                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 31 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 LEWIS TURCK,

               Plaintiff - Appellee,                    No. 00-5082
          v.                                          (N.D. Oklahoma)
 BAKER PETROLITE                                  (D.C. No. CV-99-168-C)
 CORPORATION, a Bakers Hughes
 company,

               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before EBEL , ANDERSON , and MURPHY , Circuit Judges.




      Baker Petrolite Corporation (“Baker”) appeals a judgment entered against it

following a jury verdict in favor of Appellee, Lewis Turck, in his lawsuit for

alleged wrongful retaliatory discharge under Oklahoma law. The jury found that

Turck’s termination was significantly motivated by and in retaliation for his

attempt to consult his workers’ compensation attorney during his pending


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
workers’ compensation action in violation of O        KLA .   S TAT . tit. 85, § 5(A)(2).

Baker contends that the judgment should be reversed for the following reasons:

(1) the district court erred in finding that the cause of action upon which Turck

prevailed was properly pled; (2) the district court abused its discretion by denying

Baker’s requests for a continuance because Baker needed more time to prepare a

defense against a claim of which it allegedly had been unaware during discovery;

(3) the district court abused its discretion by failing to enter a revised pretrial

order; (4) the district court erred as a matter of law in its interpretation of O           KLA .

S TAT . tit. 85, § 5(A)(2) and erroneously instructed the jury thereon; (5) the

district court abused its discretion by excluding evidence of Turck’s past

behavior, job performance and workers’ compensation claims; (6) the district

court abused its discretion by admitting the testimony of Turck’s expert witness;

and (7) the district court erred in denying Baker’s motion for judgment as a matter

of law because the evidence did not support the jury’s verdict. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



                                    I. BACKGROUND

       Turck worked for Baker and its predecessors for over seventeen years,

although he apparently was not a model employee. According to Baker, Turck’s

employment history included the following: Turck was given a verbal warning


                                              -2-
for using the company phone for personal calls in April of 1988. Appellant’s

App. at 561. On July 11, 1988, he was suspended without pay for two weeks for

insubordination.   Id. at 565. In January 1989, Turck agreed to work late, but then

left without permission. As a result of that incident, termination was

recommended, but did not occur.       Id. at 569. On December 7, 1989, Turck

received a warning letter informing him that a female employee had complained

that he had sexually harassed her and giving him various instructions designed to

prevent any unnecessary contact between him and the complainant. He violated

those instructions on January 21, 1990, and was suspended for four days without

pay. Id. at 627. On April 6, 1990, Turck was cited for negligence in performing

his job duties and warned that further incidents could result in termination.          Id. at

570-71.

       In August 1990, Turck suffered a work related back injury. He retained

counsel and filed a workers’ compensation lawsuit on July 20, 1992.             Id. at 528.

Despite Turck’s past disciplinary problems, he received a positive performance

review in 1993. However, his performance review dated September 19, 1994,

while mostly positive, stated that Turck “needs to improve on his teamwork as

well as his infectious negative attitude. Lewis needs to build trust and integrity

with management and to accept management decisions.”            Id. at 593.




                                             -3-
      In November 1994, Turck re-injured his back while working on a rail car.

He retained counsel and filed a second workers’ compensation lawsuit against

Baker on December 19, 1994.     Id. at 542. In May 1995, Turck suffered another

work related back injury. Again represented by counsel, he filed his third

workers’ compensation lawsuit against Baker on May 25, 1995.        Id. at 550.

Turck’s August 15, 1995, performance review rated him “unsatisfactory” in the

areas of cooperation and attendance and again discussed his negative attitude and

rude behavior towards other employees, his supervisors and Baker.       Id. at 598-

603. Turck was given another review on April 4, 1996, in which he was given

scores of “unsatisfactory” and “needs improvement” in several categories.         Id. at

606-08.

      In June 1996, Turck injured his right knee on the job. However, he

continued to work until July 2, 1996, when Baker sent him home from work

because it did not think he should be working with the injury. Before he left

work on July 2, Turck had, as per company policy, filled out his time sheet for the

next two weeks and turned it in. As a result, he was erroneously paid for days he

was off work in July. Turck, again represented by counsel, filed his fourth

workers’ compensation lawsuit against Baker on July 15, 1996, with respect to the

knee injury. Id. at 559. He returned to work on August 28, 1996.




                                          -4-
       At trial, the parties offered differing accounts of what occurred with regard

to the overpayment between the time Turck returned to work and December 2,

1996, and essentially reiterate those positions on appeal. Baker claims that it,

through human resource manager John Plusquellec, approached Turck about the

overpayment twice during that period, but that Turck refused to pay it back and

stated that he wanted to speak with his attorney.    Id. at 973-84. Turck, on the

other hand, claims that he attempted to discuss the issue with his immediate

supervisor, Jimmy Vann, who directed him to Plusquellec after refusing to discuss

the matter with him.    Id. at 731. Turck then attempted to speak about the

overpayment with Jack Cluck, his production superintendent, but Cluck told him

that he could not discuss the matter because Turck had an attorney.    Id. at 824.

Turck alleges that Plusquellec also refused to talk to him about the overpayment

because he was represented by counsel in his pending workers’ compensation

action against Baker.    Id. at 734. Baker points out, and Turck concedes, that

when he attempted to speak with Plusquellec, he did not use the word

“overpayment,” but spoke in more general terms about problems with his check,

pay and disability benefits.   Id. at 766-70.

       As of December 2, 1996, the overpayment remained outstanding and

Turck’s workers’ compensation action was pending. Turck received his final

performance review on that date. It was overwhelmingly negative and warned


                                            -5-
that if immediate improvement was not seen, disciplinary action “up to and

including termination” would be taken.     Id. at 613-15.

      Later that same day, Turck met with Plusquellec and Vann about the

overpayment. Turck claims that he told them to take the whole amount out of his

next check. Id. at 740. Plusquellec wanted Turck to sign a payroll deduction

authorization and presented him with a calculation of the amount owed and the

time sheet for the period in question. Turck claims that the calculation was

erroneous. Id. at 741. He told the jury that he responded to Plusquellec as

follows:

      I told him that I also wanted to talk to my work comp attorney before
      I signed anything, that I wasn’t refusing to pay the money back, that I
      wanted to talk to my comp attorney, because I felt that I might
      jeopardize my comp case by signing something, or I felt like that I
      might even be fraudulent by signing something that I could see was
      in error in the time sheet.

Id. at 741-42. Vann confirmed that Turck never refused to repay the money but

did refuse to sign the payroll deduction form without consulting with his attorney.

Id. at 795, 799-800. At that point, Plusquellec told Turck to talk to his attorney

that night so they could meet again in the morning.     Plusquellec never gave Turck

a copy of the document he was to sign for his attorney to review.    Id. at 741, 795.

      Turck left work at 7:00 p.m. on December 2, 1996, and was unable to

contact his attorney that night or the following morning. He reported to work at

6:45 a.m. the following day. At about 10:00 a.m., he met with Plusquellec, Vann

                                           -6-
and Cluck. Id. at 798. The meeting of the night before replayed itself with

Plusquellec demanding repayment and Turck refusing to sign anything until he

contacted his attorney. At the conclusion of the meeting, Turck was terminated

by Plusquellec . 1

       Turck commenced this action in Oklahoma state court on November 30,

1998, and Baker removed the case to federal court in March 1999. In his Petition

filed in state court, which continued to serve as the complaint following removal,

Turck made the following allegations:

              8.   On December 2, 1996, Turck was called into the office of
       Baker’s local Human Resource Manager, John Plusquellec, to discuss
       the matter of an overpayment in wages made to Turck approximately
       one year earlier.
              9.   Plusquellec demanded that Turck sign a document
       concerning this overpayment or he would be terminated.
              10. Turck requested that he be allowed to discuss the
       document which he was being requested to sign with his attorney so
       as to insure that he was not jeopardizing his pending worker’s
       compensation action. Turck even offered to have Baker deduct the
       alleged overpayment from his paycheck in lieu of signing the
       proffered document, which request was declined by Baker.
              11. Turck was terminated by Baker on December 3, 1996.
              12. Turck alleges that he was wrongfully termination [sic] by
       Baker in violation of 85 O.S. § 5 solely in retaliation of his having
       filed a workers’ compensation claim against Baker.



       1
          Turck requested that Plusquellec write a letter explaining the reasons for
termination. In the letter, Plusquellec states, “I have accepted your resignation
. . . . in response to your refusal to repay the Company for the money owed due to
overpayment.” Appellant’s App. at 183. However, it is clear from the other
evidence that Turck was terminated. See, e.g., id. at 637, 800.

                                         -7-
Id. at 11.

       After removal, discovery was conducted. Baker deposed Turck on

August 19, 1999. On December 8, 1999, Baker moved for summary judgment on

the grounds that Turck had failed to make out a prima facie case under § 5(A)(1).

In his January 11, 2000, reply to Baker’s motion for summary judgment, Turck

makes it clear that he is suing Baker under § 5(A)(2),       2
                                                                 and that the critical issue

in this case hinges on “the right of a protected employee to retain counsel.”            Id. at

136. Baker filed a response to Turck’s reply on January 24, 2000, in which it

argued that paragraph 12 of the Petition expressly limits Turck to a cause of

action under § 5(A)(1) and characterized Turck’s § 5(A)(2) argument as an

“eleventh hour inclusion of a new legal theory [in] an attempt to escape summary

judgment by creating a sham fact issue.”         Id. at 184. In the event that the court




       2
           O KLA . S TAT . tit. 85, § 5 reads in pertinent part:

§ 5. Discharge of employee–Prohibited grounds
   A. No person, firm, partnership, corporation, or other entity may discharge . . .
[an employee] because the employee has in good faith:
   1. Filed a [workers’ compensation] claim;
   2. Retained a lawyer for representation regarding a [workers’ compensation]
claim;
   3. Instituted or caused to be instituted any proceeding under the provisions of
this title; or
   4. Testified or is about to testify in any proceeding under the provisions of this
title which relates to the employee’s past or present employment.


                                               -8-
decided to allow Turck to proceed on a § 5(A)(2) claim, Baker asked the court to

re-open discovery so it could address the “new” claim.

       The parties submitted a proposed Pretrial Order on February 8, 2000, which

was entered on February 9, 2000. The document sets forth Turck’s claim under

§ 5(A)(2), and Baker’s objection to that claim, with its assertion that only a

§ 5(A)(1) claim was at issue.       Id. at 246-69. However, the evidence listed in the

Pretrial Order, including the testimony of witnesses for both sides, focuses on the

allegations made in the Petition.      See , e.g. , id. at 255-56.

       On February 24, 2000, the district court held a pretrial conference in which

it instructed the parties to submit briefs on the issue of whether a § 5(A)(2) claim

had been properly pled. The court held a final pretrial hearing on March 6, 2000,

the day of trial, at which it found that the Petition contained factual allegations

supporting a § 5(A)(2) claim sufficient to give Baker notice of that claim and

denied Baker’s motion for summary judgment.            Id. at 684-85. At that point,

Baker reiterated its request for a continuance and a re-opening of discovery. It

stated that it wanted to depose Turck again, to depose his workers’ compensation

attorney, and to have time to address the § 5(A)(2) claim by dispositive motion.

Id. at 689. The district court denied the request.

       Finally, Baker asked the district court to incorporate its proposed

amendments to the Pretrial Order. The amended version included evidence of


                                               -9-
Turck’s performance and behavior problems.       Id. at 440-41. The court, having

already made it known that it considered those issues to be irrelevant to this case,

denied Baker’s request to amend the Pretrial Order.    Id. at 695-96.

      Even so, Baker attempted to introduce evidence of Turck’s disciplinary

problems, poor performance and past workers’ compensation actions at trial. The

district court excluded that evidence as irrelevant. It also overruled Baker’s

objection to the testimony of Turck’s expert witness and its objection to the

court’s interpretation of § 5(A)(2) as found in the jury instructions. After finding

for Turck, the jury awarded him $111,138 in past lost wages and benefits,

$108,010 in future lost wages and benefits, and $6000 for mental anguish and

emotional distress.



                                  II. DISCUSSION

A.    Did the District Court Err in Ruling that Turck Properly Pled a
      § 5(A)(2) Claim and in Denying Baker’s Motions to Continue and to
      Amend the Pretrial Order Relating to that Issue?

      As indicated above, Baker contends that the district court erred as a matter

of law in finding that Turck’s Petition properly pled a § 5(A)(2) claim and in

allowing the case to be tried on that claim. It asserts that the Petition expressly

excluded all but a § 5(A)(1) claim, and thus the district court’s decision to allow




                                          -10-
the case to go to trial on a § 5(A)(2) claim substantially prejudiced Baker in

presenting its defense.

       In addition, Baker advances two related and subsidiary arguments. First, it

argues that the district court erred in denying its motion for a continuance

because, in order to alleviate the unfair prejudice resulting from the allegedly late

inclusion of a § 5(A)(2) claim in this lawsuit, it needed additional time to conduct

discovery and prepare a defense with respect to the “new” claim. Second, Baker

argues that the district court erred in refusing to amend the Pretrial Order because

amendment was required so that the Pretrial Order would reflect the alleged

addition of a § 5(A)(2) claim to the case.

       A complaint must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief.” F     ED .   R. C IV . P. 8(a)(2). The statement must

“give the defendant fair notice of what the plaintiff’s claim is and the grounds

upon which it rests.”     Conley v. Gibson , 355 U.S. 41, 47 (1957). If the statement

is sufficient to give the notice required, Rule 8(a)(2) is satisfied and “[i]t is not

necessary to plead under what particular law the recovery is sought.”             United

States v. Missouri-Kansas-Texas R.R. Co.              , 273 F.2d 474, 476 (10th Cir. 1959).

See also , Hail v. Heyman-Christiansen, Inc.           , 536 F.2d 908, 909 n.2 (10th Cir.

1976); Misco Leasing, Inc. v. Keller         , 490 F.2d 545, 548 (10th Cir. 1974).




                                                -11-
       Although we have stated that “[a]s a general rule, a plaintiff should not be

prevented from pursuing a valid clam just because she did not set forth in the

complaint a theory on which she could recover,” a late shift in the focus of the

case should not be allowed if it prejudices the other party’s ability to defend the

action on the merits.   Evans v. McDonald’s Corp. , 936 F.2d 1087, 1090-91 (10th

Cir. 1991). Moreover, “the liberalized pleading rules [do not] permit plaintiffs to

wait until the last minute to ascertain and refine the theories on which they intend

to build their case.”   Id. at 1091. Allowing this practice “would waste the parties’

resources, as well as judicial resources, on discovery aimed at ultimately

unavailing legal theories and would unfairly surprise defendants, requiring the

court to grant further time for discovery or continuances.”        Id. Accordingly,

although “[a]ll pleadings shall be so construed as to do substantial justice,” F      ED .

R. C IV . P. 8(f), a complaint must be specific enough to put the defendant on

notice of the claim(s) against him in order to avoid inefficiency and unfair

prejudice.

       Factual allegations supporting a claim under § 5(A)(2) are clearly set out in

the Petition. Taken alone, those allegations would provide adequate notice that a

§ 5(A)(2) claim was at issue. The difficulty, however, arises from the language in

paragraph 12 of the Petition which states, “Turck alleges that he was wrongfully

termination [sic] by Baker in violation of 85 O.S. § 5        solely in retaliation of his


                                            -12-
having filed a workers’ compensation claim        against Baker.” Appellant’s App. at

11 (emphasis added). Baker asserts that paragraph 12 expressly limits Turck to a

§ 5(A)(1) claim and that the Petition gives no notice that a § 5(A)(2) claim is

being raised. After rereading the Petition, the district court stated that Baker’s

allegation that it had no prior notice of a § 5(A)(2) claim “simply cannot be true”

because “the circumstances and situation relating to the overpayment and the

payback of overpayment request stands out here as a fundamental reason . . . or

motivating factor in the discharge and that does fall within [§ 5(A)(2)] . . . and I

think it is adequately so pled.”   Id. at 685. We agree.

       As indicated above, the only substantive factual allegations in the Petition

relate to a § 5(A)(2) claim. A reasonable reading of those allegations should have

put Baker on notice that Turck was alleging that a substantial motive for his

termination was retaliation for his insistence on speaking with his workers’

compensation attorney before signing anything regarding the overpayment.

Indeed, when Baker’s counsel deposed Turck on August 19, 1999, she asked him,

“[t]ell me why you were fired because of your workers’ comp injury or because

you filed a claim or because you saw an attorney with respect to your claim.”     Id.

at 354. Although his answer was unresponsive, the question reveals that Baker

was aware that a § 5(A)(2) claim was a possibility given the factual allegations

made in the Petition, and, more fully, in Turck’s deposition. Finally, Baker does


                                           -13-
not dispute the basic facts giving rise to a § 5(A)(2) claim and restates them in the

“Undisputed Material Facts” section of its motion for summary judgment filed

December 8, 1999.   Id. at 39-41.

      We have examined the Petition at length and concede that it is poorly

drafted. However, the issue is not whether the Petition is skillfully drafted, but

whether it contains a plain statement of Turck’s claims sufficient enough to give

Baker notice of the claims against which it must defend. We conclude that the

district court did not commit reversible error by ruling that the factual allegations

made in the Petition gave Baker notice that Turck was alleging that his refusal to

sign anything in connection with the wage overpayment until he consulted his

workers’ compensation attorney was a significant motivating and retaliatory

factor in his termination in violation of § 5(A)(2).

      That conclusion is dispositive of Baker’s claims of error regarding a

continuance and its related claims of prejudice. Furthermore, even assuming

arguendo that Baker did not have notice of the § 5(A)(2) claim until Turck filed

his response to Baker’s motion for summary judgment, Baker has not

demonstrated that its ability to defend this action was significantly prejudiced by

the district court’s actions. This is because: (1) Baker had notice of the

§ 5(A)(2) claim at least by January 11, 2000, nearly two months prior to trial;

(2) even though discovery was closed at that point, Baker had already questioned


                                         -14-
Turck extensively about the events immediately preceding his termination,

including the demand that he sign a payroll deduction authorization, his refusal to

do so until he consulted with his workers’ compensation attorney and his

termination; (3) the events of December 2nd and December 3rd, 1996, were laid

out for the jury in full through the testimony of Vann, Plusquellec, Cluck and

Turck; (4) Baker offered a full and competent defense to Turck’s § 5(A)(2) claim,

and (5) Baker has failed to identify any specific material and admissible evidence

it would have obtained and presented had the district court granted a continuance

and re-opened discovery. Baker’s conclusory assertions that it needed to depose

Turck for a second time and to depose his workers’ compensation attorney lead

only to pure speculation.

      As stated above, the Pretrial Order definitively states that Turck was

proceeding under § 5(A)(2) and indicates that the evidence to be presented at trial

would focus on the allegations made in the Petition. The substantive allegations

in the Petition support a § 5(A)(2) claim. Thus, the Pretrial Order set forth a

§ 5(A)(2) claim and anticipated that the evidence would focus on that claim.

Moreover, Baker has failed to show that the Pretrial Order was insufficiently

definitive or that the district court’s refusal to amend that document worked a




                                        -15-
manifest injustice.   3
                          See F ED . R. C IV . P. 16(e). Accordingly, we conclude that the

district court did not err in denying Baker’s request to amend the Pretrial Order.



B.     Meaning of O       KLA .   S TAT . tit. 85, § 5(A)(2)

       Baker argues that the district court erred as a matter of law in its

interpretation of § 5(A)(2) and that the court further erred when it instructed the

jury in accordance with its misinterpretation. We review the district court’s

determination of § 5(A)(2) de novo.           Salve Regina Coll. v. Russell   , 499 U.S. 225,

231 (1991).   “We review the district court’s decision to give a particular jury

instruction for abuse of discretion and consider the instructions as a whole de

novo to determine whether they accurately informed the jury of the governing

law.” United States v. McClatchey          , 217 F.3d 823, 834 (10th Cir. 2000)

(quotation omitted).

       Baker attempts to characterize the district court’s interpretation of

§ 5(A)(2) as follows: “[e]ssentially, the District Court’s interpretation of this

section, mandates that an employer allow an employee access to an attorney

before any adverse employment action may be taken. In other words, the District


       3
        A significant feature of Baker’s amended pretrial order was its expansion
of the scope of evidence to be presented to include Turck’s past behavior and
performance problems. Appellant’s App. at 440-41. The district court ruled that
such evidence was irrelevant to Baker’s stated reason for Turck’s termination.  As
discussed below, those rulings were not erroneous.

                                               -16-
Court’s interpretation of the statute creates a civil “Miranda” right for employees

facing discharge or other adverse action.” Appellant’s Principal Br. at 38-39. All

of the arguments raised in Baker’s briefs on this issue are devoted to proving that

§ 5(A)(2) “does not provide an employee a right to counsel before an adverse

employment action may be taken with regard to an employee.” Appellant’s Reply

Br. at 14 n. 4. However, a fair reading of the district court’s instructions on

§ 5(A)(2) does not support Baker’s characterization.

       The district court’s interpretation of an employee’s rights under § 5(A)(2)

is best stated in the jury instructions: “You are advised that the term ‘right to

counsel for representation’ concerning a workers’ compensation claim as stated in

the Oklahoma Workers’ Compensation Act includes the right to reasonable access

to and advice from such retained counsel regarding any matter relating to a

workers’ compensation claim.” Appellant’s App. at 486.

       The district court’s interpretation speaks for itself and clearly states that

§ 5(A)(2) grants employees the right to consult with their workers’ compensation

attorney about a workers’ compensation claim without being terminated in

retaliation therefor. Although Baker appears to find this interpretation palatable,    4




       Baker seems to approve of the district court’s interpretation as we
       4

understand it. In its reply brief, Baker states that it “has never asserted that an
employee could be lawfully discharged if he tried to consult with his workers’
compensation attorney.” Appellant’s Reply Br. at 14 n.4.

                                            -17-
we must review the matter to ensure that the district court correctly construed the

statute. 5

        We start with the statute itself. It prohibits an employer from terminating

an employee in retaliation for “[r]etain[ing] a lawyer for representation regarding

a [workers’ compensation] claim.” O        KLA .   S TAT . tit. 85, § 5(A)(2). A literal

reading of the statute could support an interpretation that it only protects

employees from retaliatory discharge when they retain an attorney, but not when

they consult with that attorney about their workers’ compensation claim.

        However, because the Oklahoma Workers’ Compensation Act is remedial in

nature, “it should be accorded liberal construction in favor of those entitled to its

benefits.” Upton v. State of Oklahoma ex rel. Dep’t of Corr.           , 9 P.3d 84, 88

(Okla. 2000). An example of the Oklahoma courts’ liberal interpretation of § 5 is

found in Buckner v. Gen. Motors Corp.        , 760 P.2d 803 (Okla. 1988). In       Buckner ,

the employee was injured on the job and seen by a company doctor on site and

placed on limited duty. A few days after the first visit, she had pain from the

injury again and sought to see the same company doctor about it. While she was

waiting to see the doctor, she was fired for loitering.        Id. at 805. At issue was




       Section 5(A)(2) has not been interpreted by the Oklahoma courts. At oral
        5

argument, we asked the parties whether it would be proper or necessary, in their
opinion, to certify a question on its meaning to the Oklahoma Supreme Court.
Both stated that certification was not necessary.

                                             -18-
whether she had, at that point, “instituted proceedings” within the meaning of

O KLA . S TAT . tit. 85, § 5(A)(3).    6
                                           The Oklahoma Supreme Court held that she had,

stating, “the provision of medical treatment by the employer, when accompanied

by circumstances . . . which would lead a reasonable employer to infer that a

workers compensation claim would in all probability ensue, constitutes the

institution of proceedings.”      Buckner , 760 P.2d at 811.

       The liberal interpretation of the phrase “institution of proceedings” in

Buckner supports the district court’s interpretation of the phrase “retain a lawyer”

in this case. After reviewing         Buckner and other Oklahoma cases in which § 5 is

construed, and keeping in mind that the statute is to be construed liberally in

favor of employees, we conclude that the district court’s interpretation of

§ 5(A)(2), and the jury instructions on the subject, taken as a whole, were not

erroneous.



C.     Evidentiary Rulings Regarding Past Behavior and Workers’
       Compensation Claims

       It is undisputed that Baker’s stated reason for terminating Turck was his

refusal to repay the overpayment that occurred in July 1996. Appellant’s App. at




      O KLA . S TAT . tit. 85, § 5(A)(3) provides that an employer cannot terminate
       6

an employee in retaliation for having “[i]nstituted or caused to be instituted any
proceeding under the provisions of this title.”

                                                -19-
120, 637. Throughout this litigation, Baker has attempted to introduce evidence

of Turck’s past performance and behavior problems and his previous workers’

compensation claims in order to prove that it had a legitimate, non-retaliatory

motive for his discharge. The district court refused to allow that evidence on the

ground that it was irrelevant to the stated reason for discharge. We review the

district court’s evidentiary rulings for an abuse of discretion, and will not disturb

them unless we have    “a definite and firm conviction that the lower court made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.”   United States v. Curtis , 147 F.3d 1200, 1217 (10th Cir. 1998)

(quotation omitted).

      Relevant evidence is “evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” F    ED .   R. E VID .

401. We have reviewed the district court’s rulings in light of Baker’s stated

reason for discharging Turck and conclude that the decision to exclude evidence

of Turck’s past behavior problems and prior workers’ compensation claims on the

ground that the proffered evidence was not relevant to the reason given for

discharge was well within the district court’s discretion.




                                          -20-
D.     Admission of Expert Testimony

       At trial, Turck’s counsel called accountant Gary Barnes for the purpose of

giving expert testimony on Turck’s past and future lost wages resulting from his

termination by Baker. Following a brief voir dire, Baker’s counsel objected to

Barnes’ proposed testimony on the grounds that he was not qualified to give an

opinion as to Turck’s future lost wages and that the basis of his proposed

testimony was unreliable. The district court overruled those objections. We

review for an abuse of discretion.   Goebel v. Denver & Rio Grande W.R.R. Co.           ,

215 F.3d 1083, 1087 (10th Cir. 2000).

       An expert witness is a person who is qualified “by knowledge, skill,

experience, training, or education,” and his testimony will be admitted if it will

assist the trier of fact to understand the evidence or determine a fact in issue.

F ED . R. E VID . 702. In order to assist the trier of fact, expert testimony must be

reasonably reliable. Hence, the Supreme Court has charged the district court with

the responsibility of acting as a gatekeeper to exclude unreliable expert testimony.

See Kumho Tire Co., Ltd. v. Carmichael     , 526 U.S. 137, 141 (1999);   Daubert v.

Merrell Dow Pharm., Inc. , 509 U.S. 579, 597 (1993). Expert opinions “must be

based on facts which enable [the expert] to express a reasonably accurate

conclusion as opposed to conjecture or speculation.”      Gomez v. Martin Marietta




                                          -21-
Corp. , 50 F.3d 1511, 1519 (10th Cir. 1995) (quotation omitted). However,

“absolute certainty is not required.”     Id.

       Barnes stated that he had a bachelor’s degree in accounting, had done

accounting work since 1972 and had run his own accounting business since 1983.

Appellant’s App. at 849-51. Barnes also explained that he used salary data given

to him by Turck. His figures for back pay involved subtracting what Turck would

have made if still employed by Baker from what he actually earned since his

termination. Barnes testified that to determine future lost wages, he entered

Turck’s current and past salary, as well as information regarding overtime,

bonuses and 401K plans, into a computer program that calculated an amount and

discounted it to present value. He stated that he did not factor in real wage

growth in either calculation and that he tried to avoid speculation by simply using

figures that were true at the time.     Id. at 886-87. Finally, Barnes acknowledged

that if Turck received overtime or raises at his new job, his calculation of future

lost wages would be too high.     7



       In short, the district court had before it sufficient information to determine

whether Barnes was qualified to perform the calculations necessary to form an

opinion and testify with regard to Turck’s lost wages and to decide whether the


       7
        The jury apparently weighed Barnes’ testimony in light of the potential
uncertainty of the figures. It awarded Turck a total of $219,148 in lost wages
even though Barnes had estimated Turck’s lost wages to be $344,236.

                                                -22-
basis for that opinion and testimony was reliable. Based on our review of that

information under the foregoing legal authorities, we conclude that the district

court did not abuse its discretion by permitting Barnes to testify.



E.     Judgment as a Matter of Law

       After the jury verdict, Baker moved for judgment as a matter of law. The

district court denied the motion. Baker argues that the district court erred in

denying its motion because the evidence does not support the jury verdict. We

review de novo.    Baty v. Willamette Indus., Inc.   , 172 F.3d 1232, 1241 (10th Cir.

1999). However, we will reverse “only if the evidence points but one way and is

susceptible to no reasonable inferences supporting the party opposing the

motion.” Id. (quotation omitted). Moreover, “[w]e do not weigh the evidence,

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

of the jury.”   Id. Finally, we view the evidence and any reasonable inferences to

be drawn therefrom in the light most favorable to Turck.      Id.

       By way of summarizing and restating the facts set out above, the evidence

and the inferences that the jury could reasonably draw therefrom, showed that:

(1) On December 2, 1996, Baker requested that Turck sign a payroll deduction

authorization so that it could recover the overpayment from his paychecks;

(2) Turck believed the amount of the overpayment as calculated by Baker was


                                           -23-
erroneous and feared that authorizing the repayment might prejudice his pending

workers’ compensation claim; (3) as a result of the foregoing concerns, Turck

refused to sign the form without consulting his workers’ compensation attorney;

(4) Turck was unable to contact his attorney between 7:00 p.m., the time at which

his shift ended on December 2, 1996, and 6:45 a.m. the following day when his

December 3, 1996, shift began; (5) on December 3, 1996, Baker again demanded

that Turck sign the payroll deduction authorization and Turck again refused to do

so until he was able to consult his workers’ compensation attorney; and (6) Baker

then terminated Turck. This evidence was sufficient to support the jury’s verdict.

Accordingly, the district court did not err in denying Baker’s motion for judgment

as a matter of law.



                               III. CONCLUSION

      For the reasons stated above, we AFFIRM the judgment against Baker.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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