                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                      PUBLISH
                                                                              JUN 4 1999
                     UNITED STATES COURT OF APPEALS
                                                                       PATRICK FISHER
                                                                                Clerk
                                 TENTH CIRCUIT



 DELISA ATCHLEY,

       Plaintiff/Appellee,
 v.

 THE NORDAM GROUP, INC.,

       Defendant/Third-Party
                                                      No. 98-5006, 98-5020,
       Plaintiff/Appellant,
                                                        98-5087, 98-5125
 v.

 DESIGN SUPPORT SERVICES, INC.,

        Third-Party Defendant/Appellee.




           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE NORTHERN DISTRICT OF OKLAHOMA
                        (D.C. No. 96-CV-344-C)



Stephen L. Andrew (D. Kevin Ikenberry, with him on the briefs), Stephen L. Andrew &
Associates, Tulsa, Oklahoma, for Appellant, The Nordam Group, Inc.

Thomas Dunn Robertson (John E. Harper, Jr., with him on the brief), Tulsa, Oklahoma,
for Third-Party Appellee, Design Support Services, Inc.

Kevin R. Kelley, Tulsa, Oklahoma, for Appellee, Delisa Atchley.
Before PORFILIO, MCKAY, and TACHA, Circuit Judges.


PORFILIO, Circuit Judge.




       One month prior to giving birth, Delisa Atchley took maternity leave from her job

at The Nordam Group and received assurances from Nordam managers she could return

to the position at the completion of her leave. When she tried to return as promised, she

learned there was no place for her. After several fruitless attempts to find another

position at Nordam or elsewhere in Oklahoma, Ms. Atchley filed suit against Nordam

alleging violations of the Pregnancy Discrimination Act, Title VII of the Civil Rights Act

of 1964 as amended, 42 U.S.C. § 2000, and the Family and Medical Leave Act, 29 U.S.C.

§ 2601. She prevailed before a jury, and in a thorough order, the district court denied

Nordam’s motion for judgment as a matter of law, as well as its motion for a new trial.

Nordam appeals, and we affirm.1

       The Nordam Group is a Tulsa, Oklahoma, company that employs over 1000 people

in the aviation industry. Sometime prior to 1987, Nordam’s Aircraft Modification

Division (AMD) began development of “hush kits” to reduce airplane noise. To aid in

this project, Design Support Services (DSS) provided a significant number of engineers



       1
        Appeals in 98-5006, 98-5020, 98-5087, and 98-5125 have been consolidated for
disposition.

                                            -2-
and other employees. A written agreement between Nordam and DSS established the

relationship between the entities and, in part, provided Nordam would compensate DSS

for its actual costs plus a markup. The agreement also specified “personnel furnished [by

DSS] will at all times be considered [DSS] employees.” DSS would have responsibility

for “payment of wages, compensation, hiring and firing” of those employees furnished by

DSS. Furthermore, “in no instances or sense shall [those employees] be construed as

[Nordam] employees.” DSS also agreed to “indemnify [Nordam] against any and all

damages, expenses, liabilities, and claims arising from sickness, injuries to, death, of any

person or damage to, or loss of any property caused by the negligence of [DSS]

employees.”

       Ms. Atchley learned about the position of document clerk at Nordam through her

mother, Donna Selan, who worked on the hush kit project at Nordam and received her

paycheck from DSS. Nordam manager, John Calvert, interviewed Ms. Atchley, who had

previously worked for Nordam in a different capacity, and hired her through DSS. DSS

faxed to Ms. Atchley at the Nordam facility a Temporary Employee Agreement which

indicated she was on temporary assignment to Nordam and would be paid an hourly wage

of $6.77. Vacation and holiday benefits would be paid by DSS. Ms. Atchley testified at

the time of the agreement she understood she “would be working through DSS for

Nordam,” and she would be ineligible for Nordam health insurance, 401K, and profit

sharing benefits. During her employment, Ms. Atchley received her paychecks, including


                                            -3-
a raise, from DSS, but all other job contacts, such as job supervision and evaluations,

were with Nordam.

       After two years, Ms. Atchley took over document control responsibilities for the

entire Aircraft Modification Division, the division running the hush kit project. Eight

months later, on September 30, 1993, Ms. Atchley found out she was pregnant, and on

March 14, 1994, gave Nordam manager Calvert a handwritten note informing him she

would be taking maternity leave beginning May 13, 1994. At the bottom of the note she

queried, “John, is this all you need from me.” Calvert responded, “Yes.” On May 13,

Ms. Atchley began her leave, intending to return six weeks after the birth of her child.

       While Ms. Atchley was away, Nordam experienced what it called “structural

changes.” The hush kit project ended, and Nordam purchased a company called BizJet.

Nordam’s Director of Engineering Services made a job requisition for a document control

clerk to support the new enterprise. In addition, Nordam merged its AMD and

manufacturing divisions. A long-time Nordam employee was placed in charge of

document control for the new division.

       When Ms. Atchley informed Nordam manager Calvert she was ready to come back

to work, Calvert responded he needed to check her status with Mr. Gallagher because the

organizational changes had made her position unsettled. On July 25, 1994, Ms. Atchley

was informed her services were no longer required in the document control position. She




                                            -4-
subsequently tried to obtain other employment with Nordam but was told no positions for

which she was qualified were available.

       Ms. Atchley ultimately filed this action in the district court naming only Nordam

as a defendant. After Nordam, in turn, filed a third-party complaint against DSS,

claiming DSS was the true employer of Ms. Atchley, she filed an amended complaint

naming DSS as a defendant. The court denied all motions for summary judgment, and the

case proceeded to a jury trial.

       At the close of Ms. Atchley’s evidence, the court found Nordam was Atchley’s

statutory employer under Title VII and granted DSS’ motion for a directed verdict. The

jury returned a verdict in favor of Ms. Atchley on her Title VII and FMLA claims, and

awarded her $9,000 in back pay, $8,000 for emotional distress and other nonpecuniary

losses, $9,000 for liquidated damages on the FMLA claim, and $65,000 in punitive

damages under Title VII.

       Nordam filed a motion for judgment as a matter of law or, in the alternative, a new

trial. Nordam sought a new trial on grounds either DSS should not have been dismissed

or the testimony of plaintiff’s witness, Dianna McCuddy, should not have been allowed.

The district court denied both motions, and Nordam filed this appeal.

       Nordam argues: (I) there was no evidence to support the award of punitive

damages; (II) the evidence was insufficient to support a finding of liability under Title

VII; (III) there was no evidence to support an award of damages for emotional distress;


                                            -5-
(IV) Ms. Atchley failed to prove a claim under the FMLA; (V) the district court lacked

subject matter jurisdiction over the Title VII claim; (VI) the award of liquidated and

punitive damages constituted an impermissible double recovery; and (VII) DSS should

not have been dismissed at the conclusion of evidence.

       We review de novo a district court's disposition of a motion for judgment as a

matter of law, applying the same standard as the district court. See Mason v. Oklahoma

Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997). Judgment as a matter of law is

warranted "only if the evidence points but one way and is susceptible to no reasonable

inferences supporting the party opposing the motion." Id. ("We do not weigh the

evidence, pass on the credibility of the witnesses, or substitute our conclusions for [those]

of the jury. However, 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.'"). In conducting our review, "[t]he evidence and

inferences therefrom must be construed most favorably to the nonmoving party."

Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1522 (10th Cir. 1997).

                                                I.

       Nordam argues Ms. Atchley was not entitled to an award of punitive damages

because she did not show egregious discrimination. Ms. Atchley responds Nordam failed

to preserve the issue for appeal because its Rule 50 motion dealt only with Nordam’s




                                              -6-
restructuring argument and did not raise whether showing egregious discrimination is

even required in Title VII claims.

       To preserve an issue for a renewed post-trial motion under Fed. R. Civ. P. 50(b),

the movant must have made a proper motion pursuant to Rule 50, and the motion must be

made with enough specificity to allow the non-movant an opportunity to cure possible

defects in proof which might otherwise make its case legally insufficient. See Lightning

Lube Inc. v. Witco Corp., 4 F.3d 1153, 1172-73 (3rd Cir. 1993); see also First Security

Bank of Beaver, Okla. v. Taylor, 964 F.2d 1053, 1056-57 (10th Cir. 1992).

       Were this failure to preserve not a problem for Nordam, its acceptance of the

instruction on punitive damages is. The instruction advised the jury it could award

punitive damages pursuant to 42 U.S.C. § 1981a(b)(1) upon a showing Nordam engaged

in pregnancy discrimination “with malice or reckless indifference to her federally

protected rights.” Nordam did not challenge the jury instruction at trial and does not do

so on appeal, but rather contends punitive damages were not warranted by the facts

because they did not show egregious discrimination. The failure to object deprives

Nordam of the right to challenge the legal standard given to the jury; and it can only argue

whether the jury properly applied the instruction to the facts. See Will v. Comprehensive

Accounting Corp., 776 F.2d 655, 675 (7th Cir. 1985) (“Once the law of the case is settled

by failure to object to the instructions, the parties may argue only that the jury did not play

its proper part. Because the jury’s part is to apply the instructions to the facts, we may


                                             -7-
scrutinize its conclusions only to find out whether it did so.”); Kientzy v. McDonnell

Douglas Corp., 990 F.2d 1051, 1062 (8th Cir. 1993) (employer waived allegation of error

with regard to punitive damage instruction by failing to object to instruction). Because

the issue of the propriety of punitive damages is not properly preserved for appeal, we

shall not consider it further.

                                             II.

       In its motion for judgment as a matter of law, Nordam argued the evidence was

insufficient to support a finding of liability under Title VII. The district court decided

this issue against Nordam in its April 22, 1998 order. On appeal, Nordam argues Title

VII does not itself mandate employers provide maternity leave; rather, it requires an

employer to hold open the job of an employee who is temporarily disabled by pregnancy-

related conditions on the same basis as it holds open jobs of employees on sick or

disability leave for other reasons. Nordam states there was no evidence of other

individuals like Ms. Atchley who were employed through DSS but received a leave of

absence from Nordam. Therefore, there could be no evidence Ms. Atchley was treated

differently from other individuals. The district court did not miss the call when it labeled

this argument “disingenuous and wholly without merit.”

       We have held, “a pregnancy discrimination claim is analyzed the same as other

Title VII claims.” EEOC v. Ackerman, Hood & McQueen, 956 F.2d 944, 947 (10th Cir.

1992). Thus, when assessing the plaintiff’s evidence in an employment discrimination


                                             -8-
case, the court follows the three stage analysis outlined in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973), and Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 252-56 (1981). At the first stage, the plaintiff must prove a prima

facie case of discrimination. She must show: (1) she is within the protected class; (2) she

was doing satisfactory work; (3) she was discharged; and (4) her position remained open

and was ultimately filled by a nonpregnant employee. See McDonnell Douglas, 41 U.S.

at 802. See also Burdine, 450 U.S. at 253; Ackerman, 956 F.2d at 947-48.

       If the plaintiff satisfies the prima facie requirements, then the case enters the next

stage. In this second stage, the burden of production moves to the defendant. If the

defendant articulates a legitimate, nondiscriminatory reason for its action, then the burden

of persuasion moves back to the plaintiff. Cone v. Longmont United Hosp. Ass’n, 14

F.3d 526, 529 (10th Cir. 1994). In this third stage of the discrimination analysis, the

plaintiff must show pregnancy was a determinative factor in the defendant's employment

decision, or show the defendant's explanation for its action was merely pretext. Failure to

come forward with evidence of pretext after the employer articulates a legitimate

nondiscriminatory reason for its action will entitle the defendant to judgment.

       Contrary to Nordam’s contention, the district court noted “evidence was

introduced which showed that two other persons whom Nordam employed ‘through’

DSS, Carol Lane and David Lafevers, were granted leave for non-pregnancy related

ailments and were returned to their positions thereafter.” The district court also rejected


                                             -9-
Nordam’s attempt to use corporate restructuring as a nondiscriminatory reason for Ms.

Atchley’s discharge. Examination of the evidence revealed similarly situated non-

pregnant employees were granted leave and reinstated, and Ms. Atchley was the sole

employee displaced by Nordam’s “restructuring.” See Quaratino v. Tiffany & Co., 71

F.3d 58, 65 (2d Cir. 1995) (“Employers have the right to restructure jobs and job

responsibilities, but they cannot use that process to implement discriminatory

objectives.… [And] an employee may always show that her employer’s decisions on

restructuring – as applied to her – were made to displace her for impermissible reasons

such as taking maternity.”). Further evidence of Nordam’s discriminatory practices was

presented by plaintiff’s witness, Diana McCuddy, who testified she, too, was treated in a

discriminatory manner after informing Nordam she was pregnant. See Burdine, 450 U.S.

at 256 (intentional discrimination may be proved indirectly by showing the employer’s

proffered explanation is unworthy of credence). The district court found Ms. McCuddy’s

testimony particularly relevant because she was the only other female known to be

pregnant under the supervision of Calvert and Gallagher. See Spulak v. K-Mart Corp.,

894 F.2d 1150, 1156 (10th Cir. 1990) (testimony of other employees about their treatment

by defendant is relevant to issue of the employer’s discriminatory intent). Construing the

evidence in Ms. Atchley’s favor, we cannot say the district court erred in refusing to upset

the jury verdict on this issue.

                                            III.


                                           - 10 -
       Nordam next argues there was no evidence to support an award of $8,000 damages

for emotional distress. Nordam raised this argument in its motion for judgment as a

matter of law, and the district court expressly rejected it. Here, Nordam argues the

distress suffered by Ms. Atchley, if any, did not rise to the level of that required in Carey

v. Piphus, 435 U.S. 247, 263-64 (1978) (“distress is a personal injury familiar to the law,

customarily proved by showing the nature and circumstances of the wrong and its effect

on the plaintiff”), and the EEOC Policy Guide on Compensatory and Punitive Damages

Under the 1991 Civil Rights Act, Fair Employment Practices Manual (BNA) 405:7091,

7096 (July 7, 1992) (“Emotional harm will not be presumed simply because the

complaining party is a victim of discrimination. The existence, nature, and severity of

emotional harm must be proved. Emotional harm may manifest itself, for example, as

sleeplessness, emotional distress, loss of self esteem, excessive fatigue, or a nervous

breakdown.”).

       The district court, however, was “unpersuaded as there was testimony relating

directly to the EEOC factors as warranting an award.” The testimonial evidence showed

the offending conduct caused strain to Ms. Atchley’s familial and marital relationships.

She suffered further stress and anxiety when she undertook a lengthy job search and

ultimately had to move out of state in search of employment.2 Nordam conceded




       The move took Ms. Atchley, her husband, and her 1-year old child away from
       2

extended families and support systems on both sides.

                                            - 11 -
plaintiff’s testimony alone may serve as evidence of emotional distress, see Price v. City

of Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996), when a “genuine injury” is at issue.

Carey, 435 U.S. at 264. Given its careful recounting of the evidence and the applicable

law, we cannot say the district court erred in finding itself “unable to conclude that the

jury’s damages award is contrary to the evidence as the issue of emotional distress is

easily understood by the jury.” See Mason, 115 F.3d at 1456.3

                                             IV.

       Nordam next argues Ms. Atchley failed to prove a claim under the FMLA because

she did not prove a serious medical condition and she had no right of reinstatement.4 The

district court rejected these as grounds for Nordam’s motion because Nordam had not

raised them at trial. Nordam contends the burden was on Ms. Atchley to establish a claim

under the FMLA and it had no duty to raise affirmative defenses. We review the district

court’s decision on timeliness of the claims for abuse of discretion, R.L. Clark Drilling

Contractors, Inc. v. Schramm, Inc., 835 F.2d 1306, 1307 (10th Cir. 1987), and review

the merits under the already articulated JNOV standard.

       3
        The court also noted, “the award of $8,000 is rather modest especially when
considering the conduct in question. The court therefore is unable to conclude that such
an award was unsupported by the evidence.”
       4
         In Nordam’s words, “[A]ccording to Atchley, she had the right to sit home for
five months and do nothing, and wait to be recalled.” (emphasis added). While advocacy
of a client’s interest is one thing, brash distortion is another. This blunderbuss shot goes
beyond the bounds of advocacy and amounts to a dehumanizing personal attack
predicated on an intentional distortion of Ms. Atchley’s legal position. Such is not the
stuff of persuasive advocacy.

                                            - 12 -
       In reviewing the motion for judgment as a matter of law, the district court noted:

“Nordam asserts that Atchley did not prove that she suffered from a serious health

condition. As authority, Nordam cites an unreported district court case, Dormeyer v.

Comerica Bank – Illinois, 1997 WL 403697, at *3 (N.D. Ill. July 15, 1997), which [held]

‘pregnancy per se [sic] is not a serious health condition under the FMLA.’” The court did

not consider the merits of this argument because the claim was not included in the pretrial

order, nor was it raised at any other time during the proceedings. See Fed. R. Civ. P.

16(e); R.L. Clark, 835 F.2d at 1308 (“a pretrial order measures the dimensions of the law

suit, both in the trial court and on appeal”). Nordam did include in the pretrial order, as a

fact to be resolved, whether “Plaintiff proved that her serious medical condition of

pregnancy, and the time from work that she had to miss due to that condition, caused

Nordam not to reinstate her to employment.” Indeed, as the issues for trial were set forth

in the pretrial order, Nordam conceded pregnancy was a serious medical condition, and

the only issue preserved was whether that condition caused her job loss.

       We find no support for Nordam’s contention Ms. Atchley’s duty to prove

pregnancy is a serious medical condition under the FMLA nullifies Nordam’s duty to

raise at trial issues for appeal. Various district courts have, like Dormeyer, held a

pregnant employee denied maternity leave or a reduced work schedule during her

pregnancy does not have a claim under the FMLA unless there is evidence from which a

reasonable jury could find the pregnancy and related conditions kept her from performing


                                            - 13 -
the functions of her job. See Gudenkauf v. Stauffer Communications, 922 F. Supp. 465,

475 (D. Kan. 1996). But these cases are not supportive of the position now advocated by

Nordam.

       Further, Ms. Atchley argues on appeal we can affirm on grounds not relied upon

by the district court, and the record shows sufficient evidence she suffered a serious

prenatal health condition. See Patterson v. Xerox Corp., 901 F. Supp. 274, 278 (N.D. Ill.

1995) (back pain from combination of pregnancy and prior back injury suffice to establish

disability under more stringent standard of ADA). In the final weeks of her pregnancy

Ms. Atchley suffered Braxton-Hicks contractions, stress, swollen feet, and lower back

pain, all of which affected her job performance. Her doctor had requested she obtain

reduced hours, and Nordam manager Calvert agreed to reduced hours without medical

documentation. Ms. Atchley and Calvert’s testimony showed Calvert also gave her

permission to take the pregnancy leave without further documentation; therefore, he had

no reason to doubt her condition and they both understood her condition allowed her to

take the leave. This case is distinguishable from Gudenkauf, 922 F. Supp. at 475-76, in

which defendant raised plaintiff’s ability to perform job functions as a defense, and

plaintiff’s assertions of inability to work were contradicted at trial. Finally, Ms. Atchley

did give birth on June 12, and spent the subsequent month caring for her infant in

accordance with FMLA, 29 U.S.C. § 2612 (a)(1)(A) (allowing for leave “because of the

birth of a son or daughter of the employee and in order to care for such son or daughter”).


                                            - 14 -
       Nordam also contends Ms. Atchley had no right of reinstatement because her

position had been eliminated and FMLA does not confer rights greater than she would

have enjoyed if she never went on leave. The jury did not accept this argument --

probably because Ms. Atchley was the only employee affected by the so-called

restructuring, and in the months when Ms. Atchley was looking for a new job, Nordam

hired another document clerk, Melinda Ruby-Gruner. Although there is some suggestion

the new clerk had greater computer skills than Ms. Atchley, Nordam states in its brief

“[Ruby-Gruner’s] duties with regard to the Rohr documents were similar to those that had

been performed by Ms. Atchley with regard to the hush kit documents.”

       While neither party’s arguments are very persuasive on the question of whether

Ms. Atchley’s position was eliminated, we find ourselves in the position that does not

require reversal of the district court on this issue. Indeed, we see no abuse of discretion in

the court’s finding Nordam’s argument was untimely. Moreover, even if the court had

addressed the question on the merits, the evidence is not so overwhelmingly in Nordam’s

favor the district court would have been compelled to grant the motion for judgment as a

matter of law.

                                             V.

       Nordam’s next argument is the district court lacked subject matter jurisdiction over

the Title VII claim because Ms. Atchley failed to exhaust her administrative remedies by

not providing EEOC with all relevant information regarding Nordam. The district court


                                            - 15 -
was unmoved by this argument. It acknowledged the requirement of exhausting

administrative remedies, see Khader v. Aspin, 1 F.3d 968, 970-71 (10th Cir. 1993), but

did not agree Nordam showed Ms. Atchley failed to exhaust hers. Presumably, Nordam

is arguing, in accordance with its position at trial, that Ms. Atchley failed to inform the

EEOC she held a “temporary position” meaning she had two employers; and thus, DSS

was the proper defendant in this suit. This argument was unavailing because the district

court had already concluded as a matter of law Nordam was the statutory employer under

Title VII, and the evidence clearly showed Ms. Atchley’s full cooperation with EEOC.

Again, the evidence does not weigh so heavily in Nordam’s favor that the district court

should have granted judgment as a matter of law for Nordam.

                                             VI.

       Nordam next contends the award of liquidated and punitive damages constitutes an

impermissible double recovery. See Mason, 115 F.3d at 1459 (“double recovery is

precluded when alternative theories seeking the same relief are pled and tried together”).

The jury awarded Ms. Atchley $65,000 in punitive damages under Title VII and $9,000 in

liquidated damages under FMLA. Nordam argues the liquidated damage provision serves

to punish those who violate the FMLA and in this case it allegedly violated FMLA by

failing to reinstate Ms. Atchley after the birth of her child. Similarly, punitive damages

under Title VII punished Nordam for failing to reinstate her after giving birth. Relying on




                                            - 16 -
Bruno v. Western Electric Co., 829 F.2d 957 (10th Cir. 1987), Nordam contends

awarding liquidated and punitive damages was disallowed.

       Ms. Atchley first points out Bruno is inapplicable because it was decided under

the Age Discrimination and Employment Act which provided expressly for liquidated

damages and was silent as to punitive. Second, Bruno did not involve recovery for

wrongs under two separate acts. See 89 F.2d at 967; see also Goodrich v. International

Bhd. of Elec. Workers, 712 F.2d 1488, 1490 n.2 (D.C. Cir. 1983) (“A plaintiff may be

awarded monetary relief under both statutes [Equal Pay Act and Title VII of the Civil

Rights Act] provided that each is satisfied and the plaintiff does not recover for the same

wrong under both provisions.”). The misconduct under Title VII was against Ms. Atchley

in comparison to non-pregnant employees, whereas the misconduct under the FMLA was

for failing to comply with the statutory mandate of restoring Ms. Atchley to her prior

position. See Mason, 115 F.3d at 1460 (“multiple punitive damage award on overlapping

theories of recovery may not be duplicative at all, but may instead represent the jury’s

proper effort to punish and deter all the improper conduct underlying the verdict.”).

       In this case, the district court applied the Mason reasoning, stating:

              Title VII was enacted to curb racial and gender discrimination
              in the work place, and the corresponding damage awards are
              meant to compensate the victim and punish the violator for
              such discrimination.… By contrast, the objectives of the
              FMLA are inter alia to balance the demands of the workplace
              with the needs of families and to promote national interest in
              preserving family integrity and to entitle employees to take
              reasonable leave for medical reasons [such as] for the birth …

                                            - 17 -
               of a child. The jury award in this case addresses two separate
               and distinct wrongs, notwithstanding the fact they are based
               on the same conduct. Hence, the Court, in light of the
               separate statutory schemes and purposes thereof, finds that the
               jury’s award of punitive and liquidated damages does not
               constitute double recovery. Thus, both awards will stand.


(internal quotations and citations omitted). Again, Nordam has not shown us the

evidence is so in his favor that the district court was in error to deny its motion.

                                             VII.

       Finally, Nordam argues DSS was Ms. Atchley’s true employer; therefore, the court

should not have granted DSS’ motion for a directed verdict, finding as a matter of law,

the totality of the circumstances dictated Nordam was Ms. Atchley’s employer under Title

VII. Nordam admits it did not seek any affirmative relief against DSS other than

damages claimed under the indemnification agreement between DSS and Nordam. When

the district court contemplated this issue at the motion stage, it found Nordam was Ms.

Atchley’s proper employer and Nordam could not properly challenge the dismissal of Ms.

Atchley’s claims against DSS. See Northwest Airlines, Inc. v. Transport Workers

Union of America, 451 U.S. 77, 101 S. Ct. 1571, 1580 (1981) (There is no statutory or

common law right to contribution in Title VII cases; and even assuming a cognizable

claim by the principal plaintiff against a third party defendant, there was insufficient basis

for recognizing a right of contribution by the defendant employer against the third party

defendant.).


                                             - 18 -
       Were we to view the merits, it is patent the district court carefully analyzed

whether Nordam was Ms. Atchley’s true employer. Acknowledging it must consider

many factors and an employee can have more than one employer for Title VII purposes,

“the main focus of the court’s inquiry is the employer’s right to control the means and

manner of the worker’s performance.” Lambertsen v. Utah Dept. of Corrections, 79

F.3d 1024, 1028 (10th Cir. 1996) (emphasis added). In the district court’s view, the

evidence showed Nordam controlled every aspect of Ms. Atchley’s employment and

granted her maternity leave: she was interviewed and hired by Nordam; Nordam

determined her work schedule, and she requested maternity leave from her Nordam

superior who granted the request and confirmed nothing else was necessary to ensure her

leave; the same superior memorialized this understanding on Nordam letterhead and

confirmed the anticipated start date of the maternity leave; the letter, and the leave itself,

were approved by Nordam’s Director of Engineering; and, finally, it was Nordam who

informed Ms. Atchley she had been discharged upon her return from maternity leave.

       Here, Nordam argues the district court should have left to the jury the question of

whether DSS or Nordam, or both, were liable because the question was one of fact. DSS

paid Ms. Atchley, and DSS testified at trial it was her employer. Therefore, Nordam

argues, the jury might have concluded DSS was the employer or that both Nordam and

DSS should share liability for the damages under a theory of joint employment. But once




                                             - 19 -
again, this evidence does not persuade us the district court erred in considering the totality

of the circumstances or then concluding Nordam was Ms. Atchley’s employer.

       DSS argues the only claim which Nordam may properly appeal is for

indemnification. In its Third Party Complaint, Nordam relied on the contract wherein

DSS promised to “indemnify [Nordam] harmless from and against any and all damages,

expenses, liabilities and claims arising from sickness, injuries to or death, of any person

or damage to, or loss of property caused by the negligence of [DSS] employees.”

Because the events involving Ms. Atchley did not include negligent acts of a DSS

employee which resulted in sickness,5 and, in fact, Nordam did not allege any negligence

by a DSS employee, the indemnification agreement does not provide Nordam with a

claim. See Allied Hotels Co. v. H.& J. Constr. Co., 376 F.2d 1, 2 (10th Cir. 1967)

(“Courts may not read into an indemnity contract that which does not actually appear in it

or which is not warranted by a reasonable interpretation thereof.”); see also National

Union Fire Insurance Company v. A.A.R. Western Skyways, Inc., 784 P.2d 52, 54

(Okla. 1989) (Under Oklahoma law, the general rule of indemnity is “one without fault

who is forced to pay on behalf of another, is entitled to indemnification.”) (emphasis

added). Nordam was the party with fault, and the agreement did not state indemnification

was due in this case.




       5
           The loss arose from Nordam’s violation of Title VII and FMLA.

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       The district court did not err in granting DSS’ motion for a directed verdict. In any

case, Nordam has no standing to challenge that decision here. Further, the district court

did not err in ruling no contractual right to indemnity in favor of Nordam existed.

                                           VIII.

       Nordam’s objection to the award of attorneys’ fees to Ms. Atchley is tied to its

appeal of the merits of the case; that is, because she should have lost on the FMLA and

Title VII claims, she should not have been awarded fees. Nordam asks for a reduction in

attorneys’ fees if any part of the judgment is reversed. Because we affirm all aspects of

the judgment against Nordam, we need not disturb the award of attorneys’ fees.

       AFFIRMED.




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