Unpublished Disposition, 927 F.2d 612 (9th Cir. 1990)

MEMORANDUM^* 

Paul Verbanic appeals a grant of summary judgment for defendant VECO, Inc. on claims of retaliatory and wrongful discharge. We affirm.

BACKGROUND

Verbanic, a 52-year-old skilled laborer, had been employed by VECO for nine years when he was terminated in 1986. On May 3, 1986, he injured his back while on the job. He continued to work through May 5 and then left for two weeks of scheduled rest and relaxation. At the end of the two weeks he informed VECO that he would not be able to report back to work due to his injury.

In late May, he filed a worker's compensation claim. VECO appears to have been notified of the claim in late May or early June based on file notes by VECO's claims adjuster and correspondence from the Alaska Department of Labor.

Verbanic testified that he received a termination notice about July 9, 1986. It was signed by his supervisor, Ron Rolan. Although it is not known when the notice was sent, Rolan testified that he was unaware of the worker's compensation claim when he signed it. It stated that the reason for termination was "laid off/reduction in force."

Verbanic interpreted the notice as a firing, not a layoff. VECO maintains that Verbanic was one of many employees laid off in the spring and summer of 1986 due to a downturn in the Alaska economy. The parties also dispute whether Rolan attempted to reach Verbanic regarding possible employment later that summer. Verbanic's evaluations had been positive and Rolan testified that he would hire him again if there was work. A VECO computer list shows Verbanic as a potential rehire, but Rolan stated that he maintained his own list of people whom he would call if work was available.

Verbanic sued, alleging he was terminated in retaliation for filing a worker's compensation claim. He also complained that VECO wrongfully terminated him after promising him permanent employment. The court gave summary judgment for VECO and denied a motion for reconsideration.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We must determine, viewing the evidence in a light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). The nonmoving party must present evidence "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

DISCUSSION

I. Retaliatory Discharge/Breach of Covenant of Good Faith and Fair Dealing

Verbanic contends that VECO retaliated against him for filing a worker's compensation claim. There are no Alaska cases directly on point. We recently interpreted Alaska law to allow such a claim, see Eldridge v. Felec Services, Inc., No. 89-35509, slip op. at 14682-683 (9th Cir. Nov. 28, 1990),¹  but we did not discuss the plaintiff's burden of proof. We must address that here.

State courts that have considered similar claims have required the plaintiff to establish a prima facie case of discrimination. 2A Larson, Workmen's Compensation Law Sec. 68.36(c) (1989 & Supp.1990). Three basic elements of a prima facie case can be distilled from existing case law. First, the plaintiff must show that he has filed or begun proceedings to file a worker's compensation claim. Second, the employer must have taken some adverse personnel action against the employee. Third, the plaintiff must show there is a causal connection between the filing of the claim and the adverse personnel action. Love, Retaliatory Discharge for Filing a Worker's Compensation Claim: The Development of the Modern Tort Action, 37 Hastings L.J. 551, 566-78 (1986).

Verbanic has met the first two requirements, so our inquiry is limited to whether the evidence in the record justifies an inference that his termination was motivated by the filing of his claim. In establishing motivation, the plaintiff must show that the compensation claim was a significant cause of the discharge. See Delano v. South Portland, 405 A.2d 222, 229 (Me.1979). Reliance on circumstantial evidence is usually necessary, as the employer does not often announce retaliation as the motive. Larson, supra.

Verbanic argues that Rolan must have known of the compensation claim when he signed the termination notice. He notes that a letter from VECO's worker's compensation claims adjuster, dated May 29, 1986, indicates that the adjuster had spoken with a VECO manager, Lee Crossman, who in turn said he could "follow up" with Rolan to discuss Verbanic's original injury report.

This argument requires a series of inferences. We must first infer that Crossman discussed the injury report with Rolan and that Rolan was informed that Verbanic had filed a claim. We must further infer that this discussion occurred before Rolan signed the notice, although there is no evidence to pin down when he did so.

Even if Rolan knew that a claim had been filed, there is no evidence to suggest that his decision was motivated by the filing. Tenuous evidence that Rolan may have known of it stops short of suggesting retaliatory animus.² 

Verbanic next argues that affidavits submitted by former VECO employees reveal a consistent pattern of discrimination against workers who had filed compensation claims.

Far from establishing a consistent pattern of discrimination, one of the affidavits undermines Verbanic's argument,³  others contain irrelevant charges,⁴  and most contain an inadmissible hearsay statement that it was "general knowledge" that VECO terminated employees who filed compensation claims. The Gilmore affidavit alleges that he was fired shortly after filing a worker's compensation claim. This evidence, standing alone, is insufficient, given the lack of other evidence of retaliation, to create a genuine issue of material fact.

Verbanic argues that proximity in time between his termination and Rolan's awareness that a claim had been filed is sufficient to establish a prima facie case of retaliation. Viewed in the light most favorable to Verbanic, the evidence shows that five or six weeks elapsed between the time that Rolan allegedly became aware of the claim and his decision to terminate.

Several state courts have held that close proximity between a discharge and the employer's knowledge of the filing of a claim, when coupled with other evidence, is sufficient to establish a prima facie case. See Lattie v. SHS Enterprises, Inc., 389 S.E.2d 300, 301 (S.C.App.1990) (prima facie case established where discharge occurred 16 days after claim filed and plaintiff produced evidence of satisfactory work performance); Springer v. Weeks and Leo Co., Inc., 429 N.W.2d 558, 560 (Iowa 1988) (jury issue where discharge occurred 3 days after supervisor requested employee to sign document stating injury was not work-related).

The foundation of Verbanic's proximity argument is weak. A chain of inferences must be constructed to establish that Rolan knew that a claim had been filed when he signed the termination notice. Even accepting this as true, Verbanic has presented no evidence from which to infer a retaliatory motive. For example, he has not shown that VECO hired others for jobs for which he was qualified. He has not shown that VECO opposed his filing of a claim or even spoke to him about it.

Although proximity may be Verbanic's best argument, we conclude that the five or six weeks that may have elapsed here is simply not a short enough time span, given the lack of other evidence of retaliation, to justify an inference that Rolan acted in retaliatory fashion.

Verbanic argues that VECO could terminate him only for good cause because he was a permanent employee. He claims that one of his supervisors promised him permanent employment "as long as there are personnel working at VECO." He also produced a document labeled "Request for Verification of Employment," completed by VECO in 1982 to assist him in obtaining a bank loan, which described him as a "permanent employee."

In Eales v. Tanana Valley Medical-Surgical Group, Inc., 663 P.2d 958, 959 (Alaska 1983), the Alaska Supreme Court held that an employer was precluded from discharging an employee except for good cause when it promised an employee that he would be kept on until retirement age. The potential breadth of this holding was narrowed in Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989). The Luedtke court held that where an employer made an informal or ambiguous statement that a given employee's job was "permanent," and the statement did not specify the duration of the employment, the employer was not precluded from discharging the employee only for cause. Id. at 1130 & n. 7.

Both the loan form and the statement allegedly made by Verbanic's supervisor were informal statements that made no mention of a specific time period. There is no genuine issue of material fact with regard to whether VECO was required to terminate Verbanic only for good cause.

VECO's request for attorneys' fees under Rule 508(e) of the Alaska Rules of Appellate Procedure is denied. The appeal here was not frivolous, unreasonable, or in bad faith. See Whaley v. Alaska Workers' Compensation Bd., 648 P.2d 955, 960 (Alaska 1982).

CONCLUSION

Verbanic failed to produce evidence creating a genuine issue of material fact with regard to the establishment of a prima facie case of retaliatory discharge. He also failed to present evidence creating a genuine issue of material fact with regard to his claim of wrongful termination. We decline to award attorneys' fees to appellees.

AFFIRMED.