                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 12 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JENNIE R. NEWELL,

          Plaintiff-Appellee,
 v.                                                     No. 99-3067
                                                (D.C. No. 97-CV-2258-RDR)
 K-MART CORPORATION,                                (District of Kansas)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, KELLY, and ELLISON **, Circuit Judges.



      Plaintiff-Appellee Jennie R. Newell brought an action against her former

employer, Defendant-Appellant K-Mart Corporation (“K-Mart”), alleging that K-

Mart fired her in retaliation for exercising her rights under Kansas’ workers’

compensation statute. The jury returned a verdict in favor of Newell. K-Mart

then filed a renewed motion for judgment as a matter of law and, alternatively, for




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         The Honorable James O. Ellison, Senior District Judge, United States
District Court for the Northern District of Oklahoma, sitting by designation.
a new trial. The district court denied K-Mart’s motion, and K-Mart now appeals.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and REVERSE.



                                BACKGROUND

      Newell was employed at K-Mart’s Lawrence, Kansas, distribution

warehouse from 1980 until June 7, 1995. Most recently, Newell worked in the

shipping department, where she was typically responsible for loading and

unloading tractor trailers of merchandise. Newell was terminated for allegedly

violating K-Mart’s absenteeism policy.

      As an employee with fifteen years’ seniority, Newell was entitled to twenty

days of paid vacation each year. Ten of these days could be taken as “single

days” of vacation, while the remaining ten had to be taken in five-day blocks.

Newell also received an additional 120 hours (fifteen days) of personal leave, 80

hours of which were paid and 40 of which were unpaid. Under K-Mart’s

absenteeism policy, an employee was to be terminated if he or she exceeded the

allotted days of vacation and paid and unpaid personal leave.

      Newell took off June 7, 1995, and was informed upon returning to work the

next day that she had been terminated. K-Mart told Newell that she had no single

days of vacation remaining and only insufficient personal time remaining. As a

result, K-Mart informed her, she exceeded her available leave and was terminated.


                                         -2-
          Newell sued K-Mart, alleging, inter alia, that K-Mart had in fact terminated

her in retaliation for sustaining an injury for which she could assert a claim under

the Kansas Workers’ Compensation Act, K.S.A. § 44-501 et seq. See Newell v.

K-Mart Corp., 35 F. Supp.2d 1312, 1314 (D. Kan. 1999). K-Mart denied this

allegation, contending that Newell was terminated because of her excessive

absenteeism. Specifically, Newell claimed that K-Mart had improperly docked

her vacation time for days of work she missed due to an earlier work-related

injury, and that caused her to have an inadequate number of vacation days

remaining to cover her absence on July 7; thus, according to Newell, K-Mart had

indirectly terminated her for potentially exercising her workers’ compensation

rights.

          The jury agreed with Newell, awarding her “$15,000 in back pay and

$30,000 for embarrassment, humiliation and emotional distress.” Newell, 35 F.

Supp.2d at 1314. The district court denied K-Mart’s post-trial motion challenging

the verdict. See id. at 1316-18.




                                           -3-
                                   DISCUSSION

       K-Mart appeals the denial of its post-trial motion for judgment as a matter

of law pursuant to Fed. R. Civ. P. 50(b) and, alternatively, for a new trial

pursuant to Fed. R. Civ. P. 59(a). 1

       K-Mart first claims that the jury’s verdict in favor of Newell was not

supported by the evidence and should therefore have been reversed as a matter of

law.

       We consider de novo a district court's denial of a motion for
       judgment as a matter of law under Rule 50, using the same standard
       as the district court. We may find error in the denial of such a motion
       only if the evidence points but one way and is susceptible to no
       reasonable inferences supporting the party opposing the motion. We
       construe the evidence and inferences most favorably to the
       nonmoving party.

Vining v. Enterprise Fin. Group, Inc., 148 F.3d 1206, 1213 (10th Cir. 1998)

(internal citations, alterations, and quotation omitted).

       “Where a new trial motion asserts that the jury verdict is not supported by

the evidence, the verdict must stand unless it is clearly, decidedly, or

overwhelmingly against the weight of the evidence.” Anaeme v. Diagnostek, Inc.,

164 F.3d 1275, 1284 (10th Cir.), cert. denied, 120 S.Ct. 50, 145 L. Ed.2d 44




       This case apparently arose under the district court’s diversity jurisdiction
       1

pursuant to 28 U.S.C. § 1332. Accordingly, we apply the substantive law of the
forum state, Kansas. See Barrett v. Tallon, 30 F.3d 1296, 1300 (10th Cir. 1994).


                                         -4-
(1999) (internal citation and quotation omitted). In conducting our review, we

consider the evidence in the light most favorable to the prevailing party,

remembering that “determining the weight to be given to the testimony, drawing

inferences from the facts established, resolving conflicts in the evidence, and

reaching ultimate conclusions of fact,” are the exclusive functions of the jury.

Thunder Basin Coal Co. v. Southwestern Pub. Serv. Co., 104 F.3d 1205, 1212

(10th Cir. 1997) (citation and quotation omitted).

Legal Standard

      Under Kansas law, an employee asserting a claim of retaliatory discharge

for exercising or potentially exercising rights under the workers’ compensation

statute “can recover by proving that the discharge was ‘based on,’ ‘because of,’

‘motivated by’ or ‘due to’ the employer’s intent to retaliate. Employees do not

need to show that retaliation was the employer’s sole motive or reason for the

termination.” Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998)

(quoting Brown v. United Methodist Homes for the Aged, 815 P.2d 72 (Kan.

1991)) (additional citation omitted). Moreover, the Supreme Court of Kansas has

declared that employers may not use a facially neutral absenteeism policy to

disguise retaliatory discharge:

      Allowing an employer to discharge an employee for being absent or
      failing to call in an anticipated absence as the result of a work-
      related injury would allow an employer to indirectly fire an employee


                                        -5-
      for filing a workers’ compensation claim, a practice contrary to the
      public policy of this state . . . .

Coleman v. Safeway Stores, Inc., 752 P.2d 645, 652 (Kan. 1988). Thus, although

K-Mart maintained a facially neutral attendance policy that resulted in Newell’s

termination, Newell may nevertheless succeed on her retaliation claim if her

termination was in fact based upon her sustaining an injury for which she could

assert a workers’ compensation claim.

      The Supreme Court of Kansas has prescribed a particular method by which

workers’ compensation-retaliatory discharge claims must proceed:

      A party having the burden of proving a discharge from employment
      in retaliation for having filed a workers compensation claim must
      establish that claim by a preponderance of the evidence, but the
      evidence must be clear and convincing in nature. It is clear if it is
      certain, unambiguous, and plain to the understanding. It is
      convincing if it is reasonable and persuasive enough to cause the trier
      of facts to believe it.


Ortega v. IBP, Inc., 874 P.2d 1188, 1198 (Kan. 1994). Kansas has further defined

the clear and convincing evidence requirement to

      mean[] that the witnesses to a fact must be found to be credible; the
      facts to which the witnesses testify must be distinctly remembered;
      the details in connection with the transaction must be narrated
      exactly and in order; the testimony must be clear, direct and weighty;
      and the witnesses must be lacking in confusion as to the facts at
      issue.




                                        -6-
Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 596 P.2d 816, 824

(Kan. 1979). 2

      With these standards in mind, we turn to the evidence presented in the

present case.

       There was evidence presented at trial that Newell had sustained injuries

implicating her rights under Kansas’ workers’ compensation statute. In February

of 1994, Newell sustained a shoulder injury while sliding boxes of merchandise

onto a pallet. She aggravated this injury in May of that year, ultimately requiring

surgery in July and a two-month absence from work. Newell testified that she had

some difficulty getting K-Mart to issue workers’ compensation checks to her for

this injury, and that she only received these checks upon retaining an attorney.

Newell returned to work in October of 1994. She received a lump-sum payment

from K-Mart for this injury in May of 1995.

      In January of 1995, Newell sustained an injury to the middle of her

shoulders. She reported the injury to her supervisor at the time, Rocky Daniels,

and asked that he complete the appropriate paperwork. Daniels told her that he



      2
         Modern Air Conditioning announced this definition in the context of civil
fraud, but courts have applied it in the context of workers’ compensation
retaliation claims as well. See Chaparro v. IBP, Inc., Nos. 95-3078, 95-3098,
1996 WL 733771, at *5 (10th Cir. Dec. 24, 1996) (unpublished); Dougherty v.
Venator Group Retail, 94 F. Supp.2d 1206, 1209 (D. Kan. 2000); McClurg v.
GTECH Corp., 61 F. Supp.2d 1150, 1162 n.7 (D. Kan. 1999).

                                        -7-
would fill out an accident report, but Newell never received a copy of the

document. Apparently, no accident report documenting this incident was ever

found.

         During the first week of February, 1995, Newell was having neck pain in

connection with her work. On Friday, February 3, Newell called in and

complained to her supervisor at the time, Rocky Daniels, that she was having

difficulty moving her neck and would not be able to come into work. However,

this call came too late in the day to qualify as a call-in so she was considered a

“no call-in” that day. 3 The following Monday, February 6, Newell called Daniels

to report that she was still having difficulty moving her head and neck and would

not be in to work, but again she was reported as a “no call-in.” During this call,

Newell reported to Daniels that she had made an appointment to see a doctor the

next day. Newell went to see the doctor as scheduled on Tuesday, February 7th,

but, because she had previously informed her supervisor of the appointment, she

did not call to tell him she would not be at work that day. The doctor imposed

work restrictions on Newell and gave her documentation of these restrictions to

present to K-Mart. Newell gave this document to her supervisor upon returning to




        Newell testified that her first call to her supervisor, on Friday, February 3,
         3

was not until after the time (8:15 A.M.) by which employees were required to
notify their supervisor if they were not going to come into work. As a result, she
was (apparently legitimately) listed as “NCI,” or “no call-in” for that day.

                                         -8-
work. Thus, there was evidence that K-Mart was aware Newell had sustained

work-related injuries that might be compensable as workers’ compensation

claims, and that her absences on February 6 and 7 were related to these injuries.

      There was also evidence presented at trial describing some hostility among

K-Mart supervisors toward employees’ workers’ compensation claims. Mr.

Steven Rafferty, Newell’s co-worker, testified that he had an ongoing

disagreement with K-Mart concerning the use of personal leave time for his work-

related injury. Mr. Don Nowling, a former employee at K-Mart’s Lawrence,

Kansas, facility, testified to his own difficult experience with supervisors

regarding his work-related injury. Newell also testified at trial that she felt she

had been intimidated by her supervisors after seeking work restrictions due to a

work-related injury.

      On the morning of June 7, 1995, Newell informed her supervisor, Gary

Coffman, that she wished to take the next day off as a single day of vacation.

There was no suggestion that this particular vacation request was linked in any

way to a work-related injury. Newell asked Coffman to verify that she had an

available single day of vacation remaining, and Coffman informed her “that he

would check and get back with me.” Newell testified that, although K-Mart’s

official policy was that employees were responsible for verifying their remaining

vacation before taking time off, she had previously been advised by Martha


                                         -9-
Engnehl to make these inquiries through her department manager. Newell

testified that she had previously relied on her supervisors to verify her remaining

vacation time and occasionally in the past she had been advised that she could not

take requested time off because she did not have enough accrued vacation time

available. Coffman never got back to Newell regarding the vacation on this

occasion. In fact, Newell did not have sufficient vacation time available for this

day off. As a result, and pursuant to K-Mart’s standard policy, Newell was fired

the next day for taking time off that exceeded her available single days of

vacation and available personal time. Martha Engnehl testified that Newell would

have had available time to take June 8 off if Newell had not been charged for her

absences back on February 6 and 7.

      The problem is that Newell was discharged for her unauthorized vacation

on June 8, and that particular day off was not caused by, or related to, any work-

related injury. Thus, in order to succeed on her claim, Newell needed to prove

either that her supervisor intended wrongfully to record her February 6 and 7

absences in order to eventually terminate her some six months later, or that her

supervisor intended to mislead her on June 7 as to her remaining vacation

available for June 8 for the purpose of retaliating against her for her work-related

injuries that occurred back in February. Newell did not, however, introduce any

evidence to this effect, let alone any “clear and convincing evidence” as required


                                        - 10 -
by Kansas law. Rather, the most that appears from the record, drawing all

inferences in favor of Newell, is that her supervisors may have been negligent or

careless when dealing with vacation time and that they perhaps mistakenly

charged her for the February absences. There was simply no evidence introduced

at trial that Newell’s supervisors intended to achieve her termination through

these errors or misrepresentations or that her termination as of June 8 was “based

on,” “because of,” “motivated by,” or “due to” K-Mart’s intent to retaliate for her

earlier work-related injuries or claims.

      Kansas law requires that Newell offer clear and convincing evidence of

intent, and Newell failed to meet this burden. On the evidence presented in this

case, a jury would have to speculate as to the motives of Newell’s supervisors.

The evidence presented as to whether K-Mart intended to retaliate against Newell

for her work-related injuries was not “certain, unambiguous, and plain to the

understanding.” Ortega, 874 P.2d at 1198. To the contrary, the evidence

produced neither compelled nor suggested the conclusion that Newell’s

supervisors intended to use her absences as a smokescreen for retaliation. Thus,

we conclude that Newell failed to meet the heightened evidentiary burden Kansas

law imposes upon plaintiffs alleging workers’ compensation retaliation. 4


      4
        Because we agree with Appellant’s contention that the verdict was not
supported by the evidence, we need not address Appellant’s additional arguments
regarding the sufficiency of Newell’s alleged injury and certain evidentiary

                                           - 11 -
                                  CONCLUSION

      We find that the district court erred in denying Appellant’s post-trial

motion for judgment as a matter of law or, in the alternative, for a new trial.

Accordingly, the judgment of the district court is REVERSED, and this case is

REMANDED for proceedings not inconsistent with this order and judgment.


                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




rulings by the district court.

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