### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk May 6, 1999

TO: ALL RECIPIENTS OF THE CAPTIONED OPINION
RE: 97-7116, Wiles v. Michelin April 21, 1999, Published Opinion
Please be advised page 4 of the text of this decisi on contained a typographical error in the quote, (A)(2). Please n ote the word "term" should be "period" and the word "total" was omitted from the phrase "temporary total disability." A corrected copy of the Opinion is attached for you r convenience.
Very truly yours, Patrick Fisher, Clerk

Shannon Sullivan Deputy Clerk

FAXED TO WEST

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

### APR 21 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BOBBY J. WILES,

Plaintiff-Appellant,

v. MICHELIN NORTH AMERICA, INC., also known as The Uniroyal Goodrich Tire Company, a New York corporation, Defendant-Appellee. No. 97-7116

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 96-CV-408)

Submitted on the briefs: Dan Little and Prudence Little of Little, Little, L ittle, Windel & Coppedge, Madill, Oklahoma, for Plaintiff-Appellant. Victor F. Albert of McKinney & Stringer, Oklahoma C ity, Oklahoma, for Defendant-Appellee.

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.

BARRETT , Senior Circuit Judge.1 After examining the briefs and appellate record, th is panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. - 2 - I. Background In this diversity action for wrongful discharge, pl aintiff Bobby J. Wiles appeals from a final judgment entered on a jury ver dict in favor of defendant Michelin North America, Inc. Wiles also appeals fr om the denial of his motion for partial summary judgment and from the denial of his motion for judgment as a matter of law. Further, Wiles seeks certificatio n of several issues of state law to the Oklahoma Supreme Court. We exercise jurisdicti on under 28 U.S.C. § 1291 and affirm. 1 Wiles was injured in a work-related accident on Jan uary 28, 1994, while employed by Michelin as a first stage tire builder. Wiles commenced worker’s compensation proceedings, pursuant to which he was placed on temporary total disability. Michelin’s medical leave policy provid ed as follows: The maximum duration of any medical absence or ligh t duty assignment is twenty-four months. If an employee i s either unable to return to his/her former full duty, regular assignm ent within the first 6 months or after being placed in the Reserve Emplo yee Pool is unable to successfully bid to another full duty reg ular assignment- 3 -

within this twenty-four month period, the employee will be separated from the company rolls. Appellant’s App., Vol. II at 270. On January 28, 1 996, twenty-four months after his injury, Wiles was terminated from employment. Wiles was still receiving temporary total disability compensation at the time of his termination, and he continued to do so for another six months. Wiles subsequently sued Michelin for wrongful termi nation, contending that Michelin violated Oklahoma’s Workers’ Compensation Act (“Act”), Okla. Stat. tit. 85, §§ 1-211, which prohibits empl oyers from discharging employees who are on temporary total disability sol ely because of absence from work. Michelin responded that it did not fire Wile s because of his absence, but because the medical information it possessed at the time of his termination showed Wiles had permanent injuries that prevented him from performing his assigned duties as a first stage tire builder. At the time of Wiles’ termination, § 5 of the Act p rovided in pertinent part as follows: (A)(1) No person, firm, partnership or corporationmay discharge any employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim, instituted or caused to be instituted, in good fait h, any proceeding under the provisions of this title, or has testifie d or is about to testify in any such proceeding.2 Section 5 of the Act has since been amended, effect ive November 1,

1998. The amendment altered the format of § 5, butdid not affect its substance. Unless otherwise indicated, all citations to Okla. Stat. tit. 85, § 5 are to the version in effect in January 1996. - 4 -

(A)(2) No person, firm, partnership or corporationmay discharge an employee during a period of temporary total disability solely on the basis of absence from work. (B) No employer shall be required to rehire or ret ain any employee who is determined physically unable to per form his assigned duties. The failure of an employer to reh ire or retain any such employee shall in no manner be deemed a violat ion of this section. Okla. Stat. tit. 85, § 5 (1996). 2 The prohibition set forth in § 5(A)(2) was added to the Act in September 1992. To date, there are n o published Oklahoma or federal cases addressing the interplay between the provisions of § 5(A)(2) and § 5(B). Michelin contended that the addition of the prohibi tion set forth in § 5(A)(2) did not affect an employer’s ability to d ischarge an employee for the reason set forth in § 5(B). Accordingly, Michelin filed a motion for summary judgment in the district court, arguing that the un disputed evidence showed that Wiles’ injuries prevented him from doing his assign ed duties at the time of his termination and, therefore, § 5(B) shielded Micheli n from liability for Wiles’ termination. Michelin also argued that Wiles suffe red no genuine damages as a result of his termination. Wiles responded by ar guing there were material- 5 -

issues of fact as to what Michelin knew about his c ondition at the time he was terminated, as to the real reason Michelin terminat ed him, and as to the damages he suffered as a result of the termination. Wiles also moved for partial summary judgment on th e issue of liability, arguing that, as a matter of law, an employer who d ischarges an employee during a period of total temporary disability cannot defen d against a claim of wrongful discharge on the ground that the discharge was base d on the employee’s inability to perform his assigned job duties. Wiles noted th at every employee who is in a period of total temporary disability is, by definit ion, unable to perform his assigned job duties. Therefore, he reasoned, allow ing an employer to use § 5(B) to legitimatize the discharge of an employee who is in a period of temporary total disability would render meaningless the prohibitionset forth in § 5(A)(2). Wiles argued that the only logical way to harmonize the two provisions would be to hold that “an employer is not required to rehire or reta in any employee who is unable to perform his assigned job duties once temporary t otal disability has ended, but employers are limited and may not rely upon this de fense in discharging employees during periods of temporary total disabil ity.” Appellant’s App., Vol.
III at 342. In ruling on the summary judgment motions, the district court concluded that the legislature’s adoption of § 5(A)(2) simplyadded “another prohibited act- 6 -

that may be interpreted as retaliatory conduct to t he litany of acts contained in section 5(A)(1).” Appellant’s App., Vol. III at 36 4. The court rejected Wiles’ interpretation of the Act because it rendered the p rovisions of § 5(B) nugatory and of no effect. Instead, the court held that while § 5(A)(2) prohibits an employer from terminating an employee on temporary total dis ability solely because of absence, § 5(B) permits the employer to terminate t he employee if the employee “also cannot everperform his job duties.” Appellant’s App., Vol. I II at 363 (emphasis added). Therefore, the court held, the termination of an employee during a period of t emporary total disability does not per se impose . . . liability upon an employer under section 5(A)(2) so long as (1) the terminatio n was not based solely upon the employee’s absence from work and (2 ) the employee has been determined to be physically unable to perf orm his assigned job duties on a permanent basis. Id. at 364. Turning to the evidence before it, the court conclu ded that Wiles had made a prima facie case of retaliatory discharge under § 5(A)(2), and that Michelin had articulated a legitimate, non-retaliatory reason fo r Wiles’ discharge. Therefore, the court said, the burden was on Wiles to demonstr ate that Michelin’s proffered reason was not the true reason for his termination. At this stage in the analysis, the court concluded, there were material issues of fact that precluded the entry of summary judgment. The court also concluded that wh ile there was scant evidence of Wiles’ damages, that issue was best left for tri al. Therefore, the court denied- 7 -

both Wiles’ motion for partial summary judgment andMichelin’s motion for summary judgment, except to the extent that it held that “Wiles may be terminated if he has been determined to be unable to ever perf orm his job duties even though he is on temporary total disability at the time of his termination.” Id. at 370-71. Thereafter, Wiles moved the court to reconsider its ruling, arguing that “[w]hether an employee is in fact temporarily total ly disabled or has reached maximum medical improvement and is permanently part ially disabled is a question for proper determination by the Oklahoma W orker[s’] Compensation Court and not by any other court.” Id. at 373. Wiles noted that the Act provides an injured employee a maximum of 300 weeks’ temporary total disability and gives the employer a mechanism to have the period c ut short through an adjudication by the Workers’ Compensation Court that the employee is permanently disabled. Wiles contended that the dis trict court’s construction of § 5, which would allow a judge or jury in a civi l case to decide whether an employee on temporary total disability is permanent ly unable to perform his job, would completely circumvent these statutory provisi ons. The district court denied Wiles’ motion, reasoning that the Workers’ Compensation Court’s exclusive jurisdiction extends only to claims for workers’ compensation benefits, not to retaliatory discharge claims under § 5. Unless it had jurisdiction to determine whether an employer c ould avail itself of the- 8 -

defense contained in § 5(B) in a retaliatory discha rge suit, the court reasoned, its ability “to fully adjudicate the claims and defense s before it under [§ 5] would be inexorably impaired.” Appellant’s App., Vol. III at 394. The case then proceeded to trial. At the conclusion of Wiles’ evidence, Michelin move d for judgment as a matter of law (“JMOL”) pursuant to Fed. R. Civ. P. 50 on the issues of liability and punitive damages. The court took the motion un der advisement and the trial continued. At the conclusion of all the evidence, Michelin renewed its motion for JMOL. Wiles also moved for JMOL, arguing that the only defense Michelin had presented to his wrongful termination claim was “no t one allowed under the workman’s compensation statute.” Appellant’s App., Vol. V at 816. Wiles referred to the authority set forth in his summary judgment briefs as support for his motion for JMOL. The district court overruled both parties’ motions on the issue of liability, concluding there was an issue o f fact for the jury as to why Wiles was discharged. The court granted Michelin’s motion on the issue of punitive damages, however, because it found there w as insufficient evidence from which “‘the jury could find by clear and convincing evidence that the defendant has been guilty of reckless disregard for the right s of others.’” Id. at 825-26 (quoting Okla. Stat. tit. 23, § 9.1(b)). Therefore , the district court did not instruct the jury on punitive damages.- 9 -

Wiles objected to three of the court’s proposed jury instructions (Nos. 2, 12 & 13), arguing once again that an employer may not legitimately discharge an employee during a period of temporary total disabil ity on the ground that the employee is not physically able to perform his assi gned duties. Wiles also objected to the district court’s refusal to instruc t the jury on punitive damages. The court overruled Wiles’ objections and sent the case to the jury, which returned a verdict for Michelin. Wiles now appeals the district court’s denial of hi s partial motion for summary judgment, the court’s denial of his motion for JMOL, the giving of jury instruction Nos. 2, 12, and 13, and the failure to give a jury instruction on punitive damages. Wiles also requests that we cert ify five questions of state law to the Oklahoma Supreme Court. Because we can adeq uately address the issues raised based on the existing law, we decline to certify the proposed questions of state law. We turn, then, to the district court’s rulings.

II. Summary Judgment The denial of summary judgment based on factual dis putes is not properly reviewable on an appeal from a final judgm ent entered after trial. [E]ven if summary judgment was erroneously denied, the proper redress would not be through appeal of that denial but through subsequent motions for judgment as a matter of law . . . and appellate review of those motions if they were denied. Failu re to renew a summary judgment argument – when denial was based o n factual disputes – in a motion for judgment as a matter of law under- 10 -

Fed. R. Civ. P. 50(a)(1) at the close of all the ev idence is considered a waiver of the issue on appeal. By contrast, when the material facts are not in dis pute and the denial of summary judgment is based on the interpre tation of a purely legal question, such a decision is appealable afterfinal judgment. Wolfgang v. Mid-America Motorsports, Inc. , 111 F.3d 1515, 1521 (10th Cir. 1997) (citations and quotation omitted; alteration in original). Here, the district court denied Wiles’ motion for partial summary judg ment based on factual disputes, but only after ruling that Wiles’ interpr etation of the law – which would have made the admitted factual disputes immaterial – was incorrect. Fortunately, Wiles renewed his summary judgment arguments in his motion for JMOL at the conclusion of the evidence, so we may review those arguments regardless of how the district court’s summary judgment ruling is characterized.

We review the grant or denial of summary judgment d e novo, applying the same legal standard used by the distri ct court pursuant to Fed. R. Civ. P. 56(c). Summary judgment is appr opriate if . . . there is no genuine issue as to any material fact a nd . . . the moving party is entitled to judgment as a matter of law. Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation om itted).- 11 -

Prior to its amendment in September 1992, § 5 of th e Act provided as follows: No person, firm, partnership or corporation may dis charge any employee because the employee has in good faith fil ed a claim, or has retained a lawyer to represent him in said clai m, instituted or caused to be instituted, in good faith, any proceed ing under the provisions of Title 85 of the Oklahoma Statutes, orhas testified or is about to testify in any such proceeding. Provided no employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties. Okla. Stat. tit. 85, § 5 (1991). The Oklahoma Supr eme Court concluded that this version of the Act did “not prohibit the discharge of an employee because he is absent from work, even when the absence is caused b y compensated injury and medical treatment.” Pierce v. Franklin Elec. Co. , 737 P.2d 921, 924 (Okla. 1987). The employer in Pierce had a personnel policy that limited the duration o f a medical leave of absence to one year. Id. at 924. The employer terminated the plaintiff under that policy, even though his absenc e from work was due to his temporary total disability from a work-related inju ry. Id. at 923. The plaintiff argued that “Oklahoma laws designed to protect inju red employees require a rule that bars termination of a temporarily disabled emp loyee because he is absent from work.” Id. The Oklahoma Supreme Court rejected the plaintiff’s argument, holding that “[t]he Act does not expressly provide injured employees with an excused work absence during their healing period, and we ar e unable to create such an3 The September 1992 version of § 5 was, in all perti nent respects,

identical to the version of § 5 in effect at the ti me of Wiles’ termination. - 12 - additional workers’ compensation benefit.” Id. at 923-24. Because the plaintiff’s “absence from work [was not] a protected activity b y itself,” the court held that the employer did not violate the Act by discharging the employee due to his absence. Id. at 923. In September 1992, the Oklahoma legislature amended§ 5 of the Act to add a prohibition against discharging an employee durin g a period of temporary total disability solely because of the employee’s absence . Okla. Stat. tit. 85, § 5(A)(2) (1993). 3 Although there is apparently no legislative histo ry relating to this amendment, we, like the district court and the part ies, assume that the legislature amended the Act in response to the Oklahoma Supreme Court’s decision in Pierce . Unlike Wiles, however, we do not view the amendm ent as a repudiation of Pierce

. Rather, the amendment simply added another activity that is protected against employer retaliation to the list of protect ed activities already contained in § 5. Thus, an employer may not discharge a temp orarily totally disabled employee because he has been absent from work. The legislature did not, as Wiles suggests, make temporary total disability an absolutely protected status.- 13 -

Indeed, the legislature explicitly preserved an emp loyer’s ability to terminate an employee who is physically unable to p erform his job. After setting out the prohibited acts in § 5(A)(1) and (2), the l egislature reiterated in § 5(B) the proviso previously contained in the final sentence of § 5: “[n]o employer shall be required to rehire or retain any employee who is de termined physically unable to perform his assigned duties,” and even added, for g ood measure, that “[t]he failure of an employer to rehire or retain any such employee shall in no manner be deemed a violation of this section.” Okla. Stat . tit. 85, § 5(B) (1993) (emphasis added). In Pierce , the Oklahoma Supreme Court stated that the statut ory proviso in the earlier version of the Act “demonstrates a l egislative concern for undue interference with the employment relationship. An employer must operate economically and should be allowed to purchase the services his business requires. The proviso suggests that an employee’s physical capacity may constitute a legitimate nondiscriminatory reason fo r an employment decision.” 737 P.2d at 925. Nothing about the legislature’s S eptember 1992 amendment of § 5 suggests a retreat from its earlier concern abo ut undue interference with the employment relationship. Therefore, we must rejectWiles’ contention that § 5(B)’s proviso simply does not apply to the disch arge of an employee who is in a period of temporary total disability.4 This conclusion effectively moots Wiles’ argument that the district

court did not have jurisdiction to determine whethe r he had become permanently disabled for purposes of applying § 5(B). In any e vent, we note that the Oklahoma Court of Appeals has ruled that district c ourts have exclusive jurisdiction to determine the issues raised by § 5. See Bostwick v. Atlas Iron Masters, Inc. , 780 P.2d 1184, 1186 (Okla. Ct. App. 1988). - 14 - Likewise, we must also disagree with the district c ourt’s conclusion that the proviso applies only to employees who are permanentlyunable to do their assigned duties. The plain language of § 5(B) does not require that the employee be permanently precluded from performing his assign ed duties, and the historical language in that subsection has never been interpre ted to require an element of permanency. Moreover, as Wiles points out, the mea ning of § 5(B) cannot vary with the type of retaliatory discharge claim assert ed. If an employer had to show that the employee was permanently unable to perform his assigned duties to defend against a claim that a discharge violated § 5(A)(2), an employer would have to make a similar showing to defend against a claim that a discharge violated § 5(A)(1). We see no indication in the September 1 992 amendment that the Oklahoma legislature intended to make such a radica l change in the meaning of the proviso contained in § 5(B). Therefore, we con clude that an employer need not establish an employee is permanently unable to perform his assigned duties in order to legitimately discharge the employee in acc ordance with § 5(B). 4- 15 -

Wiles concedes that the evidence presented at the s ummary judgment stage created a factual dispute as to whether Michelin di scharged Wiles because he had been absent for twenty-four months, or because he w as not able to perform his assigned job duties. In light of our interpretatio n of the controlling law, this factual dispute was material to the issue of liabil ity. Therefore, the district court properly denied summary judgment to Wiles on the is sue of liability. We turn, then, to the district court’s denial of Wiles’ moti on for JMOL.

III. Judgment as a Matter of Law We review the district court’s ruling on a motion f or JMOL under a standard that is essentially identical to the “genu ine issue” requirement in the summary judgment context. See Pendleton v. Conoco Inc. , 23 F.3d 281, 286 (10th Cir. 1994). Thus, judgment as a matter of law is warranted only if th e evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion. . . . We must enter judgment as a matter of law in favor of the moving party if there is no legally sufficient evidentiary basis . . . with respect to a claim or defense . . . under the controlling law. Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442, 1450 (10th Cir. 1997). In moving for judgment as a matter of law, Wiles di d not contend that the evidence pointed but one way. Rather, he contended that the reason for the termination reflected by Michelin’s evidence was no t a legitimate reason under- 16 -

the Act. The record shows that Michelin presented evidence from which a jury could conclude that Michelin terminated Wiles becau se his injuries prevented him from doing his assigned duties. We have previouslyconcluded that this constitutes a legitimate reason under the Act for d ischarging a temporarily totally disabled employee. Therefore, the district court p roperly denied Wiles’ motion for JMOL.

IV. Jury Instructions We turn, finally, to Wiles’ challenges to the jury instructions. “In a diversity case, the substance of a jury instructionis a matter of state law, but the grant or denial of a tendered instruction is govern ed by federal law.” Wolfgang , 111 F.3d at 1525. We review a district court’s dec ision whether to give a tendered instruction for an abuse of discretion. S ee Summers v. Missouri Pac. R.R. Sys. , 132 F.3d 599, 606 (10th Cir. 1997). When, as her e, a party has objected to instructions at trial, then we “conducta de novo review to determine whether, as a whole, the instructions correctly stated the governing law and provided the jury with an ample understanding of th e issues and applicable standards.” Advantor Capital Corp. v. Yeary , 136 F.3d 1259, 1265 (10th Cir. 1998) (quotation omitted). On appeal, Wiles objects to the district court’s de cision to give Instruction Nos. 2, 12, and 13. Instruction No. 2 set forth th e statement of the case, including- 17 -

Wiles’ claim that he was terminated based solely up on his absence and Michelin’s contention that he was terminated because of his physical inability to return to his assigned job. Instruction No. 12 recited the text of § 5(A)(2) and (B) verbatim and informed the jury that this was the applicable law under Oklahoma’s Workers’ Compensation Act. Finally, Instruction No . 13, which defined “pretext,” informed the jury that for Wiles to prev ail, he had to show that the real reason for his termination was his absence, no t the reason advanced by Michelin – that he was permanently unable to perfor m his assigned job duties. Wiles objects to these instructions on the ground that they incorrectly informed the jury that an employer may legitimately discharge an employee during a period of temporary total disability based on his physical inability to perform his assigned duties. Alternatively, Wiles objects to Instruction No. 12 on the ground that it did not accurately reflect the d istrict court’s determination that an employee must be permanentlyunable to perform his assigned duties for an employer to rely on the proviso in § 5(B) as a defe nse. Based on our earlier rulings, we reject both of the se challenges to the instructions. Instruction No. 12 accurately inform ed the jury of the applicable law under the Act. Further, while Instruction Nos. 2 and 13 erroneously required Michelin to establish that Wiles was permanently un able to do his assigned duties, this error inured strictly to Wiles’ benefit and, t herefore, is harmless.- 18 -

Wiles also challenges the district court’s refusal to give a jury instruction on punitive damages. We need not decide whether th e district court erred in failing to give an instruction on punitive damages, because the error would be harmless in light of the jury’s verdict for Micheli n. See Hopkins v. Seagate , 30 F.3d 104, 107 (10th Cir. 1994) (holding that bec ause jury rejected plaintiff’s claim, “she was entitled to no remedy, and any erro r in instructing the jury on available remedies was harmless”).

V. Conclusion Pursuant to § 5 of Oklahoma’s Workers’ CompensationAct, an employer may not discharge an employee during a period of te mporary total disability solely because of the employee’s absence from work. An employer may, however, discharge an employee during a period of temporary total disability because the employee cannot perform his assigned job duties. I n this case, the parties presented conflicting evidence, both at the summaryjudgment stage and at trial, as to the true reason Michelin terminated Wiles. T herefore, the district court properly denied Wiles’ motion for summary judgment and his motion for JMOL. Finally, while the court’s instructions were not entirely without error, the error was harmless in light of the jury’s verdict.- 19 -

The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED. Appellant’s motion to certify questions of state law is DENIED.