                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         April 20, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 VIN CENT D. FRANCO, JR.,

               Plaintiff - Appellant,                    No. 06-1136
          v.                                             (D. Colorado)
 R EG EN TS O F TH E U N IV ER SITY OF       (D.C. No. 03-CV-2209-M SK-M JW )
 COLORADO, a body corporate,

               Defendant - Appellee.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, SE YM OU R, and M cCO NNELL, Circuit Judges.


      The University of Colorado School of M edicine dismissed Vincent Franco

as a student in December 2001. In November 2003 he filed suit against the

school in the United States District Court for the District of Colorado, raising

three claims under the Rehabilitation Act: discrimination, failure to

accommodate, and retaliation. See 29 U.S.C. § 794(a). The district court granted

summary judgment against him on the last two claims, and a jury found in favor

of the school on the discrimination claim. On appeal M r. Franco does not


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
challenge the summary judgments. His sole contention is that the jury verdict

cannot stand because the jury was misled by an erroneous instruction on the

meaning of qualified. W e have jurisdiction under 28 U.S.C. § 1291. W e affirm

because the jury found M r. Franco to be qualified, so the instruction could not

have prejudiced him.

      The unchallenged jury instruction on the elements of M r. Franco’s

discrimination claim required him to establish (1) that he was disabled, (2) that he

“was qualified to be and to remain a student at the University of Colorado School

of M edicine, with or without reasonable accommodation,” (3) that he was

dismissed from the school solely because of his disability, and (4) that the school

receives federal financial assistance (and is thus governed by the Rehabilitation

Act). Aplt. App. at 135. His argument on appeal relates to Jury Instruction 9,

which addresses the second of these elements. It stated:

            For purposes of determining whether M r. Franco was
      “qualified to be and to remain a student at the University of Colorado
      School of M edicine, with or w ithout reasonable accommodation,”
      you are instructed as follows. M r. Franco was “qualified” to be and
      remain a student if he met the school’s academic and technical
      requirements, based on his performance w hen assisted by those
      specific accommodations he either actually requested or that the
      University provided to him. You should not speculate as to whether
      there were other accommodations that could have been made.

Aplt. App. at 136. M r. Franco complains of the final two sentences of this

instruction. He contends that these sentences inappropriately direct the jury to

ignore accommodations for M r. Franco that the school might have been obligated

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to provide on its own initiative. That is, he argues that the instruction “precluded

the jury from considering the failure of the School of M edicine to take any action

to proactively work with M r. Franco to allow him to succeed in medical school.”

Aplt. Br. at 12.

      W e are skeptical about the merits of the challenge. In particular, the final

sentence is clearly unobjectionable, because jury findings may not rest on

speculation. See Truck Ins. Exch. v. M agneTek, Inc., 360 F.3d 1206, 1216 (10th

Cir. 2004). Indeed, Jury Instruction 2, to which no objection was raised,

instructed the jury: “Any finding of fact you make must be based on

probabilities, not possibilities. Facts may not be based on surmise, speculation or

conjecture.” Aplt. App. at 130.

      In any event, we need not address the merits of Instruction 9 because any

error in that instruction did not harm Mr. Franco. The instruction, by its own

terms, related to only one element of M r. Franco’s cause of action: “whether

M r. Franco was ‘qualified to be and to remain a student at the University of

Colorado School of M edicine, with or without reasonable accommodation.’”

Aplt. A pp. at 136 (quoting Instruction 8, id. at 135). Yet the jury found in his

favor on that element. Question 2 on the Verdict Form asked the jury: “Has

Vincent D. Franco, Jr. proven by a preponderance of the evidence that he was

qualified to be and to remain a student at the University of Colorado School of

M edicine, with or w ithout reasonable accommodation?” Aplee. Supp. App. at 37.

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The jury answered “Yes.” Id. Perhaps a different instruction, one preferred by

M r. Franco, would have made it easier for him to establish that he was qualified.

But the bottom line is that he convinced the jury that he was.

      The element on which M r. Franco failed to persuade the jury was the third

element: that the school dismissed him “solely because of his disability.” Id. H e

contends that an error in Instruction 9 nevertheless harmed his case because the

jury was instructed that it “must consider all instructions as a whole,” Aplt. Reply

Br. at 5, and Instruction 9 therefore “affect[ed] the jury’s ability to consider

evidence about whether he was dismissed from school solely based on his

disability,” id. at 6. But this contention assumes that the jury selectively read

Instruction 9, focusing on the portion that M r. Franco challenges w hile w holly

ignoring that the instruction governs, by its own terms, only the question of

M r. Franco’s qualification. W e reject this assumption. “Juries are presumed to

follow the court’s instructions.” Questar Pipeline Co. v. Grynberg, 201 F.3d

1277, 1287 (10th Cir. 2000).

      W e A FFIR M the judgment below.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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