                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         June 17, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
KENNY SMITH,

             Plaintiff-Appellant,

v.                                                         No. 13-1449
                                              (D.C. No. 1:11-CV-00983-MSK-MEH)
GLOBAL STAFFING,                                            (D. Colo.)

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.


      In a pro se complaint, Kenny Smith, an African American male with a

disability, claimed Global Staffing (Global) discriminated against him based on his

sex, his race, and his disability. The discriminatory acts, he claims, were not hiring

him for a particular position and terminating his employment. Judgment as a matter

of law was entered against him on some claims and a jury rendered a verdict in favor

of Global on his remaining claims. He appeals from the resulting judgment and

*
      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)(2); 10th Cir. R. 34.1(G). We therefore deny
Appellant’s motion for oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
complains of the judge’s resolution of some trial issues. There was no error. We

affirm.1

I.    Background

      A.     Pretrial Proceedings

      After Smith’s case had been pending for two years—and on the eve of trial—

he retained counsel.2 The district judge denied his motion for a continuance and

scheduled the final pretrial conference. In the final pretrial order, the judge listed the

claims proceeding to trial as sex and race discrimination under Title VII, 42 U.S.C.

§ 2000e-2(a); race discrimination under 42 U.S.C. § 1981; and disability

discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12112 (ADA).

The judge excluded a state-law claim of wrongful discharge in violation of public

policy because it was not contained in Smith’s complaint.

      B.     Parties’ Stipulations

      The parties stipulated to certain facts, including the following: “Global

Staffing is a staffing company that provides temporary staffing, temp-to-hire staffing,

and direct-hire services. . . .” Aplt. App. at G14-G15. “[O]n or about June 27, 2005,

Global Staffing hired Mr. Smith and placed him in a temp-to-perm assignment with

Wabash Trailers,” one of Global’s clients. Id. at G15. On September 23, 2005,

Smith reported he had suffered a crush injury to his left foot while working at

1
      Our jurisdiction derives from 28 U.S.C. § 1291.
2
      The same counsel continue to represent Smith in this appeal.


                                           -2-
Wabash Trailers. He was released to light-duty work in December 2005, at which

point Global offered him full-time light-duty work at its company office. Smith

accepted that offer and, due to the limitations resulting from his injury, he remained

in that assignment until June 11, 2008. His “job duties included scanning, filing,

document shredding, and other clerical tasks as needed.” Id. “[O]n June 17, 2008,

Global . . . notified Mr. Smith that his assignment to a job in Global Staffing’s office

was terminated.” Id. at G15-G16. Global further stipulated that Smith has a

disability. The district judge also read the following additional stipulation to the

jury:

               Ladies and gentlemen of the jury, the parties have reached a
        stipulation which they hope and I hope will help you understand what
        the parties understood with regard to the modified duty period.[3]

                []Smith and Global understood that the modified duty period
        would expire when he reached maximum medical improvement and his
        workers compensation case was resolved. When that period expired, his
        temporary employment in the Global office would be over and he would
        return to a temporary employee status. []Smith thought that he might be
        able to return to Wabash as a permanent employee.

Id. at H345.4




3
      During the trial, the parties referred to Smith’s light-duty assignment at the
Global office as “modified duty.”
4
      The parties are familiar with the evidence presented at trial. We will refer to it
only as appropriate to resolving the issues presented.


                                          -3-
      C.     Rule 50(a) and Rule 15(b) Motions

      After Smith had presented his case to the jury, Global moved for judgment as a

matter of law under Fed. R. Civ. P. 50(a). It renewed the motion at the close of the

evidence. In its view the evidence revealed no legally sufficient basis for the jury to

find in favor of Smith on his claims of wrongful termination based on his sex, race,

or disability. The judge agreed and dismissed those claims. Consequently, only

Smith’s failure-to-hire claims went to the jury.

      At the close of the evidence, Smith moved under Fed. R. Civ. P. 15(b) to

amend his complaint to conform to the evidence. He argued Global had consented to

trying his state claim of wrongful termination in violation of public policy and,

accordingly, would not be prejudiced by adding that claim. Global denied

consenting, explicitly or implicitly, to trying that claim. The judge denied the

motion.

      D.     Request to Modify the Jury Verdict Form

      At conference the instructions and verdict form were settled. The judge read

the instructions to the jury and both sides made initial closing arguments, but before

making his rebuttal argument Smith asked for a modification of the verdict form to

include “segregation” as an additional basis for his discrimination claims.

Understandably, Global objected. The judge denied the request and sent the

unmodified verdict form to the jury. The jury returned a verdict in favor of Global.




                                          -4-
II.   Discussion

      Smith challenges the judgment as a matter of law on his termination claims,

the denial of his motion to amend his complaint to add a claim asserting wrongful

termination in violation of public policy, and the denial of his request to modify the

verdict form.

      A.        Grant of Rule 50(a) Motion

      Under Rule 50(a)(1), after “a party has been fully heard on an issue during a

jury trial,” a district judge may “resolve the issue against the party” and may grant

the movant judgment as a matter of law on a claim after finding “that a reasonable

jury would not have a legally sufficient evidentiary basis to find for the party on that

issue.” Fed. R. Civ. P. 50(a)(1)(A)-(B).

      The question is not whether there is literally no evidence supporting the
      nonmoving party but whether there is evidence upon which a jury could
      properly find for that party. For a jury to properly find for a party, the
      party must present more than a scintilla of evidence supporting its
      claim.

Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 685 (10th Cir. 2007). Our review of a

grant of a Rule 50(a) motion is de novo and we view the evidence in the light most

favorable to Smith. See id.

      Focusing on the parties’ stipulation regarding their mutual understanding of

when and why Smith’s modified-duty assignment would end, the judge concluded

there was no evidence of a termination from that assignment; rather the job had

ended when Smith reached maximum medical improvement (MMI) and his workers’


                                           -5-
compensation claim was resolved.5 But Smith points us to testimony of

Deborah Westmoreland, Global’s office manager. She said he was the only

employee to be involuntarily terminated from a modified-duty assignment.6 Focusing

on that narrow aspect of her testimony he claims the termination issue should have

been decided by the jury. Indeed, there is some evidence suggesting Smith may have

been terminated from that position, but the evidence on point, considered as a whole,

was insufficient for a reasonable jury to conclude his race, his sex, or his disability

was a motivating factor even if it was a termination. For that reason, we affirm.

      When a plaintiff asserts a claim of discrimination, his “prima facie case,

combined with sufficient evidence to find that the employer’s asserted justification is

false, may permit the trier of fact to conclude that the employer unlawfully


5
       The judge also found Smith not to have been terminated from his continued
employment with Global as a member of the pool of workers seeking job assignments
with the company’s clients. There was no evidence Global told him he would not get
another position, and Smith conceded he never called Global to indicate he was
available for a new work assignment. Smith does not challenge this ruling on appeal.
6
       According to Westmoreland’s testimony all other modified-duty assignments
at Global’s office had ended when the employees reached MMI or when their
workers’ compensation claims were settled. The other employees then either
returned to their previous work assignments or were assigned to positions with other
clients. She indicated Smith reached MMI in August 2007, but his modified-duty
assignment did not end until June of 2008. As she explained, Smith could not be
released from his modified-duty assignment until his attorney and Global’s insurer
reached a settlement on his workers’ compensation claim. When that occurred,
Global informed Smith he was released. Westmoreland said Smith was the only
employee on modified duty who she had to involuntarily terminate, as all other
modified-duty employees resigned once they reached MMI and entered into
settlements with the insurer.


                                          -6-
discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148

(2000). But “an employer [is] entitled to judgment as a matter of law if the record

conclusively reveal[s] some . . . nondiscriminatory reason for the employer’s

decision, or if the plaintiff created only a weak issue of fact as to whether the

employer’s reason was untrue and there was abundant and uncontroverted

independent evidence that no discrimination had occurred.” Id.

      Here, Smith stipulated to his understanding: “the modified duty period would

expire when he reached maximum medical improvement and his workers

compensation case was resolved. When that period expired, his temporary

employment in the Global office would be over and he would return to a temporary

employee status.” Aplt. App. at H345. By his stipulation Smith conceded a

non-discriminatory motive for terminating his modified-duty assignment.

See Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169 (10th Cir. 2007)

(holding plaintiff’s concession of lawful motive precludes inference of

discriminatory motive). Moreover, the uncontroverted evidence was consistent with

his stipulation. Global terminated his modified-duty assignment only after he had

reached MMI and settled his workers’ compensation claim.

       Smith views the stipulation as only reflecting his state of mind as he started

that assignment and not “what actually happened later in this case.” Aplt. Opening

Br. at 19. At best that is a slender reed, insufficient to show Global’s stated reason

for terminating the assignment to be untrue. See Reeves, 530 U.S. at 148. The


                                          -7-
stipulation, considered in the light of all other evidence, precluded any reasonable

jury from concluding Global’s reason for terminating him was implausible,

inconsistent, incoherent, or contradictory. See Swackhammer, 493 F.3d at 1167. Not

only that, but Smith presented no evidence of its falsity. See id. And, while there

was evidence of his being treated differently from other Global employees during his

modified-duty assignment,7 as to his termination from that assignment (the real issue)

the uncontroverted evidence demonstrated his treatment to be the same as all the

other employees who were similarly situated to him, namely, those who were on

modified duty. See id. at 1167-68 (noting pretext argument based on differential

treatment must focus on similarly situated employees). All of Global’s other

modified-duty assignments ended when the employees reached MMI and settled their

workers’ compensation claims. Smith’s situation differed only slightly; he did not

7
       Smith testified to having felt unwanted and uncomfortable while working at
the Global office. He based this feeling on his physical placement in a back room of
the office, the non-meaningful work he was assigned, the training provided to female
employees but not to him, his exclusion from office lunches, a direction by Global to
use a different bathroom than the other employees, a memo changing certain aspects
of his work that only he received, and other treatment by Global employees that he
perceived as unkind.
       The evidence showed that, while Smith was on modified duty at Global’s
office, the other Global employees were instructed to be cordial and polite to him, but
not to bring him into the circle of the regular staff. Westmoreland testified that, “The
idea for a modified duty employee is that they’re kept working and kept busy until
they’re able to go back to their own job. If they’re working in our office and they’re
feeling more and more like part of the office, they’re going to want to stay at Global
Staffing, rather than go back to their other job.” Aplt. App. at G220.



                                         -8-
resign at that point, as all other modified-duty workers had done, which would be

consistent with Global’s clear expectations and long standing practice. Instead he

had to be informed that he must move on. The stipulation speaks directly to the

parties’ understanding of their arrangement and it leaves no room for the exception

Smith tries to wedge into the matter.

      Insufficient evidence exists in this record to demonstrate how Global’s stated

reason for terminating his modified-duty assignment was pretextual. See Stewart v.

Adolph Coors Co., 217 F.3d 1285, 1289 (10th Cir. 2000). Even viewed in the light

most favorable to him, there is a dearth of evidence from which one could conclude

that Global terminated his modified-duty assignment because of his race, his sex, or

his disability.8 See id. Accordingly, we affirm the judgment as a matter of law

entered on Smith’s termination claims.

      B.     Denial of Rule 15(b) Motion

      Fed. R. Civ. P. 15(b)(2) provides:

      When an issue not raised by the pleadings is tried by the parties’ express
      or implied consent, it must be treated in all respects as if raised in the
      pleadings. A party may move--at any time, even after judgment--to
      amend the pleadings to conform them to the evidence and to raise an
      unpleaded issue. But failure to amend does not affect the result of the
      trial of that issue.



8
       The only suggestion of differential treatment based on Smith’s disability, race,
or sex was speculative testimony by a former Global employee who admitted no one
ever told her those factors played any part in Global’s decisions regarding Smith’s
employment.


                                           -9-
At the close of the evidence, Smith moved to amend his complaint to add a state-law

claim for wrongful discharge in violation of public policy. According to him, Global

consented to trying that claim by presenting evidence regarding his workers’

compensation claim (including his retention of counsel, the settlement of that claim,

and the subsequent termination of his modified-duty assignment). Alternatively, he

claimed the amendment was proper under Rule 15(b)(1) because Global would not be

prejudiced. Global responded it would be prejudiced by the addition of the claim,

which the district judge had excluded before trial and which had not been fully

litigated during the trial.

       The judge denied Smith’s motion. She said Smith had not satisfied all of the

elements of a wrongful-termination claim because there was no evidence of a

termination of his modified-duty position. She also decided the evidence regarding

Smith’s workers’ compensation claim, including its effect on the length of his

modified-duty assignment, was relevant to Global’s defense of his

discriminatory-termination claims. She concluded that Global had not, by presenting

this evidence, consented to trying a public-policy wrongful-termination claim. She

also found a belated amendment of the complaint--after all the evidence had been

presented--would prejudice Global.

       Our review is for an abuse of discretion. Moncrief v. Williston Basin

Interstate Pipeline Co., 174 F.3d 1150, 1160 (10th Cir. 1999). We find none.

“Implied consent [to try an issue under Rule 15(b)] cannot be based upon the


                                        - 10 -
introduction of evidence that is relevant to an issue already in the case when there is

no indication that the party presenting the evidence intended to raise a new issue.”

Id. at 1162. We agree with the district judge. The evidence related to Smith’s

workers’ compensation claim was relevant to an issue already in the case: his claim

that Global terminated his modified-duty assignment based on his race, sex, or

disability. And nothing suggests Global intended to raise any new issue, much less a

public-policy wrongful-termination claim, by presenting its evidence on issues being

litigated. In like vein, the trial judge did not abuse her discretion in assessing the

prejudice to Global resulting from permitting Smith to add an additional claim after

the evidence was closed. See id. (“When evidence claimed to show trial of an issue

by consent pursuant to Rule 15(b) is relevant to a separate issue already in the case, it

would be unjust to the opposing party to consider a new theory of recovery after trial

is complete.” (internal quotation marks and alteration omitted)).

      C.     Denial of Request to Modify Jury Verdict Form

      The parties participated in a jury instruction conference, during which they

raised objections to the instructions proposed by the judge and proffered alternatives.

When the conference concluded, the district judge read the final instructions and the

verdict form to the jury. The verdict form required the jury to decide whether Smith

had proven by a preponderance of the evidence that his sex, his race, or his disability

was a motivating factor in Global’s decision not to hire him. See Aplt. App. at

C9-C10. After Global presented its closing argument, but before his rebuttal


                                          - 11 -
argument, Smith remarked that the verdict form addressed only his failure-to-hire

claims, omitting any reference to segregation claims supported by the statutory

language in Title VII and the ADA. See 42 U.S.C. §2000e-2(a)(2) (prohibiting

employers from “segregat[ing] . . . employees or applicants . . . in any way which

would deprive or tend to deprive any individual of employment opportunities . . .

because of such individual’s race, color, religion, sex, or national origin”); see also

42 U.S.C. § 12112(b)(1) (including similar language regarding segregation based on

an individual’s disability). He asked the judge to modify the verdict form to include

these segregation claims.

      Initially the judge was inclined to amend the verdict form, but she ultimately

denied Smith’s request because the instruction set included no instructions defining

the elements of his segregation claims. Like the verdict form, the elemental

instructions addressed only Smith’s failure-to-hire claims. See id. at C3, C5, C7.

The judge stated,

      There is no elemental instruction governing segregation. There is no
      way for the jury to know what the legal standards on that are. There
      was no request for that instruction. And to modify the question in the
      verdict form to include reference to that would not allow the jury to
      make a determination based upon appropriate elemental standards.

Id. at H518. The judge reminded Smith of his opportunity to raise the issue during

the jury instruction conference and his failure to do so. Because the request to

modify the verdict form so late in the proceedings was untimely, the judge denied it.




                                          - 12 -
      We review the language of a special verdict form for an abuse of discretion.

Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1249 (10th Cir. 1998). “Under the

abuse-of-discretion standard, a trial court’s decision will not be disturbed unless the

appellate court has 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.” Okla. ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1232

(10th Cir. 2010) (internal quotation marks omitted).

      At the jury instruction conference, the district court agreed to Smith’s request

to include “the segregation language,” Aplt. App. at H415 (internal quotation marks

omitted), in the instructions describing the statutory bases for his discrimination

claims, see id. at H412, H415, H416; see also id. at C2, C4, C6. But Smith neither

requested inclusion of the segregation language in any of the elements instructions

related to his claims, nor objected to its absence. When later asked whether there

were additional tendered instructions the judge should consider, Smith again failed to

appropriately respond. Nor did he ask the judge to add segregation claims to the

verdict form or object to their omission. See id. at H434-H437.

      When the judge continued the instruction conference the following day, Smith

once again did not ask for an elements instructions on segregation or inclusion of

those claims in the verdict form. After both parties indicated they had no further

objections to the instructions, the judge then proceeded to read them and the verdict

form to the jury. She then gave the parties another opportunity to raise any


                                         - 13 -
objections, and Smith stated he had none. See id. at H468-H469. Since Smith

delayed raising the issue until after Global completed its closing argument, he was

the author of his fate.

       There was no abuse of discretion in refusing Smith’s request to modify the

verdict form under the circumstances presented, particularly in light of the multiple

opportunities Smith had to object to the instructions and verdict form, both before

and after they were read to the jury; the request was untimely. See Fed. R. Civ. P.

51(b)(2) & (c)(2) (providing objections to instructions are timely if made “before the

instructions and arguments are delivered”). Assuming the late blooming request was

not a calculated attempt to gain unfair advantage, it would necessarily have required

supplemental jury instructions and re-argument; something that would be ungainly at

best and possibly causing juror confusion.

       The judgment of the district court is affirmed. Smith’s motion for oral

argument is denied.


                                                  Entered for the Court


                                                  Terrence L. O’Brien
                                                  Circuit Judge




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