                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               JUN 3 1997
                             FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    RONALD C. CALHOUN,

                Plaintiff-Appellant,

    v.                                                     No. 95-1272
                                                       (D.C. Nos. 92-B-2283
    BALL CORPORATION,                                            &
                                                            93-B-1078)
                Defendant-Appellee.                          (D. Colo.)




                             ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and LUCERO, Circuit Judges.




         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. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The 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. 36.3.
      This dispute arises out of Calhoun’s employment with Ball Corporation.

Ball hired Calhoun, an African-American, as a Designer in January 1990.

Calhoun repeatedly sought a promotion to Design Engineer based on a promise

allegedly made when he was hired, but his requests were denied. Ball claimed

that Calhoun was not only not qualified for the position of Design Engineer, but

was even having trouble doing satisfactory work as a Designer. Calhoun

maintained that he was already doing the work of Design Engineer, but without

the job title or the compensation that should go with it. Calhoun also alleged that

he was subjected to racially derogatory statements during his employment with

Ball, and was verbally reprimanded when he complained about this discriminatory

treatment.

      After his termination in August 1992, Calhoun sued Ball for discrimination

and retaliation under Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C.

§ 1981, and for breach of contract and promissory estoppel under Colorado law.

The district court granted summary judgment in favor of Ball on Calhoun’s state

law claims, 1 but his Title VII and § 1981 claims proceeded to jury trial. After a

two-day trial, the jury returned a verdict in favor of Ball on both claims, and the




1
      The district court denied summary judgment on Calhoun’s promissory
estoppel claim based on Ball’s failure to promote him. Calhoun abandoned this
claim at trial, however, and we therefore need not address it.

                                         -2-
district court accordingly entered judgment in favor of Ball. Calhoun appeals.

We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      Calhoun argues on appeal that the trial court erred in: (1) instructing the

jury on the elements of his discrimination and retaliation claims; (2) excluding the

testimony of Debra Anaya that Ball would take adverse action against any

minority employee who complained about discrimination; (3) precluding him from

calling an expert witness, Carl Pistole, to testify concerning his qualifications as

an engineer; and (4) granting summary judgment in favor of Ball on his claims for

breach of contract and promissory estoppel.

      Calhoun argues that the instructions on his discrimination and retaliation

claims were misleading because they did not instruct the jury that it could find in

his favor if it determined that Ball’s proffered reasons for not promoting and,

ultimately, terminating him were false. This arguments is without merit.

“Although the McDonnell Douglas 2 burden shifting analysis is a tool the courts

use in Title VII cases, the ultimate burden of persuasion rests upon the plaintiff.”

Murray v. City of Sapulpa, 45 F.3d 1417, 1421 (10th Cir. 1995). “The burden

shifting analysis drops out of consideration when the case is submitted to the jury

on the merits.” Id.; see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11

(1993) (holding that McDonnell Douglas framework “drops out of the picture”


2
      See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-04 (1973).

                                          -3-
once defendant has produced evidence to rebut presumption of unlawful

discrimination). “[T]he trier of fact proceeds to decide the ultimate question:

whether plaintiff has proven that the defendant intentionally discriminated [or

retaliated] against [him] because of his race.” St. Mary’s Honor Ctr., 509 U.S. at

511 (quotation omitted). Although the jury’s rejection of Ball’s proffered reasons

for its actions would have allowed it to infer the ultimate facts of intentional

discrimination or retaliation, see id., we believe the instructions correctly

conveyed the applicable law to the jury. See Furr v. AT&T Techs., Inc., 824 F.2d

1537, 1549 (10th Cir. 1987).

      Calhoun next argues that the trial court erred in excluding the testimony of

Debra Anaya that Nick Barr, another Ball employee, told her that Ball

management would blackball employees who complained about racial

discrimination. Calhoun also contends that the trial court should have allowed

Anaya to testify that other unnamed co-workers told her not to complain to Ball’s

human resources department about racial discrimination because the department

would not investigate the complaint and would retaliate against her. “Whether to

admit or exclude evidence is within the trial court’s discretion.” Unit Drilling

Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1194 (10th Cir. 1997). “[W]e will

not disturb the [trial court’s] determination absent a distinct showing it was based




                                          -4-
on a clearly erroneous finding of fact or an erroneous conclusion of law or

manifests a clear error of judgment.” Id. (quotation omitted).

      The trial court did not abuse its discretion in refusing to allow Anaya’s

testimony. Barr’s alleged statement to Anaya is inadmissible hearsay. His other

testimony contradicts Calhoun’s contentions that he was a management employee

or that such a statement would have been within the scope of his employment.

Anaya’s testimony that other unnamed co-workers warned her not to complain to

Ball’s human resources department about racial discrimination is also

inadmissible hearsay. Calhoun failed to identify the co-workers who allegedly

made these statements to Anaya, and he therefore failed to show that the

statements were made within the scope of their employment.

      We also review a district court’s decision to exclude expert testimony for

abuse of discretion. See Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1499

(10th Cir. 1996). Calhoun contends that his expert, Carl Pistole, would have

testified about Calhoun’s qualifications as a Design Engineer, his job

performance at Ball, and whether he should have been promoted. We find no

abuse of discretion in the district court’s exclusion of this evidence. The

proffered testimony was based on surmise and speculation. See id.

      Finally, we review the grant of summary judgment on Calhoun’s state law

claims de novo, using the same standard as that applied by the district court. See


                                         -5-
Hollingsworth v. Hill, 110 F.3d 733, 737 (10th Cir. 1997). Summary judgment is

appropriate only "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).

      Under Colorado law, an employee hired for an indefinite length of time is

an at-will employee who can be terminated at any time without cause or notice.

See Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987).

Calhoun argues that the evidence presented concerning Ball’s policies, practices,

and procedures established a genuine issue of material fact as to whether Ball

entered into a contract of employment with him. We disagree. The disclaimer

provision in Ball’s employee rules of conduct made it clear that all Ball

employees were employed at-will. See Appellant’s App., Vol. I at 326.

Likewise, the disclaimer language in Ball’s rules of conduct made it clear that

nothing therein created a contract of employment. See id. If there were any Ball

policy documents in conflict with these disclaimer provisions, as claimed by

Calhoun, he failed to point them out. The trial court therefore did not err in

granting summary judgment in favor of Ball and in dismissing Calhoun’s implied

contract and promissory estoppel claims. Calhoun remained an at-will employee.

      Calhoun’s motion to file a supplemental appendix is GRANTED.


                                          -6-
     The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                  Entered for the Court



                                                  James E. Barrett
                                                  Senior Circuit Judge




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