Adler v. Continental Ins. ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 13 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LINDA C. ADLER,
Plaintiff-Appellant,
v. No. 96-3396
(D.C. No. 95-CV-2282)
CONTINENTAL INSURANCE (D. Kan.)
COMPANY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Linda C. Adler brought suit against her former employer, initially asserting
claims under Title VII of the Civil Rights Act of 1964 and the False Claims Act,
and two state law claims: breach of employment contract and retaliation for
alleged whistle-blowing activities. After defendant filed a motion for summary
judgment on all four claims, Adler moved to dismiss her Title VII and state
employment contract claims. The district court granted plaintiff’s motion to
dismiss these two claims, and granted summary judgment for defendant on the
remaining two claims. Adler now appeals from that portion of the district court’s
order granting summary judgment to defendant on her False Claims Act claim
and her state law retaliation claim. The essence of Adler’s claims is that she was
discharged from her employment in retaliation for her alleged whistle-blowing
activities regarding fraudulent crop insurance claims submitted to defendant
and backed by the federal government through the Federal Crop Insurance
Corporation.
Our jurisdiction over this appeal arises from 28 U.S.C. § 1291. We review
the district court’s grant of summary judgment de novo, applying the same
standard as the district court, pursuant to Fed. R. Civ. P. 56(c). See Kaul v.
Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). In so doing, we review the factual
record and reasonable inferences drawn therefrom in the light most favorable to
the non-moving party, here the appellant. See id.-2-
On appeal, Adler contends the district court erred in concluding that her
state law retaliation claim was precluded by the availability of a federal remedy
under the False Claims Act, and that it wrongly relied on Polson v. Davis ,
895 F.2d 705 (10th Cir. 1990), in that analysis. However, our review of the
district court’s order belies Adler’s contentions. The district court expressly
declined to address whether Adler’s state law retaliation claim was precluded
by an adequate remedy under the False Claims Act. Rec. Vol. II at 490 n.5.
Instead, the court granted summary judgment on that claim based on its
conclusions that Adler’s allegations of retaliation did not implicate Kansas
public policy but, rather, federal policy, and, citing Anco Constr. Co. v. Freeman,
693 P.2d 1183, 1186 (1985), that no state law retaliatory discharge claim is pled
when the discharge is an alleged violation of federal public policy. Id. at
490-494. Adler does not challenge this ruling. Because the district court did not
address the point Adler argues on appeal, we decline to consider those arguments.
See Workman v. Jordan , 958 F.2d 332, 337 (10th Cir. 1992); R. Eric Peterson
Constr. Co. v. Quintek, Inc. (In re R. Eric Peterson Constr. Co.) , 951 F.2d 1175,
1182 (10th Cir.1991).
As to Adler’s claim of retaliatory discharge under the False Claims Act,
she argues on appeal that the district court wrongly granted summary judgment
because issues of fact exist which should be decided by a jury. She contends that
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a jury could choose to believe that her alleged whistle-blowing activities were
a factor in her discharge. However, the district court noted that there exists no
record evidence that the two persons who made the decision to terminate Adler
had knowledge of her alleged whistle-blowing activities prior to their decision to
discharge her. Rec. Vol. II at 476, 488. Aside from conclusory statements that
she has presented sufficient evidence for the question to go to a jury, Adler does
not challenge or controvert the district court’s statement regarding the lack of
evidence on this point. Accordingly, we agree with the district court that no
genuine issue of material fact exists on that point, and that defendant is entitled
to judgment as a matter of law on this claim.
Finally, Adler contends that the district court erred in declining to certify
the issue whether the availability of an alternative remedy precludes a retaliatory
discharge claim under Kansas law. We review the district court's decision
whether to certify a question to the state supreme court for an abuse of discretion.
See Allstate Ins. Co. v. Brown , 920 F.2d 664, 667 (10th Cir. 1990). Because,
as noted above, the district court did not address this issue, we see no abuse of
discretion in its decision not to certify the question.
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The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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