* This order and judgment is not binding precedent, e xcept under the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

### JUN 19 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROGER D. ROWE,

Plaintiff-Appellant,

v. CONOCO, INC., a Delaware corporation, and a wholly owned subsidiary of DU PONT COMPANY,

Defendant-Appellee. Case No. 97-6107 (D.C. No. CIV-95-1258-L) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, and PORFILIO and HENRY , Circuit Judges.

Roger Rowe appeals the district court’s grant of ju dgment as a matter of law to the defendant, Conoco, Inc. Because Mr. Rowe failed to make out a prima facie case of either (1) retaliatory discharge in v iolation of Oklahoma’s Workers’ Compensation Act or (2) discharge in violation of O klahoma public policy, we affirm the district court’s decision.2 BACKGROUND
The Facts Because the district court granted judgment as a matter of law to Conoco, we construe the facts in the light most favorable to Mr. Rowe. See Doan v. Seagate Tech., Inc. , 82 F.3d 974, 976 (10th Cir. 1996), cert. denied , 117 S. Ct. 684 (1997). From 1983 until 1993, Conoco employed Mr. Rowe as alaborer and apprentice pipefitter at its Ponca City refinery. On the morning of August 16, 1993, after attending a routine safety meeting, Mr. Rowe received an assignment “to clean the east coke pot.” Aplt’s App. vol. I, at 247. However, before Mr. Rowe began this job, Larry Kothe, one of Mr. Rowe’s supervisors, informed him that he had been selected for a random drug test an d that he should report to Conoco Medical within four hours (by approximately 12:30 p.m.) in order to take the test. Mr. Rowe proceeded to begin cleaning the coke pot. However, before he completed the job, he “started feeling real nauseous.” Id. at 260. After vomiting several times, Mr. Rowe proceeded to the office of his direct supervisor, Frank Lessert. Mr. Rowe testified that he told Mr. Lesse rt, “I got sick out there on the job, and I was feeling very nauseated and having a hard time getting my breath, and I thought I needed to go home or something.” Id. at 262. When Mr. Lessert3

asked Mr. Rowe what had happened, Mr. Rowe replied, “I don’t know. I was just overcome and lost my breakfast out there.” Id. When Mr. Lessert asked whether Mr. Rowe intended to go home, Mr. Rowe responded th at he did but that he would take his drug test before leaving work. Mr. Rowe then requested and received permission fro m Mr. Lessert to drive himself to Conoco Medical. Mr. Rowe, however, neve r reached Conoco Medical. While driving to Conoco Medical, he stopped and vom ited again. He then decided to drive to his mother’s home, which was lo cated nearby, in order to clean himself up. When he arrived at his mother’s home, no one was there, and he discovered that he had left his keys to his moth er’s house at work. Locked out and feeling ill, Mr. Rowe proceeded to lie down and fall asleep in the back of his

van. When Mr. Rowe awoke, he felt no better. He proceed ed to drive to his own home, which was located approximately 16 miles from his mother’s house. He arrived home at roughly 10:30 a.m. and immediately telephoned Mr. Lessert. Mr. Rowe informed Mr. Lessert that he had gotten sick a gain and that he had been unable to get to Conoco Medical to take the drug te st. Mr. Lessert told Mr. Rowe that he “really should have made it through Medical ” and that he would telephone Mr. Kothe to apprise him of the situation. Id. at 268.4

Mr. Rowe then decided that he, too, would telephone Mr. Kothe. When his attempts to reach Mr. Kothe failed, Mr. Rowe left M r. Kothe a voice mail message stating that he had “got[ten] sick,” that h e hadn’t “ma[d]e it into Medical,” that he had been in contact with Mr. Less ert, that he would “get back with [Mr. Lessert] later,” and that he “was going t o get a hold of [his] doctor.” Id. at 268-69. Mr. Rowe then telephoned his private p hysician and made an appointment with him for later that afternoon. He left a message with Mr. Lessert stating that he had made arrangements to see his do ctor later that day. Mr. Kothe telephoned Mr. Rowe at 11:30 a.m. and inf ormed him that he had one hour to report to Conoco Medical to take his drug test. Mr. Rowe told Mr. Kothe that he made an appointment with his priv ate physician, that he “was too sick to drive back” to Conoco Medical, but thathe “would be glad to take [a drug test] at [his] doctor’s, if that would be okay.” Id. at 271-73. Mr. Kothe, however, refused to allow Mr. Rowe to take the testanywhere other than Conoco Medical. Mr. Kothe informed Mr. Rowe that he had “ better find somebody to get [him] back over [to Conoco Medical] because . . . [ he was] running out of time,” and that he “was bordering on the line of insubordination.” See id. at 272-73. After trying unsuccessfully to contact his wife, Mr . Rowe called Mr. Kothe at 12:15 p.m. Unable to reach Mr. Kothe, Mr. Rowe left a message on Mr. Kothe’s voice mail stating that he could not find a nyone to drive him to Conoco5

Medical. At 12:45, Mr. Kothe called Mr. Rowe back and informed him that his “time was up, and [he] would be receiving a letter in the mail of termination for insubordination.” Id. at 274. Mr. Rowe visited his private physician later that d ay. The doctor diagnosed Mr. Rowe as suffering from heat exhaustion. The fo llowing day, Mr. Rowe received his termination letter from Conoco. The Legal Proceedings In November 1993, Mr. Rowe filed a claim for worker s’ compensation benefits, alleging that he had suffered heat stroke on August 16, 1993. In February 1994, Mr. Rowe filed a second workers’ compensation claim, alleging that he had suffered a lung injury as a result of e xposure to various chemicals during his employment at Conoco. In January 1995, the Oklahoma Workers’ Compensation Court found that Mr. Rowe did, in fact , suffer a 9% permanent partial disability due to injury to his lungs cause d by exposure to dust, smoke, and fumes at Conoco. In August 1995, Mr. Rowe filed the complaint in thi s action, alleging that Conoco violated: (1) the Oklahoma Workers’ Compens ation Act, Okla. Stat. tit. 85, § 5, which forbids an employer from terminating an employee because he instituted a workers’ compensation claim; and (2) Burk v. K-Mart Corp. , 770 P.2d 24 (Okla. 1989), which forbids an employer from terminating an employee6

because the employee performed an act consistent wi th a clear and compelling public policy or because the employee refused to vi olate such a public policy. Prior to trial, the district court dismissed Mr. Rowe’s Burk claim without prejudice, finding that Mr. Rowe had failed to arti culate the precise constitutional, statutory, or decisional law that purportedly gave rise to this claim. The court, however, granted Mr. Rowe leave to amend his complaint, and Mr. Rowe promptly filed an amended complaint alleging t hat Conoco had violated Burk when it denied him the right “to receive medical t reatment for his job related injuries from the physician of Plaintiff’s choice and refused to allow Plaintiff to receive a (random) drug test administe red by Plaintiff’s doctor.” Aplt’s App. vol. I, at 9-10. In the final pretrial order, Mr. Rowe attempted to assert a second basis for his Burk claim: that Conoco had violated the Standards forWorkplace Drug and Alcohol Testing Act of Oklahoma, Okla. Stat. tit. 4 0, §§ 551-565, by purportedly “fail[ing] to post a copy of the drug testing polic ies and changes to the policies and fail[ing] to provide each employee with the pol icies and changes to the policy.” See Aplt’s App. vol. I, at 121. The district court, h owever, ruled that because Mr. Rowe had not raised the issue of Conoco ’s failure to post its drug policies until the eve of trial, he could not proce ed on this theory.7

Thus, at trial, the district court permitted Mr. Ro we to pursue only two claims: (1) his “physician of his choice” Burk claim; and (2) his Oklahoma Workers’ Compensation Act claim. After Mr. Rowe put on his case-in-chief at trial, the district court granted Conoco’s Fed. R. Civ. P. 50 motion for judgment as a matter of law on both claims.
DISCUSSION I. Oklahoma Workers’ Compensation Act Claim We review a district court’s decision to grant judg ment as a matter of law de novo. See Doan , 82 F.3d at 976. The Oklahoma Workers’ Compensation Act prohibits anemployer from discharging “any employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said c laim, instituted or caused to be instituted, in good faith, any proceeding under the provisions of this title.” Okla. Stat. tit. 85, § 5. The broad “instituted or cause d to be instituted” language, which the legislature included in addition to the n arrow “filed a claim” phraseology, indicates that for the purposes of thi s statute an employee may “institute” workers’ compensation proceedings “with out actually filing a claim.”
See Buckner v. General Motors Corp. , 760 P.2d 803, 808 (Okla. 1988). The rationale behind this approach “is that if an emplo yee must formally file a claim for workers’ compensation benefits prior to the all egedly wrongful discharge, an8

employer might be encouraged to terminate an injure d employee expeditiously, before the employee has an opportunity to file a claim.” Id. In Buckner , the Oklahoma Supreme Court established a four-pro nged test for determining whether a plaintiff has made out a prima facie case of retaliatory discharge in violation of Okla. Stat. tit. 85, § 5. Thus, to show that the district court erred in granting Conoco judgment as a matterof law, Mr. Rowe must demonstrate: (1) employment; (2) on-the-job injury; (3) receipt of treatment under circumstances that put the employer on notice that treatment had been rendered for a wo rk-related injury; and (4) consequent termination of employment.
See id. at 806. Conoco levels its charge at the third ele ment of Mr. Rowe’s prima facie case, arguing that he did not receive treatme nt under circumstances that placed the company on notice that he suffered a wor k-related injury. At trial, Mr. Rowe testified that on the morning of August 16, 1993 he told Mr. Lessert, his immediate supervisor, that he got sick while working, that he was experiencing nausea and having a hard time catching his breath, and that he wished to go home. See Aplt’s App. vol. I, at 262. When Mr. Lessert aske d him what had happened, Mr. Rowe replied, “I don’t know. I was just overcome and9

lost my breakfast out there.” Id. Mr. Rowe then requested and received permission from Mr. Lessert to see his private phys ician about his condition. The Buckner court rejected the notion that an employer’s knowl edge that an employee had sought medical treatment, without more , was sufficient to put the employer on notice that a workers’ compensation cla im was imminent: [I]t is presumptuous to conclude that every time an employer provides first aid treatment that a workers’ compen sation proceeding has been ‘instituted.’. . . Merely seeking and rece iving first aid is not in and of itself sufficient to institute proceeding s. . . . First aid coupled with circumstances which raise a clear infe rence of an anticipated claim must be present before the instit ution of proceedings is triggered. 760 P.2d at 810-11. Applying this standard, we hol d that Mr. Rowe has failed to demonstrate that his statements to Mr. Lessert were sufficient to place Conoco on notice that his nausea was in any way job-related; Mr. Rowe simply requested permission to see his physician after telling Mr. L essert that he had experienced difficulty catching his breath and had vomited whil e he was cleaning the coke pot. Mr. Rowe now contends that his nausea resulted fromexposure to toxic fumes that were released in the process of cleaning the coke pot. However, Mr. Rowe never mentioned anything about exposure to suc h fumes when he informed Mr. Lessert about his condition on the morning of A ugust 16th. Moreover, if Mr. Rowe believed that the fumes were the cause of his nausea, he would certainly have alerted his physician to this fact when he pai d him a visit later that same10

day. Mr. Rowe, though, offered no evidence at tria l that he even mentioned these fumes to his doctor during that visit. Mr. Rowe’s own testimony demonstrates that on Augus t 16th he did not provide Conoco with information that would have ledthe company to believe that fumes from the coke pot caused his nausea. The evi dence also indicates that on August 16th even Mr. Rowe did not suspect that his nausea was related to such fumes. Moreover, based on his examination of Mr. R owe later that day, Mr. Rowe’s physician determined that acute heat exhaust ion, not exposure to toxic fumes, was the cause of Mr. Rowe’s nausea. And it would be manifestly unfair to charge Conoco with knowledge that neither Mr. Rowe nor his treating physician possessed. Thus, Mr. Rowe has failed to demonstrat e that he sought medical treatment under “circumstances which raise a clear inference of an anticipated claim” and, accordingly, has failed to make out a p rima facie case of retaliatory discharge under the Oklahoma Workers’ Compensation Act. See Buckner , 760 P.2d at 811. In addition, even if Mr. Rowe had established a pri ma facie case of retaliatory discharge, he could not have survived C onoco’s Rule 50 motion unless he introduced evidence suggesting that Conoco’s pro ffered reason for terminating Mr. Rowe--his failure to submit to the random drug test within the prescribed four-hour period--was pretextual. See id. at 807. For instance, Mr. Rowe could11

have satisfied this burden by introducing evidence that Conoco had not terminated other employees who had failed to submit to drug te sts. However, Mr. Rowe offered no evidence that cast doubt on Conoco’s pro ffered explanation for his termination. And in the absence of such evidence, Mr. Rowe’s retaliatory discharge claim under Okla. Stat. tit. 85, § 5 is d oubly doomed.
II. Burk Claim Mr. Rowe also appeals the district court’s grant of judgment as a matter of law on his claim under Burk v. K-Mart Corp. , 770 P.2d 24 (Okla. 1989). In Burk , the Oklahoma Supreme Court recognized an exception to the employment-at-will doctrine and allowed a discharged employee to recov er from his former employer where he demonstrated that his discharge was “contr ary to a clear mandate of public policy as articulated by constitutional, statutory or decisional law.” Id. at 28. The court admonished that this exception “mustbe tightly circumscribed” and that an employee could only recover after demonstrating that he had been “discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent w ith a clear and compelling public policy.” Id. at 29. As the basis of his Burk claim, Mr. Rowe alleged that Conoco refused to permit him to choose the physician who would: (1) treat him for his on-the-job injury; and (2) administer his drug test. As an i nitial matter, Mr. Rowe failed to12

point to any constitutional, statutory, or decision al law that guarantees an employee the right to be drug-tested by the physici an of his choice. Thus, to the extent Mr. Rowe’s Burk claim is predicated on the right to be drug-tested by the physician of his choice, that claim must fail. The remainder of Mr. Rowe’s claim hinges upon his c laim that Conoco denied him the right to receive treatment from the physician of his choice. Mr. Rowe, though, has not introduced any evidence to support this allegation. In fact, Mr. Rowe’s own testimony demonstrates that as soon as Mr. Lessert learned that Mr. Rowe was ill, Mr. Lessert gave him permission to leave work. See Aplt’s App. vol. I, at 262. Although Mr. Lessert did inst ruct Mr. Rowe to take his drug test before leaving (an instruction that Mr. Rowe d isobeyed), this instruction did not prevent Mr. Rowe from visiting the physician of his choice. Thus, we need not decide the theoretical question of whether prev enting an employee from exercising such an option could serve as a valid basis for a Burk claim. Mr. Rowe’s brief also makes passing mention of the district court’s refusal to allow him to rely on Conoco’s alleged failure to post its drug policy as an alternative basis for his Burk claim. He asserts that this decision constituted an abuse of discretion. During the approximately eigh teen months this case was pending, though, Mr. Rowe never even attempted to a mend his complaint to13

include this alternative theory. Rather, six days prior to trial, he surreptitiously inserted this new theory into the joint pretrial st atement. This new claim was based on completely different fa cts than Mr. Rowe’s other two claims. Neither in district court nor on appeal did Mr. Rowe offer any explanation as to why he waited until less than a w eek before trial to introduce this new claim. Consequently, the district court w as well within in its discretion in refusing to inject this new theory into the case on the eve of trial. See Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365-66 (10th Cir. 1993) (holding th at “untimeliness alone is a sufficient reason to deny leave to amend, especially when the party filing the motion has no adequate explanation for the delay”) (citations omitted). III. Evidentiary Rulings Mr. Rowe also appeals a series of the district court’s evidentiary rulings. We review these rulings for abuse of discretion. See Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995). In addition, we note that “error in the admission or exclusion of evidence is harmless if it does not af fect the substantial rights of the parties.” Gomez v. Martin Marietta Corp. , 50 F.3d 1511, 1518 (10th Cir. 1995) (quotation omitted). Mr. Rowe first appeals the district court’s decisio n to exclude an internal Conoco document known as a Material Safety Data She et. The Data Sheet, which14

is stored on Conoco’s computer system, generally de scribes decant oil, the substance that purportedly emitted the fumes that M r. Rowe believes caused his nausea. The Data Sheet describes, among other thin gs, the components of decant oil, its physical and chemical properties, and prec autions individuals should take when working with it. At trial, Mr. Rowe attempted to introduce the docum ent through the testimony of John Botts, Mr. Rowe’s former co-worke r at Conoco, arguing that the Data Sheet was relevant because it established that “Conoco knew that the tasks [Mr. Rowe] was doing could create harm to himor cause physical injury, if he was exposed to any of the gases or vapors involv ed in this job he was performing on August 16th of 1993.” Aplt’s App. vo l. I, at 226. The district court rejected this attempt to introduce the Data S heet, ruling that Mr. Botts was “not the proper witness to sponsor the document.” Id. at 227. The court, however, left the door open for Mr. Rowe to introdu ce the Data Sheet through another witness “who could interpret it and give so me statement as to Conoco, what the document meant and as to Conoco’s knowledge of it.” See id. at 228. After this ruling, though, Mr. Rowe made no furtherattempt to introduce the Data Sheet. On appeal, Mr. Rowe once again urges that the Data Sheet is relevant to show that Mr. Rowe’s supervisors had knowledge thathis nausea and shortness of15

breath were job-related. See Aplt’s Reply Br. at 9. However, even if the information contained in the Data Sheet does establ ish a link between vapors contained in the coke pot and Mr. Rowe’s nausea and shortness of breath, in order to establish its relevancy, Mr. Rowe must show thatMr. Lessert or Mr. Kothe was familiar with the Data Sheet. Mr. Botts’s testimony, though, did not establish that either man had any knowledge of the contents of the Data Sheet. Accordingly, the district court did not abuse its discretion whe n it excluded the Data Sheet on the ground that Mr. Botts’s testimony had not laid a proper foundation for its admission. Relatedly, Mr. Rowe disputes the court’s decision t o exclude Mr. Botts’s testimony regarding his knowledge of the contents o f the Data Sheet. Once more, Mr. Rowe contends that this testimony was relevant to show that Conoco had knowledge that exposure to decant oil vapors had ca used Mr. Rowe’s nausea and shortness of breath. See id. Again, though, Mr. Rowe failed to demonstrate how Mr. Botts’s testimony would have established a nexu s between the information contained in the Data Sheet and Conoco’s purported knowledge that exposure to decant oil vapors was responsible for Mr. Rowe’s co ndition. Consequently, the district court also properly excluded this testimony as irrelevant under Rule 401. The district court also sustained Conoco’s objectio ns to Mr. Rowe’s attempts to elicit testimony from Mr. Botts and Lou is Clark, another former co-16

worker of Mr. Rowe’s, regarding whether Conoco’s co ke pots contained hydrogen sulfide gas (one of the components of decant oil, a nd the gas that Mr. Rowe believes caused his nausea and shortness of breath) . Once more, Mr. Rowe sought to introduce this testimony to demonstrate that at the time Conoco terminated him, the company had notice that he had suffered an on-the-job injury. As a threshold matter, Mr. Rowe failed to lay any f oundation as to how these men might have known the precise chemical composition of a gas that purportedly escaped from those pots. Although Cono co notes that neither Mr. Botts nor Mr. Clark is a chemist, an advanced degre e is not necessarily a prerequisite to testify about hydrogen sulfide gas, a substance commonly known for its distinctive rotten-egg-like odor. See Webster’s Ninth New Collegiate Dictionary 590 (1986). However, before a court can deem such testimony relevant, the proponent must first lay a foundation demonstrating how the lay witness came to be able to identify the substance i n question. Here, though, Mr. Rowe laid no such foundation before attempting to i ntroduce the testimony of either Mr. Botts or Mr. Clark. More importantly, even if Mr. Rowe had laid the pro per foundation for the testimony of Mr. Botts and Mr. Clark, neither man’s testimony would have helped to establish that Mr. Rowe’s supervisors were aware that exposure to decant oil vapors caused his nausea and shortness of breath. Without such a link, this17

testimony could not clear Rule 401's relevancy hurd le. Thus, the district court properly excluded both men’s proposed testimony. Finally, Mr. Rowe appeals the district court’s deci sion to exclude the Order that the Workers’ Compensation Court entered in his case. That Order memorialized the court’s finding that exposure to d ust, smoke, and fumes at Conoco had permanently damaged Mr. Rowe’s lungs. M r. Rowe argues that this Order establishes both that he suffered a work-related injury and that Conoco was on notice that he had suffered a work-related injury. In determining whether Conoco was on notice that Mr . Rowe had suffered a work-related injury, we may only look at what Conoc o knew at the time it made the decision to terminate him. See Barber v. Payless Cashways, Inc. , 787 P.2d 1301, 1303 (Okla. Ct. App. 1990) (holding that in c ases alleging violations of Okla. Stat. tit. 85, § 5, courts “must look at the evidence as it existed at the time of the medical treatment and termination”). The Wo rkers’ Compensation Court did not enter its Order until January 1995, nearly 11⁄2 years after Conoco terminated Mr. Rowe. Conclusions that the court wa s able to draw with the benefit of hindsight, not to mention a full-blown h earing, are in no way probative of what Conoco may or may not have known about the causation of those injuries on August 16, 1993, the day the company made its de cision to terminate Mr.18

Rowe. Accordingly, the district court correctly de termined that this Order possessed no probative value on the issue of notice

. The Order, though, is probative on another signific ant issue in this case: whether Mr. Rowe did, in fact, suffer an on-the-job injury on August 16, 1993. As discussed previously, in order to recover for re taliatory discharge under the Oklahoma Workers’ Compensation Act, Okla. Stat. tit . 85, § 5, a plaintiff must establish, among other things, that he suffered an on-the-job injury. See Buckner , 760 P.2d at 806. In its Order, the Workers’ Compen sation Court states that Mr.
Rowe suffered an occupational disease consisting of inju ry to the lungs (pulmonary obstructive disease) due to the continue d inhalation of, and exposure to, harmful dust, smoke and fumes; that exposure to the said substances was peculiar to or characteristic o f [his] employment with [Conoco]; [and] that [his] last injurious expo sure to the said hazard was August 16, 1993. Aplt’s App. vol. II, at 574. This passage is relevant to the question of whetherMr. Rowe suffered an on-the-job injury. Thus, the district court erred when it excluded the Order on Rule 401 grounds. Nevertheless, we will not revers e the district court’s judgment unless we find that the erroneous exclusion of the Order “affect[ed] the substantial rights of the parties.” Gomez , 50 F.3d at 1518 (quotation omitted). By excluding the Order, the district court prevente d Mr. Rowe from introducing a piece of evidence that would have sup plied a vital piece of his case,1 In his opening brief, Mr. Rowe states that “[t]he d istrict court erroneously

sustained Conoco’s objection(s) to Rowe’s attempts to present evidence regarding his respiratory problems arising out of his employm ent commencing during the period of 1990 and continuing through his August, 1 993 termination to support his reports of job related illnesses to Conoco.” Aplt’s Br. at 21. Mr. Rowe, however, offered no rationale or authority as to why the district court’s decision to exclude such evidence purportedly constituted er ror and made no further mention of this argument in the remainder of his op ening brief or in his reply brief. We have held that a party who mentions a point in p assing but “fail[s] to make any argument or cite any authority to support his assertion” waives that argument. See United States v. Hardwell , 80 F.3d 1471, 1492, reh’g granted in part on other grounds , 88 F.3d 897 (10th Cir. 1996), cert. denied , 118 S. Ct. 1570 (1998). Accordingly, we will not consider Mr. Rowe ’s argument that the district court improperly excluded evidence regarding his re spiratory condition. 19 establishing, at least for prima facie purposes, th at he had suffered an on-the-job injury. However, the Order would not have mended a nother gaping hole in Mr. Rowe’s case: his failure to establish that Conoco had notice that he had suffered a work-related injury at the time it made the decis ion to terminate him. Without such evidence, Mr. Rowe was still one brick short of a prima facie case. See Buckner , 760 P.2d at 806. Furthermore, as discussed previ ously, Mr. Rowe also failed to demonstrate that Conoco’s proffered reaso n for his termination–his failure to submit to a random drug test within the required time frame–was pretextual. Thus, even if the district court had a dmitted the Order, Conoco would nonetheless have been entitled to judgment as a matter of law. Consequently, the district court’s exclusion of this evidence did notaffect Mr. Rowe’s substantial rights and does not merit reversal. 120 CONCLUSION Because the district court properly granted Conoco’ s Rule 50 motion for judgment as a matter of law on Mr. Rowe’s retaliato ry discharge claims under both Okla. Stat. tit. 85, § 5 and Burk v. K-Mart Corp. , 770 P.2d 24, we hereby AFFIRM the decision below. Entered for the Court,

Robert H. Henry Circuit Judge