Adler v. Continental Ins.

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 13, 1998
• Docket: 96-3396
• Status: Unpublished

Opinion

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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

-3- 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.

-4- 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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