                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                       PUBLISH
                                                                              NOV 16 1998
                     UNITED STATES COURT OF APPEALS
                                                                           PATRICK FISHER
                                                                                  Clerk
                                  TENTH CIRCUIT



 GUILLERMO SANJUAN,

       Plaintiff-Appellee-
       Cross-Appellant,
                                                      Nos. 96-3326 and 96-3327
 v.

 IBP, INC.,

       Defendant-Appellant-
       Cross-Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                         (D.C. No. 94-CV-1541)


David O. Alegria of McCullough, Wareheim & LaBunker, P.A., Topeka, Kansas, for
Plaintiff-Appellee-Cross-Appellant.

Jack Focht of Focht, Hughey &              Calvert,   L.L.C.,   Wichita,    Kansas,   for
Defendant-Appellant-Cross-Appellee.


Before BALDOCK, HOLLOWAY and MURPHY, Circuit Judges.


HOLLOWAY, Circuit Judge.


      Plaintiff-Appellee-Cross-Appellant Guillermo Sanjuan (“Sanjuan”) filed suit on

December 12, 1994, in the United States District Court for the District of Kansas against
Defendant-Appellant-Cross-Appellee IBP, Inc. (“IBP”), alleging that IBP terminated

Sanjuan’s employment in retaliation for Sanjuan’s work-related injury. The district court had

diversity jurisdiction of the case pursuant to 28 U.S.C. § 1332. The case was tried before a

jury, which found in favor of Sanjuan. Both parties filed post-trial motions, all of which

were denied by the district court.

       IBP appeals the district court’s judgment, claiming error in the denial of its motion

for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure        1
                                                                                           and its

renewed motion for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules

of Civil Procedure.2 Sanjuan cross-appeals, claiming error in the district court’s refusal to

submit Sanjuan’s proposed jury instruction to the jury, in the verdict form submitted to the


       Fed. R. Civ. P. 59(a) provides:
       1



       A new trial may be granted to all or any of the parties and on all or part of the
       issues (1) in an action in which there has been a trial by jury, for any of the
       reasons for which new trials have heretofore been granted in actions at law in
       the courts of the United States . . . .

       Fed. R. Civ. P. 50(a) provides:
       2



       (1) If 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 the
       party on that issue, the court may determine the issue against the party and may
       grant a motion for judgment as a matter of law against that party with respect
       to any claim or defense that cannot under controlling law be maintained or
       defeated without a favorable finding on that issue.

We note that IBP moved the court for a judgment as a matter of law pursuant to Rule 50(a)
at the close of all of the evidence. I App. at 167. Thus, IBP complied with the procedural
requirement for filing a renewed motion for judgment as a matter of law pursuant to
Rule 50(a) and Rule 50(b).

                                             -2-
jury, and denial of his motion for an additur. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291. We reverse and remand for a new trial, but affirm the rulings which Sanjuan’s

cross-appeal challenges.

                                      BACKGROUND

       Sanjuan began his employment with IBP as a flanker in 1991 at IBP’s Holcomb,

Kansas, plant. 3 Initially, Sanjuan did not have any problems with his supervisors. In late

May 1992, Sanjuan experienced pain in his shoulder, arm, and back while working as a

flanker. III App. at 708. Sanjuan visited IBP’s company nurse for treatment for his pain

between May 1992 and June 1992. He eventually saw a doctor and Sanjuan was restricted

to “light work.” III App. at 711-12. Sanjuan’s IBP supervisor was aware of his physical

problem and restrictions.

       Sanjuan testified that after he was assigned to light duty, his supervisors mistreated

him by writing him up for disciplinary violations without explaining to Sanjuan (who spoke

little English) the substance of the violations to him and by yelling at Sanjuan to return to the

flanker job. III App. at 729-30, 731-32. Sanjuan testified that IBP supervisors threatened

him if he did not return to the flanker job. III App. at 735-36. At trial, IBP supervisors

denied that they mistreated Sanjuan and said that each disciplinary action they took was in

response to a mistake in job performance by Sanjuan. II App. at 345.



       3
        A flanker is one who removes the hide and hair from carcasses of cattle that have
been slaughtered. III App. at 704-05.

                                              -3-
       Among the duties to which Sanjuan was assigned was driving cattle through a chute.

This duty required Sanjuan to drive cattle through a chute, using a prod to keep the cattle

moving. III App. at 727. On December 23, 1992, Sanjuan was working in the chute when

a cow fell down, causing the line of cattle to stop for five minutes. Sanjuan testified that the

cow slipped because of moisture in the chute. III App. at 762-64. Doug Bolton, an IBP

supervisor, testified that he had seen cattle accidently slip in the chute, and had seen cattle

enter the chute covered with snow and mud. IBP supervisors testified that Sanjuan

over-shocked the cow with the cattle prod. II App. at 451. IBP contends that Sanjuan had

been warned about over-shocking the cattle prior to the December 23, 1992, incident.

However, Sanjuan testified that he had not been warned about over-shocking cattle.

       Following the December 23 incident, Ron Christy, an IBP supervisor, made a written

disciplinary report on Sanjuan. IV App. at 1092. After reviewing the report on the

December 23, 1992, incident and noting that Sanjuan’s record contained two previous written

warnings,4 the IBP Personnel Manager, Minh Duong, decided to discharge Sanjuan. Duong

had knowledge that Sanjuan had been injured while working for IBP. II App. at 545. IBP

terminated Sanjuan’s employment on December 23, 1992. IV App. at 1092. Sanjuan was

never disciplined prior to his work-related injury for job performance. III App. at 592;

II App. at 211-12.




      Sanjuan had received written warnings on September 11 and September 28, 1992, for
       4

improperly driving cattle. III App. at 591.

                                             -4-
       Sanjuan brought suit on December 12, 1994, alleging retaliatory termination of his

employment. Before trial, IBP filed a motion in limine to exclude: (1) evidence that IBP

personnel directors had heard complaints from other employees that IBP mistreats injured

workers; (2) evidence of IBP’s accident-free incentive programs; and (3) evidence of IBP’s

“cost per injury” goals for work injuries. I App. at 28-29. The district court made a

preliminary ruling excluding the evidence. However, at trial, the court allowed Sanjuan’s

counsel to question Duong on other employees’ complaints and the accident-free incentive

program, over IBP’s objection. III App. at 571, 583, 586. Duong testified that he had heard

some complaints from employees about a practice of IBP harassing and mistreating injured

employees. III App. at 583. Duong also testified that as part of the accident-free incentive

program, groups of employees would receive prizes if no injuries were reported in the group

for a period of time. III App. at 587. Sanjuan’s counsel introduced testimony from Doug

Bolton, another IBP supervisor, who said that IBP had set a specific annual goal that is an

average cost of workers’ compensation for all employees. III App. at 681-82. Bolton said

that he had been informed that upper extremity injuries were costly to IBP. Id.

       The jury found for Sanjuan and awarded him damages in the amount of $19,074 for

lost past wages, $928 for loss of past fringe benefits, and the sum of $19,074 for

embarrassment, humiliation and emotional distress, for a total recovery of $39,076. I App.

at 166. The jury did not award punitive damages. The judgment entered on this verdict is

the subject of the appeal by IBP.


                                            -5-
                                       DISCUSSION

                                              A

    Whether the District Court Erred in Denying IBP’s Motion for a New Trial
 Because Evidence Admitted Over Objection Supporting the Jury Verdict In Favor
                          of Sanjuan Was Inadmissible.

       IBP argues that its Rule 59 motion for a new trial should have been granted because

the district court erred in allowing the jury to hear evidence of (1) complaints by other

employees; (2) IBP’s accident-free incentive program; and (3) IBP’s workers’ compensation

cost goals. IBP contends the evidence was inadmissible because it was irrelevant, its

probative value outweighed by its prejudicial effect, and it constituted hearsay and

impermissible character evidence.

       We review denial of a motion for a new trial for abuse of discretion. Unit Drilling Co.

v. Enron Oil & Gas Co., 108 F.3d 1186, 1193 (10th Cir. 1997); Patton v. TIC United Corp.,

77 F.3d 1235 (10th Cir. 1996), cert. denied, 116 S. Ct. 2525 (1996). Because the issue

whether a new trial ought to be granted hinges on the admissibility of evidence, our

determination will be governed by our review of the admission of the evidence for abuse of

discretion. United States v. Quitana, 70 F.3d 1167, 1170 (10th Cir. 1995). If error is found

in the admission of evidence, we will set aside a jury verdict only if the error prejudicially

affects a substantial right of a party. Hinds v. General Motors Corp., 988 F.2d 1039, 1049

(10th Cir. 1993). Evidence admitted in error can only be prejudicial “if it can be reasonably




                                             -6-
concluded that with or without such evidence, there would have been a contrary result.” Id.

(citing Smith v. Atlantic Richfield Co., 814 F.2d 1481 (10th Cir. 1987)).

                            1. Other Employees’ Complaints

       The district court admitted, over hearsay objections, testimony of two IBP supervisors,

Duong and Bolton, that they heard complaints by injured employees to the effect that they

were harassed and mistreated following their injuries or claims for medical benefits. III App.

at 583, 667, 670. IBP argues this evidence was hearsay, impermissible character evidence

and irrelevant.

       We reject IBP’s contention that mistreatment of other employees in similar

circumstances is irrelevant and prejudicial. Because an employer will rarely admit retaliatory

motives in firing an employee, retaliatory discharge cases generally must be proven by

circumstantial rather than direct evidence. See Chaparro v. IBP, Inc., 873 F. Supp. 1465,

1472 (D. Kan. 1995).

       We also reject IBP’s assertion that other employee’s complaints constitute

impermissible character evidence. Evidence of prior acts is generally not admissible to prove

the character of a person or to show the person acted in conformity therewith. Fed. R. Evid.

404(b). However, character evidence is admissible in civil trials to show motive or intent.

Id.; see also Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990). The evidence

here was offered to show that IBP had the motive or intent to mistreat employees following

their work-related injuries and we find no error in its admission.


                                             -7-
       The hearsay issue is more troublesome. Evidence is hearsay if it contains an

out-of-court statement offered to prove the truth of the matter asserted therein. Fed. R. Evid.

801(c). An out-of-court statement is not hearsay under the Federal Rules of Evidence if it

is offered to show its effect on the hearer of the statement. United States v. Nieto, 60 F.3d

1464, 1467-68 (10th Cir. 1995). To determine whether other employees’ complaints

constitute hearsay, we must discern why the evidence is being offered.

       At trial, the district court admitted the evidence despite stating the evidence was

“probably hearsay.” III App. at 583-85. In its post-trial order denying IBP’s motion for a

new trial, the district court ruled that the evidence of the employees’ complaints that they

were harassed and mistreated following injuries or claims for medical benefits was not

hearsay because it was being offered to show that the IBP personnel directors heard

complaints. I App. at 171. The judge’s order stated that testimony by a witness that he heard

or received complaints is “not hearsay, in that it is not a statement made by an out-of-court

declarant. Fed. R. Evid. 801(c).” I App. at 171. We cannot agree. We feel it is clear that

the “complaints” which were admitted over hearsay objections were offered not to prove the

mere hearing or making of them; their purpose was to establish the proposition in the jury’s

mind that IBP in fact engaged in a pattern or practice of mistreating its employees after

work-related injuries. As such, the out-of-court statements were inadmissible hearsay under

Rule 801(c). See Winans v. Rockwell Int’l Corp., 705 F.2d 1449, 1456-57 (5th Cir. 1983);

Cornelius v. Hondo, Inc., 843 F. Supp. 1243, 1246 (N.D. Ill. 1994).


                                             -8-
       The district court stated in its post-trial order that IBP did not cite any particular

statement which IBP believes to be hearsay. The district court then ruled that a failure to

specify testimony claimed to have been incorrectly admitted precludes the court from

considering any claimed error in its admission. Arteiro v. Coca Cola Bottling, Midwest, Inc.,

47 F.R.D. 186, 189 (D. Minn. 1969). However, the record is clear that at trial IBP made a

hearsay objection to specific testimony of IBP personnel, Duong and Bolton, on the hearing

of employee complaints. III App. at 583-585.

       We are convinced the evidence was inadmissible hearsay. The remaining question

is whether the error in admitting the hearsay evidence was such as to require a new trial. A

new trial is appropriate only where the claimed error substantially, and adversely, affects the

rights of a party. Hinds, 988 F.2d at 1049. IBP argues that it was substantially prejudiced

by the testimony, and we agree. Our record shows considerable use of the hearsay evidence

of complaints during the taking of evidence and during argument. III App. at 588, 667, 669,

670; IV App. at 1031.

                  2. Evidence of IBP’s Workers’ Compensation Goals
                        and Accident-Free Incentive Programs.

       Although we are remanding the case for a new trial due to erroneous admission of the

hearsay evidence, we will discuss other claims of error because those questions may be

presented again at the new trial. IBP argues that the district court erred in admitting evidence

of IBP’s “cost per injury” goals and accident-free incentive programs because the evidence

was irrelevant. We review the admission of this evidence for abuse of discretion. Quitana,

                                             -9-
70 F.3d at 1170. We agree with the district court that the evidence satisfied the test for

relevance pursuant to Rule 401 of the Federal Rules of Evidence. 5 The “cost per injury”

program and the accident-free incentive program are circumstantial evidence relevant to

IBP’s motivation to discourage the reporting of injuries and/or reduce the cost of injuries.

See Hill v. IBP, Inc., 881 F. Supp. 521, 525 (D. Kan. 1995). We are not convinced that the

district court abused its discretion in admitting the evidence.

                                              B

  Whether the district court erred in denying IBP’s renewed motion for judgment
                                 as a matter of law.

       A Rule 50(c) renewed motion for judgment as a matter of law must be granted if,

“viewing the evidence in the light most favorable to the nonmoving party, all the evidence

and the inferences to be drawn from it are so clear that reasonable persons could not differ

in their conclusions.” Bacchus Indus. v. Arvin Indus., Inc., 939 F.2d 887, 893 (10th Cir.

1991); see also Wolfgang v. Mid-American Motorsports, Inc., 111 F.3d 1515, 1522 (10th

Cir. 1997). A mere scintilla of evidence is not sufficient to submit a case to a jury.
                                                                                     Bankers

Trust Co. v. Lee Keeing & Assoc., Inc., 20 F.3d 1092, 1099 (10th Cir. 1994). We review the

denial of a motion for judgment as a matter of law de novo. McKenzie v. Renberg’s, Inc.,

94 F.3d 1478 (10th Cir. 1996). To determine whether a renewed motion for judgment as a


       5
        Rule 401 provides: “[r]elevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Fed. R. Evid. 401
(quotations omitted).

                                            - 10 -
matter of law is appropriate, we look to the underlying substantive law and the record

evidence. Wolfgang, 111 F.3d at 1522.

                1. A Claim of Retaliatory Discharge Under Kansas Law

       Kansas has adopted the general rule that an employment-at-will can be terminated by

either party at any time. Johnson v. Nat’l Beef Packing Co., 551 P.2d 779, 781 (Kan. 1976).

Kansas recognizes an exception to the general rule where an employer discharges an

employee in retaliation for the exercise of an employee’s rights under the Kansas Workers’

Compensation Act. Ortega v. IBP, Inc., 874 P.2d 1188 (Kan. 1994). In order to establish

a claim of retaliatory discharge, the plaintiff has the initial burden to show: (1) he or she filed

a claim for workers’ compensation benefits, or sustained an injury for which he might assert

a future claim for such benefits; (2) that the employer had knowledge of plaintiff’s

compensation claim, or the fact that he had sustained a work-related injury for which the

plaintiff might file a future claim for benefits; (3) that the employer terminated the plaintiff’s

employment; and (4) that a causal connection existed between the protected activity or injury,

and the termination. Chaparro v. IBP, Inc., 873 F. Supp. 1465, 1472 (D. Kan. 1995).

Employees can recover by proving that the discharge was “based on,” “because of,”

“motivated by” or “due to” the employer’s intent to retaliate. Brown v. United Methodist

Homes for the Aged, 815 P.2d 72 (Kan. 1991). Employees do not need to show that

retaliation was the employer’s sole motive or reason for the termination. Id. Once plaintiff

has made his or her prima facie case, the burden shifts to the defendant employer to show an


                                              - 11 -
articulate, non-retaliatory reason for the discharge. Rosas v. IBP, Inc., 869 F. Supp. 912, 916

(D. Kan. 1994). If the defendant meets its burden, the burden shifts back to the plaintiff but

the plaintiff must show clear and convincing evidence that he or she was terminated in

retaliation for exercising rights under the Workers’ Compensation Act. Ortega, 874 P.2d at

1197-98.

       Sanjuan has provided evidence sufficient to warrant a denial of IBP’s motion for

judgment as a matter of law. The evidence is uncontroverted that Sanjuan suffered an injury

for which he could assert a future claim for worker compensation benefits. The evidence is

also uncontroverted that IBP terminated Mr. Sanjuan. IBP disputes that it had notice of

Mr. Sanjuan’s injury, but as the district court noted, an IBP supervisor knew Mr. Sanjuan had

been injured and had been assigned to “light duty.”

       The only element which we consider troubling is the causal connection element. IBP

argues that it terminated Sanjuan based on: (1) the December 23 incident where the cattle fell

down in the chute due to overshocking the cow by Sanjuan; (2) Sanjuan’s employment

record; and (3) its progressive discipline system. The district court cited two pieces of

evidence as sufficient to justify a denial of IBP’s motion for judgment as a matter of law.

One piece of evidence was other employees’ complaints of mistreatment following work-

related injuries. As we have discussed above, this evidence is inadmissible hearsay. Thus

it cannot be used to support a causal connection between Mr. Sanjuan’s injury and his

termination.


                                            - 12 -
       However, the district court also noted a causal connection existed by virtue of the

timing of Mr. Sanjuan’s termination. Mr. Sanjuan was not disciplined for poor job

performance until after his injury. Close proximity in time may provide some probative

evidence of retaliatory intent. See Robinson v. Wilson Concrete Co., 913 F. Supp. 1476

(D. Kan. 1996); Lyden v. Hill’s Pet Nutrition, Inc., 907 F. Supp. 343, 347 (D. Kan. 1995).

This fact, together with the inferences that must be drawn in favor of Mr. Sanjuan from IBP’s

“cost per injury” goals, IBP’s accident-free incentive programs, Doug Bolton’s testimony that

he had seen cows accidently slip in the chute, and Sanjuan’s own testimony concerning his

mistreatment, made a submissible case for Sanjuan.

       In sum, it was not error to deny the renewed motion of IBP for judgment as a matter

of law under Rule 50(c). Furthermore, IBP had the opportunity to conduct thorough

cross-examinations of the IBP personnel. We do not believe the evidence is so clear in favor

of IBP that reasonable minds could not differ as to the outcome of this case.

                                             C

     Whether the District Erred in Denying IBP’s Motion to Set Aside the Jury
                     Award of $928 for Lost Fringe Benefits.

       IBP contends that the jury award of $928 for lost fringe benefits must be set aside as

duplicative because Sanjuan’s spouse, who was also an employee of IBP, continued to

receive family medical insurance benefits. The trial judge below rejected IBP’s argument

on two grounds. First, the judge ruled that Sanjuan had presented evidence sufficient to

show that the $928 compensated him for lost profit sharing benefits so that the jury verdict

                                           - 13 -
was sustainable. I App. at 170. In reviewing a jury’s award of damages, this Court “should

sustain the award unless it is clearly erroneous or there is no evidence to support the award.”

Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1330 (10th Cir. 1996), cert. denied,

117 S. Ct. 1461 (1997). We are persuaded that it was not clear error for the jury to award

$928 to Sanjuan to compensate him for lost fringe benefits, including profit sharing.

       Second, the district court held that even if the $928 was compensation for Sanjuan’s

lost medical insurance benefits, “defendant provides the court with no authority in support

of its proposition that an award of fringe benefits should be reduced to reflect a plaintiff’s

receipt of similar benefits from another source.” I App. at 170. The spouse’s receipt of

family medical insurance benefits is analogous to a receipt of payment by a collateral source.

Under the collateral source rule, benefits received by a plaintiff from a source “wholly

independent of and collateral to the wrongdoer will not diminish the damages otherwise

recoverable from the wrongdoer.” 22 Am. Jur. 2d § 566 at 639. Kansas adheres to the

collateral source doctrine. Anderson v. National Carriers, Inc. , 695 P.2d 1293, 1298-99

(Kan. 1985) (holding that receipt of workers’ compensation benefits does not reduce

recovery against negligent tortfeasor). We are persuaded that payment of family medical

insurance benefits to the spouse of an injured worker by the injured worker’s employer when

the spouse is also an employee of the injured worker’s employer is a collateral source.

                                              D

      Whether the District Court erred by instructing the jury that workers’
   compensation benefits award damages for physical pain, lost wages, and future

                                            - 14 -
                                         lost income.

       Sanjuan argues that the district court erred in instructing the jury that the Workers

Compensation Act awards damages for physical pain, lost wages, and future lost income.

According to Sanjuan, the Workers Compensation Act does not compensate an employee for

lost wages, future lost income, emotional distress or pain and suffering. Sanjuan contends

that had the jury been properly instructed, it would not have awarded Sanjuan damages

substantially less than his historic wage loss of $78,744 and the present value of future wage

loss in the amount of $436,515. Thus, Sanjuan requests that we reverse this matter and

remand for a new trial on the issue of damages alone. Whether a jury was properly instructed

is a question of law which we review de novo. Wolfgang v. Mid-America Motorsports, Inc.,

111 F.3d 1515, 1525-26 (10th Cir. 1997).

       The jury instruction in dispute reads:

               The Workers Compensation Act provides the sole and exclusive remedy
       for any and all injuries that an employer may sustain while working for his
       employer, as long as those injuries occur while the employee is acting within
       the scope of his duties. The Workers’ Compensation Act compensates injured
       workers for physical pain and disability caused by work-related injuries, wages
       lost as a result of their injuries, and future lost income in the event that their
       injuries prevent them from finding suitable employment. The plaintiff may not
       recover in this action for any damages that were caused by an accident that he
       sustained while working for defendant.

I App. at 132.

       We agree with the district court that the jury instruction merely informs the jury that

the Workers Compensation Act compensates workers for wages lost as a result of their work


                                             - 15 -
injuries, and that such damages are properly awarded under the Act rather than in an action

for retaliatory discharge. Damages for injuries arising in the scope of employment are

recoverable only under the Workers’ Compensation Act. A plaintiff may not recover wages

in a retaliatory discharge action for a period of time during which he receives temporary total

disability compensation. Hill v. IBP, Inc., 881 F. Supp. 521, 525 (D. Kan. 1995). The

instruction correctly states the law.

       Even if Instruction No. 12 was somewhat unclear, any lack of clarity in the instruction

failed to prejudice Sanjuan sufficiently to be reversible. The district court instructed the jury

on the availability of the damages caused by the retaliatory discharge, including damages for

lost wages and fringe benefits, damages for embarrassment, humiliation and emotional

distress, punitive damages, and damages of Sanjuan in attempting to mitigate his damages.

I App. at 135-143. In our review of whether a jury was misled by an instruction, we read all

instructions in their entirety. United States v. Grey, 56 F.3d 1219, 1222 (10th Cir. 1995) (to

determine whether the jury was properly instructed, we examine whether the jury

instructions, as a whole, “adequately stated the governing law and provided the jury with an

accurate understanding of the issues and standards available.”). Taken as a whole, the jury

was properly instructed to award damages for losses caused by retaliatory discharge set out

above, rather than for losses caused by the work injury which are compensable under the

workers’ compensation law.




                                             - 16 -
       Moreover, the jury, which has the first-hand opportunity to hear testimony and

observe the demeanor of witnesses, has discretion to fix damages. Bennett v. Longacre, 774

F.2d 1024, 1028 (10th Cir. 1985). We will not disturb a jury’s award of damages unless the

award is so unreasonable “as to shock the judicial conscience and to raise an irresistible

inference that passion, prejudice, corruption, or other improper cause invaded the trial.” Id.

We find nothing in the record that causes us a shock to our judicial conscience. Accordingly,

we affirm the ruling on the instructions which the cross-appeal of Sanjuan challenges.

                                              E

   Whether the District Court erred by instructing the jury to decide whether or
                         not to award punitive damages.

       Sanjuan argues it was plain error for the district court to submit the following verdict

form to the jury: “[d]o you find that Sanjuan is entitled to an award of punitive damages?”

According to Sanjuan, the proper question must be whether IBP’s conduct in firing Sanjuan

was willful, wanton and malicious. Generally we review whether a jury was properly

instructed de novo. However, because Sanjuan failed to object at trial to the verdict form,

we review it for plain error. United States v. Smith, 13 F.3d 1421, 1424 (10th Cir.),

cert. denied, 513 U.S. 878 (1994).

       There is no basis for Sanjuan’s argument. The instructions submitted to the jury

contained the language he argues should have been in the verdict form. The fact that the

question on the verdict form does not contain the language the instructions contain is

immaterial. The jury was clearly informed that an award of punitive damages was not

                                            - 17 -
automatic if it found IBP to have retaliated against Sanjuan; instead, if the jury found

retaliation, if would was required to determine whether IBP’s conduct was willful, wanton

or malicious. Again, we uphold the ruling challenged by Sanjuan’s cross-appeal.

                                              F

           Whether the District Court erred in not considering an additur.

       Lastly, Sanjuan cross-appeals the denial of his motion for additur. He claims that it

is unconstitutional to prohibit a district court from ordering an additur.       We reject

Mr. Sanjuan’s argument because the Supreme Court’s decision in Dimick v. Schiedt, 293

U.S. 474 (1935), has foreclosed the issue. See Lyon Dev. v. Business Men’s Assurance Co.

of Am., 76 F.3d 1118, 1125 (10th Cir. 1996). There was no error in the denial of the motion

for an additur as asserted by the cross-appeal.

                                     CONCLUSION

       The judgment of the district court is REVERSED and the case is REMANDED for

further proceedings consistent with this opinion. The rulings challenged by the cross-appeal

are AFFIRMED. Each party shall bear its own costs.




                                            - 18 -
