* This order and judgment is not binding precedent, e xcept under the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

### JUN 15 2001 

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

RICHARD D. BLACKBURN,

Plaintiff-Appellant,

v. UNITED STATES POSTAL SERVICE, Postmaster General of the United States, John Henderson,

Defendant-Appellee. No. 00-5173 (D.C. No. 98-CV-776-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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.-2-

Plaintiff Richard Blackburn appeals the district co urt’s rulings regarding his proposed jury instructions and the admission of evidence. Because plaintiff has not shown that the district court abused its di scretion, we affirm. Plaintiff initially injured his back during military service in 1974. In 1988, he began working for defendant United States Posta l Service (USPS), and in 1990, he reinjured his back by lifting a box of enc yclopedias. Plaintiff filed a claim for federal workers’ compensation benefits, which was accepted as an on-the-job temporary aggravation of a preexisting c ondition. Pursuant to federal law, the USPS created a limited duty position for p laintiff to accommodate his medical restrictions. In 1995 and 1996, while still medically restricted, plaintiff applied for a position in a supervisor training program. Plaintiff was not offered a position because the USPS determined that, given his medical restrictions, he would not be able to perform the essential functions of the job. In 1997, after plaintiff presented a new set of medical restrictions, the US PS offered him a limited duty position which he refused. In May 1998, the Office of Workers Compensation Pro grams determined that plaintiff was no longer entitled to benefits b ecause the temporary on-the-job aggravation of his condition had ceased. Because p laintiff was still medically-3-

restricted and the USPS alleged there were no “light duty” jobs available, he was placed in a leave without pay status in July 1998. Plaintiff brought this action pursuant to the Rehab ilitation Act of 1973, alleging the USPS discriminated against him based o n his disability and subjected him to retaliation for his various administrative a nd court proceedings. Before trial, plaintiff drafted and submitted his pretrial order, which alleged that he was disabled because (1) he had a physical impairment w hich substantially limited one or more of his major life activities; and (2) he wa s regarded by others as having such an impairment. The pretrial order did not all ege that plaintiff was disabled because he had a “record” of having a substantially limiting impairment. For this reason, the district court denied plaintiff’s reque st to instruct the jury that disability could be proved by showing that plaintif f had a record of a substantially limiting impairment. Plaintiff also asked for instructions regarding the USPS’s burden of proving it would have made the same decision absent conside ration of plaintiff’s disability, and the federal government’s enhanced d uty to accommodate and to keep records. These instructions were refused, as was plaintiff’s request to admit a medical report prepared in March 2000. After a m ulti-day trial, the jury returned a verdict that, at the time of the alleged wrongful acts, plaintiff was not-4-

disabled or perceived to be disabled, and that the USPS did not retaliate against plaintiff for his discrimination complaint. We note initially that plaintiff’s briefs fail to p rovide us with any meaningful record citations to support his contenti ons. Although we could deny his appeal for this reason alone, see SEC v. Thomas , 965 F.2d 825, 826-27 (10th Cir. 1992), we will address plaintiff’s argum ents on their merits. “[W]e review the district court’s decision to refus e to instruct the jury on an issue it concludes is not raised in the pretrial order for an abuse of discretion.” Rios v. Bigler , 67 F.3d 1543, 1549 (10th Cir. 1995). Plaintiff a rgues that the district court abused its discretion in refusing to instruct the jury that he could prove disability by showing that he had a “record” of a substantially limiting impairment because (1) the complaint identified thi s theory, and (2) the jury could have been confused after hearing evidence that woul d support the theory. It is the pretrial order, however, and not the complaint, that defines the scope of litigation.
See Tyler v. City of Manhattan , 118 F.3d 1400, 1403 (10th Cir. 1997). Further, plaintiff has not demonstrated how the jury was con fused by the evidence presented, and has not cited any authority for the proposition that the evidence mandated such an instruction despite his failure to identify the claim in the pretrial order. We conclude the district court did not abuse its discretion by restricting the jury’s consideration to the issues identified in the pretrial order.-5-

Plaintiff argues next that the district court erred in refusing his instructions regarding (1) the USPS’s burden after direct eviden ce of discrimination is presented; (2) the government’s heightened duty of accommodation; and (3) the USPS’s duty to keep records of prior discriminationcomplaints. In determining whether the district court erred in refusing plaint iff’s instructions, we review for an abuse of discretion, considering de novo whether the instructions, as a whole, accurately informed the jury of issues and governin g law. FDIC v. Schuchmann , 235 F.3d 1217, 1221-22 (10th Cir. 2000). “[I]t is not error to refuse to give a requested instruction if the same subject matter is adequately covered in the general instructions.” Id. at 1222 (quotations omitted). Applying these standards, we conclude the district court did not abuse its discretion in refusing plaintiff’s instructions. T he substance of plaintiff’s “direct evidence” instruction, taken from the Supreme Court ’s mixed motives holding in Price Waterhouse v. Hopkins , 490 U.S. 228, 244-45 (1989), was fully explained in the district court’s instruction regarding the U SPS’s burden to prove its affirmative defense. As for plaintiff’s instructio ns regarding the government’s heightened duty of accommodation, we need not consi der whether the district court erred in failing to so instruct because once the jury decided that plaintiff was not disabled, accommodation was no longer an is sue. Finally, the district court did not err in refusing plaintiff’s instructi ons based on Faragher v. City of-6-

Boca Raton , 524 U.S. 775 (1998), as that case dealt specifica lly with the concept of vicarious liability and did not state a general rule applying to all discrimination

cases. See id. at 807-08. Plaintiff’s last argument centers on the district c ourt’s refusal to admit a report by Dr. Marilyn Lins regarding plaintiff’s medical condition. It appears that at the beginning of the trial the district cou rt ruled without objection that both the testimony of Dr. Lins and her report wouldbe excluded because plaintiff’s physical condition in March of 2000 was irrelevant to his condition when the disputed actions took place in 1995 and 19 96. See Appellant’s App. Vol. II at 443-44. Sometime later in the proceedin gs, plaintiff’s attorney moved “for the record” to admit the doctor’s report, whic h was exhibit 63. Id. at 643. No objection or offer of proof was made when the di strict court ruled that the exhibit would not be admitted. See id. When a party seeking to admit evidence fails to mak e a contemporaneous offer of proof regarding what he expects to show an d the purpose for which the evidence is offered, we review the district court’s exclusion of the evidence for plain error. Polys v. Trans-Colorado Airlines, Inc. , 941 F.2d 1404, 1406-08 (10th Cir. 1991); Fed. R. Evid. 103(a) & (d). In a civil case, the court will reverse only if the error seriously affected the fairness, integ rity, or public reputation of judicial proceedings. Polys , 941 F.2d at 1408. We conclude that plaintiff has not-7-

shown that the exclusion of Dr. Lins’ report was erroneous, and he certainly has not shown that this evidentiary ruling fundamentall y affected the fairness of the trial. The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge