                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 28, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    JACKIE R. WILKINS,

                Plaintiff - Appellant,

    v.                                                  No. 07-3208
                                                 (D.C. No. 05-CV-4074-SAC)
    KMART CORPORATION,                                    (D. Kan.)

                Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, SEYMOUR, and PORFILIO, Circuit Judges.


         Jackie R. Wilkins filed this workers’ compensation retaliatory discharge

case against Kmart Corporation, alleging Kmart terminated his employment for

incurring absences necessitated by a work-related injury. The district court

denied cross-motions for summary judgment, a trial was held, and the jury

returned a verdict for Kmart. Mr. Wilkins then filed a motion for judgment as a

matter of law or for a new trial. The district court denied the motion. On appeal,


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Mr. Wilkins challenges the district court’s denial of his summary judgment

motion and post-trial motion and takes issue with the jury instructions. For the

reasons set forth below, we AFFIRM.

                                         I.

      Because the parties are familiar with the facts, we need not repeat them in

great detail. Kmart employed Mr. Wilkins for a little over three months at one of

its distribution centers. He was hired and began work on March 11, 2003,

working third shift, from 11:15 p.m. to 7:15 a.m, unloading boxes and other

inventory from incoming trailers. Kmart terminated his employment on June 26,

2003, for excessive absenteeism.

      During the first ninety days of his employment, Mr. Wilkins was

considered a probationary employee. During the probationary period, employees

are not allotted a specified amount of paid or unpaid time off; instead, overall

performance is evaluated at the end of the probationary period. After

satisfactorily completing the period, employees receive a bank of sixteen hours’

paid leave and eight hours’ unpaid leave. 1

      Kmart requires employees to obtain a written pass to leave work during a

shift. Passes issued to employees who leave for matters related to a work injury

1
      Under Kmart’s bank of hours attendance policy, Kmart will terminate an
employee if he has chargeable absences that exceed his bank of hours. An
absence related to a workers’ compensation injury, other protected absences, and
leave covered by other policies (for example, vacation or bereavement) are not
charged against the bank of hours or otherwise counted against the employee.

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state “occupational.” When an employee needs to leave because of a work injury,

supervisors report up the chain of command to ensure the human resources

department is notified, and the absence is coded into Kmart’s computer system as

“occupational.” If, on the other hand, an employee reports he is not feeling well,

the pass will state “ill.” When an employee must miss an entire day of work, he

is required to call a reporting line in advance of his shift. The human resources

department reviews the call-in information to determine whether an absence will

be treated as an illness, as occupational, or otherwise.

      On April 17, Mr. Wilkins notified his supervisor he was having problems

with his right wrist, neck and/or shoulder. He attributed his problems to an

accident that had occurred several weeks earlier, in late March, when he dropped

a box. Mr. Wilkins’s statement was taken, an accident investigation report was

prepared, and Kmart arranged for Mr. Wilkins to see a doctor. Doctor Bock

diagnosed Mr. Wilkins with a neck strain and tendonitis in the right wrist, and he

prescribed Mr. Wilkins a muscle relaxer, Flexeril.

      Between April 18 and the end of May, Mr. Wilkins left work early once, on

April 22, saying his work injury was causing him pain. Kmart coded this absence

as “occupational.” Aplee. App. at 423, 506. Mr. Wilkins left his shift early on

June 2, 10, and 12, each time saying he was “ill,” which was recorded as such on

the corresponding building passes. Id. at 507, 510. He also called in on June 11,

without providing a reason. Id. at 506.


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         On June 16, Kmart determined Mr. Wilkins had satisfactorily completed his

ninety-day probationary period, and he received a bank of sixteen hours’ paid

leave and eight hours’ unpaid leave, to be used for chargeable absences through

September 11, 2003. Mr. Wilkins exceeded his bank of hours due to absences on

June 17, 23, 24, and 25. When Martha Oelschlaeger, a Kmart human resources

generalist, told Mr. Wilkins he had exceeded his bank and would be terminated,

he claimed his absences were because of problems with the medication prescribed

for his workers’ compensation injury. Ms. Oelschlaegar put the termination on

hold and investigated his claim. After interviewing members of the management

team she determined his recent absences were not related to his work injury. She

reviewed her findings with her superiors who agreed Mr. Wilkins should,

consistent with Kmart policy, be discharged. On June 26, Ms. Oelschlaeger

advised Mr. Wilkins that Kmart was terminating him for exceeding his bank of

hours.

         Mr. Wilkins filed this lawsuit in 2005. The district court denied the

parties’ cross-motions for summary judgment, concluding trial would be

appropriate. In particular, the court stated:

         After hearing all the testimony and evidence presented and after
         evaluating the credibility of the witnesses, it is for the finder of fact
         to resolve whether the defendant actually disbelieved the plaintiff’s
         claimed reason for the absences and fired him for exceeding the bank
         of hours or whether the defendant’s expressed disbelief was a mere




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      pretext for discharging him in retaliation for his absences caused by
      the work-related injury.

Aplt. App., Vol. II at 308-09.

      A jury trial was held in April 2007 and the jury returned a verdict for

Kmart, finding it did not “retaliatorily discharge . . . [Mr. Wilkins] because he

had exercised or might exercise his statutory rights under the Workers’

Compensation Act.” Id. at 357 (verdict form). Mr. Wilkins filed a motion for

judgment as a matter of law (JMOL) or for a new trial under Federal Rules of

Civil Procedure 50(b) and 59(a), respectively. He asserted the evidence was

overwhelmingly in his favor, citing the timing of his firing and his “articulated

reasons for his absences from work,” id. at 372, and contended “[e]ither

prejudice, bias or lack of understanding caused the jury to reach a conclusion that

was entirely contrary to the evidence,” id. at 373. Kmart countered that there was

evidence presented at trial from which the jury could find Mr. Wilkins failed to

establish: “his absences were in fact related to his work comp injury, . . . Kmart

knew or should have known those absences were work comp related, and . . .

Kmart acted out of some retaliatory motive in discharging [him].” Id. at 376-78

(citing Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875-76 (10th Cir. 2004)

(explaining how to prove the causal-connection element of prima facie claim for

retaliatory discharge)).




                                         -5-
      The district court denied Mr. Wilkins’s motion for JMOL or for a new trial,

explaining:

      the evidence was sufficient for the jury to find that the plaintiff’s
      absences in question were not due to medication taken for his work
      injury. There was considerable evidence at trial that placed into
      question the credibility of the plaintiff’s testimony on the reason for
      his absences. His testimony was contradicted by Dr. Bock’s
      testimony on the treatment received by plaintiff, the evaluation of the
      plaintiff’s medical record, and the prescribed use of Flexeril. There
      is also the other circumstantial evidence, including the plaintiff’s
      delayed side effects from the Flexeril, the plainitff’s excellent
      attendance record in May, and his failure to report any medication
      problems to his workers’ compensation contact, Ms. Oeschlaeger,
      until after being notified of his termination. For that matter, the jury
      properly could have found that the planitff’s own testimony on his
      need for and use of Flexeril lacked the consistency and details on
      which to base a verdict favorable to the plaintiff.

Aplt. App., Vol. II at 400-01. This appeal followed.

                                         II.

      Mr. Wilkins seeks review of the district court’s denial of his summary

judgment motion. We generally have jurisdiction only over “final decisions of

the district courts.” 28 U.S.C. § 1291. “To be final, a decision ordinarily ends

the litigation on the merits and leaves nothing for the court to do but execute the

judgment.” Mesa Oil, Inc. v. United States, 467 F.3d 1252, 1254 (10th Cir. 2006)

(quotation omitted). “Indeed, this court has held that the denial of summary

judgment based on factual disputes is not properly reviewable on an appeal from a

final judgment entered after trial.” Haberman v. Hartford Ins. Group, 443 F.3d

1257, 1264 (10th Cir. 2006) (citing Whalen v. Unit Rig, Inc., 974 F.2d 1248,


                                         -6-
1250-51 (10th Cir. 1992)). Thus, “even if summary judgment was erroneously

denied, the proper redress [is] not . . . through appeal of that denial but through

subsequent motions for judgment as a matter of law . . . and appellate review of

those motions if they were denied.” Whalen, 974 F.2d at 1251. Accordingly,

while we will not review the denial of Mr. Wilkins’s summary judgment motion,

we will “reach the substance of [his] argument[]”–that he demonstrated a causal

connection between his protected activity and termination–“in our review of the

district court’s denial of [his post-trial motions].” Snyder v. City of Moab,

354 F.3d 1179, 1184 n.2 (10th Cir. 2003).

      We review de novo the district court’s denial of a Rule 50(b) motion,

drawing “all reasonable inferences in favor of the nonmoving party,” here, Kmart.

Hardeman v. City of Albuquerque, 377 F.3d 1106, 1112 (10th Cir. 2004)

(quotation omitted). We will reverse the district court’s “refusal to grant JMOL

. . . only . . . if the evidence points but one way and is susceptible to no

reasonable inferences supporting the party opposing the motion.” Id. (quotation

omitted). We review for abuse of discretion the district court’s denial of a motion

for a new trial under Rule 59(a). Sanjuan v. IBP, Inc., 275 F.3d 1290, 1297 (10th

Cir. 2002). Where, as here, “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. 1999) (quotations omitted). In diversity


                                           -7-
cases like this one, federal law governs whether JMOL or a new trial is

appropriate, Haberman, 443 F.3d at 1264 (JMOL); Blanke v. Alexander, 152 F.3d

1224, 1235-36 (10th Cir. 1998) (new trial), but the substantive law of the forum

state governs analysis of the underlying claim, see Haberman, 443 F.3d at 1264.

              The elements of a prima facie claim for retaliatory discharge
      for filing a workers compensation claim are: (1) The plaintiff filed a
      claim for workers compensation benefits or sustained an injury for
      which he or she might assert a future claim for such benefits; (2) the
      employer had knowledge of the plaintiff's workers compensation
      claim injury; (3) the employer terminated the plaintiff's employment;
      and (4) a causal connection existed between the protected activity
      or injury and the termination.

White v. Tomasic, 69 P.3d 208, 211-12 (Kan. App. 2003) (citing Rebarchek v.

Farmer Coop Elevator, 35 P.3d 892, 899 (Kan. 2001)).

      To establish the requisite causal connection, a plaintiff must prove an
      unlawful intent on the part of the employer to terminate her because
      she had filed a workers’ compensation claim or had sustained a
      work-related injury for which she might file such a claim. The mere
      act of firing an injured employee for excessive absences or for
      violation of an absenteeism policy does not implicate an improper
      retaliatory motive, particularly when the decision-makers were not
      aware that the absences were due to work-related injuries.

Bones, 366 F.3d at 876.

      In challenging the district court’s denial of his motion for JMOL or for a

new trial, Mr. Wilkins focuses on causation. He cites the timing of his

termination and asserts, in conclusory fashion, “there is not a scintilla of evidence

favoring defendant.” Aplt. Opening Br. at 35. In his reply brief, without any

record reference, he states he “testified that he clearly expressed to his


                                          -8-
supervisors that his need to leave work was because of his injuries.” Aplt. Reply

Br. at 5-6. While Mr. Wilkins’s trial testimony, provided by Kmart, supports his

assertion that he testified in this manner, the jury heard ample evidence

supporting Kmart’s contention it had no “unlawful intent” to discriminate. See

Bones, 366 F.3d at 876. As such, Mr. Wilkins cannot meet the standards

applicable to a motion for JMOL or for a new trial.

      Finally, Mr. Wilkins takes issue with the jury instructions, alleging the jury

“was unable or unwilling to reach the unescapable conclusion from the evidence,

was incorrectly instructed[,] or incorrectly applied the law to the facts.” Aplt.

Opening Br. at 36. His argument is entirely devoid of legal authority and

evidentiary support. “In the absence of [necessary] specifics, we can afford no

relief.” DeLozier v. Sirmons, 531 F.3d 1306, 1329 (10th Cir. 2008) (citing Fed.

R. App. P. 28(a)(9)(A)). Further, his “attempt to expand [his] argument,” by

asserting for the first time in his reply brief that jury instruction number sixteen

was legally incorrect, is a theory we decline to consider. See Vaughn v. Epworth

Villa, 537 F.3d 1147, 1153 n.5 (10th Cir. 2008) (“‘This court does not ordinarily

review issues raised for the first time in a reply brief’ and to the extent these

allegations attempt to expand the arguments made in [plaintiff’s] primary brief,

we decline to consider them here.”) (quoting Stump v. Gates, 211 F.3d 527, 533

(10th Cir. 2000)).




                                          -9-
                              III.

The judgment of the district court is AFFIRMED.

                                         Entered for the Court



                                         John C. Porfilio
                                         Circuit Judge




                              -10-
