FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 1, 2008
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT


 TIM F. WOOD,

          Plaintiff-Appellant,
                                                        No. 06-5226
 v.
                                           (D.C. No. 4:05-CV-00532-TCK-FHM)
                                                        (N.D. Okla.)
 HANDY & HARMAN CO. and
 CONTINENTAL INDUSTRIES, INC.,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.


      Plaintiff-appellant Tim F. Wood, a former vice president at Continental

Industries, Inc. (“Continental”) in Tulsa, Oklahoma, appeals the district court’s

grant of summary judgment against him on several claims arising from the

termination of his employment. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
                                         I

      Wood was employed at Continental, a subsidiary of Handy & Harman

Company (“H&H”), from 1995 until his termination on November 25, 2003. At

the time of his termination, Wood was Vice President of Operations at

Continental’s Tulsa, Oklahoma headquarters, and he reported directly to H&H

President Dan Murphy. According to Wood, he was fired either in retaliation for

defending the rights of a subordinate under the Family and Medical Leave Act of

1993 (“FMLA”), or in retaliation for reporting an environmental issue to an H&H

manager. Continental and H&H (collectively “defendants”) maintain that Wood

was actually fired because he had a conflict of interest, as he was running an

outside business while employed at Continental.

      Wood’s FMLA claim arises from an exchange that occurred one week

before his termination. Wood was approached by Amy Brogle, 1 an employee of a

different H&H subsidiary who was assigned to act as the temporary head of

Human Resources at Continental. Brogle asked Wood to deliver a memo (the

“Carter memo”) to Ruby Carter, a 29-year employee of Continental whom Wood

indirectly supervised. Carter was on leave due to her husband’s terminal illness.

The memo informed Carter that, contrary to her direct supervisor’s assurance, her

leave was not covered by the FMLA because she had already exhausted her

FMLA entitlement by taking a prior medical leave.

      1
          The record also refers to Brogle as “Amy Hoagland” and “Amy Ratura.”

                                        -2-
      When Wood read the Carter memo, he concluded that it was inconsistent

with Continental’s usual practices regarding employee leave and that it

incorrectly “challenged” Carter’s right to FMLA protection during her leave. He

told Brogle that he disagreed with the memo and would not deliver it. Brogle

reacted angrily to this objection and left Wood’s office. She later told another

employee, Joanne Horne, that Wood was an “[expletive] idiot.” According to

Horne, she “had never seen [Brogle] so angry.”

      Sometime after the confrontation between Wood and Brogle over the Carter

memo, 2 Murphy left Brogle a message requesting that she call him to discuss

Wood’s job performance. Brogle promptly returned the call, and reported the

following concerns: (1) “it was increasingly difficult . . . to locate Mr. Wood in

order to deal with matters relating to H[uman] R[esources] at Continental,” (2)

Wood “had a personal business on the side outside of his full-time role at

Continental,” and (3) Wood “was not consistent in how he applied formal policies

and practices in the workplace with the employees.” During discovery, Brogle

denied telling Murphy specifically about Wood’s refusal to deliver the Carter

memo. For his part, Murphy stated that he did not remember Brogle describing




      2
        Although the record does not reveal the exact date of this conversation, it
indicates that the call occurred no more than “days” before Wood’s termination
on November 25. Viewing the facts in the light most favorable to Wood, the
record thus supports an inference that the call occurred after the memo incident.

                                        -3-
any particular failure to follow her instructions, but admitted that he did not

remember “the specifics” of his conversation with Brogle.

      Wood also alleges that he was fired for reporting a potential environmental

problem on Continental property. Around the same time as the Carter memo

incident, Wood informed David Kelly, Environmental Health and Safety Director

for H&H, that he had been alerted to the smell of solvent on Continental property.

He told Kelly that he feared the odor might indicate a toxic spill or leak. Kelly

told Wood that “he would take control of the situation.” Wood heard nothing

more about the matter, or any responsive action, because he was fired shortly

thereafter. Murphy later testified that neither Kelly nor anyone else at

Continental or H&H ever mentioned Wood’s environmental concern to him.

      The defendants have offered an alternate explanation for Wood’s

termination. Beginning in 2001, Wood and his family ran a business called B&B

Meters (“B&B”). Wood sometimes used his Continental cell phone for B&B

business and conducted such business during his normal working hours at

Continental. B&B was a Continental customer on at least one occasion in 2001,

and all managers at Continental, including Brogle, were aware of Wood’s

relationship with B&B. Murphy, however, testified in depositions that he knew

nothing about B&B until shortly before he terminated Wood. He stated that he

learned of B&B from another H&H officer in November 2003, and immediately




                                          -4-
placed the aforementioned phone call to Brogle as well as a call to Tim Hoagland,

a Continental vice president who worked closely with Wood.

      Following these events, on November 21, 2003, Wood received a phone

call from Murphy requesting that he report to H&H’s offices in Rye, New York.

On November 25, Wood met with Murphy and two other H&H officers, and

Murphy informed him he was being terminated for “running a business on

company time.” Wood was not given an opportunity to improve his performance

through a progressive discipline plan.

      After his termination, Wood filed a complaint against the defendants,

asserting four claims: (1) retaliatory discharge for defending another employee’s

FMLA rights, in violation of 29 U.S.C. § 2615(a)(2); (2) wrongful discharge in

violation of public policy under Burk v. K-Mart Corp., 

, 28 (Okla.

1989); (3) breach of an implied employment contract requiring progressive

discipline; and (4) negligent or intentional infliction of emotional distress. The

defendants moved to dismiss Wood’s Burk tort claim under Federal Rule of Civil

Procedure 12(b)(6), asserting that Wood had failed to identify a specific

Oklahoma public policy violated by his discharge. Denying the motion, the

district court found that Wood’s factual allegations “may support a Burk tort

under Oklahoma law, depending on . . . further development and explanation of

relevant . . . law in later stages of the proceedings.” The court cautioned Wood,




                                         -5-
however, that he “must, during discovery, identify” a clear public policy

supporting this cause of action.

      When the discovery deadline passed, the defendants moved for summary

judgment on all claims. As to the Burk claim, they contended that Wood had

failed to identify a clear public policy supporting his cause of action in

accordance with the court’s earlier order. In his response brief, Wood identified

several public policies supporting his tort claim for the first time. Three days

after his brief was filed, Wood served the defendants with a “supplemental

discovery response” setting forth these same policies.

      Summary judgment was granted to the defendants on all claims. As to

Wood’s FMLA claim, the court concluded that Wood had failed to show that his

protected action caused his loss of employment because he did not offer enough

evidence that Murphy, the relevant decisionmaker, was aware of the dispute over

the Carter memo. On the Burk claim, the court rejected all public policies

presented by Wood during discovery as insufficiently specific. The court refused

to consider his belated “supplemental discovery response,” because it was “out of

time and out of compliance with the Court’s prior Order.” With respect to the

implied contract claim, the court determined the Wood had offered inadequate

evidence of an implied contract requiring the defendants to impose progressive

discipline before terminating Wood. Finally, the court construed Wood’s

emotional distress claim as two separate claims: a claim for negligent termination

                                         -6-
and a claim for intentional infliction of emotional distress. Both theories were

rejected, upon the conclusion that Wood had failed to demonstrate issues of fact

about whether his termination was wrongful, as required to show negligent

termination, or about whether the defendants’ actions were “outrageous,” as

required to show intentional infliction of emotional distress. Wood appeals the

court’s entry of summary judgment against him as to all claims other than

intentional infliction of emotional distress.

                                          II

      We review a grant of summary judgment de novo, using the same legal

standard applied by the district court. Somoza v. Univ. of Denver, 

,

1211 (10th Cir. 2008). Summary judgment is appropriate “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). We examine the factual record and

draw all reasonable inferences in the light most favorable to the nonmoving party,

and “consider factual inferences tending to show triable issues in the light most

favorable to the existence of those issues.” Seamons v. Snow, 

,

1026 (10th Cir. 2000). “Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge.” Anderson v. Liberty Lobby, Inc., 

, 255 (1986).

Thus, “[w]here different ultimate inferences may properly be drawn, the case is

                                          -7-
not one for a summary judgment.” 

(quotation

omitted). 3

                                          A

       Under the FMLA, it is “unlawful for any employer to discharge or in any

other manner discriminate against any individual for opposing any practice made

unlawful” under the Act. 29 U.S.C. § 2615(a)(2). 4 Retaliation claims under the

FMLA are subject to the burden-shifting framework of McDonnell Douglas Corp.

v. Green, 

, 802-04 (1973). Metzler v. Fed. Home Loan Bank of

Topeka, 

, 1170 (10th Cir. 2006). “Under this analysis, the plaintiff



       3
        The defendants maintain that their statement of material facts was
undisputed because Wood violated Northern District of Oklahoma Local Civil
Rule 56.1(c) by failing to submit his response to that statement in the required
form. See Reed v. Nellcor Puritan Bennett, 

, 1195 (10th Cir. 2002)
(explaining that a district court has discretion to sanction a violation of its local
rules by declining to consider those facts which are presented in violation of the
rule). But the district court elected not to exclude Wood’s factual allegations
based on the violation, stating that it would consider all of the evidence in the
record “[b]ecause Wood did attach an evidentiary record, because the parties have
expended resources in addressing the merits, and because the Court favors
resolving disputes on the merits.” It was not an abuse of discretion for the district
court to consider the full record, and we will therefore do the same on appeal.
       4
         Prior to oral argument in this case, we ordered supplemental briefing on
the question of whether the FMLA gives Wood statutory standing to sue for
retaliation for defending the rights of another employee, as opposed to his own
FMLA rights. Because Wood ultimately does not prevail on the merits, however,
we need not decide whether he in fact has statutory standing. Carolina Cas. Ins.
Co. v. Pinnacol Assurance, 

, 926 (10th Cir. 2005) (“Unlike
constitutional standing, . . . statutory standing need not be resolved before
consideration of the merits. . . . [I]f [the plaintiff] loses on the merits, the issue
of statutory standing becomes moot and need not be addressed.”).

                                          -8-
bears the initial burden of establishing a prima facie case of retaliation.” 

plaintiff succeeds in meeting this burden, the defendant must then offer a

legitimate, nonretaliatory justification for the employment action. 

employer does so, then the burden again shifts to the plaintiff to demonstrate that

the proffered reason is a mere pretext for retaliation. 

order to establish a prima facie case of FMLA retaliation, Wood was

required to demonstrate that: “(1) [he] engaged in a protected activity, (2) [the

defendants] took an action that a reasonable employee would have found

materially adverse, and (3) there exists a causal connection between the protected

activity and the adverse action.” 

On appeal, the defendants do not

contest whether Wood has met his burden as to the first two prongs of the prima

facie case. We thus consider only whether Wood has demonstrated a genuine

issue of material fact regarding causation.

      An essential component of causation is the decisionmaker’s knowledge of

the protected activity; if knowledge is lacking, then the protected act cannot be

said to have caused the adverse employment action. See Jones v. United Postal

Serv., Inc., 

, 1195 (10th Cir. 2007). Causation therefore exists only

if a jury could reasonably infer that Murphy knew of the FMLA incident prior to

Wood’s termination. Wood contends that a jury could infer from Brogle’s

conduct and statements that she told Murphy about the Carter memo incident in

                                          -9-
her return call to him. The defendants rejoin that a reasonable jury could not

infer that Murphy knew about the incident, because both Brogle and Murphy—the

two participants in the conversation—deny speaking about it.

      Wood has produced enough evidence to survive summary judgment on this

question. We have long held that “summary judgment should not be based on the

deposition or affidavit of an interested party . . . as to facts known only to him—a

situation where demeanor evidence might serve as real evidence to persuade a

trier of fact to reject his testimony.” Madison v. Deseret Livestock Co., 

, 1037 (10th Cir. 1978); see also 

; Anderson v.

Deere & Co., 

, 1248 (10th Cir. 1988) (quoting Madison). A

nonmoving party must, of course, do more than “merely assert that the jury

might” disbelieve the testimony of interested witnesses; he must present his own

affirmative evidence of those facts which are contradicted by the interested

testimony. Liberty 

. Wood has met this standard.

      The record reveals that Brogle was extremely angry with Wood following

his refusal to give Carter the disputed memo. Just a few days after this incident

occurred, Murphy called Brogle, and asked whether she had any concerns about

Wood. When Brogle returned the call, she told Murphy that her “biggest concern

with [Wood] was that he was not consistent in how he applied formal policies and

practices in the workplace with the employees.” Although Brogle specifically

denies telling Murphy about Wood’s handling of the Carter memo, a jury with an

                                         -10-
opportunity to assess Brogle’s demeanor might find this denial to be noncredible,

particularly so given that nothing in the record suggests any basis for Brogle’s

stated concern other than the Carter memo incident. A jury might similarly find

that Murphy’s testimony that he “did not recall” learning of the incident from

Brogle was not credible, or alternately, that Murphy had simply forgotten the

exact content of the conversation. If so, the jury could infer from Wood’s and

Horne’s testimony that Brogle’s anger about the incident would have led her,

when asked about Wood’s performance days later, to describe it to Murphy as an

example of Wood’s failures to “appl[y] formal policies and practices in the

workplace.” In short, the foregoing evidence takes Wood’s argument beyond a

bare assertion that the jury might disbelieve Brogle and Murphy. Coupled with

the close timing between the Carter memo incident, Brogle’s phonecall, and

Wood’s termination, Wood has carried his burden of raising a genuine issue of

material fact regarding Murphy’s knowledge. See, e.g., Marx v. Schnuck Mkts.,

Inc., 

, 329 (10th Cir. 1996) (“[P]rotected conduct closely followed by

adverse action may justify an inference of retaliatory motive.”).

                                          2

      Because Wood adduced sufficient evidence to establish a prima facie case

of retaliation, we turn to the remaining steps in the McDonnell Douglas

framework. Although the district court, in light of its conclusion regarding

causation, did not reach these steps, “we have discretion to affirm on any ground

                                        -11-
adequately supported by the record so long as the parties have had a fair

opportunity to address that ground.” Gomes v. Wood, 

, 1133 (10th

Cir. 2006). At the time of the trial court’s ruling, the parties had conducted

complete discovery and fully briefed their positions, including the issue of

pretext.

      Once a plaintiff makes out a prima facie case of an FMLA violation, the

burden shifts to the defendant to offer a legitimate, nonretaliatory basis for the

adverse employment action. 

(citing McDonnell

). It is undisputed that the defendants met that

burden with Murphy’s testimony that he decided to terminate Wood due to his

belated discovery of Wood’s involvement with B&B. Thus, the burden shifts

back to Wood, who must “demonstrate a genuine dispute of material fact as to

whether the proffered reasons were unworthy of belief.” Trujillo v. PacifiCorp,

, 1158 (10th Cir. 2008) (quoting Morgan v. Hilti, Inc., 

, 1321 (10th Cir. 1997)).

      “Pretext can be shown by such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” 

108 F.3d at 1321).

Wood argues that he produced evidence that Murphy’s proffered reason for his

                                         -12-
termination is a mere pretext for retaliation. Specifically, he maintains that it is

implausible that Murphy only learned of the existence of B&B in November 2003,

for two reasons: First, because B&B was a Continental customer in 2001, and

second, because a jury could infer that Amy Brogle and Tim Hoagland, who were

undisputedly aware of B&B, would have told Murphy about Wood’s involvement

with the outside business long before November 2003.

      Wood’s evidence does not support either theory. The only evidence in the

record of any transaction between B&B and Continental is a single 2001

Continental invoice addressed to B&B, recording the sale of $448.50 in products.

Wood does not explain why Murphy, the president of Continental’s parent

company, would have been aware of this minor transaction. Even assuming that

Murphy did learn of the transaction, Wood has not produced any evidence

indicating that he would also have learned the identity of B&B’s owner, since the

only name listed on the invoice is Roy Wood, not Tim Wood.

      As for the theory that Brogle and Hoagland must have mentioned B&B to

Murphy prior to November 2003, Wood’s evidence not only fails to support such

an inference, but also undermines it. For example, an affidavit from Tulsa Plant

Manager Bruce Neal states that if Brogle or Hoagland “had any questions or

criticisms of Tim Wood regarding B&B Meter, it would have been raised in our

meetings and privately with Tim Wood”—not to Murphy. In contrast to his

claims regarding the Carter memo incident, Wood does not point to any particular

                                          -13-
conversation between Murphy and Brogle or Hoagland during which the subject

of B&B might have been expected to arise. Thus, even viewed in the light most

favorable to Wood, the evidence does not create a dispute of material fact as to

whether the defendants’ proffered reason for his termination was so implausible

as to be “unworthy of belief.” 

. We therefore affirm

summary judgment against Wood on his claim of FMLA retaliation. 5

                                          B

      Wood urges us to reverse summary judgement on his Burk tort claim,

maintaining that the district court abused its discretion in refusing to consider the

public policies advanced after the close of discovery. Alternatively, he argues

that the court erred by excluding this evidence without first considering the

factors articulated in Meade v. Grubbs, 

, 1521 n.7 (10th Cir. 1988).

“[W]e review a district court’s decision to exclude evidence at the summary

judgment stage for abuse of discretion,” Sports Racing Servs., Inc. v. Sports Car

Club of Am., Inc., 

, 894 (10th Cir. 1997), and will not disturb such a

determination on review “unless we have a definite and firm conviction that the

lower court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances,” Lantec, Inc. v. Novell, Inc., 

, 1019


      5
        Wood summarily requests an award of attorneys’ fees incurred in
appealing the grant of summary judgment on his FMLA claim. See 29 U.S.C.
§ 2617(a)(3). Because Wood has failed to prevail on his claim, the request is
denied.

                                         -14-
(10th Cir. 2002) (quoting United States v. Ortiz, 

, 1164 n.2 (10th

Cir. 1986)).

      In its order denying the defendants’ motion to dismiss Wood’s Burk claim,

the district court ordered Wood to identify a clear public policy protecting his

actions “during discovery.” Defendants requested this information from Wood by

interrogatory before the close of discovery. They received a response that

identified a provision of the Oklahoma Environmental Quality Code as well as

several Oklahoma cases addressing the procedural and substantive rights of

landowners affected by pollution and environmental permitting processes.

      After the close of discovery, defendants filed their motion for summary

judgment, arguing that the aforementioned policies did not protect Wood from

termination. In his brief responding to the motion, Wood then identified several

previously unmentioned Oklahoma statutes and cases as support for his Burk

claim. Three days later, and two months after the close of discovery, he served

the defendants with a supplemental discovery response identifying these same

authorities. Granting summary judgment on Wood’s public policy claim, the

district court declined to consider this late response. 6

      6
         It also found that none of the authorities identified before the close of
discovery provided a sufficiently “clear and compelling” Oklahoma public policy
to support a Burk claim. See Clinton v. Okla., 

, 546 (Okla. 2001)
(holding that a Burk plaintiff “must identify an Oklahoma public policy goal that
is clear and compelling and is articulated in existing Oklahoma constitutional,
statutory or jurisprudential law”). Wood does not challenge this latter aspect of
the court’s decision.

                                          -15-
      We make two observations in rejecting Wood’s arguments. “It is generally

not an abuse of discretion for a court to exclude evidence based upon failure to

timely designate.” Santana v. City & County of Denver, 

, 867 (10th

Cir. 2007). Wood had ample opportunity to comply with the district court’s order

by identifying all policies he wished to bring to the court’s (and the defendants’)

attention, and he simply failed to do so. 7 In addition, our holding in Meade only

requires a district court to consider certain equitable factors before imposing the

ultimate sanction of dismissal, a requirement justified by the extraordinary nature

of that sanction. 

. Exclusion of belated evidence, by

contrast, is a matter of pure district court discretion, unrestrained by such guiding

factors. See Sports Racing 

. We see no abuse of

discretion and therefore affirm the grant of summary judgment against Wood on

his Burk claim.

                                          C

      This brings us to Wood’s claim that the defendants breached an implied

employment contract when they failed to offer him progressive discipline before

termination. The district court properly concluded that this claim fails under the

balancing test summarized in Bowen v. Income Producing Management of


      7
         Wood points out that the district court’s order denying the motion to
dismiss did not specify a date by which this information was due. However, the
phrase “during discovery” admits of no ambiguity where a discovery deadline
exists, and we consequently agree that the “supplemental response” was untimely.

                                         -16-
Oklahoma, Inc., 

, 1284 (10th Cir. 2000). At the summary judgment

stage, an employee seeking to challenge his termination under an implied

employment contract theory bears the burden of raising an issue of material fact

regarding whether a contract existed. See Dupree v. United Postal Serv., Inc.,

, 222-23 (10th Cir. 1992). In Bowen, we summarized Oklahoma law

regarding formation of an implied contract as follows:

      To determine whether the parties intended to form a contract, five
      factors are balanced: (a) evidence of “separate consideration”
      beyond the employee’s services; (b) length of employment; (c)
      employer handbooks and policy manuals; (d) detrimental reliance by
      the employee; and (e) promotions and 

(citing Hinson v. Cameron, 

, 554-55 (Okla. 1987)).

      Wood has failed to meet his burden of showing that an implied contract

existed. The only evidence presented is his recollection that a 1995 Continental

handbook mentioned a policy of progressive discipline and Neal’s affidavit that

Human Resources required him to follow such a policy before terminating

employees. This is insufficient. Under Oklahoma law, an employee’s

understanding of company policy is simply not a factor supporting the existence

of an implied contract unless this impression led to detrimental reliance, which

Wood does not claim. Moreover, his vague recollection of the contents of the

1995 handbook does not support a jury conclusion that “employer handbooks and

policy manuals” actually established a progressive discipline policy. To the

contrary, the only handbook in the record—the 1999 version in effect at the time

                                        -17-
of Wood’s discharge—mentions no such policy. Even if it did, Bowen provides

that “‘an employer may deny (or disclaim) any intent to make the provisions of a

personnel manual part of an employment relationship’ so long as the disclaimer is

clear and the employer’s conduct does not negate the disclaimer’s effect.” 

(quoting Russell v. Bd. of County Comm’rs, 

, 502 (Okla.

1997)). On point, the 1999 handbook explicitly states that “[a]ll employees who

do not have a separate, written employment contract with the company for a

specific term of employment are employed at the will of the company” and that

“[n]othing in this material represents a contract of any kind.”

      Because Wood has produced no other evidence relevant to the Bowen

factors, the district court was correct to find that he has not created a material

issue of fact as to the existence of an implied contract. Summary judgment was

therefore proper on this claim. 8




      8
        Wood also contends that the district court erred by alternately granting
summary judgment against him as a sanction for his failure to comply with Rule
56.1(c), without first conducting the analysis required by Meade. Because we
affirm the grant of summary judgment against him on the merits of all claims, we
need not consider the district court’s alternate basis for its judgment.
      As for Wood’s negligent termination claim, his only argument on appeal is
that we must remand this claim if we reverse the grant of summary judgment on
any of his other claims. Again, because we affirm, we need not address this
argument.

                                          -18-
                                     III

      For the foregoing reasons, we AFFIRM the grant of summary judgment to

the defendants. Wood’s request for attorney’s fees is DENIED.



                                    ENTERED FOR THE COURT



                                    Carlos F. Lucero
                                    Circuit Judge




                                     -19-