                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 3 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DION JONES,

                Plaintiff-Appellant,

    v.                                                  No. 99-4103
                                                    (D.C. No. 97-CV-722)
    TCI CABLEVISION OF UTAH, INC.,                        (D. Utah)

                Defendant-Appellee.


                            ORDER AND JUDGMENT           *




Before BALDOCK , McKAY , and BRISCOE , Circuit Judges.




         Plaintiff, who was employed by TCI Cablevision of Utah, Inc. as a cable

installer, brought this action under Title VII claiming that he was discriminated

against because of his race and that he was discharged in retaliation for engaging

in protected activities. TCI contended that it neither discriminated nor retaliated

against plaintiff, and that it discharged him solely because of his continued failure

to come to work on time. The jury entered a verdict for TCI on both of plaintiff’s


*
      This order and judgment is not binding precedent, except under the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.
claims. Thereafter, plaintiff filed a motion for new trial, arguing the district court

committed several reversible errors during the trial. The district court denied the

motion and plaintiff now appeals.    1
                                         On appeal, plaintiff contends a new trial is

warranted based on two district court errors: the district court allowed TCI to use

certain documents during the course of the trial that were not disclosed to

plaintiff before the trial began, and the district court limited the testimony of

plaintiff’s rebuttal character witness.

       We review the district court’s decision to deny plaintiff’s motion for new

trial under an abuse of discretion standard.         See Anaeme v. Diagnostek, Inc. , 164

F.3d 1275, 1284 (10th Cir.),    cert. denied , 120 S. Ct. 50 (1999). The decision to

admit, limit, or exclude evidence also lies within the sound discretion of the

district court.   See Hinds v. General Motors Corp.       , 988 F.2d 1039, 1049 (10th

Cir. 1993) (reviewing decisions to admit and exclude evidence for abuse of

discretion); Messina v. Kroblin Transp. Sys., Inc.        , 903 F.2d 1306, 1310   (10th Cir.

1990) (reviewing decision to limit scope of evidence for abuse of discretion).

Even if we find error in the district court’s admission or exclusion of evidence,

“we will set aside a jury verdict only if the error prejudicially affects a substantial



1
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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right of a party. The effect on the jury of evidence can only be prejudicial if it

can be reasonably concluded that with or without such evidence, there would have

been a contrary result.”   Hinds , 988 F.2d at 1049 (citations omitted).

       The first evidentiary ruling of which plaintiff complains concerns TCI’s use

of the daily work orders that plaintiff filled out during the course of his

employment. TCI did not make any pre-trial disclosure to plaintiff about its

possession of the work orders or its intent to use them as evidence. The first time

the work orders came to light was when TCI attempted to use them to impeach

plaintiff’s testimony about his job performance. Plaintiff objected to TCI’s use of

the documents, arguing that they were never disclosed to plaintiff despite fairly

broad discovery requests. The court overruled the objection because the

documents were plaintiff’s own work records.      See Appellant’s App., Vol. B at

493. The next day, the court heard extensive argument from counsel about the

admissibility of the work orders and a summary of those orders prepared by

plaintiff’s last supervisor, Michele Jackson, that TCI wished to introduce as

evidence. The court ruled that neither the work orders nor the summary could be

admitted as exhibits, but that TCI could examine Michele Jackson on the

summary. See Appellant’s App., Vol. A at 212-213. Thereafter, TCI questioned

Ms. Jackson about information contained in the summary as it related to

plaintiff’s completion of assigned work during the last days of his employment.


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       On appeal, plaintiff argues that by not disclosing the work orders and

summary before trial, TCI violated Federal Rules of Civil Procedure 26(a)(1)(B)

(initial disclosures), 26(a)(3)(C) (pretrial disclosures), and 26(e)(1)

(supplementation of disclosures). Accordingly, plaintiff contends, the district

court should have precluded TCI from using the documents for any purpose

pursuant to Rule 37(c)(1), which provides that “[a] party that without substantial

justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall

not, unless such failure is harmless, be permitted to use as evidence at a trial . . .

any witness or information not so disclosed.”

       TCI argues that it did not violate any of the disclosure requirements of Rule

26(a) or Rule 26(e), and that the documents were not subject to exclusion under

Rule 37(c)(1) because TCI used the documents solely for purposes of impeaching

plaintiff’s testimony.   See Fed. R. Civ. P. 37(c) 1993 advisory committee’s note

(“As disclosure of evidence offered solely for impeachment purposes is not

required under [Rule 26(a) or Rule 26(e)(1)], this preclusion sanction likewise

does not apply to that evidence.”). Further, TCI contends that plaintiff secured all

the benefits of Rule 37(c) by having the documents excluded as exhibits. Plaintiff

admits that the documents were used for impeachment purposes, but argues

impeachment was not the sole purpose for which TCI used the documents.

Plaintiff argues that TCI also used the testimony about the documents to support


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its theory that plaintiff wanted to get fired. Further, plaintiff argues that

excluding the documents as exhibits was not a sufficient sanction because the jury

still heard the testimony of plaintiff and Ms. Jackson about the contents of the

documents.

      We need not decide whether the district court erred in allowing TCI to

examine plaintiff and Ms. Jackson about the work orders and summary, because

we conclude that even if the district court erred, that error did not prejudicially

affect plaintiff’s substantial rights so as to warrant a new trial. First, the only

substantive purposes for which TCI arguably used the documents was to support

its theory that plaintiff wanted to get fired. Thus, the evidence related only to

TCI’s defense to plaintiff’s claim for retaliatory discharge, not to its defense to

his claim for discriminatory treatment. Second, to defend against plaintiff’s claim

of retaliatory discharge, TCI had only to show that it’s own motives were not

retaliatory in nature. Plaintiff’s motivation for his own conduct was of little, if

any, relevance to TCI’s defense. Finally, TCI presented a wealth of evidence that

plaintiff continually failed to come to work on time, despite receiving numerous

written and verbal warnings about the need to correct his behavior, and that his

tardiness problem worsened significantly during the weeks immediately preceding

his termination. TCI also presented uncontradicted evidence that having its cable

installers report to work on time was very important for effective customer


                                           -5-
service. Most importantly, TCI presented uncontradicted evidence that Ms.

Jackson, who was responsible for firing plaintiff, did not rely on plaintiff’s failure

to complete work assignments when she decided to fire plaintiff. In fact, Ms.

Jackson said that she was unaware of how plaintiff’s actual performance had

deteriorated until she reviewed the work orders in the week prior to trial.

      “In order to reverse a district court judgment on account of an evidentiary

ruling, [plaintiff] must make a clear showing []he suffered prejudice, and the

ruling was inconsistent with substantial justice or affected [his] substantial

rights.” Coletti v. Cudd Pressure Control,         165 F.3d 767, 773 (10th Cir. 1999)

(quotations omitted). Based upon our review of the record, we conclude that

plaintiff has not made a sufficient showing to warrant reversal.

      The second evidentiary ruling of which plaintiff complains concerns the

testimony of Carl Dan Miner, plaintiff’s bishop in the Mormon Church. Plaintiff

called Mr. Miner as a rebuttal witness to give his opinion about plaintiff’s

character for truthfulness pursuant to Fed. R. Evid. 608(a). The district court

permitted Mr. Miner to testify, over TCI’s objection, but he did not permit Mr.

Miner to testify about the religious basis for his relationship with plaintiff. The

district court concluded that “[a]llowing Mr. Miner to testify that he knew

plaintiff through his church would have constituted an improper appeal to

religious prejudice. This type of testimony may have sent the message to the jury


                                             -6-
that because the plaintiff attended church he must be an honest person. This type

of testimony is improper . . . .” Appellant’s App., Vol. A at 173-74 (footnote

omitted). In limiting Mr. Miner’s testimony , the district court relied on Fed. R.

Evid. 610, which prohibits the admission of “[e]vidence of the beliefs or opinions

of a witness on matters of religion . . . for the purpose of showing that by reason

of their nature the witness’ credibility is impaired or enhanced.”

      Plaintiff contends that the district court should have permitted Mr. Miner to

testify that he knew plaintiff through their church and to describe “the situations

that have caused him to reach an opinion as to [plaintiff’s] character for

truthfulness.” Appellant’s Opening Br. at 54. Based upon our review of the

record, we conclude that under the circumstances presented here, the district court

did not abuse its discretion by not allowing Mr. Miner to testify about the

religious basis of his relationship with plaintiff. Moreover, even if the district

court did err in limiting Mr. Miner’s testimony, plaintiff has not shown that the

error prejudicially affected his substantial rights, so as to warrant a new trial.




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    The judgment of the United States District Court for the District of Utah is

AFFIRMED.



                                                 Entered for the Court



                                                 Bobby R. Baldock
                                                 Circuit Judge




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