                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         SEP 15 1998
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


    BENARD WITHERSPOON,

              Plaintiff - Appellant,
                                                         No. 97-3097
        v.                                       (D. Ct. No. 95-1128-MLB)
                                                          (D. Kan.)
    NASH-FINCH COMPANY,

              Defendant - Appellees.


                           ORDER AND JUDGMENT *


Before TACHA, McWILLIAMS, and KELLY, Circuit Judges.



       Plaintiff Benard Witherspoon brought an action under Title VII of the Civil

Rights Act of 1964 and 42 U.S.C. § 1981, alleging discriminatory harassment and

termination of employment based on race. Plaintiff also claims wrongful

retaliation for filing a worker’s compensation claim, in violation of Kansas public

policy. The United States District Court for the District of Kansas granted

summary judgment to defendant with respect to all counts except for plaintiff’s



*
  This order and judgment is not binding precedent, except under the doctrines of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. 36.3.
Title VII claim that Nash-Finch discriminated against him on the basis of race by

failing to accommodate his injury, which eventually led to his discharge. The

remaining claim proceeded to trial. The jury returned a verdict for defendant.

Plaintiff appeals the district court’s summary judgment ruling and also asserts that

the court erred in the issuance of the jury instructions on the count that went to

trial. We take jurisdiction under 28 U.S.C. § 1291 and affirm.

                                    Background

      Defendant Nash-Finch Company is a wholesale grocery distributor that

operates a distribution warehouse in Liberal, Kansas. Plaintiff Benard

Witherspoon, an African-American, began employment at the warehouse in July

1976. His primary position was as a selector. Selectors fill customer orders by

physically obtaining the goods from the warehouse. The selector position is

physically demanding because it requires frequent lifting (in excess of fifty

pounds), bending, twisting, and stooping.

      In 1989, Nash-Finch implemented a computerized assessment system to

measure work productivity called the Gagnon system. The Gagnon system

measures productivity as a percentage by comparing the amount of time a selector

spends filling an order with the benchmark time established by Nash-Finch for

completion of that order. In May 1992, Nash-Finch began requiring its employees

to maintain a bi-weekly minimum average of ninety percent productivity. Nash-


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Finch used a progressive disciplinary policy to address low production.

      Prior to 1993, Witherspoon had an exemplary work record. He had failed

to meet required production levels only one or two times prior to February 1993,

and on many occasions, he exceeded the Gagnon standards by more than five

percent. On February 22, 1993, the labor standards coordinator at the warehouse,

Gene Carter, issued a verbal warning to Witherspoon, advising him that he had

failed to meet the production requirement for the preceding bi-weekly period.

Prior to this incident, Carter had described Witherspoon’s record as excellent.

The same day, Witherspoon injured his back while selecting. On March 8,

Witherspoon went to Nash-Finch’s designated doctor, Jack Reese, who placed

Witherspoon on a two-day medical restriction prohibiting him from heavy lifting.

      In subsequent appointments, Dr. Reese refused to examine Witherspoon and

was verbally abusive, saying that Witherspoon was lazy, did not want to work,

was cheating Nash-Finch, and had the body of a man but the mind of a three-year

old. Dr. Reese was similarly abusive to white employees. Later in March,

Witherspoon reinjured his back. Following this injury, Witherspoon presented

Rick Hoy, then the warehouse superintendent, with a note from a private

physician indicating that he needed two weeks off of work for therapy. Hoy

refused the physician’s recommendation and indicated that he would only accept

the recommendation of Dr. Reese. Hoy also said that if Witherspoon were off


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more than three days, he would be fired. Witherspoon returned to work on the

third day, but ended up in the emergency room because of pain. Dr. Reese then

referred Witherspoon to a specialist. The specialist recommended three weeks of

therapy, which Nash-Finch provided.

      Witherspoon returned in April and was placed in Nash-Finch’s Temporary

Alternative Duty (“TAD”) Program. TAD allows employees to do temporary

work while recuperating from work-related injuries. While on TAD, Witherspoon

testified that, among other tasks, Nash-Finch assigned him to chop ice, a task that

violated his medical restrictions. Nash-Finch denies that Witherspoon chopped

ice during this period of TAD.

      In late April, Witherspoon filed a worker’s compensation claim relating to

his back injury. In May 1993, Witherspoon reinjured his back. Also in May,

Witherspoon filed a discrimination complaint with the Kansas Human Rights

Commission. In that complaint, he asserted that Nash-Finch refused to

accommodate his injury, work restrictions, and rehabilitation because of race- and

disability-based discrimination. His assertions of race discrimination were

primarily based on the conduct of Hoy. Hoy worked at the warehouse until mid-

1993. The record reveals that Hoy, while serving as warehouse superintendent,

made racially discriminatory comments on several occasions, some of which were

reported to Witherspoon. After Hoy’s transfer, there is no evidence of


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discriminatory comments having been made by other Nash-Finch management

personnel at the Liberal warehouse. Witherspoon did not work from August

through December 1993 while he pursued additional therapy.

      In January 1994, Witherspoon returned to work with temporary medical

restrictions and was again placed in the TAD program. Among other tasks, Nash-

Finch assigned Witherspoon to chop ice in the freezer, again in violation of his

medical restrictions. Nash-Finch has also assigned injured white workers with

similar medical restrictions to chop ice. Around this time, Carter, who had

replaced Hoy as warehouse superintendent, made a comment that Witherspoon

was lazy and faking his injury for insurance purposes. During February and

March 1994, Witherspoon was assigned to tasks within his medical restrictions.

      Witherspoon was released from his medical restrictions in April 1994. He

returned to the selector position. His back injury worsened. In April and May

1994, he received both a verbal and a written warning for low productivity.

Witherspoon, believing the Gagnon computer system to be rigged against him,

informed the superintendent that he could not perform at the ninety percent

productivity level. Between May and September 1994, Witherspoon was

suspended on three occasions, ostensibly for his failure to meet the productivity

threshold.

      During Witherspoon’s continuing worker’s compensation case, the


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administrative law judge overseeing the case ordered Witherspoon to be examined

by Dr. Pedro Murati, an independent physician. In late September, Dr. Murati

issued permanent restrictions on how much weight Witherspoon could lift and

carry. Witherspoon did not work from mid-September 1994 through mid-January

1995. During this period, Nash-Finch’s attorney told Witherspoon that he would

not be subject to the ninety percent productivity requirement when he returned to

work.

        In early January 1995, Carter told Witherspoon that Nash-Finch would set

up a position to accommodate Witherspoon’s new medical restrictions. Later,

though, Carter informed Witherspoon that he would be subject to the ninety

percent productivity requirement and that Nash-Finch would not otherwise

accommodate his condition. On January 15, 1995, Witherspoon returned to work

in a freezer selector position. His back finally gave out. On January 25,

Witherspoon told Carter that he could not continue working in the freezer and

asked to be reassigned. The next day, in response to Witherspoon’s request to

work in a loader position, Carter told him to report to work at 3:00 p.m. When

Witherspoon arrived, Carter terminated his employment. Carter explained to

Witherspoon that he was being terminated because he was physically unable to

perform the jobs available to him under the seniority system. Nash-Finch has also

fired white selectors who were physically unable to perform their jobs. On


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January 12, 1996, Nash-Finch again offered Witherspoon a freezer selector

position. Witherspoon rejected this offer.

                                     Discussion

         I.    Standard of Review

         We review the grant or denial of summary judgment de novo, applying the

same legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c).

See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10 th Cir. 1995) (further

citations omitted). Summary judgment is appropriate if no genuine issues of

material fact exist -- that is, if no reasonable juror could return a verdict in favor

of the nonmoving party. See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10 th Cir.

1993).

         II.   Discriminatory Termination of Employment Claim

         The district court dismissed Witherspoon’s discriminatory discharge claims

because he could not produce direct evidence of discrimination, nor could he

satisfy the elements of a prima facie case of race-based termination. The district

court found that the only direct evidence of race-based discrimination by Nash-

Finch management were comments made by Rick Hoy, the warehouse

superintendent until June 1993. Nash-Finch transferred Hoy to another city at

that time, more than 18 months prior to Witherspoon’s termination. During the

year and a half following Hoy’s transfer, plaintiff presented no direct evidence of


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discrimination by Nash-Finch management. The connection that plaintiff attempts

to draw between Hoy’s conduct and plaintiff’s termination is not supported by the

record. Accordingly, we agree with the district court that the plaintiff has

produced no direct evidence of discriminatory discharge.

      We also agree that Witherspoon has failed to establish a prima facie case of

discrimination. In order to establish a prima facie case of discriminatory

discharge in violation of Title VII or 42 U.S.C. § 1981, a plaintiff must show that

(1) he belongs to a protected class, (2) he was qualified for the position, (3) that

despite his qualifications, he was discharged, and (4) that after his discharge the

job remained available. See Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170,

1174-75 (10 th Cir. 1996). The district court found that Witherspoon could not

show the second element of the prima facie test, i.e., that he was qualified for a

position at Nash-Finch at the time of his termination. The court based its

conclusion on the following exchange that occurred during the defendant’s

deposition of Witherspoon:

      Q:     Other than the fork job you said you wanted, was there any other job
             given your medical restrictions you could have done that was
             available at the Nash-Finch warehouse in January, 1995?
      A:     None that my seniority would let me have.

Witherspoon v. Nash-Finch Co., No. 95-1128-MLB, slip op. at 31 (D. Kan. filed

Mar. 3, 1997). The court also cited to Witherspoon’s explanation of the reasons

he refused a Nash-Finch offer of reemployment as a freezer selector in January

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1996:

        Q:    Have you told me the reasons you didn’t accept the position?
        A:    Well, I didn’t — I failed to mention that my work — because of my
              physical.
        Q:    Because of your physical?
        A:    My physical, I couldn’t do the job because of my physical condition.
        Q:    So the job — you felt like you could not perform physically the
              position that was offered to you in the January 12 th, 1996 letter?
        A:    Yes.

Id. at 32. Witherspoon raises several arguments why the above-quoted testimony

is not decisive on his discharge claims.

        First, he argues that his testimony actually reflects his belief that he was

physically able to perform selector positions, but could not meet the company’s

productivity system because it was “slanted against blacks.” Appellant’s Br. at

16. We are unable to draw any such inference from the testimony quoted above

or from the record as a whole. The plaintiff plainly admitted that he was no

longer physically qualified to perform any available positions.

        Even if this court were to accept the plaintiff’s characterization of his

testimony, he would nonetheless fail to make his prima facie showing. An

employer is entitled to determine when an employee’s failure to meet certain

objective criteria renders him or her unqualified for employment, provided that

such criteria are related to job performance, see Griggs v. Duke Power Co., 401

U.S. 424, 431 (1971), and applied evenhandedly to members of all races, see

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 (1973). Thus,

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Witherspoon’s admission that he could not meet the productivity requirements at

Nash-Finch may be regarded as an admission that he was unqualified for

employment, absent evidence that the productivity system was indeed “slanted

against blacks.” Nash-Finch’s productivity system is a direct measure of job

performance and the record, as a whole, does not support the plaintiff’s assertion

that Nash-Finch’s productivity system was applied differently based on an

employee’s race. Therefore, plaintiff has failed to prove that he was qualified for

a position at Nash-Finch at the time he was terminated.

      Second, plaintiff cites authority which purportedly supports the assertion

that Witherspoon can make a prima facie case of race-based termination even if

he is unable to show that he was qualified for a position at Nash-Finch at the time

of his termination. We agree with the district court that the cases cited by

plaintiff are inapposite.

      Lastly, plaintiff asserts that the district court’s finding allows Nash-Finch

to “circumvent race discrimination and retaliatory discharge law by causing injury

to an employee in the course of its discriminatory and retaliatory acts and be

exculpated from responsibility by claiming the employee is no longer physically

qualified for the position.” Appellant’s Br. at 16. We need not address this

contention because we agree with the district court that there is “no evidence or

reasonable inference which supports Witherspoon’s assertion that Nash-Finch


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harassed him with the intent to cause a disabling injury that would, in turn, force

him to quit.” Witherspoon, slip op. at 36. Thus, we affirm the district court’s

grant of defendant’s summary judgment motion on Witherspoon’s discriminatory

discharge claims.

III.   Discriminatory Harassment Claim

       The district court concluded that no reasonable jury could find the

existence of a hostile work environment because the plaintiff “was simply not

subjected to a barrage of opprobrious racial invective, and no one instance of

harassment was sufficiently severe, in and of itself, to create an abusive working

environment.” Id. at 40. The district court thoroughly reviewed the record in

reaching this conclusion, and plaintiff points to no error in the district court’s

review of the facts in the record. We affirm for substantially the reasons stated

by the district court.

IV.    Retaliation for Filing a Worker’s Compensation Claim

       Under Kansas law, “an employee who cannot return to his or her former

position does not have a retaliatory discharge claim.” Griffin v. Dodge City

Coop. Exch., 927 P.2d 958, 964 (Kan. Ct. App. 1996). The district court held that

Nash-Finch was entitled to summary judgment on Witherspoon’s retaliatory

discharge claim because Witherspoon was not physically able to perform any

available positions at Nash-Finch. Based on Witherspoon’s admission in his


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deposition that he could not perform any available jobs, there is no genuine

dispute on this matter. Accordingly, we affirm the district court’s grant of

summary judgment on this claim.

V.    Jury Instruction Error

      On plaintiff’s claim that went to trial, he argues that the district court

committed reversible error by issuing a jury instruction that unfairly prejudiced

his case. “We review jury instructions de novo, and must view the instructions in

their entirety, deciding not whether the instruction was completely faultless, but

whether the jury was misled in any way.” Coleman v. B-G Maintenance

Management of Colo., 108 F.3d 1199, 1202 (10 th Cir. 1997) (citing Gardetto v.

Mason, 100 F.3d 803, 816 (10 th Cir. 1996)). An error in jury instructions will

warrant reversal “‘if the jury might have based its verdict on the erroneously

given instruction.’” Id. (quoting City of Wichita v. United States Gypsum Co., 71

F.3d 1491, 1495 (10 th Cir. 1996)).

      The challenged instruction stated: “The decision to terminate plaintiff’s

employment for reason of his physical inability to perform work at Nash-Finch

was a mutual decision of plaintiff and Nash-Finch and therefore was not

unlawful.” Jury Instruction No. 17. Witherspoon contends that Nash-Finch did

not accommodate his injury due to his race and that this race-based failure to

accommodate led to his inability to perform his job, and hence, his termination.


                                         -12-
Witherspoon argues the phrases “mutual decision” and “not unlawful” unfairly

prejudiced him by suggesting to the jury that Nash-Finch’s actions leading up to

the termination, including its alleged failure to accommodate his injury, were not

unlawful, even though the termination itself, based on plaintiff’s inability to

perform, was lawful. Thus, Witherspoon argues, “Instruction No. 17 had the

effect of sanitizing all of Nash-Finch’s actions in contributing to his workplace

injuries.” Appellant’s Br. at 29. We disagree.

      The district court expressed its concern about the instruction at the jury

instruction conference. The court stated, “I just want [the jury] to focus on the

issues before them and not get down a rabbit trail on what they may think the

evidence shows on something else. They may think . . . that [Nash-Finch]

unlawfully terminated him. And I don’t want them deciding the case on that

basis.” Tr. at 1287-88. The court chose the language “not unlawful” to narrow

the issues presented to the jury. The district court did not unfairly handicap

Witherspoon in proving that Nash-Finch’s actions    leading to his termination were

discriminatory, and therefore unlawful. Any concerns that Witherspoon had

regarding the impact of Instruction 17 were more than satisfactorily addressed by

Jury Instruction 12. Jury Instruction 12 stated:

            It is unlawful for an employer to intentionally discriminate
      against an employee with respect to seniority, conditions, terms,
      benefits or privileges of employment because of the employee’s race.
      The plaintiff in this case, Benard Witherspoon, claims that the

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      defendant, Nash-Finch Company, intentionally discriminated against
      him because of his race by treating him in a manner which was
      different from similarly-situated white employees and by failing to
      accommodate his working conditions after learning of his February
      1993 injury.

Furthermore, Jury Instruction 14 detailed what the evidence must show before a

jury can find that the defendant engaged in discriminatory actions. Jury

Instruction 16 explicitly stated that it was the jury’s duty to determine whether

there were any racially discriminatory factors in Nash-Finch’s decisions regarding

Witherspoon:

      In deciding whether or not the plaintiff has shown that his race was a
      motivating factor in the differential treatment claimed by him, you may not
      question or overrule the business judgment of the defendant. . . . [T]he
      defendant is still entitled to exercise its business judgment in the way it
      treated the plaintiff, so long as the plaintiff’s race did not make the
      difference in those decisions. The determining factor is the presence or
      absence of racial motivation in the decisions made by the defendant with
      respect to the plaintiff.

These instructions immediately precede the jury instruction contested by

Witherspoon. The instructions clearly informed the jury that Witherspoon was

entitled to a verdict in his favor if Nash-Finch’s employment actions were tainted

by race-based discrimination, even though Witherspoon’s termination occurred

for other reasons.

      We are not persuaded that the district court’s instructions either misled or

confused the jury. A review of the jury instructions in their entirety reveals that

the jury had a panoply of law regarding when discrimination in employment exists

                                         -14-
and when it does not. The court’s language of “not unlawful” and “mutual

decision” did not unfairly prejudice the jury in considering Witherspoon’s

discrimination claim. Therefore, reversal is not warranted.


                                   Conclusion

      Based upon the foregoing conclusions, we cannot find error in the district

court’s grants of summary judgment or in its issuance of Jury Instruction No. 17.

      AFFIRMED.

                                      ENTERED FOR THE COURT,


                                      Deanell Reece Tacha
                                      Circuit Judge




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