FILED
United States Court of Appeals
Tenth Circuit

MAY 31 2001

PATRICK FISHER
Clerk

	UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEWIS TURCK,

		Plaintiff - Appellee,	

No. 00-5082	
	v.	(N.D. Oklahoma)	
BAKER PETROLITE CORPORATION, a Bakers Hughes company,

		Defendant - Appellant.	(D.C. No. CV-99-168-C)		

	ORDER AND JUDGMENT*

Before EBEL, ANDERSON, and MURPHY, Circuit Judges.

	Baker Petrolite Corporation (“Baker”) appeals a judgment entered against it following a jury verdict in favor of Appellee, Lewis Turck, in his lawsuit for alleged wrongful retaliatory discharge under Oklahoma law.  The jury found that Turck’s termination was significantly motivated by and in retaliation for his attempt to consult his workers’ compensation attorney during his pending workers’ compensation action in violation of Okla. Stat. tit. 85, § 5(A)(2).  Baker contends that the judgment should be reversed for the following reasons:  (1) the district court erred in finding that the cause of action upon which Turck prevailed was properly pled; (2) the district court abused its discretion by denying Baker’s requests for a continuance because Baker needed more time to prepare a defense against a claim of which it allegedly had been unaware during discovery; (3) the district court abused its discretion by failing to enter a revised pretrial order; (4) the district court erred as a matter of law in its interpretation of Okla. Stat. tit. 85, § 5(A)(2) and erroneously instructed the jury thereon; (5) the district court abused its discretion by excluding evidence of Turck’s past behavior, job performance and workers’ compensation claims; (6) the district court abused its discretion by admitting the testimony of Turck’s expert witness; and (7) the district court erred in denying Baker’s motion for judgment as a matter of law because the evidence did not support the jury’s verdict.  We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
	
I.  BACKGROUND
	Turck worked for Baker and its predecessors for over seventeen years,  although he apparently was not a model employee.  According to Baker, Turck’s employment history included the following:  Turck was given a verbal warning for using the company phone for personal calls in April of 1988.  Appellant’s App. at 561.  On July 11, 1988, he was suspended without pay for two weeks for insubordination.  Id. at 565.  In January 1989, Turck agreed to work late, but then left without permission.  As a result of that incident, termination was recommended, but did not occur.  Id. at 569.  On December 7, 1989, Turck received a warning letter informing him that a female employee had complained that he had sexually harassed her and giving him various instructions designed to prevent any unnecessary contact between him and the complainant.  He violated those instructions on January 21, 1990, and was suspended for four days without pay.  Id. at 627.  On April 6, 1990, Turck was cited for negligence in performing his job duties and warned that further incidents could result in termination.  Id. at 570-71.  
	In August 1990, Turck suffered a work related back injury.  He retained counsel and filed a workers’ compensation lawsuit on July 20, 1992.  Id. at 528.  Despite Turck’s past disciplinary problems, he received a positive performance review in 1993.  However, his performance review dated September 19, 1994, while mostly positive, stated that Turck “needs to improve on his teamwork as well as his infectious negative attitude.  Lewis needs to build trust and integrity with management and to accept management decisions.”  Id. at 593. 
	In November 1994, Turck re-injured his back while working on a rail car.  He retained counsel and filed a second workers’ compensation lawsuit against Baker on December 19, 1994.  Id. at 542.  In May 1995, Turck suffered another work related back injury.  Again represented by counsel, he filed his third workers’ compensation lawsuit against Baker on May 25, 1995.  Id. at 550.  Turck’s August 15, 1995, performance review rated him “unsatisfactory” in the areas of cooperation and attendance and again discussed his negative attitude and rude behavior towards other employees, his supervisors and Baker.  Id. at 598-603.  Turck was given another review on April 4, 1996, in which he was given scores of “unsatisfactory” and “needs improvement” in several categories.  Id. at 606-08.
	In June 1996, Turck injured his right knee on the job.  However, he continued to work until July 2, 1996, when Baker sent him home from work because it did not think he should be working with the injury.  Before he left work on July 2, Turck had, as per company policy, filled out his time sheet for the next two weeks and turned it in.  As a result, he was erroneously paid for days he was off work in July.  Turck, again represented by counsel, filed his fourth workers’ compensation lawsuit against Baker on July 15, 1996, with respect to the knee injury.  Id. at 559.  He returned to work on August 28, 1996.    
	At trial, the parties offered differing accounts of what occurred with regard to the overpayment between the time Turck returned to work and December 2, 1996, and essentially reiterate those positions on appeal.  Baker claims that it, through human resource manager John Plusquellec, approached Turck about the overpayment twice during that period, but that Turck refused to pay it back and stated that he wanted to speak with his attorney.  Id. at 973-84.  Turck, on the other hand, claims that he attempted to discuss the issue with his immediate supervisor, Jimmy Vann, who directed him to Plusquellec after refusing to discuss the matter with him.  Id. at 731.  Turck then attempted to speak about the overpayment with Jack Cluck, his production superintendent, but Cluck told him that he could not discuss the matter because Turck had an attorney.  Id. at 824.  Turck alleges that Plusquellec also refused to talk to him about the overpayment because he was represented by counsel in his pending workers’ compensation action against Baker.  Id. at 734.  Baker points out, and Turck concedes, that when he attempted to speak with Plusquellec, he did not use the word “overpayment,” but spoke in more general terms about problems with his check, pay and disability benefits.  Id. at 766-70.  
	As of December 2, 1996, the overpayment remained outstanding and Turck’s workers’ compensation action was pending.  Turck received his final performance review on that date.  It was overwhelmingly negative and warned that if immediate improvement was not seen, disciplinary action “up to and including termination” would be taken.  Id. at 613-15.  
	Later that same day, Turck met with Plusquellec and Vann about the overpayment.  Turck claims that he told them to take the whole amount out of his next check.  Id. at 740.  Plusquellec wanted Turck to sign a payroll deduction authorization and presented him with a calculation of the amount owed and the time sheet for the period in question.  Turck claims that the calculation was erroneous.  Id. at 741.  He told the jury that he responded to Plusquellec as follows:

I told him that I also wanted to talk to my work comp attorney before I signed anything, that I wasn’t refusing to pay the money back, that I wanted to talk to my comp attorney, because I felt that I might jeopardize my comp case by signing something, or I felt like that I might even be fraudulent by signing something that I could see was in error in the time sheet.

Id. at 741-42.  Vann confirmed that Turck never refused to repay the money but did refuse to sign the payroll deduction form without consulting with his attorney.  Id. at 795, 799-800.  At that point, Plusquellec told Turck to talk to his attorney that night so they could meet again in the morning.  Plusquellec never gave Turck a copy of the document he was to sign for his attorney to review.  Id. at 741, 795.  
	Turck left work at 7:00 p.m. on December 2, 1996, and was unable to contact his attorney that night or the following morning.  He reported to work at 6:45 a.m. the following day.  At about 10:00 a.m., he met with Plusquellec, Vann and Cluck.  Id. at 798.  The meeting of the night before replayed itself with Plusquellec demanding repayment and Turck refusing to sign anything until he contacted his attorney.  At the conclusion of the meeting, Turck was terminated by Plusquellec.
	Turck commenced this action in Oklahoma state court on November 30, 1998, and Baker removed the case to federal court in March 1999.  In his Petition filed in state court, which continued to serve as the complaint following removal, Turck made the following allegations:

	8.     On December 2, 1996, Turck was called into the office of Baker’s local Human Resource Manager, John Plusquellec, to discuss the matter of an overpayment in wages made to Turck approximately one year earlier.

€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€beca9.     Plusquellec demanded that Turck sign a documents€for€a€continuance€becaconcerning this overpayment or he would be terminated.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€beca10.   Turck requested that he be allowed to discuss thes€for€a€continuance€becadocument which he was being requested to sign with his attorney sos€for€a€continuance€becaas to insure that he was not jeopardizing his pending workerliss€for€a€continuance€becacompensation action.  Turck even offered to have Baker deduct thes€for€a€continuance€becaalleged overpayment from his paycheck in lieu of signing thes€for€a€continuance€becaproffered document, which request was declined by Baker.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€beca11.   Turck was terminated by Baker on December 3, 1996.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€beca12.   Turck alleges that he was wrongfully termination [sic] bys€for€a€continuance€becaBaker in violation of 85 O.S. €rinuance€beca5 solely in retaliation of his havings€for€a€continuance€becafiled a workersli compensation claim against Baker.on€by€denyingÏBakerððs€requests€for€a€continuance€beca
on€by€denyingÏBakerððs€requests€for€a€continuance€becaId. at 11.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaAfter removal, discovery was conducted.  Baker deposed Turck ons€for€a€continuance€becaAugustinuance€beca19, 1999.  On December 8, 1999, Baker moved for summary judgment ons€for€a€continuance€becathe grounds that Turck had failed to make out a prima facie case under €rinuance€beca5(A)(1). s€for€a€continuance€becaIn his January 11, 2000, reply to Bakerlis motion for summary judgment, Turcks€for€a€continuance€becamakes it clear that he is suing Baker under €rinuance€beca5(A)(2),r€a€continuance€beca and that the critical issues€for€a€continuance€becain this case hinges on lnthe right of a protected employee to retain counsel.l€  Id. ats€for€a€continuance€beca136.  Baker filed a response to Turcklis reply on January 24, 2000, in which its€for€a€continuance€becaargued that paragraph 12 of the Petition expressly limits Turck to a cause ofs€for€a€continuance€becaaction under €rinuance€beca5(A)(1) and characterized Turcklis €rinuance€beca5(A)(2) argument as ans€for€a€continuance€becalneleventh hour inclusion of a new legal theory [in] an attempt to escape summarys€for€a€continuance€becajudgment by creating a sham fact issue.l€  Id. at 184.  In the event that the courts€for€a€continuance€becadecided to allow Turck to proceed on a €rinuance€beca5(A)(2) claim, Baker asked the court tos€for€a€continuance€becarence€becaopen discovery so it could address the lnnewl€ claim.  on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaThe parties submitted a proposed Pretrial Order on February 8, 2000, whichs€for€a€continuance€becawas entered on February 9, 2000.  The document sets forth Turcklis claim unders€for€a€continuance€beca€rinuance€beca5(A)(2), and Bakerlis objection to that claim, with its assertion that only as€for€a€continuance€beca€rinuance€beca5(A)(1) claim was at issue.  Id. at 246nce€beca69.  However, the evidence listed in thes€for€a€continuance€becaPretrial Order, including the testimony of witnesses for both sides, focuses on thes€for€a€continuance€becaallegations made in the Petition.  See, e.g., id. at 255nce€beca56.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaOn February 24, 2000, the district court held a pretrial conference in whichs€for€a€continuance€becait instructed the parties to submit briefs on the issue of whether a €rinuance€beca5(A)(2) claims€for€a€continuance€becahad been properly pled.  The court held a final pretrial hearing on March 6, 2000,s€for€a€continuance€becathe day of trial, at which it found that the Petition contained factual allegationss€for€a€continuance€becasupporting a €rinuance€beca5(A)(2) claim sufficient to give Baker notice of that claim ands€for€a€continuance€becadenied Bakerlis motion for summary judgment.  Id. at 684nce€beca85.  At that point,s€for€a€continuance€becaBaker reiterated its request for a continuance and a rence€becaopening of discovery.  Its€for€a€continuance€becastated that it wanted to depose Turck again, to depose his workersli compensations€for€a€continuance€becaattorney, and to have time to address the €rinuance€beca5(A)(2) claim by dispositive motion. s€for€a€continuance€becaId. at 689.  The district court denied the request.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaFinally, Baker asked the district court to incorporate its proposeds€for€a€continuance€becaamendments to the Pretrial Order.  The amended version included evidence ofs€for€a€continuance€becaTurcklis performance and behavior problems.  Id. at 440nce€beca41.  The court, havings€for€a€continuance€becaalready made it known that it considered those issues to be irrelevant to this case,s€for€a€continuance€becadenied Bakerlis request to amend the Pretrial Order.  Id. at 695nce€beca96.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaEven so, Baker attempted to introduce evidence of Turcklis disciplinarys€for€a€continuance€becaproblems, poor performance and past workersli compensation actions at trial.  Thes€for€a€continuance€becadistrict court excluded that evidence as irrelevant.  It also overruled Bakerliss€for€a€continuance€becaobjection to the testimony of Turcklis expert witness and its objection to thes€for€a€continuance€becacourtlis interpretation of €rinuance€beca5(A)(2) as found in the jury instructions.  After findings€for€a€continuance€becafor Turck, the jury awarded him $111,138 in past lost wages and benefits,s€for€a€continuance€beca$108,010 in future lost wages and benefits, and $6000 for mental anguish ands€for€a€continuance€becaemotional distress.on€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€becaII.  DISCUSSIONon€by€denyingÏBakerððs€requests€for€a€continuance€beca
A.€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaDid the District Court Err in Ruling that Turck Properly Pled as€for€a€continuance€beca€rinuance€beca5(A)(2) Claim and in Denying Bakerlis Motions to Continue and tos€for€a€continuance€becaAmend the Pretrial Order Relating to that Issue?on€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaAs indicated above, Baker contends that the district court erred as a matters€for€a€continuance€becaof law in finding that Turcklis Petition properly pled a €rinuance€beca5(A)(2) claim and ins€for€a€continuance€becaallowing the case to be tried on that claim.  It asserts that the Petition expresslys€for€a€continuance€becaexcluded all but a €rinuance€beca5(A)(1) claim, and thus the district courtlis decision to allows€for€a€continuance€becathe case to go to trial on a €rinuance€beca5(A)(2) claim substantially prejudiced Baker ins€for€a€continuance€becapresenting its defense. on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaIn addition, Baker advances two related and subsidiary arguments.  First, its€for€a€continuance€becaargues that the district court erred in denying its motion for a continuances€for€a€continuance€becabecause, in order to alleviate the unfair prejudice resulting from the allegedly lates€for€a€continuance€becainclusion of a €rinuance€beca5(A)(2) claim in this lawsuit, it needed additional time to conducts€for€a€continuance€becadiscovery and prepare a defense with respect to the lnnewl€ claim.  Second, Bakers€for€a€continuance€becaargues that the district court erred in refusing to amend the Pretrial Order becauses€for€a€continuance€becaamendment was required so that the Pretrial Order would reflect the allegeds€for€a€continuance€becaaddition of a €rinuance€beca5(A)(2) claim to the case.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaA complaint must contain lna short and plain statement of the claim showings€for€a€continuance€becathat the pleader is entitled to relief.l€  Fed. R. Civ. P. 8(a)(2).  The statement musts€for€a€continuance€becalngive the defendant fair notice of what the plaintifflis claim is and the groundss€for€a€continuance€becaupon which it rests.l€  Conley v. Gibson, 355 U.S. 41, 47 (1957).  If the statements€for€a€continuance€becais sufficient to give the notice required, Rule 8(a)(2) is satisfied and ln[i]t is nots€for€a€continuance€becanecessary to plead under what particular law the recovery is sought.l€  Uniteds€for€a€continuance€becaStates v. Missourince€becaKansasnce€becaTexas R.R. Co., 273 F.2d 474, 476 (10th Cir. 1959). s€for€a€continuance€becaSee also, Hail v. Heymannce€becaChristiansen, Inc., 536 F.2d 908, 909 n.2 (10th Cir.s€for€a€continuance€beca1976); Misco Leasing, Inc. v. Keller, 490 F.2d 545, 548 (10th Cir. 1974). on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaAlthough we have stated that ln[a]s a general rule, a plaintiff should not bes€for€a€continuance€becaprevented from pursuing a valid clam just because she did not set forth in thes€for€a€continuance€becacomplaint a theory on which she could recover,l€ a late shift in the focus of thes€for€a€continuance€becacase should not be allowed if it prejudices the other partylis ability to defend thes€for€a€continuance€becaaction on the merits.  Evans v. McDonaldlis Corp., 936 F.2d 1087, 1090nce€beca91 (10ths€for€a€continuance€becaCir. 1991).  Moreover, lnthe liberalized pleading rules [do not] permit plaintiffs tos€for€a€continuance€becawait until the last minute to ascertain and refine the theories on which they intends€for€a€continuance€becato build their case.l€  Id. at 1091.  Allowing this practice lnwould waste the partieslis€for€a€continuance€becaresources, as well as judicial resources, on discovery aimed at ultimatelys€for€a€continuance€becaunavailing legal theories and would unfairly surprise defendants, requiring thes€for€a€continuance€becacourt to grant further time for discovery or continuances.l€  Id.  Accordingly,s€for€a€continuance€becaalthough ln[a]ll pleadings shall be so construed as to do substantial justice,l€ Fed.s€for€a€continuance€becaR. Civ. P. 8(f), a complaint must be specific enough to put the defendant ons€for€a€continuance€becanotice of the claim(s) against him in order to avoid inefficiency and unfairs€for€a€continuance€becaprejudice.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaFactual allegations supporting a claim under €rinuance€beca5(A)(2) are clearly set out ins€for€a€continuance€becathe Petition.  Taken alone, those allegations would provide adequate notice that as€for€a€continuance€beca€rinuance€beca5(A)(2) claim was at issue.  The difficulty, however, arises from the language ins€for€a€continuance€becaparagraph 12 of the Petition which states, lnTurck alleges that he was wrongfullys€for€a€continuance€becatermination [sic] by Baker in violation of 85 O.S. €rinuance€beca5 solely in retaliation of hiss€for€a€continuance€becahaving filed a workersli compensation claim against Baker.l€  Appellantlis App. ats€for€a€continuance€beca11 (emphasis added).  Baker asserts that paragraph 12 expressly limits Turck to as€for€a€continuance€beca€rinuance€beca5(A)(1) claim and that the Petition gives no notice that a €rinuance€beca5(A)(2) claim iss€for€a€continuance€becabeing raised.  After rereading the Petition, the district court stated that Bakerliss€for€a€continuance€becaallegation that it had no prior notice of a €rinuance€beca5(A)(2) claim lnsimply cannot be truel€s€for€a€continuance€becabecause lnthe circumstances and situation relating to the overpayment and thes€for€a€continuance€becapayback of overpayment request stands out here as a fundamental reason . . . ors€for€a€continuance€becamotivating factor in the discharge and that does fall within [€rinuance€beca5(A)(2)] . . . and Is€for€a€continuance€becathink it is adequately so pled.l€  Id. at 685.  We agree.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaAs indicated above, the only substantive factual allegations in the Petitions€for€a€continuance€becarelate to a €rinuance€beca5(A)(2) claim.  A reasonable reading of those allegations should haves€for€a€continuance€becaput Baker on notice that Turck was alleging that a substantial motive for hiss€for€a€continuance€becatermination was retaliation for his insistence on speaking with his workerslis€for€a€continuance€becacompensation attorney before signing anything regarding the overpayment. s€for€a€continuance€becaIndeed, when Bakerlis counsel deposed Turck on August 19, 1999, she asked him,s€for€a€continuance€becaln[t]ell me why you were fired because of your workersli comp injury or becauses€for€a€continuance€becayou filed a claim or because you saw an attorney with respect to your claim.l€  Id.s€for€a€continuance€becaat 354.  Although his answer was unresponsive, the question reveals that Bakers€for€a€continuance€becawas aware that a €rinuance€beca5(A)(2) claim was a possibility given the factual allegationss€for€a€continuance€becamade in the Petition, and, more fully, in Turcklis deposition.  Finally, Baker doess€for€a€continuance€becanot dispute the basic facts giving rise to a €rinuance€beca5(A)(2) claim and restates them in thes€for€a€continuance€becalnUndisputed Material Factsl€ section of its motion for summary judgment fileds€for€a€continuance€becaDecember 8, 1999.  Id. at 39nce€beca41.  on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaWe have examined the Petition at length and concede that it is poorlys€for€a€continuance€becadrafted.  However, the issue is not whether the Petition is skillfully drafted, buts€for€a€continuance€becawhether it contains a plain statement of Turcklis claims sufficient enough to gives€for€a€continuance€becaBaker notice of the claims against which it must defend.  We conclude that thes€for€a€continuance€becadistrict court did not commit reversible error by ruling that the factual allegationss€for€a€continuance€becamade in the Petition gave Baker notice that Turck was alleging that his refusal tos€for€a€continuance€becasign anything in connection with the wage overpayment until he consulted hiss€for€a€continuance€becaworkersli compensation attorney was a significant motivating and retaliatorys€for€a€continuance€becafactor in his termination in violation of €rinuance€beca5(A)(2).on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaThat conclusion is dispositive of Bakerlis claims of error regarding as€for€a€continuance€becacontinuance and its related claims of prejudice.  Furthermore, even assumings€for€a€continuance€becaarguendo that Baker did not have notice of the €rinuance€beca5(A)(2) claim until Turck fileds€for€a€continuance€becahis response to Bakerlis motion for summary judgment, Baker has nots€for€a€continuance€becademonstrated that its ability to defend this action was significantly prejudiced bys€for€a€continuance€becathe district courtlis actions.  This is because:  (1) Baker had notice of thes€for€a€continuance€beca€rinuance€beca5(A)(2) claim at least by January 11, 2000, nearly two months prior to trial;s€for€a€continuance€beca(2)inuance€becaeven though discovery was closed at that point, Baker had already questioneds€for€a€continuance€becaTurck extensively about the events immediately preceding his termination,s€for€a€continuance€becaincluding the demand that he sign a payroll deduction authorization, his refusal tos€for€a€continuance€becado so until he consulted with his workersli compensation attorney and hiss€for€a€continuance€becatermination; (3) the events of December 2nd and December 3rd, 1996, were laids€for€a€continuance€becaout for the jury in full through the testimony of Vann, Plusquellec, Cluck ands€for€a€continuance€becaTurck; (4) Baker offered a full and competent defense to Turcklis €rinuance€beca5(A)(2) claim,s€for€a€continuance€becaand (5) Baker has failed to identify any specific material and admissible evidences€for€a€continuance€becait would have obtained and presented had the district court granted a continuances€for€a€continuance€becaand rence€becaopened discovery.  Bakerlis conclusory assertions that it needed to deposes€for€a€continuance€becaTurck for a second time and to depose his workersli compensation attorney leads€for€a€continuance€becaonly to pure speculation.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaAs stated above, the Pretrial Order definitively states that Turck wass€for€a€continuance€becaproceeding under €rinuance€beca5(A)(2) and indicates that the evidence to be presented at trials€for€a€continuance€becawould focus on the allegations made in the Petition.  The substantive allegationss€for€a€continuance€becain the Petition support a €rinuance€beca5(A)(2) claim.  Thus, the Pretrial Order set forth as€for€a€continuance€beca€rinuance€beca5(A)(2) claim and anticipated that the evidence would focus on that claim. s€for€a€continuance€becaMoreover, Baker has failed to show that the Pretrial Order was insufficientlys€for€a€continuance€becadefinitive or that the district courtlis refusal to amend that document worked as€for€a€continuance€becamanifest injustice.  See Fed. R. Civ. P. 16(e).  Accordingly, we conclude that thes€for€a€continuance€becadistrict court did not err in denying Bakerlis request to amend the Pretrial Order.    on€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€becaB.  €abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaMeaning of Okla. Stat. tit. 85, €rinuance€beca5(A)(2)on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaBaker argues that the district court erred as a matter of law in itss€for€a€continuance€becainterpretation of €rinuance€beca5(A)(2) and that the court further erred when it instructed thes€for€a€continuance€becajury in accordance with its misinterpretation.  We review the district courtliss€for€a€continuance€becadetermination of €rinuance€beca5(A)(2) de novo.   Salve Regina Coll. v. Russell, 499 U.S. 225,s€for€a€continuance€beca231 (1991).  lnWe review the district courtlis decision to give a particular jurys€for€a€continuance€becainstruction for abuse of discretion and consider the instructions as a whole des€for€a€continuance€becanovo to determine whether they accurately informed the jury of the governings€for€a€continuance€becalaw.l€  United States v. McClatchey, 217 F.3d 823, 834 (10th Cir. 2000) (quotations€for€a€continuance€becaomitted).  on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaBaker attempts to characterize the district courtlis interpretation ofs€for€a€continuance€beca€rinuance€beca5(A)(2) as follows:  ln[e]ssentially, the District Courtlis interpretation of thiss€for€a€continuance€becasection, mandates that an employer allow an employee access to an attorneys€for€a€continuance€becabefore any adverse employment action may be taken.  In other words, the Districts€for€a€continuance€becaCourtlis interpretation of the statute creates a civil lnMirandal€ right for employeess€for€a€continuance€becafacing discharge or other adverse action.l€  Appellantlis Principal Br. at 38nce€beca39.  Alls€for€a€continuance€becaof the arguments raised in Bakerlis briefs on this issue are devoted to proving thats€for€a€continuance€beca€rinuance€beca5(A)(2) lndoes not provide an employee a right to counsel before an adverses€for€a€continuance€becaemployment action may be taken with regard to an employee.l€  Appellantlis Replys€for€a€continuance€becaBr. at 14 n. 4.   However, a fair reading of the district courtlis instructions ons€for€a€continuance€beca€rinuance€beca5(A)(2) does not support Bakerlis characterization.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaThe district courtlis interpretation of an employeelis rights under €rinuance€beca5(A)(2)s€for€a€continuance€becais best stated in the jury instructions:  lnYou are advised that the term l€right tos€for€a€continuance€becacounsel for representationli concerning a workersli compensation claim as stated ins€for€a€continuance€becathe Oklahoma Workersli Compensation Act includes the right to reasonable accesss€for€a€continuance€becato and advice from such retained counsel regarding any matter relating to as€for€a€continuance€becaworkersli compensation claim.l€  Appellantlis App. at 486.  on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaThe district courtlis interpretation speaks for itself and clearly states thats€for€a€continuance€beca€rinuance€beca5(A)(2) grants employees the right to consult with their workersli compensations€for€a€continuance€becaattorney about a workersli compensation claim without being terminated ins€for€a€continuance€becaretaliation therefor.  Although Baker appears to find this interpretation palatable,s€for€a€continuance€becawe must review the matter to ensure that the district court correctly construed thes€for€a€continuance€becastatute.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaWe start with the statute itself.  It prohibits an employer from terminatings€for€a€continuance€becaan employee in retaliation for ln[r]etain[ing] a lawyer for representation regardings€for€a€continuance€becaa [workersli compensation] claim.l€  Okla. Stat. tit. 85, €rinuance€beca5(A)(2).  A literals€for€a€continuance€becareading of the statute could support an interpretation that it only protectss€for€a€continuance€becaemployees from retaliatory discharge when they retain an attorney, but not whens€for€a€continuance€becathey consult with that attorney about their workersli compensation claim. on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaHowever, because the Oklahoma Workersli Compensation Act is remedials€for€a€continuance€becain nature, lnit should be accorded liberal construction in favor of those entitled tos€for€a€continuance€becaits benefits.l€  Upton v. State of Oklahoma ex rel. Deplit of Corr., 9 P.3d 84, 88s€for€a€continuance€beca(Okla. 2000).  An example of the Oklahoma courtsli liberal interpretation of €rinuance€beca5 iss€for€a€continuance€becafound in Buckner v. Gen. Motors Corp., 760 P.2d 803 (Okla. 1988).  In Buckner,s€for€a€continuance€becathe employee was injured on the job and seen by a company doctor on site ands€for€a€continuance€becaplaced on limited duty.  A few days after the first visit, she had pain from thes€for€a€continuance€becainjury again and sought to see the same company doctor about it.  While she wass€for€a€continuance€becawaiting to see the doctor, she was fired for loitering.  Id. at 805.  At issue wass€for€a€continuance€becawhether she had, at that point, lninstituted proceedingsl€ within the meaning ofs€for€a€continuance€becaOkla. Stat. tit. 85, €rinuance€beca5(A)(3).  The Oklahoma Supreme Court held that she had,s€for€a€continuance€becastating, lnthe provision of medical treatment by the employer, when accompanieds€for€a€continuance€becaby circumstances . . . which would lead a reasonable employer to infer that as€for€a€continuance€becaworkers compensation claim would in all probability ensue, constitutes thes€for€a€continuance€becainstitution of proceedings.l€  Buckner, 760 P.2d at 811.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaThe liberal interpretation of the phrase lninstitution of proceedingsl€ ins€for€a€continuance€becaBuckner supports the district courtlis interpretation of the phrase lnretain a lawyerl€s€for€a€continuance€becain this case.  After reviewing Buckner and other Oklahoma cases in which €rinuance€beca5 iss€for€a€continuance€becaconstrued, and keeping in mind that the statute is to be construed liberally ins€for€a€continuance€becafavor of employees, we conclude that the district courtlis interpretation ofs€for€a€continuance€beca€rinuance€beca5(A)(2), and the jury instructions on the subject, taken as a whole, were nots€for€a€continuance€becaerroneous.on€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€beca
C.€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaEvidentiary Rulings Regarding Past Behavior and Workerslis€for€a€continuance€becaCompensation Claimson€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaIt is undisputed that Bakerlis stated reason for terminating Turck was hiss€for€a€continuance€becarefusal to repay the overpayment that occurred in July 1996.  Appellantlis App. ats€for€a€continuance€beca120, 637.  Throughout this litigation, Baker has attempted to introduce evidences€for€a€continuance€becaof Turcklis past performance and behavior problems and his previous workerslis€for€a€continuance€becacompensation claims in order to prove that it had a legitimate, nonnce€becaretaliatorys€for€a€continuance€becamotive for his discharge.  The district court refused to allow that evidence on thes€for€a€continuance€becaground that it was irrelevant to the stated reason for discharge.  We review thes€for€a€continuance€becadistrict courtlis evidentiary rulings for an abuse of discretion, and will not disturbs€for€a€continuance€becathem unless we have  lna definite and firm conviction that the lower court made as€for€a€continuance€becaclear error of judgment or exceeded the bounds of permissible choice in thes€for€a€continuance€becacircumstances.l€  United States v. Curtis, 147 F.3d 1200, 1217 (10th Cir. 1998)s€for€a€continuance€beca(quotation omitted).on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaRelevant evidence is lnevidence having any tendency to make the existences€for€a€continuance€becaof any fact that is of consequence to the determination of the action mores€for€a€continuance€becaprobable or less probable than it would be without the evidence.l€  Fed. R. Evid.s€for€a€continuance€beca401.  We have reviewed the district courtlis rulings in light of Bakerlis stateds€for€a€continuance€becareason for discharging Turck and conclude that the decision to exclude evidences€for€a€continuance€becaof Turcklis past behavior problems and prior workersli compensation claims on thes€for€a€continuance€becaground that the proffered evidence was not relevant to the reason given fors€for€a€continuance€becadischarge was well within the district courtlis discretion.on€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€becaD.  €abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaAdmission of Expert Testimonyon€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaAt trial, Turcklis counsel called accountant Gary Barnes for the purpose ofs€for€a€continuance€becagiving expert testimony on Turcklis past and future lost wages resulting from hiss€for€a€continuance€becatermination by Baker.  Following a brief voir dire, Bakerlis counsel objected tos€for€a€continuance€becaBarnesli proposed testimony on the grounds that he was not qualified to give ans€for€a€continuance€becaopinion as to Turcklis future lost wages and that the basis of his proposeds€for€a€continuance€becatestimony was unreliable.  The district court overruled those objections.  Wes€for€a€continuance€becareview for an abuse of discretion.  Goebel v. Denver & Rio Grande W.R.R. Co.,s€for€a€continuance€beca215 F.3d 1083, 1087 (10th Cir. 2000).on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaAn expert witness is a person who is qualified lnby knowledge, skill,s€for€a€continuance€becaexperience, training, or education,l€ and his testimony will be admitted if it wills€for€a€continuance€becaassist the trier of fact to understand the evidence or determine a fact in issue. s€for€a€continuance€becaFed. R. Evid. 702.  In order to assist the trier of fact, expert testimony must bes€for€a€continuance€becareasonably reliable.  Hence, the Supreme Court has charged the district court withs€for€a€continuance€becathe responsibility of acting as a gatekeeper to exclude unreliable expert testimony. s€for€a€continuance€becaSee Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert v.s€for€a€continuance€becaMerrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).  Expert opinions lnmust bes€for€a€continuance€becabased on facts which enable [the expert] to express a reasonably accurates€for€a€continuance€becaconclusion as opposed to conjecture or speculation.l€  Gomez v. Martin Mariettas€for€a€continuance€becaCorp., 50 F.3d 1511, 1519 (10th Cir. 1995) (quotation omitted).  However,s€for€a€continuance€becalnabsolute certainty is not required.l€  Id.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaBarnes stated that he had a bachelorlis degree in accounting, had dones€for€a€continuance€becaaccounting work since 1972 and had run his own accounting business since 1983. s€for€a€continuance€becaAppellantlis App. at 849nce€beca51.  Barnes also explained that he used salary data givens€for€a€continuance€becato him by Turck.  His figures for back pay involved subtracting what Turck woulds€for€a€continuance€becahave made if still employed by Baker from what he actually earned since hiss€for€a€continuance€becatermination.  Barnes testified that to determine future lost wages, he entereds€for€a€continuance€becaTurcklis current and past salary, as well as information regarding overtime,s€for€a€continuance€becabonuses and 401K plans, into a computer program that calculated an amount ands€for€a€continuance€becadiscounted it to present value.  He stated that he did not factor in real wages€for€a€continuance€becagrowth in either calculation and that he tried to avoid speculation by simply usings€for€a€continuance€becafigures that were true at the time.  Id. at 886nce€beca87.  Finally, Barnes acknowledgeds€for€a€continuance€becathat if Turck received overtime or raises at his new job, his calculation of futures€for€a€continuance€becalost wages would be too high.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaIn short, the district court had before it sufficient information to determines€for€a€continuance€becawhether Barnes was qualified to perform the calculations necessary to form ans€for€a€continuance€becaopinion and testify with regard to Turcklis lost wages and to decide whether thes€for€a€continuance€becabasis for that opinion and testimony was reliable.  Based on our review of thats€for€a€continuance€becainformation under the foregoing legal authorities, we conclude that the districts€for€a€continuance€becacourt did not abuse its discretion by permitting Barnes to testify.on€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€becaE.  €abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaJudgment as a Matter of Lawon€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaAfter the jury verdict, Baker moved for judgment as a matter of law.  Thes€for€a€continuance€becadistrict court denied the motion.  Baker argues that the district court erred ins€for€a€continuance€becadenying its motion because the evidence does not support the jury verdict.  Wes€for€a€continuance€becareview de novo.  Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir.s€for€a€continuance€beca1999).  However, we will reverse lnonly if the evidence points but one way and iss€for€a€continuance€becasusceptible to no reasonable inferences supporting the party opposing thes€for€a€continuance€becamotion.l€  Id. (quotation omitted).  Moreover, ln[w]e do not weigh the evidence,s€for€a€continuance€becapass on the credibility of the witnesses, or substitute our conclusions for [those]s€for€a€continuance€becaof the jury.l€  Id.  Finally, we view the evidence and any reasonable inferences tos€for€a€continuance€becabe drawn therefrom in the light most favorable to Turck.  Id.on€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaBy way of summarizing and restating the facts set out above, the evidences€for€a€continuance€becaand the inferences that the jury could reasonably draw therefrom, showed that: s€for€a€continuance€beca(1) On December 2, 1996, Baker requested that Turck sign a payroll deductions€for€a€continuance€becaauthorization so that it could recover the overpayment from his paychecks;s€for€a€continuance€beca(2)inuance€becaTurck believed the amount of the overpayment as calculated by Baker wass€for€a€continuance€becaerroneous and feared that authorizing the repayment might prejudice his pendings€for€a€continuance€becaworkersli compensation claim; (3) as a result of the foregoing concerns, Turcks€for€a€continuance€becarefused to sign the form without consulting his workersli compensation attorney;s€for€a€continuance€beca(4) Turck was unable to contact his attorney between 7:00 p.m., the time at whichs€for€a€continuance€becahis shift ended on December 2, 1996, and 6:45 a.m. the following day when hiss€for€a€continuance€becaDecember 3, 1996, shift began; (5) on December 3, 1996, Baker again demandeds€for€a€continuance€becathat Turck sign the payroll deduction authorization and Turck again refused to dos€for€a€continuance€becaso until he was able to consult his workersli compensation attorney; and (6) Bakers€for€a€continuance€becathen terminated Turck.  This evidence was sufficient to support the jurylis verdict. s€for€a€continuance€becaAccordingly, the district court did not err in denying Bakerlis motion for judgments€for€a€continuance€becaas a matter of law.on€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€becaIII.  CONCLUSIONon€by€denyingÏBakerððs€requests€for€a€continuance€beca€abused€its€discretion€by€denyingÏBakerððs€requests€for€a€continuance€becaFor the reasons stated above, we AFFIRM the judgment against Baker.on€by€denyingÏBakerððs€requests€for€a€continuance€becaENTERED FOR THE COURTon€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€becaon€by€denyingÏBakerððs€requests€for€a€continuance€becaStephen H. Andersonon€by€denyingÏBakerððs€requests€for€a€continuance€becaCircuit Judge