                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUN 19 1998
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 ROGER D. ROWE,

              Plaintiff-Appellant,

 v.                                                    Case No. 97-6107
                                                   (D.C. No. CIV-95-1258-L)
 CONOCO, INC., a Delaware                        (Western District of Oklahoma)
 corporation, and a wholly owned
 subsidiary of DU PONT COMPANY,

              Defendant-Appellee.



                            ORDER AND JUDGMENT            *




Before SEYMOUR , Chief Judge, and PORFILIO and HENRY , Circuit Judges.



      Roger Rowe appeals the district court’s grant of judgment as a matter of

law to the defendant, Conoco, Inc.      Because Mr. Rowe failed to make out a prima

facie case of either (1) retaliatory discharge in violation of Oklahoma’s Workers’

Compensation Act or (2) discharge in violation of Oklahoma public policy, we

affirm the district court’s decision.


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             This order and judgment is not binding precedent, except under the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

                                           The Facts

       Because the district court granted judgment as a matter of law to Conoco,

we construe the facts in the light most favorable to Mr. Rowe.       See Doan v.

Seagate Tech., Inc. , 82 F.3d 974, 976 (10th     Cir. 1996), cert. denied , 117 S. Ct.

684 (1997).

       From 1983 until 1993, Conoco employed Mr. Rowe as a laborer and

apprentice pipefitter at its Ponca City refinery. On the morning of August 16,

1993, after attending a routine safety meeting, Mr. Rowe received an assignment

“to clean the east coke pot.” Aplt’s App. vol. I, at 247. However, before Mr.

Rowe began this job, Larry Kothe, one of Mr. Rowe’s supervisors, informed him

that he had been selected for a random drug test and that he should report to

Conoco Medical within four hours (by approximately 12:30 p.m.) in order to take

the test.

       Mr. Rowe proceeded to begin cleaning the coke pot. However, before he

completed the job, he “started feeling real nauseous.”      Id. at 260. After vomiting

several times, Mr. Rowe proceeded to the office of his direct supervisor, Frank

Lessert. Mr. Rowe testified that he told Mr. Lessert, “I got sick out there on the

job, and I was feeling very nauseated and having a hard time getting my breath,

and I thought I needed to go home or something.”         Id. at 262. When Mr. Lessert


                                             2
asked Mr. Rowe what had happened, Mr. Rowe replied, “I don’t know. I was just

overcome and lost my breakfast out there.”       Id. When Mr. Lessert asked whether

Mr. Rowe intended to go home, Mr. Rowe responded that he did but that he

would take his drug test before leaving work.

       Mr. Rowe then requested and received permission from Mr. Lessert to drive

himself to Conoco Medical. Mr. Rowe, however, never reached Conoco Medical.

While driving to Conoco Medical, he stopped and vomited again. He then

decided to drive to his mother’s home, which was located nearby, in order to

clean himself up. When he arrived at his mother’s home, no one was there, and

he discovered that he had left his keys to his mother’s house at work. Locked out

and feeling ill, Mr. Rowe proceeded to lie down and fall asleep in the back of his

van.

       When Mr. Rowe awoke, he felt no better. He proceeded to drive to his own

home, which was located approximately 16 miles from his mother’s house. He

arrived home at roughly 10:30 a.m. and immediately telephoned Mr. Lessert. Mr.

Rowe informed Mr. Lessert that he had gotten sick again and that he had been

unable to get to Conoco Medical to take the drug test. Mr. Lessert told Mr. Rowe

that he “really should have made it through Medical” and that he would telephone

Mr. Kothe to apprise him of the situation.       Id. at 268.




                                             3
       Mr. Rowe then decided that he, too, would telephone Mr. Kothe. When his

attempts to reach Mr. Kothe failed, Mr. Rowe left Mr. Kothe a voice mail

message stating that he had “got[ten] sick,” that he hadn’t “ma[d]e it into

Medical,” that he had been in contact with Mr. Lessert, that he would “get back

with [Mr. Lessert] later,” and that he “was going to get a hold of [his] doctor.”

Id. at 268-69. Mr. Rowe then telephoned his private physician and made an

appointment with him for later that afternoon. He left a message with Mr. Lessert

stating that he had made arrangements to see his doctor later that day.

       Mr. Kothe telephoned Mr. Rowe at 11:30 a.m. and informed him that he

had one hour to report to Conoco Medical to take his drug test.       Mr. Rowe told

Mr. Kothe that he made an appointment with his private physician, that he “was

too sick to drive back” to Conoco Medical, but that he “would be glad to take [a

drug test] at [his] doctor’s, if that would be okay.”   Id. at 271-73. Mr. Kothe,

however, refused to allow Mr. Rowe to take the test anywhere other than Conoco

Medical. Mr. Kothe informed Mr. Rowe that he had “better find somebody to get

[him] back over [to Conoco Medical] because . . . [he was] running out of time,”

and that he “was bordering on the line of insubordination.”       See id. at 272-73.

       After trying unsuccessfully to contact his wife, Mr. Rowe called Mr. Kothe

at 12:15 p.m. Unable to reach Mr. Kothe, Mr. Rowe left a message on Mr.

Kothe’s voice mail stating that he could not find anyone to drive him to Conoco


                                               4
Medical. At 12:45, Mr. Kothe called Mr. Rowe back and informed him that his

“time was up, and [he] would be receiving a letter in the mail of termination for

insubordination.”   Id. at 274.

      Mr. Rowe visited his private physician later that day. The doctor diagnosed

Mr. Rowe as suffering from heat exhaustion. The following day, Mr. Rowe

received his termination letter from Conoco.

                                  The Legal Proceedings

      In November 1993, Mr. Rowe filed a claim for workers’ compensation

benefits, alleging that he had suffered heat stroke on August 16, 1993. In

February 1994, Mr. Rowe filed a second workers’ compensation claim, alleging

that he had suffered a lung injury as a result of exposure to various chemicals

during his employment at Conoco. In January 1995, the Oklahoma Workers’

Compensation Court found that Mr. Rowe did, in fact, suffer a 9% permanent

partial disability due to injury to his lungs caused by exposure to dust, smoke, and

fumes at Conoco.

      In August 1995, Mr. Rowe filed the complaint in this action, alleging that

Conoco violated: (1) the Oklahoma Workers’ Compensation Act, Okla. Stat. tit.

85, § 5, which forbids an employer from terminating an employee because he

instituted a workers’ compensation claim; and (2)   Burk v. K-Mart Corp. , 770 P.2d

24 (Okla. 1989), which forbids an employer from terminating an employee


                                           5
because the employee performed an act consistent with a clear and compelling

public policy or because the employee refused to violate such a public policy.

       Prior to trial, the district court dismissed Mr. Rowe’s      Burk claim without

prejudice, finding that Mr. Rowe had failed to articulate the precise

constitutional, statutory, or decisional law that purportedly gave rise to this   claim.

The court, however, granted Mr. Rowe leave to amend his complaint, and Mr.

Rowe promptly filed an amended complaint alleging that Conoco had violated

Burk when it denied him the right “to receive medical treatment for his job

related injuries from the physician of Plaintiff’s choice and refused to allow

Plaintiff to receive a (random) drug test administered by Plaintiff’s doctor.”

Aplt’s App. vol. I, at 9-10.

       In the final pretrial order, Mr. Rowe attempted to assert a second basis for

his Burk claim: that Conoco had violated the Standards for Workplace Drug and

Alcohol Testing Act of Oklahoma, Okla. Stat. tit. 40, §§ 551-565, by purportedly

“fail[ing] to post a copy of the drug testing policies and changes to the policies

and fail[ing] to provide each employee with the policies and changes to the

policy.” See Aplt’s App. vol. I, at 121. The district court, however, ruled that

because Mr. Rowe had not raised the issue of Conoco’s failure to post its drug

policies until the eve of trial, he could not proceed on this theory.




                                               6
      Thus, at trial, the district court permitted Mr. Rowe to pursue only two

claims: (1) his “physician of his choice”      Burk claim; and (2) his Oklahoma

Workers’ Compensation Act claim. After Mr. Rowe put on his case-in-chief at

trial, the district court granted Conoco’s Fed. R. Civ. P. 50 motion for judgment

as a matter of law on both claims.

                                        DISCUSSION

      I.     Oklahoma Workers’ Compensation Act Claim

      We review a district court’s decision to grant judgment as a matter of law

de novo. See Doan , 82 F.3d at 976.

      The Oklahoma Workers’ Compensation Act prohibits an employer from

discharging “any employee because the employee has in good faith filed a claim,

or has retained a lawyer to represent him in said claim, instituted or caused to be

instituted, in good faith, any proceeding under the provisions of this title.” Okla.

Stat. tit. 85, § 5. The broad “instituted or caused to be instituted” language,

which the legislature included in addition to the narrow “filed a claim”

phraseology, indicates that for the purposes of this statute an employee may

“institute” workers’ compensation proceedings “without actually filing a claim.”

See Buckner v. General Motors Corp.         , 760 P.2d 803, 808 (Okla. 1988). The

rationale behind this approach “is that if an employee must formally file a claim

for workers’ compensation benefits prior to the allegedly wrongful discharge, an


                                              7
employer might be encouraged to terminate an injured employee expeditiously,

before the employee has an opportunity to file a claim.”    Id.

      In Buckner , the Oklahoma Supreme Court established a four-pronged test

for determining whether a plaintiff has made out a prima facie case of retaliatory

discharge in violation of Okla. Stat. tit. 85, § 5. Thus, to show that the district

court erred in granting Conoco judgment as a matter of law, Mr. Rowe must

demonstrate:

      (1)    employment;

      (2)    on-the-job injury;

      (3)    receipt of treatment under circumstances that put the employer
             on notice that treatment had been rendered for a work-related
             injury; and

      (4)    consequent termination of employment.

See id. at 806. Conoco levels its charge at the third element of Mr. Rowe’s prima

facie case, arguing that he did not receive treatment under circumstances that

placed the company on notice that he suffered a work-related injury.

      At trial, Mr. Rowe testified that on the morning of August 16, 1993 he told

Mr. Lessert, his immediate supervisor, that he got sick while working, that he was

experiencing nausea and having a hard time catching his breath, and that he

wished to go home.    See Aplt’s App. vol. I, at 262. When Mr. Lessert asked him

what had happened, Mr. Rowe replied, “I don’t know. I was just overcome and


                                            8
lost my breakfast out there.”   Id. Mr. Rowe then requested and received

permission from Mr. Lessert to see his private physician about his condition.

       The Buckner court rejected the notion that an employer’s knowledge that an

employee had sought medical treatment, without more, was sufficient to put the

employer on notice that a workers’ compensation claim was imminent:

       [I]t is presumptuous to conclude that every time an employer
       provides first aid treatment that a workers’ compensation proceeding
       has been ‘instituted.’. . . Merely seeking and receiving first aid is not
       in and of itself sufficient to institute proceedings. . . . First aid
       coupled with circumstances which raise a clear inference of an
       anticipated claim must be present before the institution of
       proceedings is triggered.

760 P.2d at 810-11. Applying this standard, we hold that Mr. Rowe has failed to

demonstrate that his statements to Mr. Lessert were sufficient to place Conoco on

notice that his nausea was in any way job-related; Mr. Rowe simply requested

permission to see his physician after telling Mr. Lessert that he had experienced

difficulty catching his breath and had vomited while he was cleaning the coke pot.

       Mr. Rowe now contends that his nausea resulted from exposure to toxic

fumes that were released in the process of cleaning the coke pot. However, Mr.

Rowe never mentioned anything about exposure to such fumes when he informed

Mr. Lessert about his condition on the morning of August 16th. Moreover, if Mr.

Rowe believed that the fumes were the cause of his nausea, he would certainly

have alerted his physician to this fact when he paid him a visit later that same


                                           9
day. Mr. Rowe, though, offered no evidence at trial that he even mentioned these

fumes to his doctor during that visit.

      Mr. Rowe’s own testimony demonstrates that on August 16th he did not

provide Conoco with information that would have led the company to believe that

fumes from the coke pot caused his nausea. The evidence also indicates that on

August 16th even Mr. Rowe did not suspect that his nausea was related to such

fumes. Moreover, based on his examination of Mr. Rowe later that day, Mr.

Rowe’s physician determined that acute heat exhaustion, not exposure to toxic

fumes, was the cause of Mr. Rowe’s nausea. And it would be manifestly unfair to

charge Conoco with knowledge that neither Mr. Rowe nor his treating physician

possessed. Thus, Mr. Rowe has failed to demonstrate that he sought medical

treatment under “circumstances which raise a clear inference of an anticipated

claim” and, accordingly, has failed to make out a prima facie case of retaliatory

discharge under the Oklahoma Workers’ Compensation Act.       See Buckner , 760

P.2d at 811.

      In addition, even if Mr. Rowe had established a prima facie case of

retaliatory discharge, he could not have survived Conoco’s Rule 50 motion unless

he introduced evidence suggesting that Conoco’s proffered reason for terminating

Mr. Rowe--his failure to submit to the random drug test within the prescribed

four-hour period--was pretextual.   See id. at 807. For instance, Mr. Rowe could


                                         10
have satisfied this burden by introducing evidence that Conoco had not terminated

other employees who had failed to submit to drug tests. However, Mr. Rowe

offered no evidence that cast doubt on Conoco’s proffered explanation for his

termination. And in the absence of such evidence, Mr. Rowe’s retaliatory

discharge claim under Okla. Stat. tit. 85, § 5 is doubly doomed.

       II.    Burk Claim

       Mr. Rowe also appeals the district court’s grant of judgment as a matter of

law on his claim under       Burk v. K-Mart Corp. , 770 P.2d 24 (Okla. 1989). In    Burk ,

the Oklahoma Supreme Court recognized an exception to the employment-at-will

doctrine and allowed a discharged employee to recover from his former employer

where he demonstrated that his discharge was “contrary to a clear mandate of

public policy as articulated by constitutional, statutory or decisional law.”      Id. at

28. The court admonished that this exception “must be tightly circumscribed” and

that an employee could only recover after demonstrating that he had been

“discharged for refusing to act in violation of an established and well-defined

public policy or for performing an act consistent with a clear and compelling

public policy.”   Id. at 29.

       As the basis of his     Burk claim, Mr. Rowe alleged that Conoco refused to

permit him to choose the physician who would: (1) treat him for his on-the-job

injury; and (2) administer his drug test. As an initial matter, Mr. Rowe failed to


                                              11
point to any constitutional, statutory, or decisional law that guarantees an

employee the right to be drug-tested by the physician of his choice. Thus, to the

extent Mr. Rowe’s Burk claim is predicated on the right to be drug-tested by the

physician of his choice, that claim must fail.

       The remainder of Mr. Rowe’s claim hinges upon his claim that Conoco

denied him the right to receive treatment from the physician of his choice. Mr.

Rowe, though, has not introduced any evidence to support this allegation. In fact,

Mr. Rowe’s own testimony demonstrates that as soon as Mr. Lessert learned that

Mr. Rowe was ill, Mr. Lessert gave him permission to leave work.      See Aplt’s

App. vol. I, at 262. Although Mr. Lessert did instruct Mr. Rowe to take his drug

test before leaving (an instruction that Mr. Rowe disobeyed), this instruction did

not prevent Mr. Rowe from visiting the physician of his choice. Thus, we need

not decide the theoretical question of whether preventing an employee from

exercising such an option could serve as a valid basis for a   Burk claim.

       Mr. Rowe’s brief also makes passing mention of the district court’s refusal

to allow him to rely on Conoco’s alleged failure to post its drug policy as an

alternative basis for his   Burk claim. He asserts that this decision constituted an

abuse of discretion. During the approximately eighteen months this case was

pending, though, Mr. Rowe never even attempted to amend his complaint to




                                             12
include this alternative theory. Rather, six days prior to trial, he surreptitiously

inserted this new theory into the joint pretrial statement.

       This new claim was based on completely different facts than Mr. Rowe’s

other two claims. Neither in district court nor on appeal did Mr. Rowe offer any

explanation as to why he waited until less than a week before trial to introduce

this new claim. Consequently, the district court was well within in its discretion

in refusing to inject this new theory into the case on the eve of trial.      See Frank v.

U.S. West, Inc. , 3 F.3d 1357, 1365-66 (10th Cir. 1993) (holding that

“untimeliness alone is a sufficient reason to deny leave to amend, especially when

the party filing the motion has no adequate explanation for the delay”) (citations

omitted).

       III.   Evidentiary Rulings

       Mr. Rowe also appeals a series of the district court’s evidentiary rulings.

We review these rulings for abuse of discretion.         See Cartier v. Jackson , 59 F.3d

1046, 1048 (10th Cir. 1995). In addition, we note that “error in the admission or

exclusion of evidence is harmless if it does not affect the substantial rights of the

parties.” Gomez v. Martin Marietta Corp.         , 50 F.3d 1511, 1518 (10th   Cir. 1995)

(quotation omitted).

       Mr. Rowe first appeals the district court’s decision to exclude an internal

Conoco document known as a Material Safety Data Sheet. The Data Sheet, which


                                              13
is stored on Conoco’s computer system, generally describes decant oil, the

substance that purportedly emitted the fumes that Mr. Rowe believes caused his

nausea. The Data Sheet describes, among other things, the components of decant

oil, its physical and chemical properties, and precautions individuals should take

when working with it.

         At trial, Mr. Rowe attempted to introduce the document through the

testimony of John Botts, Mr. Rowe’s former co-worker at Conoco, arguing that

the Data Sheet was relevant because it established that “Conoco knew that the

tasks [Mr. Rowe] was doing could create harm to him or cause physical injury, if

he was exposed to any of the gases or vapors involved in this job he was

performing on August 16th of 1993.” Aplt’s App. vol. I, at 226. The district

court rejected this attempt to introduce the Data Sheet, ruling that Mr. Botts was

“not the proper witness to sponsor the document.”    Id. at 227. The court,

however, left the door open for Mr. Rowe to introduce the Data Sheet through

another witness “who could interpret it and give some statement as to Conoco,

what the document meant and as to Conoco’s knowledge of it.”      See id. at 228.

After this ruling, though, Mr. Rowe made no further attempt to introduce the Data

Sheet.

         On appeal, Mr. Rowe once again urges that the Data Sheet is relevant to

show that Mr. Rowe’s supervisors had knowledge that his nausea and shortness of


                                           14
breath were job-related.   See Aplt’s Reply Br. at 9. However, even if the

information contained in the Data Sheet does establish a link between vapors

contained in the coke pot and Mr. Rowe’s nausea and shortness of breath, in order

to establish its relevancy, Mr. Rowe must show that Mr. Lessert or Mr. Kothe was

familiar with the Data Sheet. Mr. Botts’s testimony, though, did not establish that

either man had any knowledge of the contents of the Data Sheet. Accordingly,

the district court did not abuse its discretion when it excluded the Data Sheet on

the ground that Mr. Botts’s testimony had not laid a proper foundation for its

admission.

       Relatedly, Mr. Rowe disputes the court’s decision to exclude Mr. Botts’s

testimony regarding his knowledge of the contents of the Data Sheet. Once more,

Mr. Rowe contends that this testimony was relevant to show that Conoco had

knowledge that exposure to decant oil vapors had caused Mr. Rowe’s nausea and

shortness of breath.   See id. Again, though, Mr. Rowe failed to demonstrate how

Mr. Botts’s testimony would have established a nexus between the information

contained in the Data Sheet and Conoco’s purported knowledge that exposure to

decant oil vapors was responsible for Mr. Rowe’s condition. Consequently, the

district court also properly excluded this testimony as irrelevant under Rule 401.

       The district court also sustained Conoco’s objections to Mr. Rowe’s

attempts to elicit testimony from Mr. Botts and Louis Clark, another former co-


                                          15
worker of Mr. Rowe’s, regarding whether Conoco’s coke pots contained hydrogen

sulfide gas (one of the components of decant oil, and the gas that Mr. Rowe

believes caused his nausea and shortness of breath). Once more, Mr. Rowe

sought to introduce this testimony to demonstrate that at the time Conoco

terminated him, the company had notice that he had suffered an on-the-job injury.

       As a threshold matter, Mr. Rowe failed to lay any foundation as to how

these men might have known the precise chemical composition of a gas that

purportedly escaped from those pots. Although Conoco notes that neither Mr.

Botts nor Mr. Clark is a chemist, an advanced degree is not necessarily a

prerequisite to testify about hydrogen sulfide gas, a substance commonly known

for its distinctive rotten-egg-like odor.   See Webster’s Ninth New Collegiate

Dictionary 590 (1986). However, before a court can deem such testimony

relevant, the proponent must first lay a foundation demonstrating how the lay

witness came to be able to identify the substance in question. Here, though, Mr.

Rowe laid no such foundation before attempting to introduce the testimony of

either Mr. Botts or Mr. Clark.

       More importantly, even if Mr. Rowe had laid the proper foundation for the

testimony of Mr. Botts and Mr. Clark, neither man’s testimony would have helped

to establish that Mr. Rowe’s supervisors were aware that exposure to decant oil

vapors caused his nausea and shortness of breath. Without such a link, this


                                            16
testimony could not clear Rule 401's relevancy hurdle. Thus, the district court

properly excluded both men’s proposed testimony.

       Finally, Mr. Rowe appeals the district court’s decision to exclude the Order

that the Workers’ Compensation Court entered in his case. That Order

memorialized the court’s finding that exposure to dust, smoke, and fumes at

Conoco had permanently damaged Mr. Rowe’s lungs. Mr. Rowe argues that this

Order establishes both that he suffered a work-related injury and that Conoco was

on notice that he had suffered a work-related injury.

       In determining whether Conoco was on notice that Mr. Rowe had suffered a

work-related injury, we may only look at what Conoco knew at the time it made

the decision to terminate him.   See Barber v. Payless Cashways, Inc.   , 787 P.2d

1301, 1303 (Okla. Ct. App. 1990) (holding that in cases alleging violations of

Okla. Stat. tit. 85, § 5, courts “must look at the evidence as it existed at the time

of the medical treatment and termination”). The Workers’ Compensation Court

did not enter its Order until January 1995, nearly 1½ years after Conoco

terminated Mr. Rowe. Conclusions that the court was able to draw with the

benefit of hindsight, not to mention a full-blown hearing, are in no way probative

of what Conoco may or may not have known about the causation of those injuries

on August 16, 1993, the day the company made its decision to terminate Mr.




                                          17
Rowe. Accordingly, the district court correctly determined that this Order

possessed no probative value on the issue of notice.

       The Order, though, is probative on another significant issue in this case:

whether Mr. Rowe did, in fact, suffer an on-the-job injury on August 16, 1993.

As discussed previously, in order to recover for retaliatory discharge under the

Oklahoma Workers’ Compensation Act, Okla. Stat. tit. 85, § 5, a plaintiff must

establish, among other things, that he suffered an on-the-job injury.   See Buckner ,

760 P.2d at 806. In its Order, the Workers’ Compensation Court states that Mr.

Rowe

       suffered an occupational disease consisting of injury to the lungs
       (pulmonary obstructive disease) due to the continued inhalation of,
       and exposure to, harmful dust, smoke and fumes; that exposure to the
       said substances was peculiar to or characteristic of [his] employment
       with [Conoco]; [and] that [his] last injurious exposure to the said
       hazard was August 16, 1993.

Aplt’s App. vol. II, at 574.

       This passage is relevant to the question of whether Mr. Rowe suffered an

on-the-job injury. Thus, the district court erred when it excluded the Order on

Rule 401 grounds. Nevertheless, we will not reverse the district court’s judgment

unless we find that the erroneous exclusion of the Order “affect[ed] the

substantial rights of the parties.”   Gomez , 50 F.3d at 1518 (quotation omitted).

       By excluding the Order, the district court prevented Mr. Rowe from

introducing a piece of evidence that would have supplied a vital piece of his case,

                                             18
establishing, at least for prima facie purposes, that he had suffered an on-the-job

injury. However, the Order would not have mended another gaping hole in Mr.

Rowe’s case: his failure to establish that Conoco had notice that he had suffered

a work-related injury at the time it made the decision to terminate him. Without

such evidence, Mr. Rowe was still one brick short of a prima facie case.     See

Buckner , 760 P.2d at 806. Furthermore, as discussed previously, Mr. Rowe also

failed to demonstrate that Conoco’s proffered reason for his termination–his

failure to submit to a random drug test within the required time frame–was

pretextual. Thus, even if the district court had admitted the Order, Conoco would

nonetheless have been entitled to judgment as a matter of law.       Consequently, the

district court’s exclusion of this evidence did not affect Mr. Rowe’s substantial

rights and does not merit reversal.   1




       1
        In his opening brief, Mr. Rowe states that “[t]he district court erroneously
sustained Conoco’s objection(s) to Rowe’s attempts to present evidence regarding
his respiratory problems arising out of his employment commencing during the
period of 1990 and continuing through his August, 1993 termination to support
his reports of job related illnesses to Conoco.” Aplt’s Br. at 21. Mr. Rowe,
however, offered no rationale or authority as to why the district court’s decision
to exclude such evidence purportedly constituted error and made no further
mention of this argument in the remainder of his opening brief or in his reply
brief.
       We have held that a party who mentions a point in passing but “fail[s] to
make any argument or cite any authority to support his assertion” waives that
argument. See United States v. Hardwell , 80 F.3d 1471, 1492, reh’g granted in
part on other grounds , 88 F.3d 897 (10th Cir. 1996), cert. denied , 118 S. Ct. 1570
(1998). Accordingly, we will not consider Mr. Rowe’s argument that the district
court improperly excluded evidence regarding his respiratory condition.

                                            19
                                     CONCLUSION

      Because the district court properly granted Conoco’s Rule 50 motion for

judgment as a matter of law on Mr. Rowe’s retaliatory discharge claims under

both Okla. Stat. tit. 85, § 5 and Burk v. K-Mart Corp., 770 P.2d 24, we hereby AFFIRM

the decision below.

                                                           Entered for the Court,



                                                           Robert H. Henry
                                                           Circuit Judge




                                         20
