assigned to
the RRU. She contends it was sufficient for her to allege that the assignments to the
RRU “continued after the second complaint” and that the “specific dates of
assignment are not necessary.” Aplt. Opening Br. at 18. But absent any indication
how long after her complaint to Ms. Bell she was assigned to the RRU, or any other
supporting evidence to infer a causal connection between her complaint and the
allegedly continuing assignments, Ms. Painter failed to produce sufficient evidence to
justify an inference of retaliatory motive. See Bekkem, 915 F.3d at 1271.
As for Ms. Painter’s termination, she concedes there was a gap of at least three
months between her October 2017 complaint to Ms. Bell and her February 22, 2018,
termination, which is too long to establish a causal connection by itself. See Coors
Brewing Co., 181 F.3d at 1179. Nevertheless, she urges us to consider her continuing
assignments to the RRU in conjunction with her termination to establish causation.
But again, without any indication when those assignments occurred or evidence to
Ms. Painter has not adequately challenged that ruling on appeal. See Aplt. Opening
Br. at 16-17 (arguing she “presented specific complaints” to Ms. Bell, but discussing
only the second complaint in October 2017); Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are
not raised, or are inadequately presented, in an appellant’s opening brief.”).
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infer a retaliatory motive based on her assignments to the RRU, the assignments do
not suggest a causal connection between her October 2017 complaint and her
termination. The district court properly granted summary judgment to Pioneer on
Ms. Painter’s retaliation claims.
C. Tortious Interference with Prospective Contractual Relationships or
Expectancies
Ms. Painter also challenges the district court’s grant of summary judgment on
her claim for tortious interference. The district court recognized a claim of tortious
interference under Kansas law “‘is predicated on malicious conduct by the
defendant.’” Aplt. App., vol. V at 208 (quoting Dickens v. Snodgrass, Dunlap & Co.,
872 P.2d 252, 257 (Kan. 1994)). The district court further observed that Kansas law
“describe[s] malice as ‘actual evil-mindedness or specific intent to injure.’” Id.(quoting Turner v. Halliburton Co., 722 P.2d 1106, 1113 (Kan. 1986)). The district
court concluded, however, that there was no evidence to create a genuine issue of
material fact on the question of malice. On appeal, Ms. Painter disputes the district
court’s conclusion, arguing that Pioneer acted with malice by reporting the allegation
of abuse or neglect to KDADS and by providing an outdated address for her with its
report to KDADS. She says the outdated address resulted in her not receiving
KDADS’ proposed finding of abuse and neglect and her being listed as a prohibited
person on the state’s registry.
Ms. Painter’s first argument—that Pioneer demonstrated malice by reporting
the allegation of abuse or neglect to KDADS—is unavailing because, as the district
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court correctly observed, Pioneer “believed it was legally required to report any
allegation of abuse or neglect.” Id. at 212 (citing depositions of Ms. King-Alvoid
and Ms. Vogel). Ms. Painter has produced no evidence suggesting otherwise, and no
reasonable jury could find malice based on this evidence.
Neither does Pioneer’s listing of an outdated address with its report to KDADS
suggest malice. Ms. Painter insists the outdated address shows malice because it left
her with no knowledge either of KDADS’ proposed finding of abuse and neglect or
of her being listed as a prohibited person on the state’s registry. The problem,
however, is that Ms. Painter provides no evidence to support her theory that Pioneer
intended that result. See Aramburu, 112 F.3d at 1402 (“[T]he party opposing
summary judgment . . . must identify sufficient evidence which would require
submission of the case to a jury.” (internal quotation marks omitted)). To the
contrary, the district court noted this theory overlooked that Pioneer’s report found
“there was no neglect, and that changes in the resident’s condition were assessed and
addressed timely.” Aplt. App., vol. V at 213 (brackets and internal quotation marks
omitted). Because the report found there was no abuse or neglect to the resident, the
district court concluded that no reasonable jury could infer malice simply because the
report also listed an outdated address for Ms. Painter. We agree. Although
Ms. Painter contends the district court made improper inferences in Pioneer’s favor,
the district court merely recognized she failed to produce evidence showing a triable
issue on the question of malice. The district court correctly granted summary
judgment on the tortious interference claim.
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D. Blacklisting
We now turn to Ms. Painter’s claim for civil blacklisting. We have previously
addressed the Kansas statutory scheme governing blacklisting and concluded that,
“[b]ased on the plain language of [Kan. Stat. Ann. § 44-119], . . . a criminal
blacklisting conviction is an element of a civil blacklisting claim against an employer
under Kansas law.” Anderson v. United Tel. Co. of Kan., 933 F.2d 1500, 1503
(10th Cir. 1991).7 Ms. Painter acknowledges Anderson held that a criminal
blacklisting conviction is required to establish a claim for civil blacklisting. She also
concedes there was no criminal conviction here. Nonetheless, she asks us to overrule
7
The Kansas blacklisting statute provides:
Any employer of labor in this state, after having discharged any person
from his service, shall not prevent or attempt to prevent by word, sign or
writing of any kind whatsoever any such discharged employee from
obtaining employment from any other person, company or corporation,
except by furnishing in writing, on request, the cause of such discharge.
Kan. Stat. Ann. § 44-117. The statutory scheme also provides for criminal penalties:
Any employer of labor, his agent or employee, who shall violate the
provisions of this act shall be guilty of a misdemeanor, and shall upon
conviction be fined for each offense the sum of one hundred dollars and
thirty days’ imprisonment in the county jail.
Id. § 44-118. And it provides for civil penalties:
Any person, firm or corporation found guilty of the violation of this act,
shall be liable to the party injured to an amount equal to three times the
sum he may be injured, and such employers of labor shall also be liable
for a reasonable attorney fee, which shall be taxed as part of the costs in
the case.
Id. § 44-119 (emphasis added).
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Anderson either as incorrectly decided or because there have been statutory
developments compelling a different result. Our cases are clear, however: “We
cannot overrule the judgment of another panel of this court. We are bound by the
precedent of prior panels absent en banc reconsideration or a superseding contrary
decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724 (10th Cir. 1993).
Anderson is binding precedent, and absent a criminal conviction, Pioneer was entitled
to summary judgment on Ms. Painter’s claim for civil blacklisting.
III
Finally, we consider Ms. Painter’s motion to certify questions of state law to
the Kansas Supreme Court. “Whether to certify a question of state law to the state
supreme court is within the discretion of the federal court.” Armijo v. Ex Cam, Inc.,
843 F.2d 406, 407 (10th Cir. 1988). “The federal court should consider state court
decisions, decisions of other states, federal decisions, and the general weight and
trend of authority.” Id. “Certification is not to be routinely invoked whenever a
federal court is presented with an unsettled question of state law.” Id.Ms. Painter seeks to certify two questions to the Kansas Supreme Court:
1) whether the Kansas blacklisting statute, and her claim in particular, is subject to a
one-year statute of limitations or a three-year statute of limitations and 2) whether a
criminal conviction is an element of a claim for civil blacklisting. Anderson already
answered the latter question, however, which, at least in this case, obviates any need
to consider the former question. We therefore deny the motion for certification.
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IV
The district court’s judgment is affirmed. Ms. Painter’s motion to certify
questions of law to the Kansas Supreme Court is denied.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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