Thomas VARGHESE, Dr., Plaintiff-Appellee, v. HONEYWELL INTERNATIONAL, INCORPORATED; Honeywell Technology Solutions, Incorporated, Defendants-Appellants, 424 F.3d 411

Affirmed in part, reversed and vacated in part, and remanded in part by published opinion. Judge GREGORY wrote the majority opinion, in which Judge MOTZ concurred in Parts I and II and Senior Judge HAMILTON concurred in

Part III. Judge MOTZ wrote a separate opinion dissenting from

Part III. Senior Judge HAMILTON wrote a separate opinion dissenting from

Part II.B. GREGORY, Circuit Judge. Dr. Thomas Varghese brought suit against Honeywell International Inc., and Honeywell Technology Solutions, Inc., alleging, among other things, that Honeywell violated Maryland law when it failed to pay him separation benefits and terminated his right to exercise previously granted stock options. A jury returned a verdict for Dr. Varghese on both of these claims, granting Dr. Varghese $337,000 on his stock options claim and $25,571.73 on his separation pay claim. The damages granted to Dr.

Varghese on his stock options and separation pay claims were enhanced under the Maryland Wage Payment and Collection Law (“MWP & CL”). Honeywell challenges this result on two grounds. First, Honeywell argues that the stock options were not wages, and therefore not covered by the MWP & CL and subject to an enhancement. Second, Honeywell argues that the separation pay claims are preempted by ERISA. We find that Honeywell’s ERISA preemption argument is not properly before us.

However, because we find that the stock options are not in fact “wages” as that term is defined by the MWP & CL, we reverse in part the judgment of the district court, vacate in part the jury’s award to Dr. Varghese, and remand to the district court for redetermination. I. Dr. Varghese began his employment with Honeywell International Inc.’s predecessor, Bendix Field Engineering Corp., as a Field Engineer in 1983. The terms of Dr. Varghese’s employment offer provided him with a monthly salary, a travel and relocation allowance, and various fringe benefits then available to other comparable employees.

In early 1998 Dr. Varghese requested, and was granted, a one year unpaid leave of absence to pursue an advanced degree in the executive management program at the Massachusetts Institute of Technology Sloan School of Management. At the time of his leave of absence, Dr. Varghese was a Senior Principal Engineer, a salary band 4 level employee. Although Honeywell paid Dr. Varghese’s tuition for the management program and agreed to make every effort to reinstate him to his position or to a comparable position at the end of his leave of absence, the company informed Dr.

Varghese that it could not guarantee that he could return to active employment with Honeywell. Upon the completion of the executive management program in May of 1999, Dr. Varghese requested reinstatement with Honeywell. However, due to substantially changed business conditions, Honeywell did not offer Dr. Varghese a position. On August 21, 1999, Dr.

Varghese sent a letter to Honeywell stating: “If there are no opportunities within ATSC, despite waiting for more than. 3 months now since the original communication, I am only left with the option of asking for termination of my employment and earned severance.” J.A. 361. On October 7, 1999, Honeywell informed Dr. Varghese “that due to current business conditions we are unable to identify a suitable position to which you can be reinstated at this time and have taken action to terminate your employment with ATSC effective May 31, 1999.” J.A. 205.

On that same day, Honeywell’s human resources department completed the necessary paperwork to terminate Dr. Varghese’s employment. Importantly, Honeywell classified Dr. Varghese’s termination as “voluntary.” During his sixteen-year tenure at Honeywell, Dr. Varghese received 4800 stock options through four separate stock option grants. Under the Honeywell compensation system, all executive-level employees (i.e., those classified by the corporation as salary band 5 or above) automatically received annual option grants. For non-exgcutive employees (i.e., salary band 4 and below), of which Dr.

Varghese was one, option grants were discretionary awards. In granting these awards, Honeywell considered “the duties of the employees and their present and potential contributions to the Company’s success.” J.A. 188. Importantly, on appeal, Dr. Varghese does not contend that he was ever promised the stock options in question. After his termination, Dr. Varghese set out to obtain his earned severance benefits and to exercise his stock options. Dr. Varghese’s options had fully vested at the time of his termination, entitling him to exercise any or all of them by purchasing the shares at the strike price. Dr.

Varghese attempted to exercise his options in October and November of 1999. However, because Dr. Varghese’s termination was classified as “voluntary” rather than as a “reduction-in-force” he had only three months to exercise his options from his date of termination. Because Honeywell backdated Dr. Varghese’s termination to May 31, 1999, the options had already expired when Dr. Varghese attempted to exercise them. Additionally, the classification of Dr. Varghese’s termination as “voluntary” meant that he was not entitled to separation pay.

Under Honeywell’s separation plan, separation pay was an element of the Salaried Employees Benefit Plan, applicable to salaried employees otherwise eligible to receive such benefits. Critically, while employees whose separation from the company was due to a “reduction-in-force” were eligible for severance benefits, those who voluntarily separated unrelated to any reduction in force were not. Therefore, because Honeywell coded Dr. Varghese’s termination as “voluntary,” he was not considered eligible for severance benefits. When no action was taken pursuant to Dr.

Varghese’s requests to obtain his accrued separation benefits and to exercise his stock options, he brought the instant suit. Through a series of amended complaints Dr. Varghese alleged various claims, including the violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act of 1974 (“ERISA”), and the MWP & CL. After cross motions for

summary judgment, the following claims remained: 1) that Honeywell violated ERISA’s notice requirements by not responding to Dr. Varghese’s fall of 1999 requests for information about his 401K plan until mid-2000, thereby breaching its fiduciary duty; 2) that Honeywell’s failure to pay Dr. Varghese separation pay constituted a breach of contract in violation of Maryland common law and the MWP & CL; 3) that Honeywell breached its contractual obligations by retroactively terminating Dr.

Varghese’s right to exercise his stock options in violation of Maryland common law and the MWP & CL; and 4) that an enforceable contract existed between Dr. Varghese and Honeywell under Honeywell’s supplemental savings plan. These four claims proceeded to trial. At the end of Dr. Varghese’s case in chief, Honeywell moved for Judgment as a Matter of Law (“JMOL”) pursuant to Fed.

R.Civ.P. 50(a)(1) arguing: 1) that a contract for supplemental severance pay never existed; 2) that the stock options in this case do not constitute “wages” under the MWP & CL; and 3) that Honeywell did not breach the stock options contract. The district court granted the Rule 50 motion with regard to the supplemental severance claim and denied it in all other respects. On March 26, 2004 the jury returned a verdict for Dr. Varghese, awarding him $337,000 on the stock options claim, $25,571 on the separation pay claim, and $6,711 in prejudgment interest.

Finally, on September 3, 2004, the district court entered an order finding that Honeywell had in fact violated ERISA § 502(a)(1)(A), and awarded Dr. Varghese an additional $2600.00. From these decisions, Honeywell brings this appeal. II. A. Honeywell first challenges the district court’s denial of its motion for judgment as a matter of law on Dr. Varghese’s stock option claim.

Under Fed.R.Civ.P. 50(a)(1), “[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party.” Fed.R.Civ.P. 50(a)(1). We review the denial of a motion for judgment as a matter of law de novo, viewing the evidence in the light most favorable to the nonmovant, and “drawing] all reasonable inferences in her favor without weighing the evidence or assessing the witnesses’ credibility.” Ocheltree v.

Scollon Prod., Inc., 335 F.3d 325, 331 (4th Cir.2003) (quoting Anderson v. G.D.C., Inc., 281 F.3d 452, 457 (4th Cir.2002)). Judgment as a matter of law is proper only if “there can be but one reasonable conclusion as to the verdict.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). B. In its challenge to the district court’s denial of its JMOL motion, Honeywell argues that the stock options were not “wages” as that term is defined by the MWP & CL because Dr. Varghese was never promised stock options as remuneration for his labor.

As such, Honeywell contends that the jury’s award of enhanced damages for breach of the stock option contracts under the MWP & CL was improper. We agree. Pursuant to the MWP & CL: each employer shall pay an employee or the authorized representative of an employee all wages due for work that the employee performed before the termination of employment, on or before the day on which the employee would have been paid the wages if the employment had not been terminated. MD Code Ann., Lab. & Employ., § 3-505 (2004).

The statute defines “wages” as “all compensation that is due to an employee for employment.” Id. at § 3-501(c)(l). According to § 3-501(c)(2), the term “wage” includes “a bonus,” “a commission,” and “a fringe benefit.” Id. at § 3-501(c)(2). Critically, § 3-501(c)(2)(iv) additionally defines “wages” as “any other remuneration promised for service.” Id. at § 3-501(c)(2)(iv) (emphasis added). The Maryland Court of Appeals encountered this provision of the MWP & CL in Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 783 A.2d 667, 669 (2001).

Joe Fitzpatrick was hired by Whiting-Turner in 1997, and it was agreed that his compensation would consist of a weekly salary “and, after two years of employment and depending upon the profitability of the company, profit sharing.” Id. When Fitzpatrick informed a company vice-president that he was considering leaving the firm in late 1998 and inquired about the status of his profit sharing bonus, the vice-president responded: “I have a profit sharing check for you in my pocket. All you have to do is tell me you are staying.” Id.

Fitzpatrick resigned that next Monday, prior to reaching two years of employment with Whiting-Turner. Id. When he was not given a profit sharing bonus, he brought suit. Id. Interpreting the MWP & CL, the court held that “the wages which an employee is due, and which must be paid on termination of employment, consist of all corn-pensation, and any other remuneration, that the employee was promised in exchange for his work.” Id. at 671-72 (emphasis added).

Specifically, the court found that “ § 3-501(c)(2)(iv) serves two functions: it makes clear both that the listed forms of remuneration are simply examples, by the use of the phrase ‘any other remuneration,’ and that the ‘other remuneration’ that may be included in — in order to be considered — wages must have been ‘promised for service.’ ” Id. at 672. The court stated: reading the statute as including a bonus as wages only when it has been promised as part of the compensation for employment is logical and makes good common sense. The conditions of employment are determined in advance of the employment.

What, if anything beyond the basic salary, the employee will receive is a matter for discussion, consideration and agreement. If a bonus is to be made part of the wage package, it can be negotiated and included in what has been promised.... Once a bonus, commission or fringe benefit has been promised as a part of the compensation for service, the employee would be entitled to its enforcement as wages. Id. at 672.

Because the compensation package made no provision for a bonus given before the end of two years, any such bonus would have been merely a gift or a gratuity that Fitzpatrick was not entitled to, and therefore not a “wage” covered by the MWP & CL. See id. The Maryland Court of Appeals soon had opportunity to apply this holding in Medex v. McCabe, 372 Md. 28, 811 A.2d 297 (2002). There Timothy McCabe, a former sales representative for Medex, brought suit against Medex seeking to recover wages and incentive fees (i.e., commissions) under the MWP & CL. Id. at 300.

McCabe earned a salary of $49,000.00 plus incentive fees. Id. According to McCabe’s employee manual, “[p]ayment from all Company incentive compensation plans is conditional upon meeting targets and the participant being an employee at the end of the incentive plan (generally the fiscal year) and being employed at the time of actual payment.” Id. McCabe resigned his position after the end of the fiscal year, but prior to the time of actual payment. When Medex refused to pay the incentive fees, McCabe filed suit. Id. at 301.

The Medex court began by stating that the exchange of remuneration for an employee’s work is the critical inquiry in the determination of whether compensation constitutes a wage. Id. at 302. “Where the payments are dependent upon conditions other than the employee’s efforts, they lie outside of the definition.” Id. According to the Medex court, this situation was distinguishable from the requested accelerated bonus in Whiting-Turner which was not “promised for service” because: the incentive fees were related directly to sales made by the employees during a defined fiscal year.

McCabe had performed all the work necessary to earn the fees, and Medex had registered the sales. In the terminology of the incentive plan itself, some of the incentive fees “begin to earn ” at meeting 80% of a target goal, while another “[ijncentive begins ” upon the sale of certain goods. Id. at 302-03 (emphasis added). Because the incentive fees were part of McCabe’s promised compensation for work performed, and because McCabe had performed all the work necessary to earn the fees, the court held that they were “wages” to which McCabe was entitled. See id. at 301, 303.

Reading the MWP & CL and Maryland case law on this issue, it is clear that for a form of compensation to constitute “wages” under the MWP & CL, and therefore be subject to the MWP & CL enhanced damages provisions, the employee must have been promised the particular form of compensation as remuneration for his labor. The Whiting-Turner court’s

interpretation of § 3-501(c)(2)(iv) is critical in that regard. According to Whiting-Turner, § 3 — 501 (c)(2)(iv) sets forth the general governing principle that remuneration can only constitute wages where it is promised for service. See Whiting-Turner, 783 A.2d at 672. §§ 3-501 (c)(2)(i)-(iii) merely put forth a non-exhaustive list of examples that can meet that criteria. See id. The Whiting-Turner court emphasized this point when it stated that “reading the statute as including a bonus as wages only when it has been promised as part of compensation is logical and makes good common sense.” Id.

As such, even if the stock options in this ease were a “fringe benefit,” or a “bonus,” they still must have been promised to Dr. Varghese as remuneration in order to qualify as “wages.” Dr. Varghese contends that because the options were granted as remuneration for service, they constitute “wages.” We recognize that stock options are commonly used as compensation tools. We further recognize that the grant of stock options in this matter was, in all likelihood, at least partially remuneration for Dr. Varghese’s past performance.

However, mere remuneration, while necessary, is not sufficient to prove that a particular form of compensation constituted “wages” under the MWP & CL. Under Maryland law, the test to determine whether a particular form of compensation constitutes “wages” under the MWP & CL contains a promise element as well. Thus, the issue before us is whether these particular stock option grants were promised to Dr. Varghese as remuneration for his efforts in his employment agreement.

Whiting-Turner and Medex focused on the existence of an employment agreement laying out the terms of compensation to establish the existence, or non-existence, of a “promise.” In Whiting-Turner, the court explicitly noted that “[h]ad the respondent been with the petitioner for two years when the decision was made to offer him a bonus and had the financial condition of the petitioner justified it, there would be no doubt of the respondent’s entitlement ... because sharing in the profits of the company after two years was promised as part of the respondent’s compensation package.” Id. at 673 (emphasis added).

Because the parties did not agree to an accelerated bonus, any such accelerated bonus could not constitute “wages” under the MWP & CL. By contrast, in Medex, where “Medex represented these incentive fees as a portion of the employee’s ‘Total Target Cash Compensation,’ ” and represented that the “incentive fees were supplemental to the fixed salary as a combined measure of compensation,” the court found that the incentive fees constituted “wages” under the MWP & CL. Medex, 811 A.2d at 306 (emphasis added).

There, the satisfaction of three conditions, agreed upon at that outset of the employment relationship, provided a measurable benchmark to determine whether one was entitled to receive incentive compensation. See id. The record in this case is unequivocal that no such promise, outright or conditional, existed. As an initial matter, we note that Dr. Varghese repeatedly testified that Honeywell never promised him stock options as a part of his compensation package. Further, Dr. Varghese’s employment documents that set forth his compensation package made no explicit mention of stock options.

Although the “Salaried Employees Compensation Agreement” makes clear that Dr. Varghese’s compensation package includes any additional compensation comparable employees may be entitled to, the “Total Compensation and Incentive Pay”

summary document makes clear that band 4 employees “may ” also be included in the annual incentive plan, and “may ” receive stock option grants. Read together, these documents show that while Dr. Varghese was eligible to receive stock options, at no point was he entitled to them. Importantly, no document or testimony sets forth any conditions that, once satisfied, would convert mere eligibility to entitlement. In Medex, the “incentive fees ‘beg[a]n to earn’ at meeting 80% of a target goal.” Medex, 811 A.2d at 302-03.

There, meeting [sales] targets constituted a measurable benchmark, by which an employee could demonstrate that he was entitled to the incentive fees at issue. Here, there were no such conditions or measurable benchmarks. No matter what Dr. Varghese did in his professional capacity, Honeywell always retained the discretion to not nominate Dr. Varghese to receive stock options. In fact, Honeywell could have nominated the entire company except Dr. Varghese and been in complete compliance with Dr. Varghese’s employment contract. This is exemplified by the fact that Dr.

Varghese only received four stock option grants during his sixteen years at Honeywell. Such discretion counsels against construing the stock option grants at issue as “wages.” An employer cannot decide to not pay an employee the “wages” that employee has earned. Nor can an employer claim that earned “wages” have somehow expired based on the reason it terminated an employee. The fact that Honeywell could always decide to simply not grant Dr.

Varghese stock options, coupled with the fact that the stock options expired upon an employee’s voluntary termination, counsels against defining the stock option grants in this case as “wages.” Finally, we would note that the mere fact that the stock options were granted does not convert them from a form of a gratuity or reward to “wages” that must be paid. Under that logic, any and all forms of compensation, once granted, would constitute “wages.” Maryland law applies a much narrower brush, defining wages as compensation promised to an employee as remuneration for that employee’s labor.

As such, it is possible for additional compensation to be granted without it being termed a “wage.” The Maryland courts have explicitly focused on the idea that “the conditions of employment are determined in advance of the employment.” The universe of what is promised as a “wage” for each individual employee is defined by all the documents constituting the employment agreement and setting forth the terms of the employment relationship. “Wages” are not defined ex post facto, viewing the actual grant as the penultimate indication of whether a form of compensation constitutes a “wage.” The grant of a form of compensation not contained in the employment agreement is not a “wage” because it was not promised.

The MWP & CL protects the proper expectation of promised remuneration. Where there is no promise, there can be no proper expectation. Defining “wage” as the Maryland courts have advances that goal. Because the facts of this case reveal no such promise, outright or conditional, nor show the existence of any measurable benchmark by which Dr. Varghese could demonstrate that he was entitled to receive stock options, we find that the options in this case were not “wages” under the MWP & CL and therefore were not subject to the MWP & CL’s enhanced damages provisions. III.

Honeywell next argues that the district court erred when it denied

summary judgment on Dr. Varghese’s state law separation pay claims because its separation plan is covered by ERISA which preempts state law. In response, Dr. Varghese argues that Honeywell’s ERISA preemption argument is not properly before this Court because, under Chesapeake Paper Products Co. v. Stone & Webster Engineering Corp., 51 F.3d 1229 (4th Cir.1995), we do not review pre-trial denials of

summary judgment after a full trial and final judgment on the merits. Honeywell counters that because this appeal centers around a legal issue, a motion for judgment as a matter of law was not the proper avenue for such a challenge. Therefore, Honeywell argues that this appeal of the district court’s pre-trial denial of

summary judgment is properly before this court. We do not find Honeywell’s argument convincing. In Chesapeake, we held “that this Court will not review, under any standard, the pretrial denial of a motion for

summary judgment after a full trial and final judgment on the merits.” Id. at 1237. In that case, Stone and Webster (“S & W”) moved the district court for partial

summary judgment, requesting that “the court rule as a matter of law that the rights and liabilities of the parties were governed by the Engineering Contract, as amended on January 16-17, 1992, by Amendment # 1....” Id. at 1231. The district court denied this motion, and proceeded to trial on the proper

interpretation of the contract. Id. at 1233. After Chesapeake’s case in chief, the district court denied S & W’s motion for judgment as a matter of law and the jury ruled in favor of Chesapeake. Id. at 1233. We began our analysis of S & W’s appeal by noting that eight circuit courts had recently adopted the rule that the denial of

summary judgment is not reviewable on appeal after a full trial on the merits. Id. (citing Watson v. Amedco Steel, Inc., 29 F.3d 274, 277-78 (7th Cir.1994); Black v. J.I. Case Co., 22 F.3d 568, 570-72 (5th Cir.1994); Johnson Int’l Co. v. Jackson Nat’l Life Ins. Co., 19 F.3d 431, 434 (8th Cir.1994); Lama v. Borras, 16 F.3d 473, 476 n. 5 (1st Cir.1994); Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250-51 (10th Cir.1992); Jarrett v. Epperly, 896 F.2d 1013, 1016 (6th Cir.1990); Locricchio v. Legal Services. Corp., 833 F.2d 1352, 1358-59 (9th Cir.1987); Glaros v. H.H.

Robertson Co., 797 F.2d 1564, 1573 & n. 14 (Fed.Cir.1986)). Next, we rejected the “contention that our review should depend on whether the party claims an error of law or an error of fact” because: 1) all

summary judgment decisions are legal decisions because they do not rest on disputed facts; and 2) this court should not “engage in the dubious undertaking of determining the bases on which

summary judgment is denied and whether those bases are ‘legal’ or ‘factual.’ ” Id. at 1235. We continued on to note that: Reviewing a pretrial denial of

summary judgment after a full trial is inappropriate because the denial was based on an undeveloped, incomplete record, which was superceded by evidence adduced at trial. Even when the pretrial record and the trial testimony are identical, a judgment after a full trial is superior to a pretrial decision because the factfin-der’s verdict depends on credibility assessments that a pretrial paper record simply cannot allow. Id. at 1236 (citations omitted). We further found that bifurcating

summary judgment decisions is unnecessary because a party “has adequate remedies other than seeking review of the denial after a full trial.” Id. at 1236. First, the party may move for a judgment as a matter of law under Fed.R.Civ.P. 50 and then seek appellate review of the motions if they are denied. Id. at 1236. Importantly, we stated that “a party may appropriately move for judgment as a matter of law on discrete legal issues ” even where the legal issue may not be entirely dispositive of a claim or defense. Id. at 1236 (emphasis added).

Additionally, we noted that a party may “move the court to certify the denial for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).” Id. at 1237. As a result, we concluded that we would not review a pretrial denial of a motion for

summary judgment after a full trial and final judgment on the merits. Id.; see Benner v. Nationwide Mutual Ins. Co., 93 F.3d 1228, 1233 (4th Cir.1996) (citing Chesapeake for the proposition that “[bjecause there was a full trial and final judgment on the merits, we may not review the district court’s pretrial denial of

summary judgment”). In the instant case, Honeywell moved for

summary judgment prior to trial on all of'Dr. Varghese’s claims, including the issue of whether Honeywell’s failure to pay Dr. Varghese separation pay constituted a breach of contract in violation of Maryland common law and the MWP & CL. At the

summary judgment hearing, Honeywell argued that these claims were preempted by ERISA. For example, the following exchange took place between the court and defense counsel: The Court: Well leaving aside the question of futility, but if he can assert this claim under ERISA, isn’t his breach of contract claim preempted? ... Ms. Weiss: Yes. The separation pay is preempted by ERISA, because it deals with a welfare benefit program for the plaintiff. So that therefore it is preempted by ERISA, and he has not exhausted any administrative remedies under ERISA to obtain a separation pay. J.A. 318. In ruling on Honeywell’s

summary judgment motion, the district court noted that “plaintiff seeks a recovery of separation or severance pay both under ERISA and under Maryland common law. If plaintiff were entitled to recover separation pay under ERISA, his claim under state law would presumably be preempted.” J.A. 58. Ultimately, the district court denied Honeywell’s

summary judgment motion on the Maryland common law and MWP & CL separation pay claims, allowing them to go to trial, and granted Honeywell’s motion for

summary judgment on Dr. Varghese’s ERISA separation pay claim, ruling that Honeywell’s separation plan was not subject to ERISA. At the close of Dr. Varghese’s case in chief, Honeywell moved for JMOL, but it did not raise the ERISA preemption argument. After a full trial on the merits the jury returned a verdict for Dr. Varghese and the court entered a final judgment on September 3, 2004. Here, Honeywell seeks appellate review of a district court’s denial of

summary judgment after a full trial and final judgment. However, under binding circuit precedent, this is exactly the type of situation in which appellate review is not available. Recognizing this problem, Honeywell attempts to extricate itself from underneath the Chesapeake umbrella. Specifically, Honeywell argues that the ERISA preemption issue was not raised in its JMOL motion because such motions challenge the sufficiency of the evidence presented by an opposing party at trial. As such, Honeywell contends a JMOL motion was not the appropriate avenue for its legal challenge and that appellate review of the pretrial denial of

summary judgment is therefore proper. However, these arguments were addressed in Chesapeake. Again, we expressly rejected “the contention that our review should depend on whether the party claims an error of law or an error of fact.” Chesapeake, 51 F.3d at 1235. In fact, we stated that although a dichotomy between reviewing denials of

summary judgment based on an erroneous legal conclusion and those based on an erroneous factual determination “is supported by the reasoning in Holley [Holley v. Northrop Worldwide Aircraft Serv., 835 F.2d 1375, 1378 (11th Cir.1988) ] ... we decline to follow Holley and therefore need not describe specific circumstances in which this Court would review the denial of

summary judgment after trial.” Id. at 1235 n. 8. In other words, the Chesapeake Court did not need to discuss “specific circumstances” because there are none. The express rejection of Holley, a case that supported such a dichotomy, makes that point clear. At no point does the opinion suggest otherwise. We recognize that several other circuits have taken a different approach on this issue, allowing appeals from a denial of

summary judgment after a trial where the

summary judgment motion raised a legal issue and did not question the sufficiency of the evidence. See, e.g., Pavon v. Swift Transp. Co., 192 F.3d 902 (9th Cir.1999); Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313 (7th Cir.1995). However, as the Seventh Circuit noted in Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 721 (7th Cir.2003), their approach simply conflicts with our own. There, the Seventh Circuit expressly noted the disagreement stating: “[t]he Fourth Circuit, however, has rejected any distinctions between factual and legal issues like the one we drew in Rekhi holding that in either case, review of the district court’s denial of

summary judgment is barred after trial.” Id. In Chesapeake, we concluded that we would not review a district court’s pretrial denial of

summary judgment after a full trial and final judgment on the merits. See Chesapeake, 51 F.3d at 1237; see Rhoads v. Federal Deposit Insurance Corp., 257 F.3d 373 (4th Cir.2001); Benner v. Nationwide Mutual Ins. Co., 93 F.3d 1228 (4th Cir.1996). After the denial of Honeywell’s

summary judgment motion, there was a full trial and final judgment on the merits. Honeywell had the option to move for judgment as a matter of law (the denial of which we will review), arguing that ERISA preempted Dr. Varghese’s state law separation pay claims. As we noted in Chesapeake, “a party may appropriately move for judgment as a matter of law on discrete legal issues.” Id. at 1236 (emphasis added). Although Honeywell moved for judgment as a matter of law, they did not so move on this issue and therefore failed to preserve it for appeal.

Therefore, binding circuit precedent mandates that the appeal be dismissed. IV. Given our finding that the stock options in this case did not constitute “wages” as that term is defined by the MWP & CL, we reverse in part the judgment of the district court, vacate in part the jury award to Dr. Varghese, and remand to the district court for redetermination. AFFIRMED IN PART, REVERSED AND VACATED IN PART, AND REMANDED IN PART . Defendant Honeywell International, Inc. ("Honeywell''), is a Maryland corporation founded in 1985. It was reformed in 1999 through its merger with AlliedSignal Inc.

Defendant Honeywell Technology Solutions, Inc., formerly Allied Technical Services Corporation ("ATSC”) is a wholly owned subsidiary of Honeywell. AlliedSignal purchased Bendix Field Engineering Corporation in 1993. Honeywell, Honeywell Technology Solutions, Inc., and all predecessor entities are hereinafter referred to as "Honeywell." . On July 31, 1992 and July 30, 1993, Honeywell granted Dr. Varghese 1600 options. On July 29, 1994, Honeywell granted Dr. Varghese 1000 options. Finally, on July 19, 1996, Honeywell granted Dr. Varghese 600 options. .

A "strike price” is the fixed price at which the owner of a stock option can purchase the underlying security. Where the market value of the underlying security is higher than the "strike price” at which an employee may purchase the security, the option holder may profit from the exercise of the options. .Under the terms of the stock option plan, if Dr. Varghese's termination had been classified as a "reduction in force,” he would have had three years from his date of termination to exercise his options. . This issue was not presented to the jury because under ERISA a claimant may not insist upon a jury trial.

See Phelps v. C.T. Enterprises, Inc., 394 F.3d 213, 222 (4th Cir.2005) . The district court granted Honeywell's

summary judgment motion on Dr. Varghese's ERISA claim for separation pay, ruling that Honeywell’s separation plan was not a plan covered by ERISA. This ruling, in combination with the denial of

summary judgment on Dr. Varghese's state law separation claims, stands as an implicit rejection of Honeywell's

summary judgment argument that ERISA preempted Dr. Varghese's state law claims. . Honeywell argues that it also raised the issue of whether separation pay was subject to the MWP & CL. However, such a contention is not supported by the transcript of the JMOL hearing at trial. . These damages were enhanced by the MWP & CL.

Specifically, under § 3-507.1 of the MWP & CL, if "a court finds that an employer withheld the wage of an employee in violation of the subtitle and not as a result of a bona fide dispute, the court may award the employee an amount not exceeding 3 times the wage, and reasonable counsel fees and other costs.” MD Code Ann., Lab. & Employ., § 3-507.1(a) (2004). . Honeywell also contends that the stock options did not constitute “wages due” to Dr. Varghese under the MWP & CL. Because we agree with Honeywell that the stock options awarded to Dr.

Varghese were not "wages” as that term is defined by the statute, we do not reach this argument. .Dr. Varghese cites much external authority to support his proposition that the stock options in this matter constitute wages under the MWP & CL. However, we do not believe that any of these cases are particularly helpful on this issue. In Scully v. U.S. WATS, Inc., 238 F.3d 497 (3rd Cir.2001), and Regier v. Rhone-Poulenc Rorer, Inc., 1995 WL 395948, at *6-7 (E.D.Pa. June 30, 1995), the equivalent Pennsylvania statute does not use the term ''promise” to define wages.

That statute defines "wages” as including “all earnings of an employee, regardless of whether determined on time, task, piece, commission, or other method of calculation. The term 'wages’ also includes fringe benefits or wage supplements whether payable by the employer from his funds or from amounts withheld from the employees pay by the employer.” 43 Pa. Stat. Ann. § 260.2a (1992). Similarly, the Colorado Wage Claim Act

section defining "wages” interpreted in Montemayor v. Jacor Communications, Inc., 64 P.3d 916 (Colo.Ct.App.2002), did not employ language similar to the "promise” language employed by the MWP & CL. Because "wage” is explicitly defined differently by the Maryland statute at issue, these cases do not mandate a different result here. . Honeywell contests this, arguing that the options were based an employee's future potential to contribute. Appellant's Brief 19. . This includes any legal cognizable amendments to this agreement. .During his deposition, Dr.

Varghese testified as follows: "Q: You weren't guaranteed stock options in any given year, were you? A: I was not guaranteed a stock option, but it was customary practice that if you’re involved in winning contracts, from the precedence that was established, I was eligible for stock options in 1998.” J.A. 247-48 (Deposition Transcript of Thomas Varghese, February 12, 2003). At trial, Dr. Varghese testified as follows: ”Q: Dr. Varghese, did you have any promise that you would receive stock options as part of your compensation at Allied Signal?” A: No Promise.” Q: I'm sorry?

A: I did not have any promise, written promise. Q: Did anyone ever guarantee you stock options? A: No, there's no guarantee.” J.A. 457-58 (Transcript of Thomas Varghese Trial Testimony, March 24, 2004). . We note here that the operative language used in the "Total Compensation and Incentive Pay”

summary document, namely the word "may,” is markedly different from the language employed by the contract in Medex, which speaks about fees being "earned” and incentives "beginning.” See Medex, 811 A.2d at 302-03. In Medex, McCabe "earned” the incentive fees and was therefore entitled to them. See Medex, 811 A.2d at 302-03. . Similarly, in Whiting-Turner, two years and company profitability provided a means of measurement. See Whiting-Turner, 783 A.2d at 669. .

However, this is exactly what would happen under the stock options contract, under which all stock options granted to any employee terminated for cause expired on the date of termination. . As was previously noted, this ruling inherently addressed Honeywell’s ERISA preemption argument. . Of course, this outcome does not address the merits of Honeywell's preemption claim. However, this Court has often applied procedural rules in criminal matters where a person's life is literally at stake and not reached the merits of the claim. The instant matter is no different.