* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 31 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TERRIE BRIGHT CRAFT,

Plaintiff-Appellant,

v. DILLON COMPANIES, INC.,

Defendant-Appellee. No. 02-1516 (D.C. No. 01-WY-1260 (MJW))

(D. Colo.)

ORDER AND JUDGMENT *

Before MURPHY , HARTZ , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument.1 Before trial Ms. Craft voluntarily dismissed other state-law claims. She

does not appeal the jury verdict against her on herAmericans with Disabilities Act, 42 U.S.C. §§ 12111-12213, claim. -2- Plaintiff Terrie Bright Craft filed suit in distric t court alleging that defendant Dillon Companies, Inc., her former employ er, engaged in race discrimination and retaliation in violation of 42 U .S.C. § 1981 and the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, when it reassigned, demoted and ultimately discharged her. She also alleged Di llon Companies violated public policy by discharging her in retaliation for filing a workers’ compensation claim. 1 Based on the jury’s verdict, the district court ent ered judgment in favor of the Dillon Companies. Ms. Craft appeals, arguing that the district court erred in refusing to give her proposed instruction, which relied on Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133 (2000), and which directed that the jury could infer discrimination and retaliation, if the jury disbelieved the reasons provided by the Dillon Companies for its employmentdecisions. We hold the district court properly instructed the jury, and we therefore affirm. “[T]he admission or exclusion of a particular jury instruction is left to the sound discretion of the trial court.” Coletti v. Cudd Pressure Control , 165 F.3d 767, 771 (10th Cir. 1999). To determine whether the jury was adequately instru cted on the applicable law, we review the instructions in theirentirety de novo to determine whether the jury was misled in any way. The instructions2 McDonnell Douglas Corp v. Green , 411 U.S. 792 (1973), and other

Supreme Court cases “established an allocation of t he burden of production and an order for the presentation of proof in . . . dis criminatory-treatment cases.” Reeves , 530 U.S. at 142 (quotation omitted). First, the employee must establish a prima facie case of discrimination. Id. If the employee does so, the burden then shifts to the employer to produce evidence that it took its employment action for a legitimate, nondiscriminatory reason. Id. Once the employer meets its burden, the employee must prove that this legitimate reason was not the employer’s true reason, but was instead a pretext for discrimination. Id. at 143. The ultimate burden of proving discrimination always remains with the employee. Id. -3- as a whole need not be flawless, but we must be sat isfied that, upon hearing the instructions, the jury understood the i ssues to be resolved and its duty to resolve them. Townsend v. Lumbermens Mut. Cas. Co. , 294 F.3d 1232, 1237 (10th Cir. 2002) (quotation omitted). If the instructions as a whol e adequately state the law, the district court’s refusal to give a particular instr uction is not reversible error. Coletti , 165 F.3d at 771. Under the applicable law, the plaintiff’s prima fac ie case along with sufficient evidence for a reasonable factfinder to reject the employer’s nondiscriminatory explanation for its decision is s ufficient to sustain a jury’s finding of intentional discrimination or retaliation. 2 See Reeves , 530 U.S. at 140, 146-48; Townsend , 294 F.3d at 1240. “[A] trial court must instructjurors that if they disbelieve an employer’s proffered explanation they may–but need not–infer that the employer’s true motive was discriminatory.” Townsend , 294 F.3d at 1241.-4-

After examining all given instructions, we conclude they correctly stated the applicable law and provided the jury with an am ple understanding of the issues before it. See Brodie v. Gen. Chem. Corp. , 112 F.3d 440, 442 (10th Cir. 1997). “To be improper under Reeves , the instructions would have had to tell the jury that evidence of pretext must be supplemented by evidence more extensive than that necessary to support the prima facie case . . . .” Brown v. Packaging Corp. of Am. , 338 F.3d 586, 594 (6th Cir. 2003). The instructi ons given in this case told the jury no such thing. Accordingly, we hold the district court did not abuse its discretion in failing to give Ms. Cra ft’s requested instruction. See Coletti , 165 F.3d at 772. The judgment of the district court is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge