F I L E D

United States Court of Appeals

Tenth Circuit

JUL 26 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARLEN ROSE,

Plaintiff - Appellant,

vs.

THE UNIROYAL GOODRICH TIRE

COMPANY, an affiliated division of

Michelin North America, Inc.,

Defendant - Appellee.

No. 98-7166

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-398-B)

Dan Little, Little, Little, Little, Windel & Coppedge, Madill, Oklahoma, for

Plaintiff - Appellant.

Victor Fred Albert, McKinney & Stringer, P.C., Oklahoma City, Oklahoma, for

Defendant - Appellee.

Before SEYMOUR, KELLY, and LUCERO, Circuit Judges.

KELLY, Circuit Judge.

This case requires us to determine the extent to which a plea of nolo

contendere is admissible in a civil action as evidence of an employer’s rationale
- 2 -

for terminating an employee. 

Background

Plaintiff-Appellant Arlen Rose was employed as a First Stage Tire Builder

at Defendant Michelin’s Ardmore tire plant from April 4, 1984 until October 5,

1994. In 1992, Michelin implemented a Drug-Free Workplace Employment

Guide, which specified the company’s zero tolerance policy toward illegal drug

use. Part II(C) and V of that policy stated:

The possession, use, manufacture, distribution, or sale

of illegal or medically unauthorized controlled drugs off

Company premises that adversely affects the employees

work performance, their own or others’ safety at work,

or the Company’s regard or reputation in the community

is prohibited. 

. . . . . .

Violation of this policy is considered a serious

infraction and will result in disciplinary action.

V Aplt. App. at 804, 805.

On August 16, 1994, Arlen Rose and his brother Randy were arrested by

local police officers who reported finding drugs and weapons in the home where

the brothers were living. The arrest was reported the next day in an article in the

local paper. See id. at 821. Mr. Rose was charged with possession and intent to

distribute a controlled, dangerous substance, possession of firearms during the

commission of a felony and possession of drug paraphernalia. Following the
1With the possible exception of the Drug-Free Workplace Policy and the

Fair Treatment Policy, Mr. Rose was an employee at will and could be fired “at

any time for any reason” absent a specific written agreement to the contrary. V

Aplt. App. at 808 (Michelin “Termination of Wage Employment” Policy).

- 3 -

arrest, he was suspended from work under Michelin’s “Suspension Following

Serious Criminal Charges” policy. Id. at 806.

On September 30, pursuant to an agreement with the local district attorney,

Mr. Rose pled nolo contendere to a misdemeanor charge of possession of

marijuana, and the felony charges against him were dropped. The court ordered

him to pay over $1,000 in fines but deferred the imposition of judgment and

sentence for one year. Id. at 818. Michelin subsequently learned about Mr.

Rose’s plea and terminated him on October 5, 1994 for violation of the DrugFree Workplace Policy. 1

 

At the time, Michelin had a Fair Treatment Policy which employees could

follow to contest work-related situations. Id. at 802. The first step in this

procedure was to discuss the problem with the supervisor and then consult with

successive levels of management. One step in the process provided:

If the problem is not satisfactorily resolved at the

facility, the Personnel Department will arrange for

further management review and, if necessary, the

Facility Personnel Manager will convene a Fair

Treatment Panel.

Id. A Fair Treatment Panel consisted of three non-management Michelin
- 4 -

employees who reviewed the situation and had the authority to override

management’s decision. IV Aplt. App. at 536. Mr. Rose specifically requested a

Fair Treatment Panel at the time of his termination, see V Aplt. App. at 814, but

his request was denied. 

Over two years later, on April 30, 1997, Mr. Rose successfully sought and

received an Order of Expungement of the record of his no contest plea. II Aplt.

App. at 218. Upon his continued request, Michelin granted Mr. Rose a Fair

Treatment Panel hearing in July of 1997. The three member panel considered

Mr. Rose’s plea and held “that the termination of . . . Arlen Rose was justified

and we uphold the Company’s decision of termination.” Id. at 225. 

Mr. Rose filed the instant suit on July 3, 1997, the day after the Fair

Treatment Panel decision, claiming wrongful discharge as (1) a public policy tort

and (2) breach of an implied employment contract. In a motion in limine, he

sought to exclude all evidence relating to his nolo contendere plea. The district

court denied the motion, granted summary judgment to Michelin on the public

policy tort claim, and submitted the implied contract claim to the jury. By special

verdict, the jury determined that Michelin followed both the Drug-Free

Workplace Policy and the Fair Treatment Policy in terminating Mr. Rose. III

Aplt. App. at 473-74. This appeal followed. Our jurisdiction arises under 28

U.S.C. § 1291 and we affirm.
2Okla. Stat. Ann. tit. 12, § 2410 (West 1992) is the almost verbatim state

version of Fed. R. Evid. 410. Mr. Rose does not argue this statute as a basis for

reversal, apparently acknowledging that the federal rules govern evidentiary

issues in this case. See generally Blanke v. Alexander, 152 F.3d 1224, 1231 (10th

Cir. 1998) (“The admissibility of evidence in diversity cases in federal court is

generally governed by federal law.”). 

- 5 -

Plea of Nolo Contendere

Mr. Rose argues that the district court erred in denying his motion in

limine and admitting evidence of his plea of nolo contendere at trial. He relies

upon Fed. R. Evid. 410 and Okla Stat. Ann. tit. 22, § 513 (West 1992) as support

for his argument. We review both the denial of the motion in limine and the

subsequent admission of the nolo contedere plea under an abuse of discretion

standard. See Den Hartog v. Wasatch Academy , 129 F.3d 1076, 1092 (10th Cir.

1997). 

Rule 410 states, in relevant part: “[E]vidence of the following is not, in

any civil or criminal proceeding, admissible against the defendant who made the

plea . . . (2) a plea of nolo contendere.” 2 See also Fed. R. Crim. P. 11(e)(6)

(similar prohibition); Fed. R. Evid. 803(22) (excluding plea of nolo contendere

from exceptions to hearsay rule). The Oklahoma statute is similar. “The legal

effect of [a nolo contendere] plea shall be the same as that of a plea of guilty, but

the plea may not be used against the defendant as an admission in any civil suit

based upon or growing out of the act upon which the criminal prosecution is
- 6 -

based.” Okla. Stat. Ann. tit. 22, § 513 (West. 1992). 

As an initial matter, we note that these rules, by their very terms, only

apply to the admission of a plea in “a civil or criminal proceeding” or a “civil

suit.” See Myers v. Secretary of Health & Human Servs. , 893 F.2d 840, 843 (6th

Cir. 1990) (plea of nolo contendere admissible in administrative proceeding); see

also State v. Bradley , 746 P.2d 1130, 1134 (Okla. 1987) (admissible in attorney

disciplinary proceeding). Michelin’s employment decision-making process,

including the Fair Treatment Panel, does not fall within either of these

definitions. Moreover, by their very nature, the Federal Rules of Evidence do not

apply to the personnel decisions of private companies. See generally Fed. R.

Evid. 1101. Therefore, Mr. Rose’s plea of nolo contendere could properly be

used by Michelin as a basis for terminating his employment. 

The question we must then decide is whether Mr. Rose could affirmatively

use the general rule against admission of nolo contendere pleas to prevent

Michelin from introducing the very evidence it relied upon in making the

termination decision. We hold that he may not. As aptly stated by the district

court, “to permit Plaintiff to proceed at trial unchecked by the realities of the

circumstances leading to his termination is simply unjust and will not be

permitted.” III Aplt. App. at 433. 

There are two primary reasons behind holding nolo pleas inadmissible, and
- 7 -

neither rationale would be furthered by exclusion in this case. First, although a

plea of nolo contendere has the same legal effect as a guilty plea, it is not a

factual admission to the underlying crime. See Olsen v. Correiro , 189 F.3d 52,

59 (1st Cir. 1999). A defendant who otherwise would plead guilty may choose to

take a nolo plea to prevent the plea from being used as an admission in a

subsequent civil action. “A second reason . . . [for the] exclusion of nolo pleas is

a desire to encourage compromise resolution of criminal cases.” Id. at 60. Both

of these reasons assume a situation in which the criminal defendant is being sued

in a later civil action, and the plea is offered as proof of guilt. 

In the present case, however, the nolo contendere plea is not being

admitted “against the defendant.” As the Sixth Circuit has convincingly noted:

This case does not present the kind of situation

contemplated by Rule 410: the use of a nolo contendere

plea against the pleader in a subsequent civil or criminal

action in which he is the defendant. In this case, . . . the

persons who entered prior no-contest pleas are now

plaintiffs in a civil action. Accordingly, use of the nocontest plea . . . is not “against the defendant” within

the meaning of Fed. R. Evid. 410. This use would be

more accurately characterized as “for” the benefit of the

“new” civil defendants . . . . 

Walker v. Schaeffer , 854 F.2d 138, 143 (6th Cir. 1988) (citations omitted). 

Oklahoma has adopted this same rationale in interpreting Okla. Stat. tit. 22, §

513. See DeLong v. State , 956 P.2d 937, 938 (Okla. Ct. App. 1998) (citing Irwin
- 8 -

v. SWO Acquisition Corp. , 830 P.2d 587 (Okla. Ct. App. 1992)). In DeLong , the

court noted that the purpose of the Oklahoma exclusionary rules – Okla. Stat. tit.

12, § 2410 and tit. 22 § 513 – is to “proscribe ‘offensive’ use of a nolo

contendere plea . . ., not to proscribe ‘defensive’ use of the admission against the

criminal defendant in a case where the criminal defendant sought to recover

damages . . . .” DeLong , 956 P.2d at 938. 

We will not construe either Rule 410 or the Oklahoma statutes to allow an

employee plaintiff to affirmatively prevent an employer from presenting the very

evidence used as a basis for its termination decision. Such a result would

unfairly hogtie the employer and lead the jury to believe that the employee’s

termination was groundless. Nor will we review the wisdom of the termination

in light of Mr. Rose’s nolo contendere plea. As this court has repeatedly noted,

our role is “not to act as a ‘super personnel department’ that second guesses

employers' business judgments.” Simms v. Oklahoma , 165 F.3d 1321, 1330

(10th Cir. 1999) (citation omitted). There was adequate evidence for the jury to

find that the events surrounding Mr. Rose’s arrest and plea affected Michelin’s

regard and reputation in the community and the company did not violate its

policies. Therefore, there was no error in admitting evidence of the plea of nolo

contendere and the jury verdict must stand.
- 9 -

Jury Instruction

Mr. Rose argues that the district court erred in giving jury instruction No.

12 which stated: “A nolo contendere plea has the same legal effect as a guilty

plea.” III Aplt. App. at 495. We review the instructions de novo “‘to determine

whether, as a whole, the instructions correctly stated the governing law and

provided the jury with an ample understanding of the issues and applicable

standards.’” Hynes v. Energy West, Inc. , 211 F.3d 1193, 1197 (10th Cir. 2000)

(citation omitted). The substance of the jury instructions in a diversity case is a

matter of state law. Id.

Instruction 12 is an almost verbatim recitation of the first part of Okla.

Stat. tit. 22, § 513 – “The legal effect of [a plea of nolo contendere] shall be the

same as that of a plea of guilty . . . .” Mr. Rose contends, however, that it was

error to give the instruction without reference to the entire sentence in § 513, i.e.

“ . . . but the plea may not be used against the defendant as an admission in any

civil suit based upon or growing out of the act upon which the criminal

prosecution is based.” We disagree. The admissibility of the plea was a decision

for the trial court. As we have discussed, the second part of § 513 does not apply

to this case and was properly excluded from the instructions. 

Fair Treatment Panel
3There was also no error in denying Mr. Rose’s motion for summary

judgment on this issue, because the clear language of the policy did not provide a

right to a mandatory Fair Treatment Panel. We note that the denial of a motion

for summary judgment is generally not appealable. As is the case here, however,

“when the material facts are not in dispute and the denial of summary judgment is

based on the interpretation of a purely legal question, such a decision is

appealable after final judgment.” Wolfgang v. Mid-America Motorsports, Inc.,

111 F.3d 1515, 1521 (10th Cir. 1997). 

- 10 -

The remaining arguments are quickly resolved. Mr. Rose claims that the

judge erred in instructing the jury that Michelin was not obligated to convene a

Fair Treatment Panel. See III Aplt. App. at 496 (Jury Instruction No. 13, stating

“the convening of a Fair Treatment Panel is clearly not mandatory”). “Under

Oklahoma law, it is well-settled that the interpretation of an unambiguous

contract is a question of law for the court.” Dillard & Sons Const., Inc. v.

Burnup & Sims Comtec, Inc. , 51 F.3d 910, 914 (10th Cir. 1995). Michelin’s

policy clearly stated that management need only convene a Fair Treatment Panel

“if necessary.” This language is unambiguous and there was no error in so

instructing the jury. 3 

Finally, Mr. Rose argues that Michelin violated Okla. Stat. tit. 63, § 2-410

by considering his expunged arrest and plea at the time of the Fair Treatment

Panel in 1997. He argues that the trial court also impermissibly permitted the

introduction of evidence regarding the expunged proceedings. In relevant part,

the Oklahoma statute provides that “[a]ny expunged arrest or conviction shall not
- 11 -

thereafter be regarded as an arrest or conviction for purposes of employment . . .

.” Okla. Stat. tit. 63, § 2-410. The key word in the statute is “thereafter.” While

an employer may not rely upon expunged proceedings in making termination

decisions, it “could rely on any information concerning plaintiff's conduct that it

received before the expungement order became effective, and after the

expungement order it was entitled to present at a due process hearing the

information on which it relied in making the initial decision.” Ambus v. Granite

Bd. of Educ. , 975 F.2d 1555, 1567 (10th Cir. 1992) (interpreting similar

provision of Utah law). That is exactly what happened in this case, and no error

occurred.

AFFIRMED.