Wilson v. Muckala

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 21 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

VERONICA WILSON; PETE
TERRELL WILSON,
Nos. 00-5131, 00-5137, 00-5138
Plaintiffs - Appellees/Cross-
Appellants,
v.

KENNETH MUCKALA, M.D.;
COLUMBIA DOCTORS HOSPITAL
OF TULSA, INC., doing business as
Columbia Doctors Hospital,

Defendants - Appellants/Cross-
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 97-CV-910-E)

Submitted on the Briefs: *

Bill V. Wilkinson, Wilkinson Law Firm, Tulsa, Oklahoma, for Plaintiffs -
Appellants.

*
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); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
Stephen L. Andrew and D. Kevin Ikenberry, Stephen L. Andrew & Associates,
Tulsa, Oklahoma, for Defendant - Appellee Kenneth Muckala.

Stephen J. Rodolf, Karen L. Callahan and Leslie C. Weeks, Rodolf & Todd,
Tulsa, Oklahoma, for Appellant Hospital.

Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.

KELLY, Circuit Judge.

Plaintiffs sought to recover on several claims stemming from alleged

incidents of sexual harassment against an individual doctor, the hospital where

Plaintiff and doctor worked, hospital board members, and former owners. The

district court granted summary judgment in favor of several Defendants, and the

jury ultimately found for the remaining Defendants on all counts except negligent

infliction of emotional distress. The jury awarded compensatory damages in the

amount of $25,000 against Dr. Muckala, and $15,000 against the Hospital. In

cross-appeals, Plaintiffs contest numerous evidentiary and procedural rulings and

Defendants challenge their liability for negligent infliction of emotional distress.

Background

In 1997, Plaintiffs Veronica Wilson and her husband Pete Wilson filed suit

based on Ms. Wilson’s alleged sexual harassment by Dr. Kenneth Muckala who

was Vice-Chief and Chief of Staff of Columbia Doctors Hospital of Tulsa, Inc.

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(“Hospital”) during Ms. Wilson’s employment there as a psychiatric nurse. Ms.

Wilson claimed that Dr. Muckala sexually harassed her from September 1996

through March 1997, leading to her resignation from the Hospital in May 1997.

Plaintiffs’ amended complaint alleged (1) state law claims for sexual

assault and battery, tortious interference with contract, and invasion of privacy

against Dr. Muckala; (2) Title VII claims against the Hospital, Columbia/HCA

Healthcare (“Columbia”), and Healthtrust, Inc. (“HTI”); and (3) negligence

against the Hospital, Columbia, HTI, and the individual board members. Mr.

Wilson claims loss of consortium against all Defendants.

The district court granted summary judgment in favor of Columbia, HTI,

and the board members. The doctor and the Hospital went to trial where a jury

found in favor of Ms. Wilson and against both Defendants on the negligent

infliction of emotional distress claim, and for the Defendants on all other claims.

Discussion

A. Negligent Infliction of Emotional Distress Against the Hospital

Both Dr. Muckala and the Hospital challenge their liability for negligent

infliction of emotional distress. Prior to and following the jury verdict, both

Defendants moved for judgment as a matter of law, but the district court denied

their motions. Defendants now appeal.

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 The Hospital argues that Oklahoma does not recognize a cause of action for

negligent infliction of emotional distress. This plain statement is not quite

accurate. Rather, Oklahoma courts say that negligent infliction of emotional

distress is not an independent tort, but is in effect the tort of negligence.

Kraszewski v. Baptist Med. Ctr of Okla., Inc., 916 P.2d 241, 243 n.1 (Okla.

1996); Lockhart v. Loosen, 943 P.2d 1074, 1081 (Okla. 1997); Mason v. State ex

rel. Bd. of Regents of Univ. of Oklahoma, 23 P.2d 964, 969 (Okla Ct. App.

2000). A Plaintiff therefore cannot proceed on a negligent infliction of emotional

distress theory of liability separate from negligence, Lockhart, 943 P.2d at 1081,

and the traditional elements of duty, breach of duty, causation, and damages

apply. Kraszewski, 916 P.2d at 245. The question in this case is simply whether

the Defendants were justly found liable for negligence.

In looking to the merits of Ms. Wilson’s claim sounding in negligence, the

Hospital contends that the lack of evidence of physical injury provides a basis for

reversal. In Oklahoma, damages for mental anguish are recoverable only if they

are “produced by, connected with or the result of physical suffering or injury to

the person enduring the mental anguish.” Ellington v. Coca Cola Bottling Co. of

Tulsa, 717 P.2d 109, 111 (Okla. 1986). This means that “[u]pon proper proof, the

Plaintiff may recover for mental anguish where it is caused by physical suffering

and may also recover for mental anguish which inflicts physical suffering.” Id.;

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see also Slaton v. Vansickle, 872 P.2d 929, 931 (Okla. 1994) (“Oklahoma does

acknowledge a claim for physical injury where it is accompanied by mental stress

or mental stress is accompanied by physical injury”). Oklahoma law obligated

Ms. Wilson to provide proof of some physical injury, whether incurred

contemporaneously with her emotional injury, or whether as a direct consequence

of her emotional injury.

The Hospital’s claim that there is no evidence that Ms. Wilson suffered any

physical harm is not quite true. Some evidence came from her treating

psychiatrist, who testified that following Ms. Wilson’s resignation from the

Hospital,

she described increasing feelings of humiliation,
intimidation, very, very strong subjective unpleasant feelings,
as well as...increasing depression. She had difficulty
sleeping, crying, sad, gained weight, lost interest in working,
felt not safe working as a nurse, at least at Doctors.

IV Wilson App. at 999.

The Hospital requested that the jury instructions on negligent infliction of

emotional distress mention the required finding of physical injury consequent to

the emotional distress–a request denied by the district court. 1 We review de novo

1
The Court gave the Plaintiffs’ requested jury instruction as follows:
“Plaintiffs, Veronica Wilson and Pete Wilson, allege claims of negligent
infliction of emotional distress against the Defendants. The elements of a claim
for negligent infliction of emotional distress are that (1) Dr. Muckala and/or
Columbia Doctors’ Hospital engaged in negligent conduct; 2) Veronica Wilson

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a timely challenge to a jury instruction to determine whether, considering the

instructions as a whole, the jury was misled. United States v. Guidry, 199 F.3d

1150, 1156 (10th Cir. 1999) (internal citations omitted). We reverse only when

we “have substantial doubt that the jury was fairly guided.” Id.

In light of the clear requirement that physical damages accompany an award

for mental distress or anguish, and the evidence of physical harm presented at

trial, we find that the jury instructions on negligent infliction of emotional

distress delivered by the district court were infirm and constitute reversible error.

We need not reach the Hospital’s contention that, as a matter of law, the

Hospital had no common law duty to protect their employee, Ms. Wilson, from

sexual harassment by Dr. Muckala.

B. Negligent Infliction of Emotional Distress Against Doctor Muckala

Dr. Muckala challenges the verdict on Ms. Wilson’s claim for negligent

infliction of emotional distress because, though alleged in the original complaint,

it does not appear in the amended complaint, and was not clearly alleged in the

pretrial order. The doctor argues that, throughout the trial, he was unaware that

the claim for negligent infliction of emotional distress remained alive, until after

the close of the evidence, when Plaintiffs’ counsel sought a jury instruction on the

and Pete Wilson suffered serious emotional distress; and (3) Dr. Muckala and/or
Columbia Doctors’ Hospital’s negligent conduct was a cause of the serious
emotional distress.” II Hospital App. at 311.

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claim against him as well as the Hospital. Dr. Muckala then objected.

The district court wrestled with the status of the negligent infliction claim,

and whether it had been sufficiently alleged. First, the court allowed it “[i]n

consideration of fairness to the plaintiff.” Muckala App. at 193. However,

Defendants pointed out that the claim clearly had been dropped in the amended

complaint. In light of that argument, the court disallowed the claim, ruling that

the clause in the pretrial order saying that, “the defendants, are sued at common

law,” was insufficient to resurrect a claim previously dropped from the case.

Muckala App. at 195. The court speculated that the phrase, “the defendants”, was

mistakenly carried over from the original pretrial order and included the board

members who were no longer parties in the case. Muckala App. at 197. Finally,

though, the court allowed the claim and instructed the jury accordingly “because

of the conflict on that issue,” but it reserved ruling on Dr. Muckala’s objection

until after the verdict. The jury found for the Plaintiff solely on the claim for

negligent infliction of emotional distress. After the verdict, the court overruled

the doctor’s objection, concluding that, despite the wording of the amended

complaint and the pretrial order, Dr. Muckala had not been unfairly surprised by

the instruction to the jury. Muckala App. at 122-23. Dr. Muckala appeals the

district court’s ruling.

The original complaint clearly alleged the claim of negligent infliction of

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emotional distress against Dr. Muckala, and the amended complaint just as clearly

dropped the claim. The amended complaint alleged negligence only against “the

Defendants identified in paragraphs 3 and 4.” Muckala App. at 30. The Hospital

and the board members were named in paragraphs three and four, while Dr.

Muckala was named in only the second paragraph. Muckala App. at 24-25. The

amended complaint describes the negligence cause of action, but the heading of

that section lists only the Hospital and the board members, and the descriptive

language in that section cannot be construed to include a claim against the doctor.

Muckala App. at 30-32. Predictably, the doctor’s answer to the amended

complaint addressed only the remaining claims–sexual assault and battery,

tortious interference with contract, and invasion of privacy–and did not respond in

any way to negligent infliction of emotional distress. Muckala App. at 132 (docs.

23-24).

Ms. Wilson argues she reasserted negligent infliction of emotional distress

in the pretrial order. However, the pertinent parts of that document are

ambiguous. In the statement of the case, the pretrial order states that Dr. Muckala

is “a Defendant under two separate legal theories: sexual assault and battery, and

invasion of privacy.” 2 Muckala App. at 37.

2
The court later allowed the Plaintiffs to add the tortious interference with
contract claim.

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 The following paragraph, however, indicates generally that “Defendants”

are sued under common law negligence and negligent infliction of emotional

distress. Plaintiffs argue that, though the order nowhere indicates that any claims

have been added or amended, this paragraph alone suffices to renew a previously

dropped claim. The doctor’s actions belie Plaintiffs’ suggestion that he was

apprised of the claim–his statement of issues in the pretrial order was limited to

the sexual assault and invasion of privacy claims, reflecting a belief that the

negligent infliction of emotional distress claim was no longer part of the case

against him. Upon Dr. Muckala’s motion for judgment as a matter of law at the

close of Plaintiffs’ evidence, neither side mentioned the negligent infliction of

emotional distress claim, instead focusing on the three claims still clearly in play.

Muckala App. at 167-176.

“When an issue is set forth in the pretrial order, it is not necessary to

amend previously filed pleadings” because “the pretrial order is the controlling

document for trial.” Expertise Inc., v. Aetna Fin. Co., 810 F.2d 968, 973 (10th

Cir. 1987); Fed. R. Civ. P. 16(e). As such, claims, issues, defenses, or theories of

damages not included in the pretrial order are waived even if they appeared in the

complaint and, conversely, the inclusion of a claim in the pretrial order is deemed

to amend any previous pleadings which did not include that claim.

The preparation of a pretrial order requires careful attention and review by

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the parties and their attorneys. While we recognize that “the pretrial order is

treated as superceding the pleadings and establishing the issues to be considered

at trial,” Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1522,

we do not normally expect to see claims or defenses not contained in the

pleadings appearing for the first time in the pretrial order, especially in such

cursory form. Such a practice deprives one’s adversary of fair notice, possibly

discovery, and the opportunity for motion practice, and is subject to abuse by

those who employ a sporting theory of justice. The laudable purpose of Fed. R.

Civ. P. 16 to avoid surprise, not foment it. See Clark v. Pennsylvania R.R. Co.,

328 F.2d 591, 594 (2d Cir. 1964) (the purpose of Rule 16 is to replace “the old

sporting theory of justice” with a policy of “putting the cards on the table”).

Should a new claim or defense appear for the first time in the pretrial order, it is

incumbent upon opposing counsel to meticulously examine the order, taking

exception, if necessary, to the additions, and recording their objection in the

pretrial order. Meanwhile, the party seeking to add a claim or defense should do

so with specificity and clarity so as to minimize the ill effects of that practice.

Specificity and clarity provide the trial court with a fair opportunity to consider

whether to approve or deny what is obviously an attempt to amend the pleadings

at a rather late date. Fed. R. Civ. Pro. 15(a).

Plaintiffs had ample opportunity to sculpt and refine the pretrial order to

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include every allegation against Dr. Muckala. Their duty to do so was especially

important if they intended to include, as they contend they did, a claim previously

dropped in the amended complaint. Unfortunately, the pretrial order does not

clearly convey their purported intent to re-allege any claim.

In dealing with an ambiguous pretrial order such as this, we must evaluate

the order contextually to determine whether the claim was contained therein. In

this case, the clear language of the amended complaint, coupled with the

ambiguous language of the pretrial order, lead us to conclude that there was

insufficient documentary support for the allegation of a claim of negligent

infliction of emotional distress against Dr. Muckala. Our conclusion is reinforced

by the absence of any mention of this claim in the doctor’s answer to the amended

complaint, or in the pretrial order statement of the case, and the lack of any

mention of the claim by Plaintiffs or Defendant at the hearing on Defendant’s

Rule 50 motion at the close of Plaintiffs’ case, though all other claims were

discussed. In light of these facts, we find that the cause of action for negligent

infliction of emotional distress did not run against Dr. Muckala and we reverse

the verdict of liability on that claim.

C. Evidentiary Rulings

Plaintiffs appeal several of the district court’s decisions to exclude

evidence, which we review for an abuse of discretion. United States v. Becker,

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230 F.3d 1224, 1232 (10th Cir. 2000). They argue first that the district court

erred in prohibiting testimonial evidence of Dr. Muckala’s alleged extra-marital

affairs. Plaintiffs sought to introduce the evidence for the purpose of impeaching

the doctor’s deposition statement that he never solicited or had an adulterous

relationship while employed at the Hospital.

Plaintiffs do not address the application of Fed. R. Evid. 608(b), which

provides in pertinent part that “[s]pecific instances of the conduct of a witness,

for the purpose of attacking or supporting the witness’ credibility,...may not be

proved by extrinsic evidence.” Instead, Plaintiffs cites two cases, the first, United

States v. Barrett, 8 F.3d 1296 (8th Cir. 1993), is inapposite as it solely relates to

the admissibility of hearsay. The court in the second case, Livergood v. S.J.

Graves & Sons Co., 254 F.Supp. 879 (W.D. Pa. 1965), admitted evidence of

errant driving that took place only moments before the accident which was the

subject of the case. The court found the evidence not “wholly collateral,” and

therefore applied the test for relevancy. Livergood, 254 F.Supp. at 880.

Testimony about Dr. Muckala’s sexual history is, on the contrary, “wholly

collateral,” and nevertheless exceedingly less relevant than the evidence at issue

in Livergood. We find no abuse of discretion as the Plaintiffs have not cited, nor

do we see, any relevant legal basis for departing from Rule 608(b)’s command

that extrinsic evidence not be used to impeach a witness.

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 Plaintiffs also sought to introduce testimony regarding alleged instances of

past sexual harassment by the doctor in order to prove his “discriminatory intent”

and “motive.” Evidence of other crimes, wrongs, or acts is inadmissible to prove

the character of a person in order to show action in conformity therewith. Fed. R.

Evid. 404(b). However, evidence of prior bad acts is admissible for purposes

other than to show action in conformity with character. Id. Such purposes

include, but are not limited to, proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Id. If offered for a

proper purpose under Rule 404(b), the evidence of prior bad acts is admissible

only if (1) it is relevant under Fed. R. Evid. 401; (2) the probative value of the

evidence is not substantially outweighed by its potential for unfair prejudice

under Fed. R. Evid. 403; and (3) the district court, upon request, instructs the jury

to consider the evidence only for the purpose for which it was admitted. Becker,

230 F.3d at 1232.

Evidence of a defendant’s past sexual harassment admitted to prove

discriminatory intent in cases of race and gender discrimination is admitted for a

proper purpose under Rule 404(b). Spulak v. K-Mart Corp., 894 F.2d 1150, 1156

(10th Cir. 1990); Heyne v. Caruso, 69 F.3d 1475, 1479-80 (9th Cir. 1995). But as

noted in Heyne, alleged previous harassment cannot be used to show that a

defendant harassed a plaintiff on a specific subsequent occasion. Heyne, 69 F.2d

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at 1480. As the district court noted in its ruling in this case, the Plaintiff

conceded that the Hospital had no notice of the alleged prior incidents, so the

testimony could not have been sought to prove the Hospital’s discriminatory

intent. Further, there is no discriminatory intent element in the claims brought

against Dr. Muckala. And because these alleged prior incidents of sexual

harassment occurred in places outside the Hospital, they were not relevant to

establish a hostile work environment claim. See Hicks v. Gates Rubber Co., 833

F.2d 1406, 1415 (10th Cir. 1987). Plaintiffs seek to admit this evidence, not to

show discriminatory intent, but instead to prove the fact of the harassment

itself–exactly the purpose prohibited by Plaintiffs’ cited cases and by Rule 404(b).

The district court did not abuse its discretion in excluding evidence of alleged

prior bad acts.

Ms. Wilson challenges the district court rulings to (1) exclude the

testimony of Amber Flint, a former employee of the Hospital allegedly fired for

reporting charges of sexual harassment; (2) prohibit Plaintiffs from mentioning

Ms. Flint in the presentation of their case; and, (3) deny Plaintiffs’ request for

supplemental discovery of the Hospital’s internal files on the sexual harassment

charges brought by Ms. Flint.

Ms. Wilson’s appellate brief describes at great length the circumstances of

Ms. Flint’s termination and its relevance to Plaintiffs’ case. Plaintiffs wanted to

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show that the firing of Ms. Flint after she reported sexual harassment to the

Hospital made Ms. Wilson hesitant to report her own alleged harassment, thus

explaining her delay. Unfortunately, Plaintiffs’ discussion omits numerous

important details that formed the basis of the district court decision to deem the

evidence irrelevant–details such as Ms. Wilson’s own deposition testimony that

she did not know Amber Flint, that she only heard a rumor that Ms. Flint filed a

sexual harassment claim, and that she did not know the outcome of Ms. Flint’s

claim. III Hospital App. at 604-05. Furthermore, the defense presented evidence

that Ms. Flint was still an employee during the time that Ms. Wilson claimed to be

afraid to report her harassment. I Hospital Supp. App. at 270. Finally, there was

evidence that Ms. Flint was not fired at all, but instead, terminated under hospital

policy for per diem workers who do not complete a shift within three consecutive

months. I Hospital Supp. App. 268-69. After reviewing the record, we are

convinced that the district court did not abuse its discretion when it disallowed

evidence regarding Amber Flint.

At trial, Ms. Wilson sought to introduce expert testimony from her treating

psychiatrist that she was telling the truth when she said she was a victim of sexual

harassment. The district court limited the testimony, ruling that the witness

would not be “entitled to opine on the veracity of [Ms. Wilson’s]

complaint,...whether [the psychiatrist] believes she is telling the truth,” or

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“whether he believes that she was sexually harassed.” III Wilson App. at 826.

The court did permit the witness to testify about Ms. Wilson’s psychological

condition and his treatment of that condition. Id.

Trial courts have broad discretion to determine the admissibility of expert

testimony and we review such decisions for abuse of discretion. Taylor v. Cooper

Tire & Rubber Co., 130 F.3d 1395, 1397 (10th Cir. 1997). Expert testimony on

the psychological and emotional traits of abuse victims is typically admissible, so

long as the witness makes no comment on the alleged victim’s credibility, or

identify the alleged victim as a victim of abuse. United States v. Charley, 189

F.3d 1251, 1265 (10th Cir. 1999). The credibility of witness testimony is a matter

left to the jury and generally is not an appropriate subject for expert testimony.

United States v. Adams, 271 F.3d 1236, 1245 (10th Cir. 2001) (internal citation

omitted). The trial court did accurately and precisely lay out the parameters of

what the treating psychiatrist could testify to. Plaintiffs cite no law, apart from

Fed. R. Evid. 702 and 704, to support their claim that the testimony should not

have been excluded “simply because it embraces an ultimate issue to be decided

by the jury–whether Veronica Wilson’s complaints and symptoms are credible.”

Wilson Br. at 55. We find no error in the district court’s ruling that the expert

could testify to Ms. Wilson’s condition, but not give his opinion on her

credibility.

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 Similarly, the district court prohibited testimony from a human resources

expert regarding the Hospital’s response plan in cases of sexual harassment, and

the reasonableness of the Hospital’s response to Ms. Wilson’s claim. The court

found this expert testimony relevant, but excluded it because the facts were “not

so complicated as to require the testimony of an expert witness on either the

adequacy of the plan or policy or the investigation” that followed. III Hospital

App. at 781. In reviewing a trial court’s exclusion of evidence, “we will reverse

only if the exclusion is an abuse of discretion that results in ‘manifest injustice to

the parties.’” Thompson v. State Farm Fire & Casualty Co., 34 F.3d 932, 939

(10th Cir. 1994) (citations omitted).

The ‘touchstone’ of admissibility of expert testimony is its helpfulness to

the trier of fact. Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 648 (10th Cir.

1991). “When the normal experiences and qualifications of laymen jurors are

sufficient for them to draw a proper conclusion from given facts and

circumstances, an expert witness is not necessary and is improper.” Frase v.

Henry, 444 F.2d 1228, 1231 (10th Cir. 1971). After reviewing the record, we

agree with the district court that the issues to which Ms. Wilson’s expert would

have testified were not so impenetrable as to require expert testimony. The

district court did not abuse its discretion in excluding the testimony of the human

resources expert.

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D. Dismissal of Hospital Board Members and Corporate Entities

Plaintiffs challenge the district court’s grant of summary judgment to

Defendants Columbia/HCA Healthcare (“Columbia”), Healthtrust, Inc. (“HTI),

and the Hospital Board Members. “We review the grant or denial of summary

judgment de novo, applying the same legal standard used by the district court...”

Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (citation omitted).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Inexplicably, Plaintiffs’ counsel agreed to the dismissal of HTI in a joint

stipulation, filed on February 11, 1999. II Hospital App. at 173-74. Regardless,

HTI and Columbia provided uncontroverted documentary evidence, including a

bill of sale, showing that they did not own the Hospital at the time of the alleged

sexual harassment. I Hospital Supp. App. at 210-211, 317. As countervailing

evidence, Plaintiffs offer only the Defendants’ failure to specifically deny

ownership in their answer to the original complaint, and the dubious assertion that

the “names by which the Hospital has been known” suggest ownership by HTI and

Columbia. We review the record in the light most favorable to the nonmoving

party, Thournir v. Meyer, 909 F.2d 408, 409 (10th Cir. 1990), but this generous

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standard cannot compensate for the Plaintiffs’ complete lack of “specific facts

showing there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). We find no

error in the dismissal of Columbia and HTI.

Plaintiffs claimed only negligence against the Hospital board members.

Upon finding no statutory or common law duty to protect another person–Ms.

Wilson in this case–from sexual harassment, the district court granted summary

judgment for the board members. Plaintiffs appeal that decision. The jury found

against Dr. Muckala only on the negligent infliction of emotional distress claim,

which we reverse on appeal as insufficiently alleged. Consequently, we find that,

even if it was error to grant summary judgment for the board members, any error

was harmless. Plaintiffs could not have sustained a cause of action in negligence

against these individuals when the alleged perpetrator himself was exonerated of

negligence.

The district court ruled on summary judgment that Dr. Muckala was not a

hospital employee–a ruling Plaintiffs challenge on appeal. Under the state law

standards set forth in Sawin v. Nease, 97 P.2d 27, 29-32 (Okla. 1939), the

touchstone of an employment relationship is the right to control the means and

manner of the worker’s performance. See also Zinn v. McKune, 143 F.3d 1353,

1357 (10th Cir. 1998). In determining whether one is an “employee” under Title

VII, we have considered the following factors:

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 (1) the kind of occupation at issue, with reference to whether the work
usually is done under the direction of a supervisor or is done by a
specialist without supervision; (2) the skill required in the particular
occupation; (3) whether the employer or the employee furnishes the
equipment used and the place of work; (4) the length of time the
individual has worked; (5) the method of payment, whether by time or
by job; (6) the manner in which the work relationship is terminated; (7)
whether annual leave is afforded; (8) whether the work is an integral
part of the business of the employer; (9) whether the worker
accumulates retirement benefits; (10) whether the employer pays social
security taxes; and (11) the intention of the parties.

Id.

Plaintiffs provide little evidence pertaining to these factors, but point

exclusively to the doctor’s role as Chief of Staff. However, the Hospital

introduced significant evidence that the doctor was an independent contractor, not

a salaried employee, and that his service as Chief of Staff was a collateral duty to

which he was elected by his peers and paid $1000 per month from staff dues. In

light of this explanation, the doctor’s role as Chief of Staff and the associated

monthly check do not even approach an adequate showing that the Hospital

controlled the means and manner of Dr. Muckala’s performance. The district

court did not err in granting summary judgment on this issue.

Plaintiffs also find error in the district court’s rejection of the apparent

authority or aided-by-the-agency theory of liability for sexual harassment. An

employer might be vicariously or directly liable for a hostile work environment

created by its employees. Harrison v. Eddy Potash, Inc., 158 F.3d 1371, 1376

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(10th Cir. 1998). In the usual case, vicarious liability stems from a supervisor’s

misuse of actual authority. Id. at 1377. In addition, an employer may be

vicariously liable when the harassing employee has apparent authority–gives “the

false impression that the actor was a supervisor, when he in fact was not, [and]

the victim’s mistaken conclusion [was] a reasonable one.” Burlington Indus. Inc.

v. Ellerth, 524 U.S. 742, 759 (1998). This is the unusual case. Id. We must look

for evidence that “the [harassing employee] purported to act or speak on behalf of

the [employer] and there was reliance upon apparent authority, or the [harassing

employee] was aided in accomplishing the tort by the existence of the agency

relation.” Burlington Indus. Inc., 524 U.S. at 758 (quoting Restatement (2d) of

Agency § 219(1)).

The district court found on summary judgment that there was no support for

an apparent authority theory of vicarious liability. Ms. Wilson cites her own

affidavit testimony that she felt Dr. Muckala, as Chief of Staff, had power and

authority over her job, and that he told her he had such power because of his

position as well as his friendship with the Hospital CEO. However, Ms. Wilson

received assurances from her immediate supervisors that Dr. Muckala exercised

no authority over her position, and in describing her chain of command, identified

her supervisors and the administration, but did not imply that Dr. Muckala had a

place in it. We agree with the district court that there was insufficient evidence

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put forward to demonstrate that Dr. Muckala, who had no actual authority over

Ms. Wilson, exercised apparent authority over her.

Furthermore, under Oklahoma law, apparent authority “results from a

manifestation by the principal to a third person that another is his agent.”

Stephens v. Yamaha Motor Co., 627 P.2d 439, 441 (Okla. 1981). “Agency cannot

be proven by the reputed declarations of the reputed agent.” Home Owners Loan

Corp. v. Thornburg, 106 P.2d 511, 514 (Okla. 1940). A third party asserting

apparent authority to bind an alleged principal to a contract must also demonstrate

its reliance on the principal’s manifestation and its change of position as result

thereof. Southwestern Bell Media, Inc. v. Arnold, 819 P.2d 293, 294 (Okla. Ct.

App. 1991). There was no evidence of a manifestation or holding out by the

Hospital to Ms. Wilson that Dr. Muckala was the Hospital’s agent. Dr. Muckala’s

alleged declarations alone cannot serve to bind the Hospital under a theory of

apparent authority.

Plaintiffs argue that the district court abused its discretion when it refused

to add a claim for quid pro quo sexual harassment to the pretrial order in light of

the recently decided Collier v. Insignia Financial Group, 981 P.2d 321 (Okla.

1999). “The order following a final pretrial conference shall be modified only to

prevent manifest injustice.” Fed. R. Civ. P. 16(e). As discussed above, Dr.

Muckala did not have either actual or apparent supervisory authority over Ms.

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Wilson. Absent the possibility that job benefits were conditioned “on an

employee’s submission to conduct of a sexual nature” and that “adverse job

consequences result from the employee’s refusal to submit to the conduct,” there

can be no legitimate claim of quid pro quo sexual harassment. Hicks, 833 F.2d at

1414.

Plaintiffs argue that the district court ruled inconsistently on Plaintiffs’

claim for tortious interference with business relations against Dr. Muckala and

that, consequently, Plaintiffs’ counsel failed to present evidence on that claim

because he thought it “not viable.” However, Plaintiffs do not direct this court to

their objection at trial (if there was one), cite no law supporting reversal, and do

not proffer any evidence that they would have submitted at trial to support the

tortious interference claim but for their erroneous belief that the claim was no

longer alive.

Finally, Plaintiffs appeal a lengthy list of jury instructions requested and

denied by the district court. Merely listing the rejected instructions does not

satisfy the briefing requirements of this court and we therefore deem all waived

except the instruction pertaining to circumstantial evidence which was briefed in

some detail. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).

However, that instruction was given as part of a general instruction on the

evidence, IV Wilson App. at 916, as agreed to by Plaintiffs’ counsel. III Hospital

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Supp. App. at 813. We find no error.

Plaintiffs’ motion to supplement their appendix is granted.

AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings.

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