The full case caption appears at the
end of this opinion. BARRETT, Senior Circuit Judge. I. Background In this diversity action for wrongful discharge, plaintiff Bobby J. Wilesappeals from a final judgment entered on a jury verdict in favor of defendantMichelin North America, Inc. Wiles also appeals from the denial of his motionfor partial summary judgment and from the denial of his motion for judgment asa�matter of law. Further, Wiles seeks certification of several issues of state lawto the Oklahoma Supreme Court. We exercise jurisdiction under 28 U.S.C.��1291 and affirm.
[FOOTNOTE 1] Wiles was injured in a work-related accident on January 28, 1994, whileemployed by Michelin as a first stage tire builder. Wiles commenced worker’scompensation proceedings, pursuant to which he was placed on temporary totaldisability. Michelin’s medical leave policy provided as follows: The maximum duration of any medical absence or light dutyassignment is twenty-four months. If an employee is either unable toreturn to his/her former full duty, regular assignment within the first6 months or after being placed in the Reserve Employee Pool isunable to successfully bid to another full duty regular assignmentwithin this twenty-four month period, the employee will be separatedfrom the company rolls. Appellant’s App., Vol. II at 270. On January 28, 1996, twenty-four months afterhis injury, Wiles was terminated from employment. Wiles was still receivingtemporary total disability compensation at the time of his termination, and hecontinued to do so for another six months. Wiles subsequently sued Michelin for wrongful termination, contendingthat Michelin violated Oklahoma’s Workers’ Compensation Act (“Act”),Okla.�Stat. tit. 85, ���1-211, which prohibits employers fromdischargingemployees who are on temporary total disability solely because of absence fromwork. Michelin responded that it did not fire Wiles because of his absence, butbecause the medical information it possessed at the time of his terminationshowed Wiles had permanent injuries that prevented him from performing hisassigned duties as a first stage tire builder. At the time of Wiles’ termination, ��5 of the Act provided in pertinent partas follows: (A)(1) No person, firm, partnership or corporation maydischarge any employee because the employee has in good faith fileda claim, or has retained a lawyer to represent him in said claim,instituted or caused to be instituted, in good faith, any proceedingunder the provisions of this title, or has testified or is about to testifyin any such proceeding. (A)(2) No person, firm, partnership or corporation maydischarge an employee during a period of temporary total disabilitysolely on the basis of absence from work. (B) No employer shall be required to rehire or retain anyemployee who is determined physically unable to perform hisassigned duties. The failure of an employer to rehire or retain anysuch employee shall in no manner be deemed a violation of thissection. Okla.�Stat.�tit.�85, ��5 (1996).
[FOOTNOTE 2] The prohibition set forth in ��5(A)(2) was addedto the Act in September 1992. To date, there are no published Oklahoma orfederal cases addressing the interplay between the provisions of ��5(A)(2)and���5(B). Michelin contended that the addition of the prohibition set forth in��5(A)(2) did not affect an employer’s ability to discharge an employee for thereason set forth in ��5(B). Accordingly, Michelin filed a motion for summaryjudgment in the district court, arguing that the undisputed evidence showed thatWiles’ injuries prevented him from doing his assigned duties at the time of histermination and, therefore, ��5(B) shielded Michelin from liability for Wiles’termination. Michelin also argued that Wiles suffered no genuine damages asa�result of his termination. Wiles responded by arguing there were materialissues�of fact as to what Michelin knew about his condition at the time he wasterminated, as to the real reason Michelin terminated him, and as to the damageshe suffered as a result of the termination. Wiles also moved for partial summary judgment on the issue of liability,arguing that, as a matter of law, an employer who discharges an employee duringa period of total temporary disability cannot defend against a claim of wrongfuldischarge on the ground that the discharge was based on the employee’s inabilityto perform his assigned job duties. Wiles noted that every employee who is in aperiod of total temporary disability is, by definition, unable to perform hisassigned job duties. Therefore, he reasoned, allowing an employer to use ��5(B)to legitimatize the discharge of an employee who is in a period of temporary totaldisability would render meaningless the prohibition set forth in ��5(A)(2). Wilesargued that the only logical way to harmonize the two provisions would be tohold that “an employer is not required to rehire or retain any employee who isunable to perform his assigned job duties once temporary total disability hasended, but employers are limited and may not rely upon this defense indischarging employees during periods of temporary total disability.” Appellant’sApp., Vol. III at 342. In ruling on the summary judgment motions, the district court concludedthat the legislature’s adoption of ��5(A)(2) simply added “another prohibited actthat may be interpreted as retaliatory conduct to the litany of acts contained insection 5(A)(1).” Appellant’s App., Vol. III at 364. The court rejected Wiles’interpretation of the Act because it rendered the provisions of ��5(B) nugatoryand of no effect. Instead, the court held that while ��5(A)(2) prohibits anemployer from terminating an employee on temporary total disability solelybecause of absence, ��5(B) permits the employer to terminate the employee if theemployee “also cannot ever perform his job duties.” Appellant’s App., Vol. III at363 (emphasis added). Therefore, the court held, the termination of an employee during a period of temporary totaldisability does not per se impose .�.�. liability upon an employerunder section 5(A)(2) so long as (1) the termination was not basedsolely upon the employee’s absence from work and (2) the employeehas been determined to be physically unable to perform his assignedjob duties on a permanent basis.
Id. at 364. Turning to the evidence before it, the court concluded that Wiles had madea prima facie case of retaliatory discharge under ��5(A)(2), and that Michelin hadarticulated a legitimate, non-retaliatory reason for Wiles’ discharge. Therefore,the court said, the burden was on Wiles to demonstrate that Michelin’s profferedreason 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 ofsummary judgment. The court also concluded that while there was scantevidence of Wiles’ damages, that issue was best left for trial. Therefore, thecourt denied both Wiles’ motion for partial summary judgment and Michelin’smotion for summary judgment, except to the extent that it held that “Wiles maybe terminated if he has been determined to be unable to ever perform his jobduties even though he is on temporary total disability at the time of histermination.”
Id. at 370-71. Thereafter, Wiles moved the court to reconsider its ruling, arguing that”[w]hether an employee is in fact temporarily totally disabled or has reachedmaximum medical improvement and is permanently partially disabled is aquestion for proper determination by the Oklahoma Worker[s'] CompensationCourt and not by any other court.”
Id. at 373. Wiles noted that the Act providesan injured employee a maximum of 300 weeks’ temporary total disability andgives the employer a mechanism to have the period cut short through anadjudication by the Workers’ Compensation Court that the employee ispermanently disabled. Wiles contended that the district court’s constructionof���5, which would allow a judge or jury in a civil case to decide whether anemployee on temporary total disability is permanently unable to perform his job,would completely circumvent these statutory provisions. 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 ithad jurisdiction to determine whether an employer could avail itself of thedefense contained in ��5(B) in a retaliatory discharge suit, the court reasoned, itsability “to fully adjudicate the claims and defenses before it under [��5] would beinexorably impaired.” Appellant’s App., Vol. III at 394. The case thenproceeded to trial. At the conclusion of Wiles’ evidence, Michelin moved for judgment as amatter of law (“JMOL”) pursuant to Fed. R. Civ. P. 50 on the issues of liabilityand punitive damages. The court took the motion under advisement and the trialcontinued. At the conclusion of all the evidence, Michelin renewed its motionfor JMOL. Wiles also moved for JMOL, arguing that the only defense Michelinhad presented to his wrongful termination claim was “not one allowed under theworkman’s compensation statute.” Appellant’s App., Vol. V at 816. Wilesreferred to the authority set forth in his summary judgment briefs as support forhis motion for JMOL. The district court overruled both parties’ motions on theissue of liability, concluding there was an issue of fact for the jury as to whyWiles was discharged. The court granted Michelin’s motion on the issue ofpunitive damages, however, because it found there was insufficient evidencefrom which “‘the jury could find by clear and convincing evidence that thedefendant has been guilty of reckless disregard for the rights of others.’”
Id. at825-26 (quoting Okla. Stat. tit. 23, � 9.1(b)). Therefore, the district court did notinstruct the jury on punitive damages. 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 anemployee during a period of temporary total disability on the ground that theemployee is not physically able to perform his assigned duties. Wiles alsoobjected to the district court’s refusal to instruct the jury on punitive damages. The court overruled Wiles’ objections and sent the case to the jury, whichreturned a verdict for Michelin. Wiles now appeals the district court’s denial of his partial motion forsummary judgment, the court’s denial of his motion for JMOL, the giving of juryinstruction Nos. 2, 12, and 13, and the failure to give a jury instruction onpunitive damages. Wiles also requests that we certify five questions of state lawto the Oklahoma Supreme Court. Because we can adequately address the issuesraised based on the existing law, we decline to certify the proposed questions ofstate law. We turn, then, to the district court’s rulings.
II. Summary Judgment The denial of summary judgment based on factual disputes is notproperly reviewable on an appeal from a final judgment entered aftertrial. [E]ven if summary judgment was erroneously denied, theproper redress would not be through appeal of that denial butthrough subsequent motions for judgment as a matter of law .�.�. andappellate review of those motions if they were denied.� Failure torenew a summary judgment argument���when denial was based onfactual disputes���in a motion for judgment as a matter of law underFed.�R.�Civ.�P.�50(a)(1) at the close of all the evidence is considereda waiver of the issue on appeal. By contrast, when the material facts are not in dispute and thedenial of summary judgment is based on the interpretation of apurely legal question, such a decision is appealable after finaljudgment.
Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1521 (10th Cir.1997) (citations and quotation omitted; alteration in original). Here, the districtcourt denied Wiles’ motion for partial summary judgment based on factualdisputes, but only after ruling that Wiles’ interpretation of the law � which wouldhave made the admitted factual disputes immaterial � was incorrect. Fortunately,Wiles renewed his summary judgment arguments in his motion for JMOL at theconclusion of the evidence, so we may review those arguments regardless of howthe district court’s summary judgment ruling is characterized. We review the grant or denial of summary judgment de novo,applying the same legal standard used by the district court pursuantto Fed. R. Civ. P. 56(c). Summary judgment is appropriate if .�.�.there is no genuine issue as to any material fact and .�.�. the movingparty is entitled to judgment as a matter of law.
Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation omitted). Prior to its amendment in September 1992, ��5 of the Act provided asfollows: No person, firm, partnership or corporation may discharge anyemployee because the employee has in good faith filed a claim, orhas retained a lawyer to represent him in said claim, instituted orcaused to be instituted, in good faith, any proceeding under theprovisions of Title 85 of the Oklahoma Statutes, or has testified or isabout to testify in any such proceeding. Provided no employer shallbe required to rehire or retain any employee who is determinedphysically unable to perform his assigned duties. Okla.�Stat.�tit.�85, ��5 (1991). The Oklahoma Supreme Courtconcluded that thisversion of the Act did “not prohibit the discharge of an employee because he isabsent from work, even when the absence is caused by compensated injury andmedical 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 ofa�medical leave of absence to one year.
Id. at 924. The employer terminated theplaintiff under that policy, even though his absence from work was due to histemporary total disability from a work-related injury.
Id. at 923. The plaintiffargued that “Oklahoma laws designed to protect injured employees require a rulethat bars termination of a temporarily disabled employee because he is absentfrom work.”
Id. The Oklahoma Supreme Court rejected the plaintiff’s argument, holdingthat “[t]he Act does not expressly provide injured employees with an excusedwork absence during their healing period, and we are unable to create such anadditional workers’ compensation benefit.”
Id. at 923-24. Because theplaintiff’s “absence from work [was not] a protected activity by itself,” the courtheld that the employer did not violate the Act by discharging the employee due tohis absence.
Id. at 923. In September 1992, the Oklahoma legislature amended ��5 of the Act toadd a prohibition against discharging an employee during a period of temporarytotal disability solely because of the employee’s absence. Okla. Stat. tit. 85, �5(A)(2) (1993).
[FOOTNOTE 3] Although there isapparently no legislative history relating tothis amendment, we, like the district court and the parties, assume that thelegislature amended the Act in response to the Oklahoma Supreme Court’sdecision in
Pierce. Unlike Wiles, however, we do not view the amendment as arepudiation of
Pierce. Rather, the amendment simply added another activity that is protectedagainst employer retaliation to the list of protected activities already containedin���5. Thus, an employer may not discharge a temporarily totally disabledemployee because he has been absent from work. The legislature did not, asWiles suggests, make temporary total disability an absolutely protected status. Indeed, the legislature explicitly preserved an employer’s ability toterminate an employee who is physically unable to perform his job. After settingout the prohibited acts in ��5(A)(1) and (2), the legislature reiterated in��5(B)the proviso previously contained in the final sentence of ��5: “[n]o employershall be required to rehire or retain any employee who is determined physicallyunable to perform his assigned duties,” and even added, for good measure, that”[t]he failure of an employer to rehire or retain any such employee
shall in nomanner 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 statutory provisoin�the earlier version of the Act “demonstrates a legislative concern for undueinterference with the employment relationship. An employer must operateeconomically and should be allowed to purchase the services his businessrequires. The proviso suggests that an employee’s physical capacity mayconstitute a legitimate nondiscriminatory reason for an employment decision.” 737 P.2d at 925. Nothing about the legislature’s September 1992 amendment of��5 suggests a retreat from its earlier concern about undue interference with theemployment relationship. Therefore, we must reject Wiles’ contention that��5(B)’s proviso simply does not apply to the discharge of an employee who is ina period of temporary total disability. Likewise, we must also disagree with the district court’s conclusion thatthe proviso applies only to employees who are
permanently unable to do theirassigned duties. The plain language of ��5(B) does not require that the employeebe permanently precluded from performing his assigned duties, and the historicallanguage in that subsection has never been interpreted to require an element ofpermanency. Moreover, as Wiles points out, the meaning of ��5(B) cannot varywith the type of retaliatory discharge claim asserted. If an employer had to showthat the employee was permanently unable to perform his assigned duties todefend against a claim that a discharge violated ��5(A)(2), an employer wouldhave to make a similar showing to defend against a claim that a dischargeviolated ��5(A)(1). We see no indication in the September 1992 amendment thatthe Oklahoma legislature intended to make such a radical change in the meaningof the proviso contained in ��5(B). Therefore, we conclude that an employerneed not establish an employee is permanently unable to perform his assignedduties in order to legitimately discharge the employee in accordance with ��5(B).
[FOOTNOTE 4] Wiles concedes that the evidence presented at the summary judgment stagecreated a factual dispute as to whether Michelin discharged Wiles because he hadbeen absent for twenty-four months, or because he was not able to perform hisassigned job duties. In light of our interpretation of the controlling law, thisfactual dispute was material to the issue of liability. Therefore, the district courtproperly denied summary judgment to Wiles on the issue of liability. We turn,then, to the district court’s denial of Wiles’ motion for JMOL.
III. Judgment as a Matter of Law We review the district court’s ruling on a motion for JMOL under astandard that is essentially identical to the “genuine issue” requirement in thesummary 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 the evidencepoints�but one way and is susceptible to no reasonable inferencessupporting the party opposing the motion.�.�.�. We must enterjudgment as a�matter of law in favor of the moving party if there isno legally sufficient evidentiary basis .�.�. with respect to a claim ordefense .�.�. 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 did not contend that theevidence pointed but one way. Rather, he contended that the reason for thetermination reflected by Michelin’s evidence was not a legitimate reason underthe Act. The record shows that Michelin presented evidence from which a jurycould conclude that Michelin terminated Wiles because his injuries preventedhim from doing his assigned duties. We have previously concluded that thisconstitutes a legitimate reason under the Act for discharging a temporarily totallydisabled employee. Therefore, the district court properly denied Wiles’ motionfor JMOL.
IV. Jury Instructions We turn, finally, to Wiles’ challenges to the jury instructions. “In adiversity case, the substance of a jury instruction is a matter of state law, but thegrant or denial of a tendered instruction is governed by federal law.”
Wolfgang,111 F.3d at 1525. We review a district court’s decision whether to give atendered instruction for an abuse of discretion.
See Summers v. Missouri Pac.R.R. Sys., 132 F.3d 599, 606 (10th Cir. 1997). When, as here, a party hasobjected to instructions at trial, then we “conduct a de novo review to determinewhether, as a whole, the instructions correctly stated the governing law andprovided the jury with an ample understanding of the issues and applicablestandards.”
Advantor Capital Corp. v. Yeary, 136 F.3d 1259, 1265 (10th Cir.1998) (quotation omitted). On appeal, Wiles objects to the district court’s decision to give InstructionNos. 2, 12, and 13. Instruction No. 2 set forth the statement of the case,including Wiles’ claim that he was terminated based solely upon his absence andMichelin’s contention that he was terminated because of his physical inability toreturn 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 underOklahoma’s Workers’ Compensation Act. Finally, Instruction No. 13, whichdefined “pretext,” informed the jury that for Wiles to prevail, he had to show thatthe real�reason for his termination was his absence, not the reason advanced byMichelin � that he was permanently unable to perform his assigned job duties. Wiles objects to these instructions on the ground that they incorrectlyinformed the jury that an employer may legitimately discharge an employeeduring a period of temporary total disability based on his physical inability toperform his assigned duties. Alternatively, Wiles objects to Instruction No. 12on the ground that it did not accurately reflect the district court’s determinationthat an employee must be
permanently unable to perform his assigned duties foran employer to rely on the proviso in ��5(B) as a defense. Based on our earlier rulings, we reject both of these challenges to theinstructions. Instruction No. 12 accurately informed the jury of the applicablelaw under the Act. Further, while Instruction Nos. 2 and 13 erroneously requiredMichelin to establish that Wiles was permanently unable to do his assignedduties, this error inured strictly to Wiles’ benefit and, therefore, is harmless. Wiles also challenges the district court’s refusal to give a jury instructionon punitive damages. We need not decide whether the district court erred infailing to give an instruction on punitive damages, because the error would beharmless in light of the jury’s verdict for Michelin.
See Hopkins v. Seagate,30�F.3d 104, 107 (10th Cir. 1994) (holding that because jury rejected plaintiff’sclaim, “she was entitled to no remedy, and any error in instructing the jury onavailable remedies was harmless”).
V. Conclusion Pursuant to ��5 of Oklahoma’s Workers’ Compensation Act, an employermay not discharge an employee during a period of temporary total disabilitysolely because of the employee’s absence from work. An employer may,however, discharge an employee during a period of temporary total disabilitybecause the employee cannot perform his assigned job duties. In this case, theparties presented conflicting evidence, both at the summary judgment stage andat�trial, as to the true reason Michelin terminated Wiles. Therefore, the districtcourt properly denied Wiles’ motion for summary judgment and his motion forJMOL. Finally, while the court’s instructions were not entirely without error, theerror was harmless in light of the jury’s verdict. The judgment of the United States District Court for the Eastern Districtof�Oklahoma is AFFIRMED. Appellant’s motion to certify questions of state lawis DENIED. :::FOOTNOTES:::
FN1 After examining the briefs and appellaterecord, this panel hasdetermined unanimously that oral argument would not materially assist thedetermination of�this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
FN2 Section 5 of the Act has since beenamended, effective November 1,1998. The amendment altered the format of ��5, but did not affect its substance. Unless otherwise indicated, all citations to Okla. Stat. tit. 85, ��5 are to theversion in effect in January 1996.
FN3 The September 1992 version of��5 was, in all pertinent respects,identical to the version of ��5 in effect at the time of Wiles’ termination.
FN4 This conclusion effectively moots Wiles’argument that the districtcourt did not have jurisdiction to determine whether he had become permanentlydisabled for purposes of applying ��5(B). In any event, we note that theOklahoma Court of Appeals has ruled that district courts have exclusivejurisdiction to determine the issues raised by ��5.
See Bostwick v.Atlas IronMasters, Inc., 780 P.2d 1184, 1186 (Okla. Ct. App. 1988).
BOBBY J. WILES, Plaintiff-Appellant, v. MICHELIN NORTH AMERICA,INC., also known as The UniroyalGoodrich Tire Company, a New Yorkcorporation, Defendant-Appellee. No. 97-7116 United States Court of Appeals for the Tenth Circuit Appeal From The United States District Courtfor the Eastern District Of Oklahoma (D.C. No. 96-CV-408) May 6, 1999 Submitted on the briefs: Dan Little and Prudence Little of Little, Little, Little, Windel & Coppedge,Madill, Oklahoma, for Plaintiff-Appellant. Victor F. Albert of McKinney & Stringer, Oklahoma City, Oklahoma, forDefendant-Appellee. Before ANDERSON, BARRETT, andTACHA, Circuit Judges.
