* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 6 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TOMMY GARRISON,

Plaintiff-Appellant,

v. BAKER HUGHES OILFIELD OPERATIONS, INC. d/b/a Centrilift, Inc., Defendant-Appellee. No. 98-5074 (D.C. No. 97-CV-82-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.1 The notice of appeal states that this appeal is tak en from the district court

order denying the motions for judgment as a matter of law and a new trial. The proper way to appeal rulings on such motions is to appeal from the entry of judgment on the verdict. This type of appeal allows the appellant to challenge all prior nonfinal orders an d all rulings that produced the judgment. When a party files a notice of appeal that is techn ically defective because it designates the appeal as from the denial of a motion for judgment [as a matter of law] or for newtrial, we may treat the appeal as taken from the final judgment i f the appeal is otherwise proper, the intent to appeal from the fin al judgment is clear, and the opposing party was not misled or pre judiced. Grubb v. FDIC , 868 F.2d 1151, 1154 n.4 (10th Cir. 1989) (citatio ns omitted). Thus, we will treat this appeal as taken from the e ntry of judgment on the jury verdict. -2- Plaintiff brought this suit under the Americans with Disabilities Act (ADA), complaining that defendant violated the ADA when it withdrew a conditional offer of employment and did not hire hi m. At trial, plaintiff objected to several of the jury instructions before the case was submitted to the jury. The jury returned a general verdict in favor of defendant on both of plaintiff’s claims under the ADA. Plaintiff made post-trial motions f or judgment as a matter of law and a new trial, again taking issue with the jury i nstructions. The district court denied the motions, and this appeal followed. 1 Plaintiff complains that the jury was incorrectly i nstructed on his claims under the ADA. He alleged that defendant violated the ADA when it failed to-3-

hire him. He was offered a job conditioned upon hi s successful completion of a physical examination. After independent investig ation, defendant became aware of several worker compensation claims filed by plai ntiff in the past. Plaintiff claimed that it was discovery of the worker compens ation claims that prompted defendant to withdraw its offer of employment, in v iolation of the ADA. Defendant countered that after the worker compensat ion claims came to light, it became apparent that plaintiff had made false repre sentations on his medical history form completed as part of the physical exam ination, and plaintiff’s false representations were the reason defendant did not o ffer him the job. The trial court instructed the jury on plaintiff’s second claim under the ADA as follows:

AMERICANS WITH DISABILITIES ACT: CLAIM TWO MEDICAL EXAMINATIONS AND INQUIRIES--ELEMENTS OF THE CLAIM Plaintiff can only recover for a violation of the m edical examination and inquiry provisions of the Americans with Disabilities Act if Plaintiff first proves that Def endant regarded Plaintiff as having a disability, as defined in ear lier instructions. Accordingly, you are instructed that in order to re cover under this claim, Plaintiff must prove the following elem ents: 1. Defendant regarded Plaintiff as having a disabi lity; 2. Defendant made Plaintiff an offer of employment conditioned upon Plaintiff’s successful completion of a medical examination by Defendant’s doctor; and 3. Plaintiff successfully completed the medical ex amination by Defendant’s doctor.-4-

Appellant’s App. Vol. I at 76. Plaintiff objected to this instruction before the case went to the jury and also challenged it in his post-trial motions. In its order denying the motions, the district court relied on Griffin v. Steeltek, Inc. , 964 F. Supp. 317, 319 (N.D. Okla. 1997), in findingthat recovery under 42 U.S.C. § 12112(d)(3) requires proof that an empl oyer regards a job applicant as having a disability. See Appellant’s App. Vol. I at 100-101. After the district court entered its order and its judgment became fin al, this court reversed the Griffin decision, holding that “[a] job applicant need notmake a showing that he or she is disabled or perceived as having a disabil ity to state a prima facie case under 42 U.S.C. § 12112(d)(2).” Griffin v. Steeltek , Inc. , 160 F.3d 591, 595 (10th Cir. 1998), cert. denied , 119 S. Ct. 1455 (1999). Following the analysis i n Griffin , this holding is equally applicable to claims under § 12112(d)(3). Cf. Griffin , 160 F.3d at 593-94 (discussing policy and languag e supporting holding).

When a party objects to instructions given at trial , we conduct a de novo review to determine whether, as a whole, the instructions correctly stated the governing law and provided thejury with an ample understanding of the issues and applicable st andards. Kinser v. Gehl Co. , 184 F.3d 1259, 1272 (10th Cir. 1999) (quotations omitted). The instruction that plaintiff challenges, directin g that plaintiff must show that defendant regarded him as having a disability befor e he can recover under the ADA, is directly contrary to this court’s holding in Griffin and is an incorrect statement of the law

. Because the instruction did not correctly state the law,-5-

we must reverse the judgment entered on the jury ve rdict and remand this case for a new trial on plaintiff’s claim of violation of 42 U.S.C. § 12112(d)(3). See Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1511 (10th Cir. 1997) (reversing and remanding for new trial based on improper jury instruction). Defendant argues that the incorrect instruction was harmless error in this case because plaintiff did not introduce evidence f rom which the jury could have returned a verdict in his favor, even if the instru ction had correctly stated the law.
See Appellee’s Br. at 4. However, the jury delivered ageneral verdict, answering in the negative the inquiry whether on claim two th e plaintiff had “proven by a preponderance of the evidence that defendant violat ed the medical examination and inquiry provisions of the [ADA].” Appellant’s App. Vol. II at 345-46. Because this was a general verdict, we cannot say that the jury did not base its finding on the erroneous instruction. “[W]here a j ury instruction is legally erroneous, we must reverse if the jury might have b ased its verdict on the [erroneous] instruction.” Coleman v. B-G Maintenance Management of Colo.,
Inc. , 108 F.3d 1199, 1202 (10th Cir. 1997). The form o f the verdict prevents us from determining whether the erroneous instruction was harmless error in this

case. The jury was erroneously instructed that plaintiff must prove defendant regarded him as having a disability to prevail on h is claim that defendant violated-6-

the medical examinations and inquiries provisions o f the ADA. Consequently, we must REVERSE the judgment entered on the jury ve rdict and REMAND the case to the district court for a new trial.

Entered for the Court

Bobby R. Baldock Circuit Judge