F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 26 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ARLEN ROSE,
Plaintiff - Appellant,
vs. No. 98-7166
THE UNIROYAL GOODRICH TIRE
COMPANY, an affiliated division of
Michelin North America, Inc.,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 97-CV-398-B)
Dan Little, Little, Little, Little, Windel & Coppedge, Madill, Oklahoma, for
Plaintiff - Appellant.
Victor Fred Albert, McKinney & Stringer, P.C., Oklahoma City, Oklahoma, for
Defendant - Appellee.
Before SEYMOUR, KELLY, and LUCERO, Circuit Judges.
KELLY, Circuit Judge.
This case requires us to determine the extent to which a plea of nolo
contendere is admissible in a civil action as evidence of an employer’s rationale
for terminating an employee.
Background
Plaintiff-Appellant Arlen Rose was employed as a First Stage Tire Builder
at Defendant Michelin’s Ardmore tire plant from April 4, 1984 until October 5,
1994. In 1992, Michelin implemented a Drug-Free Workplace Employment
Guide, which specified the company’s zero tolerance policy toward illegal drug
use. Part II(C) and V of that policy stated:
The possession, use, manufacture, distribution, or sale
of illegal or medically unauthorized controlled drugs off
Company premises that adversely affects the employees
work performance, their own or others’ safety at work,
or the Company’s regard or reputation in the community
is prohibited.
......
Violation of this policy is considered a serious
infraction and will result in disciplinary action.
V Aplt. App. at 804, 805.
On August 16, 1994, Arlen Rose and his brother Randy were arrested by
local police officers who reported finding drugs and weapons in the home where
the brothers were living. The arrest was reported the next day in an article in the
local paper. See id. at 821. Mr. Rose was charged with possession and intent to
distribute a controlled, dangerous substance, possession of firearms during the
commission of a felony and possession of drug paraphernalia. Following the
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arrest, he was suspended from work under Michelin’s “Suspension Following
Serious Criminal Charges” policy. Id. at 806.
On September 30, pursuant to an agreement with the local district attorney,
Mr. Rose pled nolo contendere to a misdemeanor charge of possession of
marijuana, and the felony charges against him were dropped. The court ordered
him to pay over $1,000 in fines but deferred the imposition of judgment and
sentence for one year. Id. at 818. Michelin subsequently learned about Mr.
Rose’s plea and terminated him on October 5, 1994 for violation of the Drug-
Free Workplace Policy. 1
At the time, Michelin had a Fair Treatment Policy which employees could
follow to contest work-related situations. Id. at 802. The first step in this
procedure was to discuss the problem with the supervisor and then consult with
successive levels of management. One step in the process provided:
If the problem is not satisfactorily resolved at the
facility, the Personnel Department will arrange for
further management review and, if necessary, the
Facility Personnel Manager will convene a Fair
Treatment Panel.
Id. A Fair Treatment Panel consisted of three non-management Michelin
With the possible exception of the Drug-Free Workplace Policy and the
1
Fair Treatment Policy, Mr. Rose was an employee at will and could be fired “at
any time for any reason” absent a specific written agreement to the contrary. V
Aplt. App. at 808 (Michelin “Termination of Wage Employment” Policy).
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employees who reviewed the situation and had the authority to override
management’s decision. IV Aplt. App. at 536. Mr. Rose specifically requested a
Fair Treatment Panel at the time of his termination, see V Aplt. App. at 814, but
his request was denied.
Over two years later, on April 30, 1997, Mr. Rose successfully sought and
received an Order of Expungement of the record of his no contest plea. II Aplt.
App. at 218. Upon his continued request, Michelin granted Mr. Rose a Fair
Treatment Panel hearing in July of 1997. The three member panel considered
Mr. Rose’s plea and held “that the termination of . . . Arlen Rose was justified
and we uphold the Company’s decision of termination.” Id. at 225.
Mr. Rose filed the instant suit on July 3, 1997, the day after the Fair
Treatment Panel decision, claiming wrongful discharge as (1) a public policy tort
and (2) breach of an implied employment contract. In a motion in limine, he
sought to exclude all evidence relating to his nolo contendere plea. The district
court denied the motion, granted summary judgment to Michelin on the public
policy tort claim, and submitted the implied contract claim to the jury. By special
verdict, the jury determined that Michelin followed both the Drug-Free
Workplace Policy and the Fair Treatment Policy in terminating Mr. Rose. III
Aplt. App. at 473-74. This appeal followed. Our jurisdiction arises under 28
U.S.C. § 1291 and we affirm.
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Plea of Nolo Contendere
Mr. Rose argues that the district court erred in denying his motion in
limine and admitting evidence of his plea of nolo contendere at trial. He relies
upon Fed. R. Evid. 410 and Okla Stat. Ann. tit. 22, § 513 (West 1992) as support
for his argument. We review both the denial of the motion in limine and the
subsequent admission of the nolo contedere plea under an abuse of discretion
standard. See Den Hartog v. Wasatch Academy , 129 F.3d 1076, 1092 (10th Cir.
1997).
Rule 410 states, in relevant part: “[E]vidence of the following is not, in
any civil or criminal proceeding, admissible against the defendant who made the
plea . . . (2) a plea of nolo contendere.” 2
See also Fed. R. Crim. P. 11(e)(6)
(similar prohibition); Fed. R. Evid. 803(22) (excluding plea of nolo contendere
from exceptions to hearsay rule). The Oklahoma statute is similar. “The legal
effect of [a nolo contendere] plea shall be the same as that of a plea of guilty, but
the plea may not be used against the defendant as an admission in any civil suit
based upon or growing out of the act upon which the criminal prosecution is
2
Okla. Stat. Ann. tit. 12, § 2410 (West 1992) is the almost verbatim state
version of Fed. R. Evid. 410. Mr. Rose does not argue this statute as a basis for
reversal, apparently acknowledging that the federal rules govern evidentiary
issues in this case. See generally Blanke v. Alexander, 152 F.3d 1224, 1231 (10th
Cir. 1998) (“The admissibility of evidence in diversity cases in federal court is
generally governed by federal law.”).
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based.” Okla. Stat. Ann. tit. 22, § 513 (West. 1992).
As an initial matter, we note that these rules, by their very terms, only
apply to the admission of a plea in “a civil or criminal proceeding” or a “civil
suit.” See Myers v. Secretary of Health & Human Servs. , 893 F.2d 840, 843 (6th
Cir. 1990) (plea of nolo contendere admissible in administrative proceeding); see
also State v. Bradley , 746 P.2d 1130, 1134 (Okla. 1987) (admissible in attorney
disciplinary proceeding). Michelin’s employment decision-making process,
including the Fair Treatment Panel, does not fall within either of these
definitions. Moreover, by their very nature, the Federal Rules of Evidence do not
apply to the personnel decisions of private companies. See generally Fed. R.
Evid. 1101. Therefore, Mr. Rose’s plea of nolo contendere could properly be
used by Michelin as a basis for terminating his employment.
The question we must then decide is whether Mr. Rose could affirmatively
use the general rule against admission of nolo contendere pleas to prevent
Michelin from introducing the very evidence it relied upon in making the
termination decision. We hold that he may not. As aptly stated by the district
court, “to permit Plaintiff to proceed at trial unchecked by the realities of the
circumstances leading to his termination is simply unjust and will not be
permitted.” III Aplt. App. at 433.
There are two primary reasons behind holding nolo pleas inadmissible, and
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neither rationale would be furthered by exclusion in this case. First, although a
plea of nolo contendere has the same legal effect as a guilty plea, it is not a
factual admission to the underlying crime. See Olsen v. Correiro , 189 F.3d 52,
59 (1st Cir. 1999). A defendant who otherwise would plead guilty may choose to
take a nolo plea to prevent the plea from being used as an admission in a
subsequent civil action. “A second reason . . . [for the] exclusion of nolo pleas is
a desire to encourage compromise resolution of criminal cases.” Id. at 60. Both
of these reasons assume a situation in which the criminal defendant is being sued
in a later civil action, and the plea is offered as proof of guilt.
In the present case, however, the nolo contendere plea is not being
admitted “against the defendant.” As the Sixth Circuit has convincingly noted:
This case does not present the kind of situation
contemplated by Rule 410: the use of a nolo contendere
plea against the pleader in a subsequent civil or criminal
action in which he is the defendant. In this case, . . . the
persons who entered prior no-contest pleas are now
plaintiffs in a civil action. Accordingly, use of the no-
contest plea . . . is not “against the defendant” within
the meaning of Fed. R. Evid. 410. This use would be
more accurately characterized as “for” the benefit of the
“new” civil defendants . . . .
Walker v. Schaeffer , 854 F.2d 138, 143 (6th Cir. 1988) (citations omitted).
Oklahoma has adopted this same rationale in interpreting Okla. Stat. tit. 22, §
513. See DeLong v. State , 956 P.2d 937, 938 (Okla. Ct. App. 1998) (citing Irwin
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v. SWO Acquisition Corp. , 830 P.2d 587 (Okla. Ct. App. 1992)). In DeLong , the
court noted that the purpose of the Oklahoma exclusionary rules – Okla. Stat. tit.
12, § 2410 and tit. 22 § 513 – is to “proscribe ‘offensive’ use of a nolo
contendere plea . . ., not to proscribe ‘defensive’ use of the admission against the
criminal defendant in a case where the criminal defendant sought to recover
damages . . . .” DeLong , 956 P.2d at 938.
We will not construe either Rule 410 or the Oklahoma statutes to allow an
employee plaintiff to affirmatively prevent an employer from presenting the very
evidence used as a basis for its termination decision. Such a result would
unfairly hogtie the employer and lead the jury to believe that the employee’s
termination was groundless. Nor will we review the wisdom of the termination
in light of Mr. Rose’s nolo contendere plea. As this court has repeatedly noted,
our role is “not to act as a ‘super personnel department’ that second guesses
employers' business judgments.” Simms v. Oklahoma , 165 F.3d 1321, 1330
(10th Cir. 1999) (citation omitted). There was adequate evidence for the jury to
find that the events surrounding Mr. Rose’s arrest and plea affected Michelin’s
regard and reputation in the community and the company did not violate its
policies. Therefore, there was no error in admitting evidence of the plea of nolo
contendere and the jury verdict must stand.
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Jury Instruction
Mr. Rose argues that the district court erred in giving jury instruction No.
12 which stated: “A nolo contendere plea has the same legal effect as a guilty
plea.” III Aplt. App. at 495. We review the instructions de novo “‘to determine
whether, as a whole, the instructions correctly stated the governing law and
provided the jury with an ample understanding of the issues and applicable
standards.’” Hynes v. Energy West, Inc. , 211 F.3d 1193, 1197 (10th Cir. 2000)
(citation omitted). The substance of the jury instructions in a diversity case is a
matter of state law. Id.
Instruction 12 is an almost verbatim recitation of the first part of Okla.
Stat. tit. 22, § 513 – “The legal effect of [a plea of nolo contendere] shall be the
same as that of a plea of guilty . . . .” Mr. Rose contends, however, that it was
error to give the instruction without reference to the entire sentence in § 513, i.e.
“ . . . but the plea may not be used against the defendant as an admission in any
civil suit based upon or growing out of the act upon which the criminal
prosecution is based.” We disagree. The admissibility of the plea was a decision
for the trial court. As we have discussed, the second part of § 513 does not apply
to this case and was properly excluded from the instructions.
Fair Treatment Panel
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The remaining arguments are quickly resolved. Mr. Rose claims that the
judge erred in instructing the jury that Michelin was not obligated to convene a
Fair Treatment Panel. See III Aplt. App. at 496 (Jury Instruction No. 13, stating
“the convening of a Fair Treatment Panel is clearly not mandatory”). “Under
Oklahoma law, it is well-settled that the interpretation of an unambiguous
contract is a question of law for the court.” Dillard & Sons Const., Inc. v.
Burnup & Sims Comtec, Inc. , 51 F.3d 910, 914 (10th Cir. 1995). Michelin’s
policy clearly stated that management need only convene a Fair Treatment Panel
“if necessary.” This language is unambiguous and there was no error in so
instructing the jury. 3
Finally, Mr. Rose argues that Michelin violated Okla. Stat. tit. 63, § 2-410
by considering his expunged arrest and plea at the time of the Fair Treatment
Panel in 1997. He argues that the trial court also impermissibly permitted the
introduction of evidence regarding the expunged proceedings. In relevant part,
the Oklahoma statute provides that “[a]ny expunged arrest or conviction shall not
3
There was also no error in denying Mr. Rose’s motion for summary
judgment on this issue, because the clear language of the policy did not provide a
right to a mandatory Fair Treatment Panel. We note that the denial of a motion
for summary judgment is generally not appealable. As is the case here, however,
“when the material facts are not in dispute and the denial of summary judgment is
based on the interpretation of a purely legal question, such a decision is
appealable after final judgment.” Wolfgang v. Mid-America Motorsports, Inc.,
111 F.3d 1515, 1521 (10th Cir. 1997).
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thereafter be regarded as an arrest or conviction for purposes of employment . . .
.” Okla. Stat. tit. 63, § 2-410. The key word in the statute is “thereafter.” While
an employer may not rely upon expunged proceedings in making termination
decisions, it “could rely on any information concerning plaintiff's conduct that it
received before the expungement order became effective, and after the
expungement order it was entitled to present at a due process hearing the
information on which it relied in making the initial decision.” Ambus v. Granite
Bd. of Educ. , 975 F.2d 1555, 1567 (10th Cir. 1992) (interpreting similar
provision of Utah law). That is exactly what happened in this case, and no error
occurred.
AFFIRMED.
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