                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 January 7, 2008
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT


 JACKIE R. WILKINS,

          Plaintiff-Appellant,
                                                       No. 06-3400
 v.                                             (D.C. No. 04-CV-4024-KGS)
                                                         (D. Kan.)
 PACKERWARE CORPORATION,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.


      Jackie Wilkins, formerly a print operator with PackerWare Corporation,

sought medical attention for what he thought was a work-related injury to his

right arm. His doctor advised him to rest his arm for an extended period, advice

that meant Mr. Wilkins would be unable to perform his regular job duties. Mr.

Wilkins’s employer gave him the option either to take unpaid leave or pursue



      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of 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. This order and
judgment is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
light-duty work that would not interfere with his doctor’s orders. Mr. Wilkins

opted for light-duty work, but then repeatedly failed to show up or call in before

his shift started. Eventually, PackerWare fired him for excessive, unexcused

absences; Mr. Wilkins sued, alleging that PackerWare had violated the Family

and Medical Leave Act (“FMLA” or “the Act”) and Kansas workers’

compensation law. The case went to trial, and a jury returned a verdict in favor

of PackerWare on all counts.

      On appeal, Mr. Wilkins challenges the propriety of the district court’s jury

instructions and special verdict form. He argues, among other things, that the

district court erroneously required him to establish that he was eligible for leave

under the FMLA as a precondition to bringing a retaliation claim, incorrectly

defined a “serious health condition” under the Act, and wrongly instructed the

jury under the McDonnell Douglas burden-shifting rubric. Discerning no

reversible error in the district court’s conduct of the trial, however, we affirm.

                                           I

                                          A

      Mr. Wilkins worked as a print operator at PackerWare from 1989 until he

was fired on March 15, 2002. During the entire tenure of his employment,

PackerWare maintained a written attendance policy. Under that policy, an

employee’s unexcused absences resulted in the assessment of various numbers of

“points.” For example, failure to show up for a shift earned an employee one

                                          -2-
point. Failure to report an absence before the beginning of a missed shift added

two more points to the tally. Leaving early meant a half-point. Accumulating 9

or more points in one year was grounds for dismissal.

      During most of Mr. Wilkins’s employment, PackerWare also maintained a

leave of absence policy, which included a provision for leave under the FMLA.

Prior to the incidents that gave rise to this lawsuit, Mr. Wilkins took periods of

FMLA leave, without incident, for his own medical conditions and to care for his

wife. Mr. Wilkins also received workers’ compensation benefits for various,

minor, job-related injuries. Following all such past instances of leave, he

returned to his regular job duties.

      During the evening shift on March 4, 2002, Mr. Wilkins reported that his

ongoing wrist pain, which he believed to be work-related, had become acute. He

sought treatment at a hospital that night and saw a doctor the next day. The

doctor ordered Mr. Wilkins to restrict movement of his right arm and scheduled a

follow-up appointment. Mr. Wilkins promptly met with PackerWare’s benefits

coordinator, Deanna Hemming, who determined that Mr. Wilkins could not

perform his regular job duties consistent with the doctor’s advice, and therefore

offered Mr. Wilkins the choice of a different, light-duty position in another




                                          -3-
department or leave without pay until he could return to his regular job. 1 Mr.

Wilkins chose to take the light-duty shift.

      On Thursday, March 7, 2002, the day he was supposed to begin light-duty

work, Mr. Wilkins telephoned Ms. Hemming an hour after his shift started. Mr.

Wilkins left a message saying that he was not coming to work and that he would

begin light-duty work the following Monday, March 11, 2002. Mr. Wilkins

neither called nor worked on Friday, March 8. On March 11, Mr. Wilkins again

called Ms. Hemming approximately an hour after his shift began and left a

message saying that he was not coming to work. In neither that message, nor the

message of March 7, did he explain the reasons for his absence. Mr. Wilkins

reported to work on Tuesday, March 12 on time, but he clocked out early for a

doctor’s appointment three hours later.

      The next day, PackerWare suspended Mr. Wilkins and, two days after that,

on March 15, it terminated his employment. According to PackerWare’s records,

Mr. Wilkins had accumulated 14.5 attendance points, well more than the 9 that

supplies grounds for dismissal under the company’s policy. Of these 14.5 points,

6.5 were incurred in the final days of Mr. Wilkins’s employment – 3 for failing to

come to work without advance notification on March 7; 3 for failing to come to

work without advance notification on March 11; and 0.5 for leaving early on

      1
       Under the FMLA, leave may be without pay, 29 U.S.C. § 2612(c), and
Mr. Wilkins does not argue that PackerWare violated either the FMLA or the
Kansas Workers Compensation Act by offering him unpaid leave.

                                          -4-
March 12. Mr. Wilkins was assessed no attendance points for the absence of

March 8, which Ms. Hemming treated as an exercise of the option to take unpaid

leave. On March 19, Mr. Wilkins participated in a termination review arranged

by PackerWare and conducted by two of its managerial employees. Those

managers concluded that Mr. Wilkins was properly assessed points for his

absences and that the company’s policies had been followed.

                                          B

      Following PackerWare’s internal review, Mr. Wilkins brought this suit in

the District of Kansas. Eventually, the case went to trial on three counts, with

Mr. Wilkins asserting that PackerWare unlawfully (1) retaliated against his

decision to take leave, in violation of the FMLA; (2) denied him leave under the

FMLA; and (3) retaliated against him for asserting his rights under the Kansas

Workers Compensation Act. In turn, PackerWare defended its actions primarily

on three grounds. First, it argued that Mr. Wilkins did not qualify for FMLA

leave, and that he was therefore neither denied a statutory right nor retaliated

against for exercising one. Second, PackerWare asserted that Mr. Wilkins was

fired not for taking or attempting to take any sort of protected leave, but for

violating its attendance policy. Finally, PackerWare argued that, even if Mr.

Wilkins was entitled to leave, it had no notice that he wished to take such leave,

as Mr. Wilkins had volunteered to take an alternate, light-duty position, rather




                                          -5-
than the unpaid leave offered him, and then simply did not show up for work as

promised.

      The jury returned a verdict in favor of PackerWare on all counts. Mr.

Wilkins filed timely motions for judgment as a matter of law and for a new trial.

The district court denied those motions and this appeal followed. In it, Mr.

Wilkins challenges certain aspects of the district court’s jury instructions as

legally erroneous and certain aspects of the jury’s verdict as internally consistent;

we here address the most material of Mr. Wilkins’s challenges.

                                          II

      Beginning with Mr. Wilkins’s challenge to the district court’s jury

instructions, we are obliged to note at the outset that only a few of his arguments

were ever presented to the district court for its consideration. Where Mr. Wilkins

did raise an objection before the district court, we may review the contested

instruction de novo to determine whether the instructions, when viewed as a

whole, properly advised the jury of governing law. We will reverse under this

standard “when (1) we have substantial doubt whether the instructions, considered

as a whole, properly guided the jury in its deliberations; and (2) when a deficient

jury instruction is prejudicial.” Williams v. W.D. Sports, 497 F.3d 1079, 1093

(10th Cir. 2007) (internal quotation and citation omitted). To be prejudicial, the

error must be more than what we have described as “harmless” or “immaterial”;

that is, it must be of sufficient import that it fairly could be described as having

                                          -6-
changed the trial’s result. See Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307,

1310 (10th Cir. 1986); see also 28 U.S.C. § 2111; Fed. R. Civ. P. 61; 11 Wright

& Miller, Fed. Prac. & Proc. Civ.2d § 2886.

         By contrast, where Mr. Wilkins failed to object before the district court, we

may reverse the district court’s instructions only in the presence of plain error.

W.D. Sports, 497 F.3d at 1094; Fed. R. Civ. Pro. 51(d)(2). Under that standard,

we will disturb the district court’s judgment only if Mr. Wilkins can (1) show

error that was (2) plainly evident, (3) affected his substantial rights, and

(4) seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. United States v. Torres-Laranega, 476 F.3d 1148, 1154 (10th Cir.

2007).

                                            A

         Instruction 15 advised the jury that in order to succeed on his FMLA

retaliation claim Mr. Wilkins had to prove, by a preponderance of the evidence,

that: (1) he suffered from a “serious health condition”; (2) he gave PackerWare

“proper ‘notice’ of the need to be absent from work”; (3) he was discharged from

employment; and (4) his absence from work was a substantial or motivating factor

that prompted PackerWare to take action. Aplt’s App. at 381.

         On appeal, Mr. Wilkins argues that the district court should not have

required him to establish elements (1) and (2). To be sure, Mr. Wilkins does not

dispute that his eligibility for FMLA leave was dependent on the presence of both

                                           -7-
a serious health condition and proper notice to his employer. Rather, he contends

that he should not have been required to prove his eligibility for leave in order to

pursue a claim for retaliation. As a matter of law, he claims, an employee

engages in “protected activity” for purposes of an FMLA retaliation claim

whenever he or she asserts an FMLA right, even if it later emerges that the

employee is not actually eligible for leave.

      Mr. Wilkins did not raise this argument before the district court, so we may

reverse only in the presence of plain error. But far from being an obvious or

evident point of law, the legal position Mr. Wilkins advances appears to implicate

what is very much an open question in this circuit.

      On the one hand, in a somewhat analogous context we have held the law to

be as Mr. Wilkins proposes – namely, that “in order to prosecute an [Americans

with Disabilities Act] retaliation claim, a plaintiff need not show that she suffers

from an actual disability. Instead, a reasonable, good faith belief that the statute

has been violated suffices.” Selenke v. Med. Imaging of Colo., 248 F.3d 1249,

1264 (10th Cir. 2001). And such an approach might be argued to make sense in

the FMLA context as well. If, for example, an employee took time off to care for

an ailing spouse, 29 U.S.C. § 2612(a)(1)(C), only to discover that the spouse had

been misdiagnosed and did not suffer from a serious health condition, it would

arguably serve to defeat the purpose of the statute to allow the employer to fire

the employee on the basis of a doctor’s misdiagnosis.

                                          -8-
      On the other hand, it is not unlawful under the FMLA for an employer to

fire an employee for requesting or taking leave for purposes other than those

described by the Act. The FMLA protects an employee’s leave only (A) for the

birth of, and to care for, a child, (B) for the adoption or assumption of foster care

of a child, (C) to care for an immediate family member suffering from a serious

health condition, or (D) for the employee’s own serious health condition, which

makes it impossible for him or her to work. 29 U.S.C. § 2612(a)(1). And this

leave is limited to “eligible employees,” who have worked for the employer for at

least 12 months and have worked at least 1,250 hours in those 12 months. Id.

§ 2611(2)(A). An employee thus cannot claim protection under the Act merely by

asserting that he or she wishes to take FMLA leave, and then, say, be free to

vacation in Hawaii, without fear of adverse consequences. Our precedent may

also be read to prefigure the conclusion that the lawful taking of FMLA leave is a

prerequisite to a retaliation claim, see Campbell v. Gambro Healthcare, Inc., 478

F.3d 1282, 1287 (10th Cir. 2007) (“a retaliation claim may be brought when the

employee successfully took FMLA leave . . .”) (emphasis added), as might the

decision of at least one of our sister circuits, see Walker v. Elmore County Bd. of

Educ., 379 F.3d 1249, 1253 (11th Cir. 2004) (rejecting the argument that the

“FMLA protects a request for FMLA leave regardless of whether the employee

would be eligible for the leave,” and expressly holding that “the statute does not

protect an attempt to exercise a right that is not provided by FMLA”).

                                          -9-
      As these competing arguments for and against Mr. Wilkins’s position

suggest, the question whether the district court’s instruction was erroneous is

open and contestable – which by its very definition cannot qualify as plainly

evident error. Accordingly, under our standard of review, we are in no position to

disturb the district court’s judgment on the guidance provided to the jury in

Instruction 15, see Torres-Laranega, 476 F.3d at 1154, and we need not decide

whether one must actually be eligible for FMLA leave to bring a claim for

retaliation under the Act.

                                           B

      Mr. Wilkins next complains about two definitions offered by the district

court in Instruction 16. Seeking to elucidate certain of the terms employed in

Instruction 15, the court fashioned Instruction 16 to clarify for the jury that, in

order to show that he provided the “proper notice” required by Instruction 15,

“Plaintiff is required to provide such notice as practicable.” Aplt’s App. at 383.

Separately, in order to establish that he suffered from a “serious health

condition,” Mr. Wilkins had to prove he suffered from “an illness, injury,

impairment, or physical or mental condition that involves either inpatient care in

a hospital, hospice, or residential medical facility or continuing treatment by a

healthcare provider.” Id. at 382. The court added that the serious health

condition “must have resulted in plaintiff having an inability to perform assigned




                                          -10-
work for a period of more than three consecutive calendar days.” Id. (emphasis

added).

      1.     Mr. Wilkins asserts that, even if the district court was right to give a

notice instruction to the jury at all, Instruction 16 erred in describing the sort of

notice he was required to give in order to become eligible for FMLA leave.

Because he did not challenge the instruction on this score before the district court,

we can review the claim only for plain error.

      The notice language about which Mr. Wilkins complains in Instruction 16

largely tracks Department of Labor (“DOL”) regulations implementing the

FMLA. Compare 29 C.F.R. § 825.303(a) (requiring that notice be given “as soon

as practicable under the facts and circumstances of the particular case,” when

advanced notice is impossible) with Instruction 16 (requiring “such notice as

practicable,” when advanced notice is impossible). While this circuit does not

appear to have passed on this particular regulation, we have previously held that

challenged DOL regulations implementing the FMLA are entitled to Chevron

deference, as the DOL is charged with administering the statute. See Hackworth

v. Progressive Cas., Ins. Co., 468 F.3d 722, 726-27 (10th Cir. 2006). Because

Mr. Wilkins does not challenge the relevant regulation, we assume without

deciding for the purposes of this case that the regulation is a permissible

implementation of the Act and is entitled to deference.




                                          -11-
      Nevertheless, Mr. Wilkins asserts the district court should have advised the

jury that notice was required “within one or two working days except in

extraordinary circumstances.” Aplt’s App. at 351; Aplt’s Op. Br. at 42. And, to

be sure, the DOL regulation itself does indicate that practicable notice will

usually come “within no more than one or two working days.” 29 C.F.R.

§ 825.303(a). But confining the period for notice to one or two working days may

actually be less favorable to a plaintiff than the instruction actually given,

focusing more broadly as it does on the question whether notice would have been

practicable. Further, Mr. Wilkins’s proposed instruction actually contradicted the

“one or two working day” policy advanced by DOL. Under the DOL policy, the

“one or two working day” window commences after the time the employee learns

of his or her need for leave – not after the employee has already begun taking

leave, as Mr. Wilkins argues. Compare 29 C.F.R. § 825.303(a) (“within no more

than one or two working days of learning of the need for leave . . .”) (emphasis

added) with Aplt’s App. at 405 (“proper notice during a period of up to two days

after the absence”) (emphasis added). Unable to point to the DOL regulation for

support, Mr. Wilkins likewise points us to no other legal authority in the FMLA

or elsewhere to suggest that his proffered instruction would have been legally




                                          -12-
appropriate. Accordingly, we are given no reason to find error, let alone plain

error, in the district court’s chosen path. 2

       2.   With respect to the district court’s definition of “serious health

condition,” Mr. Wilkins argues primarily that the relevant inquiry should not have

been whether his medical condition was so serious that it precluded him from

performing “assigned work,” but whether it was sufficiently grave that it

precluded him from performing his usual work, i.e., the work required for his

normal position before his (voluntary) reassignment to light-work duty. Mr.

Wilkins contends that the FMLA’s focus is and should be on his ability to

perform his own job, and that any other rule would penalize him for voluntarily

assuming alternative work. Mr. Wilkins objected to Instruction 16 on this basis

before the district court and so our review is de novo.

       We need not, however, pass today on the legal question presented by Mr.

Wilkins. Even assuming, without deciding, that the district court’s definition of

serious health condition was in error, Mr. Wilkins cannot be said to have been

prejudiced by it. We have already found no reversible error in the district court’s

notice instructions, instructions that treated notice as an independent and essential

       2
         Separately, Mr. Wilkins argues, as he did in his post-trial motions, that
PackerWare “did not dispute that it had proper notice within the meaning of the
FMLA,” and therefore it was error to include the second element of Instruction
15. Aplt’s Op. Br. at 43-44. But, as the district court concluded, notice was in
fact highly contested at trial, with the witnesses for each side giving very
different accounts of what notice was actually provided and when. See Sept. 29,
2006 Dist. Ct. Mem. & Order at 24 (Aplt’s App. at 613).

                                           -13-
element of Mr. Wilkins’ claim. See supra Parts II.A & B.1. With the jury’s

express finding against him on that element, reflected in its answer to the court’s

special interrogatory, there was no need for the jury to reach the analytically

subsequent question whether Mr. Wilkins suffered from a serious health

condition. That is, having failed on what was lawfully treated by the district

court as a distinct and antecedent element, any putative error in an instruction on

a later element is simply beside the point. 3

                                           C

      Instruction 17 advised the jury that, even if Mr. Wilkins proved the

elements for a retaliation claim set forth in Instruction 15 by a preponderance of

the evidence, the jury must find for PackerWare on the retaliation claim if the

company “articulated a legitimate, non-retaliatory explanation for the adverse

employment action taken,” and Mr. Wilkins could not show that explanation to be

“merely a pretext for impermissible retaliation.” Aplt’s App. at 384. Mr. Wilkins

objected to this instruction at trial on the same basis that he now argues it was in

error: namely that it confused the jury by describing the McDonnell Douglas



      3
           Separately, Mr. Wilkins argues that the district court erred in instructing
the jury that “Plaintiff cannot rely solely on his own assessment of his health” to
demonstrate that he suffers from a serious health condition. Aplt’s Op. Br. at 19-
20; Aplt’s App. at 382. But Mr. Wilkins not only did not object to this portion of
Instruction 16, he actually argued for it. See Aplt’s App. 541-42. Accordingly,
any error is invited error and cannot be challenged on appeal. United States v.
Shaffer, 472 F.3d 1219, 1227 (10th Cir. 2007).

                                          -14-
burden-shifting framework. We review the district court’s decision to instruct the

jury in this manner de novo.

      In doing so, we readily acknowledge that Mr. Wilkins is correct that we

have previously criticized charging a jury on the intricacies of McDonnell

Douglas “jargon.” Whittington v. Nordam Group Inc., 429 F.3d 986, 997-98

(10th Cir. 2005); see also Wells v. Colo. Dept. of Transp., 325 F.3d 1205, 1221-

28 (10th Cir. 2003) (Hartz, J., concurring); MacDonald v. E. Wyo. Mental Health

Ctr., 941 F.2d 1115, 1122 (10th Cir. 1991) (Seth, J., concurring). While

McDonnell Douglas provides a legal analytic tool for assessing pre-trial

discrimination challenges, at trial the question “is discrimination vel non,” and

introducing the intricacies of the McDonnell-Douglas burden shifting framework

to jurors risks causing them “to abandon their own judgment and to seize upon

poorly understood legalisms to decide the ultimate question of discrimination.”

Messina v. Kroblin Transp. Systems, Inc., 903 F.2d 1306, 1308 (10th Cir. 1990)

(internal quotation omitted).

      Still, we have indicated that the problem is not that the McDonnell-Douglas

framework is unduly prejudicial to one party over another. Rather, “[i]t is that it

unnecessarily complicates the jury’s job, and unnecessary complexity increases

the opportunity for error.” Whittington, 429 F.3d at 998. Because the

introduction of the framework is not per se prejudicial to either side, the “use of

such an instruction does not automatically require reversal.” Id. Instead, we will

                                         -15-
reverse only when there is evidence that the instruction, as given, was misleading

to the jury or otherwise prejudicial. Id. After reviewing Mr. Wilkins’s briefs and

the record, we are afforded no reason to think that the use of the McDonnell

Douglas framework misled the jury or otherwise proved prejudicial in this case.

Accordingly, without some reason to differentiate this trial from the many in

which we have allowed the jury verdict to stand in spite of the introduction of the

McDonnell Douglas framework, we are bound by our precedent to treat the error

as harmless. 4

                                          D

      Turning to Mr. Wilkins’s state law workers’ compensation claim, the

district court indicated in Instruction 19 that Mr. Wilkins had to satisfy four

elements – namely that (1) he sustained a compensable injury on the job;

(2) PackerWare knew about it; (3) PackerWare fired Mr. Wilkins; and (4) there

was a causal connection between his termination and his exercise of statutory

rights. See Aplt’s App. at 386; Rebarchek v. Farmers Co-op. Elevator, 35 P.3d

892, 899 (Kan. 2001). Mr. Wilkins argues that the district court should have

      4
         Our holding on this score applies with equal force to Mr. Wilkins’s
complaint about the district court’s use of the McDonnell Douglas framework
when advising the jury about his state law workers’ compensation claim
(Instruction 20), and his complaints about the special verdict form relating to
Instructions 17 and 20. Though Mr. Wilkins charges that the district court
erroneously instructed the jury pursuant to McDonnell Douglas on his FMLA
interference claim (Instruction 18), as well, this is simply not the case; Instruction
18 merely (and correctly) announces the elements of a FMLA Interference claim
with no traces of the McDonnell Douglas burden-shifting framework.

                                         -16-
instructed the jury only on the final element because PackerWare did not “dispute

the first three elements of the prima facie showing of retaliatory discharge.”

Aplt’s Op. Br. at 27. Mr. Wilkins did not object to Instruction 19 on this ground

in the district court, so our review is for plain error only.

      There was no error at all. In support of his contention that PackerWare

conceded away all but one of the elements in Instruction 19, Mr. Wilkins cites

only to an oral statement made by counsel in the context of PackerWare’s motion

for judgment as a matter of law under Rule 50 of the Federal Rules of Civil

Procedure in which counsel made, at most, a concession that a triable question of

fact existed on one element of the prima facie case. See Aplt’s App. at 507

(PackerWare conceding, “for the purposes of [it’s Rule 50] motion that probably

temporal proximity alone has raised a jury issue as to liability”). During the trial

itself, PackerWare did not remotely concede away any of the elements listed in

Instruction 19, and the district court’s instruction thus properly held Mr. Wilkins

to his proof. To acknowledge that a jury issue has been raised is hardly a

concession that the jury need not make a factual finding on an essential element

of plaintiff’s claim. On top of all this, Mr. Wilkins’s own proposed jury

instruction contains virtually the same four elements as those in the instruction

actually given to the jury, compare Aplt’s App. at 342 with id. at 386, with the

one small difference in verbiage being nothing to which Mr. Wilkins objected,

either before us or below. Accordingly, any conceivable error associated with the

                                           -17-
district court’s introduction of those elements (and we see none) would be invited

error. Shaffer, 472 F.3d at 1227.

                                          III

      Beyond his challenges to the district court’s jury instructions, Mr. Wilkins

contends that the jury’s verdict contains internally inconsistent answers.

Specifically, Mr. Wilkins asserts that the jury’s answer to the first special

interrogatory on his state law workers’ compensation claim – finding that he had

not sustained an injury for which he could assert a future claim for workers’

compensation – is inconsistent with its subsequent answer that PackerWare had

knowledge of Mr. Wilkins’s injury. To the question whether or not Mr. Wilkins

“sustained an injury on the job for which he could assert a future claim for

worker’s compensation benefits,” the jury answered “no.” Aplt’s App. at 413.

To the question whether PackerWare “had knowledge of [Mr. Wilkins’s] injury,”

however, the jury answered “yes.” Aplt’s App. at 413.

       When faced with answers to a special verdict form that might be in

conflict, our precedent obliges us when possible to reconcile them rather than

assume an internally inconsistent verdict. Harvey v. Gen. Motors Corp., 873 F.2d

1343, 1347 (10th Cir. 1989) (“It is the duty of the court to attempt to harmonize

the answers, if it is possible under a fair reading of them. Where there is a view

of the case that makes the jury’s answers to special interrogatories consistent,




                                         -18-
they must be resolved that way.”) (internal citation and quotation omitted). We

are able to do so in this case.

      It seems to us entirely plausible that the jury believed that Mr. Wilkins had

some injury of which PackerWare had knowledge, but did not believe that the

injury was one for which he could assert a future claim for compensation under

the Kansas Workers Compensation Act. Indeed, it appears undisputed that Mr.

Wilkins injured his arm and that PackerWare knew of this injury. What was

disputed was whether this injury entitled to him to workers’ compensation. In

this case, the jury could well have found that Mr. Wilkins could not be

compensated under the Kansas compensation scheme after he voluntarily assumed

light-duty work, but still find that PackerWare knew Mr. Wilkins had an injury

(though not one that precluded him from performing the light-duty work for

which he volunteered). When he failed to show up for work after choosing to

assume a new position, Mr. Wilkins would not have been fired for taking

protected leave – the ultimate issue to be decided in this case, Aplt’s Op. Br. at 45

– but for being absent without leave. While certain of the questions on the special

verdict form may be assailed with the benefit of hindsight, the jury’s responses to

them can fairly be reconciled.

                                        ***




                                         -19-
      Because we discern no reversible error in the district court’s instructions

and no barrier to reading the jury’s verdict harmoniously, the judgment of the

district court is affirmed.


                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




                                        -20-
