* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### JUL 16 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICIA COOKE, individually and as personal representative of Sherrel “Frank” Cooke, deceased, Plaintiff-Appellant,

v. C. BEAN TRANSPORT, INC., a foreign corporation, Defendant-Appellee. No. 01-7042 (Eastern District of Oklahoma) (D.C. No. 00-CV-139-P)

ORDER AND JUDGMENT *

Before, KELLY , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materiallyassist the determination of1 The Cookes asserted these claims under both an entitlement and a

retaliation theory. The Cookes also filed claims a gainst C. Bean under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 2000e-5, 12117. Those claims are not at issue on appeal.
-2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is, therefore, ordered submitted without oral argument. Plaintiffs Sherrel “Frank” Cooke and Patricia Cooke were employed as team drivers by C. Bean Transport, Inc. (“C. Bean”) . The Cookes filed this suit in federal district court against C. Bean, alleging that C. Bean violated the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601– 2654 , by: (1) not allowing them to take intermittent medical leave; (2) requir ing Frank to provide a physician’s note and to undergo an additional physi cal examination before permitting him to return to work; and (3) not allow ing the Cookes to return to work. 1 The Cookes moved for summary judgment on their FM LA claims. The district court denied the Cookes’ motion and grante d C. Bean partial summary judgment, reasoning that C. Bean did not violate th e FMLA by requiring Frank to undergo an additional physical examination before p ermitting him to return to work in accordance with Department of Transportatio n (“DOT”) regulations. The Cookes tried the remainder of their FMLA claims to a jury. At the close of the evidence, C. Bean moved for judgment a s a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure on the Cookes’ FMLA claims.-3-

The district court granted C. Bean’s motion as to t he Cookes’ FMLA claims based on an entitlement theory, concluding that the Cook es failed to present a proper FMLA claim under § 2615(a)(1) because they did not prove that they were denied medical leave. The district court, however, denied C. Bean’s motion with respect to the Cookes’ FMLA claims based on a retaliation theory. 29 U.S.C. §§ 2615(a)(2), 2615(b). During the jury instruction conference, the Cookes objected to Instruction 13 which read as follows:
RETALIATION – ESSENTIAL ELEMENTS Your verdict must be for the plaintiffs if plaintif fs prove all of the following elements by the greater weight of the evidence: (1) Plaintiffs engaged in an FMLA protected activity; and (2) Defendant took an adverse employment action aga inst Plaintiffs; and (3) The adverse employment action was taken because the plaintiffs engaged in legally protected activity. In this case it is agreed that Plaintiffs engaged i n an FMLA protected activity. Plaintiffs must prove that the defendant took an adverse employment action and that the adverse empl oyment action was taken because of Plaintiffs having engaged in l egally protected activity. The plaintiffs must prove, by the greate r weight of the evidence, that the defendant intentionally retaliat ed against them because of their FMLA leave and that this was a mot ivating factor in the employment decision. A motivating factor, or m otive, is a reason or desire that causes someone to take action. An a ct of retaliation is intentional if it is done consciously, voluntarily, and purposely, and not because of mistake, inadvertence, or accident. In considering whether the plaintiffs have proven r etaliation, you should also consider whether the defendant’s explanation for its actions was legitimate and nondiscriminatory, or a pretext for discrimination.2 The Cookes objected to the instruction, stating: “I would – plaintiff

would object to this in the – in that I don’t belie ve that plaintiff’s or defendant’s basis for their – for what they have done, for thei r actions, necessarily requires that plaintiff’s case be – or that plaintiff be den ied relief. I think that what this does is it ties into the retaliation and looks at t he intent. For that reason, we object.”
-4- The Cookes argued that Instruction 13 improperly in formed the jury that intent was an element of their FMLA claims. The district court overruled the Cookes’ objection. The Cookes’ also objected to Instruction 14 on esse ntially the same grounds. 2 Instruction 14 read as follows:

LEGITIMATE BUSINESS REASON In deciding Plaintiffs’ claim for retaliation, you must consider any legitimate, nonretaliatory reason or explanatio n proffered by Defendant for their decisions. If you find that De fendant has stated a valid reason for its decisions regarding Plaintiff’ s employment, then you must decide in favor of Defendant on Plaintiffs ’ retaliation claim, unless Plaintiffs prove by the greater weight of the evidence that the stated reason for Defendant’s treatment of Plaintiffs was not the true reason, but only a “pretext,” or in other words, an “excuse” for retaliating against Plaintiffs because of the e xercise of their FMLA rights. The district court overruled the Cookes’ objection to Instruction 14. After a trial on the merits of the Cookes’ remainin g FMLA claims, a jury returned a verdict in favor of C. Bean. The Cookes argue on appeal that the district court erred in giving Instructions 13 and 14. The majority of the Cookes ’ arguments on appeal,3 At the hearing on C. Bean’s Rule 50 motion, the d istrict court questioned

the Cookes’ counsel as follows: THE COURT: So, I mean, what – where in that period of time were [the Cookes] denied Family Medical Leave? MR. HAMBY: Well, I guess it really wasn’t leave. A gain, it’s the right to
-5- however, challenge the propriety of the dismissal o f their FMLA claims based on an entitlement theory. This court, therefore, will construe the Cookes’ appellate arguments as a challenge to the district court’s gr ant of C. Bean’s Rule 50 motion. This court reviews the district court’s decision to grant a Rule 50 motion for judgment as a matter of law de novo

. Tyler v. RE/MAX Mountain States, Inc. , 232 F.3d 808, 812 (10th Cir. 2000). Plaintiffs may pursue FMLA claims under two separat e theories, the retaliation theory and the entitlement theory. Smith v. Diffee Ford-LincolnMercury, Inc. , 298 F.3d 955, 960 (10th Cir. 2002). Under the entitlement theory, a plaintiff may recover “[i]f an employer interfere s with the FMLA-created right to medical leave or to reinstatement following the leave, . . . regardless of the employer’s intent.” Id . The Cookes asserted that C. Bean failed to reins tate them after taking medical leave. Their FMLA claims, the refore, are based on an entitlement theory. See id. In dismissing their FMLA claims, the district courtreasoned that the only proper grounds for a claim based on the entitlementtheory was the denial of leave. 3 Refusal to reinstate an employee after taking med ical leave is alsoreturn to work. So it’s the flip side.

THE COURT: Let me go back to the same question. Do you have a claim or are you making a claim or arguing a Rule 50 moti on or are you requesting that the Court grant your Rule 50 motionin regard to a claim for denial of Family Medical Leave? MR. HAMBY: Okay. Are you talking about the time of f? You are not talking about benefits under the Family Medical Leave Act? You are just talking about time off? THE COURT: That’s what the Family Medical Leave Actis, is time off to – for an illness or to take care of someone. Further, in granting C. Bean’s Rule 50 motion on th e Cookes’ FMLA claims based on an entitlement theory, the district court stated, “I’m granting the Rule 50 motion as it relates to 2615(A)(1), which is denial of medical leave, which comes under the strict liability standard.”

4 The Cookes do not challenge the propriety of the jury instructions with respect to their FMLA retaliation claims. -6- grounds for a FMLA claim based on an entitlement th eory. Id . (noting that the FMLA creates a substantive right to reinstatement f ollowing leave and holding that a plaintiff can recover for the deprivation of such a right under the entitlement theory). Therefore, the district courterred in granting C. Bean’s Rule 50 motion for judgment as a matter of law. 4 The Cookes also argue on appeal that C. Bean requir ed Frank to submit to an additional medical exam prior to returning to wo rk in violation of the FMLA. The Cookes, however, do not challenge the district court’s grant of summary judgment in their briefs on appeal. Even if this c ourt were to construe the Cookes’ arguments on appeal as a challenge of the d istrict court’s grant of summary judgment, the Cookes’ arguments fail. Unde r the DOT regulations,-7-

“[a]ny driver whose ability to perform his normal d uties has been impaired by a physical or mental injury or disease” must be medic ally examined and certified prior to operating a commercial motor vehicle. 49 C.F.R. § 391.45. While, under the FMLA, a fitness-for-duty certification “need on ly be a simple statement of an employee’s ability to return to work,” employers may, in compliance with regulations issued by the DOT, impose more stringent requirements on certification of fitness. See Porter v. United States Alumoweld Co., Inc. , 125 F.3d 243, 247 (4th Cir. 1997) (holding that an employer does not violate the FMLA by requiring an employee to submit to an ADA-required fitness-for-duty exam). Therefore, C. Bean’s enforcement of DOT regulations by requiring Frank to submit to a DOT physical examination before returni ng to work does not violate the FMLA, and the district court did not err in gra nting C. Bean summary judgment on this claim. Accordingly, the district court’s grant of C. Bean’ s Rule 50 motion as to the Cookes’ entitlement claims is reversed . These claims are remanded for a new trial. Moreover, the district court’s grant of summary judgment on the Cookes’ claim pertaining to C. Bean’s requirement that Frank submit to a physical-8-

examination prior to returning to work is affirmed . The Cookes’ motion to proceed on appeal in forma pauperis is granted

.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge