                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JUL 16 2003
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


PATRICIA COOKE, individually and
as personal representative of Sherrel
“Frank” Cooke, deceased,

          Plaintiff-Appellant,
                                                        No. 01-7042
                                               (Eastern District of Oklahoma)
v.
                                                  (D.C. No. 00-CV-139-P)
C. BEAN TRANSPORT, INC., a
foreign corporation,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before, KELLY, ANDERSON, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of




      *
       This order and judgment is not binding precedent, except under the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.
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.

      Plaintiffs Sherrel “Frank” Cooke and Patricia Cooke were employed as

team drivers by C. Bean Transport, Inc. (“C. Bean”). The Cookes filed this suit

in federal district court against C. Bean, alleging that C. Bean violated the Family

Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601– 2654, by: (1) not allowing

them to take intermittent medical leave; (2) requiring Frank to provide a

physician’s note and to undergo an additional physical examination before

permitting him to return to work; and (3) not allowing the Cookes to return to

work. 1 The Cookes moved for summary judgment on their FMLA claims. The

district court denied the Cookes’ motion and granted C. Bean partial summary

judgment, reasoning that C. Bean did not violate the FMLA by requiring Frank to

undergo an additional physical examination before permitting him to return to

work in accordance with Department of Transportation (“DOT”) regulations.

      The Cookes tried the remainder of their FMLA claims to a jury. At the

close of the evidence, C. Bean moved for judgment as a matter of law pursuant to

Rule 50 of the Federal Rules of Civil Procedure on the Cookes’ FMLA claims.



      1
          The Cookes asserted these claims under both an entitlement and a
retaliation theory. The Cookes also filed claims against C. Bean under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 2000e-5, 12117. Those
claims are not at issue on appeal.

                                         -2-
The district court granted C. Bean’s motion as to the Cookes’ FMLA claims based

on an entitlement theory, concluding that the Cookes failed to present a proper

FMLA claim under § 2615(a)(1) because they did not prove that they were denied

medical leave. The district court, however, denied C. Bean’s motion with respect

to the Cookes’ FMLA claims based on a retaliation theory. 29 U.S.C. §§

2615(a)(2), 2615(b).

      During the jury instruction conference, the Cookes objected to Instruction

13 which read as follows:

      RETALIATION – ESSENTIAL ELEMENTS
             Your verdict must be for the plaintiffs if plaintiffs prove all of
      the following elements by the greater weight of the evidence:
             (1) Plaintiffs engaged in an FMLA protected activity; and
             (2) Defendant took an adverse employment action against
      Plaintiffs; and
             (3) The adverse employment action was taken because the
      plaintiffs engaged in legally protected activity.
             In this case it is agreed that Plaintiffs engaged in an FMLA
      protected activity. Plaintiffs must prove that the defendant took an
      adverse employment action and that the adverse employment action
      was taken because of Plaintiffs having engaged in legally protected
      activity. The plaintiffs must prove, by the greater weight of the
      evidence, that the defendant intentionally retaliated against them
      because of their FMLA leave and that this was a motivating factor in
      the employment decision. A motivating factor, or motive, is a reason
      or desire that causes someone to take action. An act of retaliation is
      intentional if it is done consciously, voluntarily, and purposely, and
      not because of mistake, inadvertence, or accident.
             In considering whether the plaintiffs have proven retaliation,
      you should also consider whether the defendant’s explanation for its
      actions was legitimate and nondiscriminatory, or a pretext for
      discrimination.


                                         -3-
The Cookes argued that Instruction 13 improperly informed the jury that intent

was an element of their FMLA claims. The district court overruled the Cookes’

objection.

      The Cookes’ also objected to Instruction 14 on essentially the same

grounds. 2 Instruction 14 read as follows:

             LEGITIMATE BUSINESS REASON
             In deciding Plaintiffs’ claim for retaliation, you must consider
      any legitimate, nonretaliatory reason or explanation proffered by
      Defendant for their decisions. If you find that Defendant has stated a
      valid reason for its decisions regarding Plaintiff’s employment, then
      you must decide in favor of Defendant on Plaintiffs’ retaliation
      claim, unless Plaintiffs prove by the greater weight of the evidence
      that the stated reason for Defendant’s treatment of Plaintiffs was not
      the true reason, but only a “pretext,” or in other words, an “excuse”
      for retaliating against Plaintiffs because of the exercise of their
      FMLA rights.

The district court overruled the Cookes’ objection to Instruction 14.

      After a trial on the merits of the Cookes’ remaining FMLA claims, a jury

returned a verdict in favor of C. Bean.

      The Cookes argue on appeal that the district court erred in giving

Instructions 13 and 14. The majority of the Cookes’ arguments on appeal,



      2
         The Cookes objected to the instruction, stating: “I would – plaintiff
would object to this in the – in that I don’t believe that plaintiff’s or defendant’s
basis for their – for what they have done, for their actions, necessarily requires
that plaintiff’s case be – or that plaintiff be denied relief. I think that what this
does is it ties into the retaliation and looks at the intent. For that reason, we
object.”

                                          -4-
however, challenge the propriety of the dismissal of their FMLA claims based on

an entitlement theory. This court, therefore, will construe the Cookes’ appellate

arguments as a challenge to the district court’s grant of C. Bean’s Rule 50 motion.

This court reviews the district court’s decision to grant a Rule 50 motion for

judgment as a matter of law de novo. Tyler v. RE/MAX Mountain States, Inc., 232

F.3d 808, 812 (10th Cir. 2000).

      Plaintiffs may pursue FMLA claims under two separate theories, the

retaliation theory and the entitlement theory. Smith v. Diffee Ford-Lincoln-

Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002). Under the entitlement theory,

a plaintiff may recover “[i]f an employer interferes with the FMLA-created right

to medical leave or to reinstatement following the leave, . . . regardless of the

employer’s intent.” Id. The Cookes asserted that C. Bean failed to reinstate them

after taking medical leave. Their FMLA claims, therefore, are based on an

entitlement theory. See id.

      In dismissing their FMLA claims, the district court reasoned that the only

proper grounds for a claim based on the entitlement theory was the denial of

leave. 3 Refusal to reinstate an employee after taking medical leave is also


      3
        At the hearing on C. Bean’s Rule 50 motion, the district court questioned
the Cookes’ counsel as follows:
      THE COURT: So, I mean, what – where in that period of time were [the
      Cookes] denied Family Medical Leave?
      MR. HAMBY: Well, I guess it really wasn’t leave. Again, it’s the right to

                                          -5-
grounds for a FMLA claim based on an entitlement theory. Id. (noting that the

FMLA creates a substantive right to reinstatement following leave and holding

that a plaintiff can recover for the deprivation of such a right under the

entitlement theory). Therefore, the district court erred in granting C. Bean’s Rule

50 motion for judgment as a matter of law. 4

      The Cookes also argue on appeal that C. Bean required Frank to submit to

an additional medical exam prior to returning to work in violation of the FMLA.

The Cookes, however, do not challenge the district court’s grant of summary

judgment in their briefs on appeal. Even if this court were to construe the

Cookes’ arguments on appeal as a challenge of the district court’s grant of

summary judgment, the Cookes’ arguments fail. Under the DOT regulations,



      return to work. So it’s the flip side.
      THE COURT: Let me go back to the same question. Do you have a claim
      or are you making a claim or arguing a Rule 50 motion or are you
      requesting that the Court grant your Rule 50 motion in regard to a claim for
      denial of Family Medical Leave?
      MR. HAMBY: Okay. Are you talking about the time off? You are not
      talking about benefits under the Family Medical Leave Act? You are just
      talking about time off?
      THE COURT: That’s what the Family Medical Leave Act is, is time off to
      – for an illness or to take care of someone.
Further, in granting C. Bean’s Rule 50 motion on the Cookes’ FMLA claims
based on an entitlement theory, the district court stated, “I’m granting the Rule 50
motion as it relates to 2615(A)(1), which is denial of medical leave, which comes
under the strict liability standard.”
      4
         The Cookes do not challenge the propriety of the jury instructions with
respect to their FMLA retaliation claims.

                                          -6-
“[a]ny driver whose ability to perform his normal duties has been impaired by a

physical or mental injury or disease” must be medically examined and certified

prior to operating a commercial motor vehicle. 49 C.F.R. § 391.45. While, under

the FMLA, a fitness-for-duty certification “need only be a simple statement of an

employee’s ability to return to work,” employers may, in compliance with

regulations issued by the DOT, impose more stringent requirements on

certification of fitness. See Porter v. United States Alumoweld Co., Inc., 125 F.3d

243, 247 (4th Cir. 1997) (holding that an employer does not violate the FMLA by

requiring an employee to submit to an ADA-required fitness-for-duty exam).

Therefore, C. Bean’s enforcement of DOT regulations by requiring Frank to

submit to a DOT physical examination before returning to work does not violate

the FMLA, and the district court did not err in granting C. Bean summary

judgment on this claim.

      Accordingly, the district court’s grant of C. Bean’s Rule 50 motion as to

the Cookes’ entitlement claims is reversed. These claims are remanded for a

new trial. Moreover, the district court’s grant of summary judgment on the

Cookes’ claim pertaining to C. Bean’s requirement that Frank submit to a physical




                                        -7-
examination prior to returning to work is affirmed. The Cookes’ motion to

proceed on appeal in forma pauperis is granted.



                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




                                      -8-
