Robert TUPPER, Appellant, v. BOISE CASCADE CORPORATION, Appellee, 394 F.3d 622

FAGG, Circuit Judge. Robert Tupper worked for the Boise Cascade Corporation in a Minnesota paper mill. During his employment, Tupper received several warnings about his chronic absenteeism. In May 2001, Boise required Tupper to sign a last chance agreement, which provided Tupper could not miss any part of a scheduled workday for the next six months. Tupper understood that failure to comply with the agreement could result in his immediate termination. In a Sunday in October 2001, Tupper broke a tooth while eating a sandwich during his morning shift.

Tupper spoke with his supervisor and insisted that he needed medical attention. The supervisor expressed concern about the consequences of Tup-per’s departure under the agreement, and being uncertain of its duration, allowed Tupper to go home to check the agreement. Tupper departed and did not return that day. Tupper’s dentist’s office was closed, and he did not seek immediate medical care. Instead, Tupper went to his dentist the following day over his lunch hour. After the incident, Tupper did not seek workers’ compensation benefits or suggest to Boise he would do so.

Tupper’s health insurance carrier paid his medical bill. Two days after Tupper broke his tooth, Boise terminated his employment for leaving work during his shift in violation of the agreement. After his union declined to file a grievance, Tupper filed this diversity action for retaliatory discharge, alleging Boise wrongfully terminated him in violation of Minn.Stat. § 176.82, which states any person who discharges an employee for seeking workers’ compensation benefits is liable in a civil action for the employee’s damages. Applying Minnesota law, the district court granted

summary judgment to Boise, holding Tupper could not establish a prima facie case of retaliatory discharge because he had not shown he engaged in conduct protected by § 176.82. The district court noted Tupper admitted he did not seek workers’ compensation benefits or suggest to anyone at Boise that he would do so. Tupper appeals asserting he was protected by § 176.82. Having reviewed the grant of

summary judgment de novo, we conclude there was no genuine issue of material fact and Boise is entitled to judgment as a matter of law. We are satisfied that the district court properly analyzed Minnesota law, and affirm on the basis of the district court’s memorandum opinion and order. See 8th Cir. R. 47B. The Honorable Richard D. Kyle, United States District Judge for the District of Minnesota.