                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  DEC 10 1997
                                     TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 ABRAHAM RAMIREZ,

           Plaintiff-Appellant,
                                                              No. 96-3320
 v.
                                                      (D.C. No. 92-CV-2467-KHV)
                                                          (District of Kansas)
 IBP, INC.,

           Defendant-Appellee.


                                  ORDER AND JUDGMENT*


Before BRORBY, Circuit Judge, KELLY, Circuit Judge, and McWILLIAMS, Senior
Circuit Judge.


       On January 10, 1989, Abraham Ramirez, a citizen of Kansas residing in Garden

City, Kansas, commenced employment with IBP, Inc., a citizen of Delaware, in its meat

packing plant in Holcomb, Kansas. On December 6, 1990, IBP terminated his

employment. On December 4, 1992, Ramirez filed an action against IBP in the United

States District Court for the District of Kansas, alleging that IBP, anticipating that he was

about to file a claim under Kansas workers’ compensation law for work-related injuries,



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
fired him in retaliation therefor. Jurisdiction was based on diversity of citizenship. 28

U.S.C. § 1332. By answer, IBP denied that it discharged Ramirez in retaliation and

alleged that it discharged Ramirez “as a result of the application of defendant’s neutral

employment policy justified by legitimate business reasons.”

       This case has now been tried twice to a jury. In the first trial, after Ramirez had

rested his case, IBP moved for judgment under Fed. R. Civ. P. 50. The district court

granted that motion and ultimately entered judgment to that effect. On appeal, in an

unpublished Order and Judgment, we reversed the judgment of the district court and

remanded the case to the district court for further proceedings. Our Order and Judgment

appears as Ramirez v. IBP, Inc., No. 94-3226, 1996 WL 80452 (10th Cir. Feb. 26, 1996)

and our decision is referenced in a Table of Decisions Without Published Opinions at 77

F.3d 493 (10th Cir. 1996).1

       At the second trial of the matter, the jury on July 12, 1996 returned a verdict in

favor of IBP. On July 12, 1996, judgment was entered. As indicated, Ramirez’ theory of


       1
        The basis for the district court’s grant of judgment for IBP as a matter of law was
that Ramirez had not shown that on the date of his discharge, December 6, 1990, he could
physically perform his work assignment with IBP or some similar type of work with IBP.
That issue was raised by the district court, sua sponte, --- not by IBP and was not
mentioned in the pre-trial order. Accordingly, we reversed the judgment of the district
court on the basis that such issue was not properly before the district court. Prior to the
second trial of this matter, counsel for IBP advised the district court that it was not
contending that on December 6, 1990, Ramirez was incapable of performing his work
assignment with IBP, contending, rather, that “I think it may be an issue as far as
damages, his ability to work, et cetera, but our position is that he was able to do the job
he was assigned to. He just was not doing it properly. . . .”

                                            -2-
the case was that, because he was about to file a workers’ compensation claim under

Kansas law against IBP based on numerous work-related injuries which interfered with

his job performance, IBP fired him in retaliation therefor. IBP’s theory of the case was

that it fired Ramirez because of his poor work record resulting in progressive disciplinary

action ultimately resulting in his discharge, and that it had not discharged him out of

retaliation.2

       After entry of judgment for IBP, Ramirez filed a motion for new trial pursuant to

Fed. R. Civ. P. 59. So far as we can tell, that motion is not in the record before us.

However, the district court’s memorandum and order denying Ramirez’ motion for a new

trial is in the present record. In that order the district court described the matters urged in

that motion as follows:

                       Plaintiff asserts that the Court erred in excluding
                evidence that (1) defendant self-insures workers’
                compensation claims; (2) defendant retains in-house counsel
                to handle workers’ compensation claims; and (3) defendant
                sets annual goals with respect to workers’ compensation
                claims. Plaintiff also argues that the Court should have
                stricken for cause a potential juror who worked for a company
                that does business with defendant.

       In the order denying Ramirez’ motion for a new trial, the district court held that the

“evidence” which Ramirez claimed was improperly excluded at trial “was not probative



       The IBP employee who decided to discharge Ramirez and who actually
       2

discharged him, testified that at the time of Ramirez’ discharge he did not know that
Ramirez was suffering from any work related injuries or was contemplating filing a claim
under Kansas compensation law.

                                             -3-
of defendant’s intent to retaliate against plaintiff.” Specifically, the court spoke as

follows:

                      Prior to the trial, the Court sustained defendant’s
              motion in limine with respect to evidence that defendant is
              self-insured and retains in-house counsel to handle workers’
              compensation claims. The Court found that such evidence
              was not probative of defendant’s intent to retaliate against
              plaintiff. Plaintiff did not sufficiently demonstrate the
              relevance of such evidence at that time, and he cites nothing
              additional to convince the Court that it erred in excluding it.
                      As to evidence that defendant sets annual goals with
              respect to workers’ compensation claims, the Court provided
              ample opportunity for plaintiff to present evidence at trial of
              any such goals at the Finney County plant during the time that
              plaintiff worked there. Plaintiff was unable to do so. Thus,
              any prejudice resulting from lack of evidence on workers’
              compensation goals is a consequence of plaintiff’s failure to
              produce sufficient evidence on this issue.

       In his motion for a new trial Ramirez also apparently argued that the district court

erred in denying a challenge for cause directed against a prospective juror who, in answer

to voir dire, stated that his employer did substantial business with IBP. In any event, the

district court rejected that argument with the following comment.

                      Finally, plaintiff contends that the Court erred in not
              striking a potential juror who worked for a company that does
              business with defendant. Plaintiff asserts that the potential
              juror indicated that he did not know what would happen if he
              rendered a verdict against defendant and that he would rather
              not serve as a juror in the case. Plaintiff contends the
              challenged juror demonstrated a frame of mind which,
              subconsciously, would have prevented him from fairly
              assessing plaintiff’s evidence. The Court questioned the
              potential juror at length. Based on his responses to questions
              whether he could fairly and impartially weigh the evidence,

                                             -4-
                the Court decided to leave him on the jury panel. The Court
                does not believe it erred in making that decision. Even if
                plaintiff is correct in his assertion that the Court should have
                stricken the potential juror, however, plaintiff’s right to an
                impartial jury was not infringed because he exercised a
                peremptory challenge to remove the potential juror. See
                Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1123 (10th
                Cir. 1995). Thus, the error alleged by plaintiff is harmless. Id.

         The district court’s order denying Ramirez’ motion for a new trial was entered on

August 28, 1996. The judgment which Ramirez sought to have set aside by his motion

for a new trial was entered on July 12, 1996. On September 27, 1996, within 30 days

from the date the motion for a new trial was denied, i.e., August 28, 1996, as allowed by

Fed. R. App. P. 3 and 4, Ramirez filed a timely notice of appeal “from the final judgment,

for the defendant against the plaintiff, entered in this action on the 28th day of August,

1996.”

         In his motion for a new trial, Ramirez argued that the district court erred in

precluding him from introducing evidence tending to show that IBP had a “financial

motive” in discharging him in retaliation for an anticipated claim by Ramirez for

compensation benefits under Kansas law.3 Specifically, Ramirez claimed he was

precluded from showing that IBP was “self-insured,” used “in-house” counsel to defend

claims for employee compensation benefits, and further that IBP had a company policy in



        It would appear that on the date of his discharge Ramirez had not filed a claim for
         3

Kansas compensation benefits. Sometime thereafter, Ramirez did file such a claim and
he did receive benefits, including vocational rehabilitation, for work-related injuries
incurred at IBP.

                                              -5-
offering “incentives” for trying to reduce industrial accidents in its packing plant, and

claims therefor. As we understand it, counsel for Ramirez at the second trial of this case

did establish that IBP used “in-house” counsel to defend claims for compensation

benefits, and further that counsel made at least a brief inquiry as to the policy of IBP to

try and reduce industrial accidents in their plant, and claims therefor. We agree with the

district court that the fact that IBP was “self-insured,” as opposed to purchasing

compensation insurance, was of doubtful probative value bearing on the question of

whether IBP discharged Ramirez because he might some time in the future file a claim

for compensation benefits. When a trial judge excludes evidence, we, on appeal, will

reverse only if the exclusion is an abuse of discretion that results in manifest injustice.

Thompson v. State Farm, 34 F.3d 932, 939 (10th Cir. 1994).4

       As indicated, the evidence showed that Ramirez was hired by IBP in January, 1989

and was discharged in December, 1990, and that from November, 1989 through

November, 1990, Ramirez had numerous minor injuries incurred on the job. Further, the

evidence established that for an extended period of time, prior to his discharge, Ramirez

had been disciplined for his poor performance on the job. In view of the record before us,

precluding Ramirez from showing that IBP was “self-insured” most certainly would not

be reversible error.


       4
        The jury was instructed that “proof of defendant’s retaliatory motive or purpose is
essential to the plaintiff’s claims of retaliation.” There was no objection to that
instruction, and, on appeal, Ramirez makes no challenge to any of the instructions given.

                                             -6-
       In his motion for a new trial, Ramirez also asserted that the district court erred in

refusing to sustain his challenge for cause to a prospective juror. The juror in question, in

response to voir dire, stated that his employer did “substantial business” with IBP, and

indicated that such might affect his judgment to some degree. The district court then

questioned the juror and satisfied itself that the person could serve, and denied Ramirez’

challenge for cause. We note, as did the district court, that Ramirez later used one of his

peremptory challenges on the juror in question, who, accordingly, did not serve on the

jury which heard Ramirez’ case. We find no error in the district court’s handling of this

matter. See Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119 (10th Cir. 1995). In that case

we held that any error of the type here urged by Ramirez is “non-constitutional” in nature.

In this general connection, we then went on to speak as follows:

                     In this case, the challenged juror did not serve on the
              jury because plaintiff used a peremptory challenge to remove
              him. Plaintiff does not allege that the jury as seated was
              biased. Thus, the district court’s refusal to remove Mr. Agin
              for cause did not have a “substantial influence on the
              outcome” of the trial, nor does it leave us “in grave doubt as
              to whether it had such effect.” Because plaintiff’s right to an
              impartial jury was not infringed by the district court’s
              erroneous denial of the for-cause challenge, we hold that the
              error was hamrless. See McIntyre, 997 F.2d at 698 n. 7.

Getter, 66 F.3d at 1123.

       Although apparently not raised in his motion for a new trial, Ramirez argues in this

court that the district court erred in failing to preclude defense counsel from inquiring into

Ramirez’ work record after his discharge by IBP. It would appear that in his direct

                                             -7-
examination Ramirez, himself, testified about his post termination employment. In any

event, we find no error in this regard. An essential element of Ramirez’ claim was that he

had sustained “damage” as a result of his illegal discharge by IBP. Inquiry into Ramirez’

work record subsequent to his discharge by IBP would seem to us to have bearing on the

issue of the extent of any damages sustained by Ramirez, as well as whether Ramirez had,

himself, taken reasonable steps to mitigate his damages.

       Ramirez’ “first language” is Spanish, and he has only a ninth grade education.

Although not in his motion for a new trial, counsel asserts here that the district court erred

in not using a translator to assist Ramirez at the second trial. Prior to the second trial of

this matter at a pre-trial hearing, it was agreed that a translator would be available at trial

to “assist,” if necessary. The matter was not thereafter raised during the second trial.

Suffice it to say, under such circumstances we find no error in this regard.

       Judgment affirmed.



                                            ENTERED FOR THE COURT

                                            Robert H. McWilliams
                                            Senior Circuit Judge




                                              -8-
