                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 6 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WILLIAM R. CARUTHERS,

                Plaintiff-Appellant,

    v.                                             Nos. 97-3318 & 98-3035
                                                 (D.C. No. 96-CV-2071-GTV)
    PROCTOR & GAMBLE                                       (D. Kan.)
    MANUFACTURING CO.,

                Defendant-Appellee.




                            ORDER AND JUDGMENT           *




Before ANDERSON , BARRETT , and TACHA , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for decisions on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       In appeal No. 97-3318, plaintiff William R. Caruthers appeals from a final

judgment of the district court denying him equitable relief after he prevailed at

trial on his claim filed under the American with Disabilities Act (ADA),

42 U.S.C. §§ 12101-12213. In appeal No. 98-3035, Mr. Caruthers appeals the

district court’s determination that he was not entitled to    attorney’s fees and

expenses. We affirm both determinations.

       Mr. Caruthers has been employed by defendant since 1972. 1 In 1992, he

sustained a work-related injury. When he was approved to return to work with

certain restrictions, no work was available which could accommodate those

restrictions. Mr. Caruthers then filed a charge with the EEOC. He eventually

returned to work as a fork truck operator. Following his return, he was

disciplined for poor work attendance and was placed on a “step one” discipline

which affected his ability to apply for jobs which would accommodate his

physical restrictions.

       After receiving his right to sue letter from the EEOC, Mr. Caruthers filed

this action in state court. Defendant removed the action to federal district court.

Mr. Caruthers alleged his rights under the ADA and the Family and Medical

Leave Act (FMLA), 29 U.S.C.        §§ 2601-2654 had been violated. The district




1
       Mr. Caruthers continues to be employed by         defendant .

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court granted defendant summary judgment on the FMLA claim. Mr. Caruthers

does not contest this ruling on appeal.

      Mr. Caruthers’ ADA claims went to trial. The jury found that

Mr. Caruthers was a disabled person entitled to the protections of the ADA and

that he could perform the essential functions of his job with reasonable

accommodation. The jury found that     defendant had not discriminated against

Mr. Caruthers because of his disability, but had intentionally retaliated against

him because he had engaged in activities protected by the ADA. The jury

awarded no damages.

      On appeal, Mr. Caruthers contends the district court erred in instructing the

jury that he had to prove defendant intended to discriminate against him by

failing to reasonably accommodate his disabilities. 2 Although “[w]e review the

district court’s refusal to give a particular instruction for abuse of

discretion[,] . . . [t]he ultimate question of whether the 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). To

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


2
      Defendant asserted that Mr. Caruthers failed to properly preserve this issue
for appeal. Mr. Caruthers has supplemented his appendix with the portion of the
transcript showing his objection to the instruction made on the record. The issue
was properly preserved for review.   See City of Wichita v. U.S. Gypsum Co. ,
72 F.3d 1491, 1495 n.1 (10th Cir. 1996).

                                          -3-
instructions, as a whole, “adequately stated the governing law and provided the

jury with an accurate understanding of the issues and standards applicable.”

United States v. Grey, 56 F.3d 1219, 1222 (10th Cir. 1995).

The instruction Mr. Caruthers objects to reads:

              To prevail on his clam of intentional discrimination, plaintiff
       must prove by a preponderance of the evidence that he is a qualified
       individual with a disability and that defendant did not make a good
       faith effort to identify and make a reasonable accommodation that
       would provide plaintiff with an equally effective opportunity.

             Plaintiff need not produce direct evidence of discrimination.
       Rather, intentional discrimination may be inferred from the existence
       of other facts.

See Appellant’s App. at 111. Counsel objected to the inclusion of the words

“intentional” and “good faith effort.”

       The jury verdict form shows that the jury was asked to determine first

whether defendant had discriminated against       plaintiff because of his disability.

See Appellee’s Supp. App., Verdict question 3. The jury found no discrimination.

The jury was then asked to determine whether        defendant had intentionally

discriminated against   plaintiff because of his disability.   See id. , Verdict question

5. If the jury found intentional discrimination, it was then to determine damages.       3




3
       This same sequence applied to Mr. Caruthers’ claim of retaliation. The jury
found that defendant had retaliated against Mr. Caruthers because he was engaged
in activities protected by the ADA and that the retaliation was intentional. The
jury then determined no damages were warranted.

                                            -4-
      Jury Instruction No. 15 gave the jurors the law necessary to determine

whether defendant had discriminated against Mr. Caruthers due to his disability.

Mr. Caruthers does not contend that this instruction improperly sets forth the law

on discrimination under the ADA. As the jury found no discrimination, it never

reached the issue of whether any discrimination was intentional as set forth in

Jury Instruction No. 21, and did not rely on that instruction. No error occurred.



No. 98-3035

      In this appeal, Mr. Caruthers contends that he is entitled to   Fed. R. Civ.

P. 37(c)(2) expenses due to defendant’s failure to answer plaintiff’s first request

for admissions and to attorney’s fees as a prevailing party. The district court

denied both requests.

      Rule 37(c)(2) directs the award of reasonable expenses including      attorney’s

fees when a party does not comply with a Fed. R. Civ. P. 36 request for admission

and the requesting party later proves the truth of that admission. The court may

decline to award expenses if it finds that one of the stated exceptions applies.

Here, defendant declined to admit that Mr. Caruthers was a qualified disabled

individual under the ADA. The court found that       defendant had a reasonable

ground for maintaining that position to trial.




                                            -5-
       “We review the district court’s determination whether a party is entitled to

expenses under Rule 37(c)(2) for an abuse of discretion.”     Harolds Stores, Inc. v.

Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1555 (10th Cir. 1996).

       Based on our review of the materials before us, we conclude that the

district court did not abuse its discretion in concluding   defendant had good

reasons for not admitting that Mr. Caruthers was disabled and that he was a

qualified individual under the ADA. “[T]he true test under Rule 37(c) is not

whether a party prevailed at trial but whether he acted reasonably in believing that

he might prevail.” Rule 37 Advisory Committee Notes, 1970 Amendment,

subdivision (c). The district court did not err in denying Mr. Caruthers’ request

for fees under Rule 37(c)(2).

       We review the district court’s determination whether to award fees under

the ADA for abuse of discretion.       See Roe v. Cheyenne Mountain Conference

Resort, Inc. , 124 F.3d 1221, 1231     (10th Cir. 1997). We review the “district

court’s statutory interpretation or legal analysis which provides the basis for the

fee award” de novo.     Id. (quotation omitted).

       The ADA permits the district court, in its discretion, to award the

prevailing party, other than the United States, reasonable attorney’s fees including

litigation expenses, and costs.    See 42 U.S.C. § 12205. However, t o qualify as

a prevailing party, the plaintiff must obtain relief on the merits that directly


                                             -6-
benefits him through an enforceable judgment, consent decree, or settlement.

See Farrar v. Hobby, 506 U.S. 103, 111 (1992). “[A] plaintiff ‘prevails’ when

actual relief on the merits of his claim materially alters the legal relationship

between the parties by modifying the defendant’s behavior in a way that directly

benefits the plaintiff.” Id. at 111-112. “[A] judicial pronouncement that the

defendant has violated the [law] . . . unaccompanied by an enforceable judgment

on the merits, does not render the plaintiff a prevailing party.” Pedigo v. P.A.M.

Transport, Inc., 98 F.3d 396, 398 (8th Cir. 1996) (quotation omitted); see, e.g.,

Farrar, 506 U.S. at 112 (“moral satisfaction . . . cannot bestow prevailing party

status”) .

       Mr. Caruthers argues the legal relationship between the parties was altered

as he benefitted from the verdict, he was functioning as a private attorney general

in prosecuting the suit, and the district court could have granted his request for

a permanent injunction. Mr. Caruthers has shown no alteration in the parties’

legal relationship. The court did not abuse its discretion in denying fees.




                                          -7-
     The judgment of the United States District Court for the District of Kansas

is AFFIRMED. Plaintiff’s motion to supplement the record is GRANTED.



                                             Entered for the Court



                                             Deanell Reece Tacha
                                             Circuit Judge




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