UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

KENNY SMITH, Plaintiff-Appellant,

v. GLOBAL STAFFING, Defendant-Appellee. No. 13-1449 (D.C. No. 1:11-CV-00983-MSK-MEH) (D. Colo.)

ORDER AND JUDGMENT *

Before GORSUCH , O’BRIEN , and PHILLIPS , Circuit Judges.

In a pro se complaint, Kenny Smith, an Af rican American male with a disability, claimed Global Staffing (Global) discriminated against him based on his sex, his race, and his disabili ty. The discriminatory acts , he claims, were not hiring him for a particular position a nd terminating his employment. Judgment as a matter of law was entered against him on some clai ms and a jury rendered a verdict in favor of Global on his remaining claims. He appeals from the re sulting judgment and

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). We therefore deny Appellant’s motion for oral argument. This order and judgm ent is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 17, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - complains of the judge’s reso lution of some trial issues. There was no error. We affirm. 1 I. Background A. Pretrial Proceedings After Smith’s case had been pending fo r two years—and on the eve of trial— he retained counsel. 2 The district judge denied his motion for a continuance and scheduled the final pretrial c onference. In the final pretri al order, the judge listed the claims proceeding to trial as sex and race discrimination under Title VII, 42 U.S.C. § 2000e-2(a); race discri mination under 42 U.S.C. § 1981; and disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12112 (ADA)

. The judge excluded a state-law claim of wr ongful discharge in vi olation of public policy because it was not cont ained in Smith’s complaint. B. Parties’ Stipulations The parties stipulated to certain f acts, including the following: “Global Staffing is a staffing company that provides temporary staffi ng, temp-to-hi re staffing, and direct-hire services. . . .” Aplt. App. at G14-G15. “[O]n or about June 27, 2005, Global Staffing hired Mr. Smith and placed him in a temp-to-perm assignment with Wabash Trailers,” one of Global’s clients. Id. at G15. On September 23, 2005, Smith reported he had suffered a crush inju ry to his left foot while working at

1 Our jurisdiction derives from 28 U.S.C. § 1291

. 2 The same counsel continue to re present Smith in this appeal.- 3 - Wabash Trailers. He was released to light-duty work in December 2005, at which point Global offered him fu ll-time light-duty work at its company office. Smith accepted that offer and, due to the limitations re sulting from his inju ry, he remained in that assignment until June 11, 2008. His “job duties include d scanning, filing, document shredding, and other cl erical tasks as needed.” Id. “[O]n June 17, 2008, Global . . . notified Mr. Smith that his assign ment to a job in Global Staffing’s office was terminated.” Id. at G15-G16. Global further stipulated that Smith has a disability. The district judge also read the following additiona l stipulation to the jury: Ladies and gentlemen of the ju ry, the parties have reached a stipulation which they hope and I hope will help you understand what the parties understood with rega rd to the modified duty period. [3] []Smith and Global understood that the modified duty period would expire when he reached ma ximum medical improvement and his workers compensation case was resolved . When that period expired, his temporary employment in the Global o ffice would be over and he would return to a temporary employee status. []Smith thought th at he might be able to return to Wabash as a permanent employee. Id. at H345. 4

3 During the trial, the parties referred to Smith’s light-dut y assignment at the Global office as “modified duty.”
4 The parties are familiar w ith the evidence presented at tr ial. We will refer to it only as appropriate to resolv ing the issues presented.- 4 - C. Rule 50(a) and Rule 15(b) Motions After Smith had presented hi s case to the jury, Globa l moved for judgment as a matter of law under Fed. R. Civ. P. 50(a). It renewed the motion at the close of the evidence. In its view the evidence revealed no legally sufficient basis fo r the jury to find in favor of Smith on his claims of wr ongful termination ba sed on his sex, race, or disability. The judge agreed and di smissed those claims. Consequently, only Smith’s failure-to-hire cl aims went to the jury. At the close of the evidence, Smith m oved under Fed. R. Ci v. P. 15(b) to amend his complaint to confor m to the evidence. He ar gued Global had consented to trying his state claim of wrongful terminat ion in violation of public policy and, accordingly, would not be prejudiced by a dding that claim. Global denied consenting, explicitly or im plicitly, to trying that cl aim. The judge denied the motion. D. Request to Modify the Jury Verdict Form At conference the instructions and verdic t form were settled. The judge read the instructions to th e jury and both sides made initia l closing arguments, but before making his rebuttal argument Smith asked for a modification of the verdict form to include “segregation” as an additional basis for his discrimination claims. Understandably, Global objected. The j udge denied the request and sent the unmodified verdict form to the jury. The jury returned a verdict in favor of Global.- 5 - II. Discussion Smith challenges the judgment as a matt er of law on his termination claims, the denial of his motion to amend his comp laint to add a claim asserting wrongful termination in violation of public policy, a nd the denial of his request to modify the verdict form. A. Grant of Rule 50(a) Motion Under Rule 50(a)(1), after “a party ha s been fully heard on an issue during a jury trial,” a district judg e may “resolve the issue agai nst the party” and may grant the movant judgment as a matter of law on a claim after findi ng “that a reasonable jury would not have a legally sufficient ev identiary basis to find for the party on that issue.” Fed. R. Ci v. P. 50(a)(1)(A)-(B). The question is not whether there is literally no evidence supporting the nonmoving party but whether there is evidence upon which a jury could properly find for that party. For a ju ry to properly find for a party, the party must present more than a sc intilla of evidence supporting its claim. Herrera v. Lufk in Indus., Inc. , 474 F.3d 675, 685 (10th Cir. 2007). Our review of a grant of a Rule 50(a) motion is de novo and we view the evidence in the light most favorable to Smith. See id. Focusing on the parties’ stipulation regarding their mutual understanding of when and why Smith’s modified-duty assi gnment would end, the judge concluded there was no evidence of a termination from that assi gnment; rather the job had ended when Smith reached maximum medical improvement (MMI) and his workers’- 6 - compensation clai m was resolved. 5 But Smith points us to testimony of Deborah Westmoreland, Globa l’s office manager. Sh e said he was the only employee to be involuntarily terminat ed from a modified-duty assignment. 6 Focusing on that narrow aspect of her testimony he claims the termination issue should have been decided by the jury. I ndeed, there is some eviden ce suggesting Smith may have been terminated from that position, but the evidence on point, cons idered as a whole, was insufficient for a reasonabl e jury to conclude his race, his sex, or his disability was a motivating factor even if it was a termination. For that reason, we affirm. When a plaintiff asserts a claim of discrimination, his “prima facie case, combined with sufficien t evidence to find that the employe r’s asserted justification is false, may permit the trie r of fact to conclude th at the employer unlawfully

5 The judge also found Smith not to ha ve been terminated from his continued employment with Global as a member of th e pool of workers seeking job assignments with the company’s clients. There was no evidence Global told him he would not get another position, and Smith conceded he never called Global to indicate he was available for a new work assignment. Smit h does not challenge this ruling on appeal.

6 According to Westmoreland’s testim ony all other modified -duty assignments at Global’s office had ended when the employees reached MMI or when their workers’ compensation claims were settled. The othe r employees then either returned to their previous work assignments or were assigned to positions with other clients. She indicated Smith reached MMI in August 2007, but his modified-duty assignment did not end until J une of 2008. As she explai ned, Smith could not be released from his modified -duty assignment until his atto rney and Global’s insurer reached a settlement on his workers’ comp ensation claim. Wh en that occurred, Global informed Smith he was released. Westmoreland said Smith was the only employee on modified duty who she had to involuntarily terminate, as all other modified-duty employees resigned once they reached MMI and entered into settlements with the insurer.- 7 - discriminated.” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 148 (2000). But “an employer [is] entitled to judg ment as a matter of law if the record conclusively reveal[s] so me . . . nondiscriminatory reason for the employer’s decision, or if the plainti ff created only a weak issue of fact as to whether the employer’s reason was untrue and ther e was abundant and uncontroverted independent evidence that no di scrimination had occurred.” Id. Here, Smith stipulated to his understa nding: “the modified duty period would expire when he reached maximum me dical improvement and his workers compensation case was resolved. When that period expired, his temporary employment in the Global office would be over and he would return to a temporary employee status.” Aplt. App. at H345. By his stipulation Smith conceded a non-discriminatory motive for terminating his modi fied-duty assignment. See Swackhammer v. Sprint/United Mgmt. Co. , 493 F.3d 1160, 1169 (10th Cir. 2007) (holding plaintiff’s concession of la wful motive precludes inference of discriminatory motive). Moreover, the unc ontroverted evidence was consistent with his stipulation. Global terminated his modified-duty assignmen t only after he had reached MMI and settled his wo rkers’ compensation claim. Smith views the stipulation as only reflecting his stat e of mind as he started that assignment and not “what actually happened later in th is case.” Aplt. Opening Br. at 19. At best that is a slender reed, insufficient to show Global’s stated reason for terminating the assignment to be untrue. See Reeves , 530 U.S. at 148. The- 8 - stipulation, considered in the light of all other evidence, precluded any reasonable jury from concluding Global’s reason fo r terminating him was implausible, inconsistent, incoherent , or contradictory. See Swackhammer , 493 F.3d at 1167. Not only that, but Smith presented no evidence of its falsity. See id. And, while there was evidence of his being treated differen tly from other Global employees during his modified-duty assignment, 7 as to his termination from that assignment (the real issue) the uncontroverted evidence demonstrated hi s treatment to be th e same as all the other employees who were similarly situated to him , namely, those who were on modified duty. See id. at 1167-68 (noting pretext argument based on differential treatment must focus on sim ilarly situated employees). All of Global’s other modified-duty assignments ended when the employees reached MMI and settled their workers’ compensation claims. Smith’s situation differed only slightly; he did not

7 Smith testified to having felt unwante d and uncomfortable while working at the Global office. He based this feeling on his physical pl acement in a back room of the office, the non-meaningful work he was assigned, the training provided to female employees but not to him, his exclusion fro m office lunches, a di rection by Global to use a different bathroom than the other em ployees, a memo changi ng certain aspects of his work that only he received, and ot her treatment by Global employees that he perceived as unkind. The evidence showed that , while Smith was on modi fied duty at Global’s office, the other Global employ ees were instructed to be co rdial and polite to him, but not to bring him into the circle of the regul ar staff. Westmorela nd testified that, “The idea for a modified duty empl oyee is that they’re kept working and kept busy until they’re able to go back to their own job. If they’re working in ou r office and they’re feeling more and more like part of the office , they’re going to want to stay at Global Staffing, rather than go back to thei r other job.” Aplt. App. at G220.- 9 - resign at that point, as all other modified-duty workers had done, which would be consistent with Global’s clear expectations and long sta nding practice. Instead he had to be informed that he must move on. The stipulation speaks directly to the parties’ understanding of their arrangement and it leaves no room for the exception Smith tries to wedge into the matter. Insufficient eviden ce exists in this record to demonstrate how Global’s stated reason for terminating his modified -duty assignment was pretextual. See Stewart v. Adolph Coors Co. , 217 F.3d 1285, 1289 (10th Cir. 2000) . Even viewed in the light most favorable to him, ther e is a dearth of evidence fr om which one c ould conclude that Global terminated his m odified-duty assignment because of his race, his sex, or his disability. 8 See id. Accordingly, we affirm the judgment as a matter of law entered on Smith’s termination claims. B. Denial of Rule 15(b) Motion Fed. R. Civ. P. 15(b)(2) provides: When an issue not raised by the pleadi ngs is tried by the parties’ express or implied consent, it must be treated in all respec ts as if raised in the pleadings. A party may move--at a ny time, even after judgment--to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But fa ilure to amend does not a ffect the result of the trial of that issue.

8 The only suggestion of differential treatment base d on Smith’s disability, race, or sex was speculative testimony by a fo rmer Global employee who admitted no one ever told her those factors played any part in Global’s decisions regarding Smith’s employment.- 10 - At the close of the evidence, Smith moved to amend his co mplaint to add a state-law claim for wrongful discharge in violation of public policy. According to him, Global consented to trying that claim by presen ting evidence regarding his workers’ compensation claim (including hi s retention of counsel, the se ttlement of that claim, and the subsequent terminati on of his modified-duty assignm ent). Alternatively, he claimed the amendment was proper under Ru le 15(b)(1) because Global would not be prejudiced. Global responded it would be prejudiced by the addition of the claim, which the district judge ha d excluded before trial and which had not been fully litigated during the trial. The judge denied Smith’s motion. She sa id Smith had not satisfied all of the elements of a wrongful-termination clai m because there was no evidence of a termination of his modified -duty position. She also d ecided the evidence regarding Smith’s workers’ compensa tion claim, including its e ffect on the length of his modified-duty assignment, was rele vant to Global’s defense of his discriminatory-termination claims. She c oncluded that Global had not, by presenting this evidence, consented to trying a public -policy wrongful-termi nation claim. She also found a belated amendment of the comp laint--after all th e evidence had been presented--would prejudice Global. Our review is for an abuse of discretion. Moncrief v. Williston Basin Interstate Pipeline Co. , 174 F.3d 1150, 1160 (10th Ci r. 1999). We find none. “Implied consent [to try an issue unde r Rule 15(b)] cannot be based upon the- 11 - introduction of evidence that is relevant to an issue already in the case when there is no indication that the party presenting the evidence intended to raise a new issue.” Id. at 1162. We agree with the district judge. The ev idence related to Smith’s workers’ compensation claim was relevant to an issue already in the case: his claim that Global terminated his modified-dut y assignment based on his race, sex, or disability. And nothing sugge sts Global intended to raise a ny new issue, much less a public-policy wrongful-termina tion claim, by presenting its evidence on issues being litigated. In like vein, the trial judge did not abuse her discretion in assessing the prejudice to Global resulting from permitting Smith to add an additional claim after the evidence was closed. See id. (“When evidence claimed to show trial of an issue by consent pursuant to Rule 15(b) is relevant to a separate issue already in the case, it would be unjust to the opposi ng party to consider a new theo ry of recovery after trial is complete.” (internal quotati on marks and alteration omitted)). C. Denial of Request to Modify Jury Verdict Form The parties participated in a jury in struction conference, during which they raised objections to the inst ructions proposed by the judge and proffered alternatives. When the conference concluded, the district judge read the final instructions and the verdict form to the jury. Th e verdict form required the ju ry to decide whether Smith had proven by a preponderance of the evidence that his sex, his race, or his disability was a motivating factor in Global ’s decision not to hire him. See Aplt. App. at C9-C10. After Global presented its clos ing argument, but before his rebuttal- 12 - argument, Smith remarked th at the verdict form addres sed only his failure-to-hire claims, omitting any reference to segregat ion claims supported by the statutory language in Title VII and the ADA. See 42 U.S.C. §2000e-2(a)(2) (prohibiting employers from “segregat[ing] . . . employees or applican ts . . . in any way which would deprive or tend to de prive any individual of em ployment opportunities . . . because of such individual’ s race, color, religion, se x, or national origin”); see also 42 U.S.C. § 12112(b)(1) (inc luding similar language rega rding segregation based on an individual’s disability). He asked the ju dge to modify the verd ict form to include these segregation claims. Initially the judge was incl ined to amend the verdict form, but she ultimately denied Smith’s request because the instruc tion set included no in structions defining the elements of his segreg ation claims. Like the ve rdict form, the elemental instructions addressed only Smith ’s failure-to-hire claims. See id. at C3, C5, C7. The judge stated, There is no elemental instruction gove rning segregation. There is no way for the jury to know what the le gal standards on that are. There was no request for that instruction. And to modify the question in the verdict form to include reference to that would not allow the jury to make a determination based upon a ppropriate elemental standards. Id. at H518. The judge reminded Smith of his opportunity to raise the issue during the jury instruction confer ence and his failure to do so . Because the request to modify the verdict form so la te in the proceedings was un timely, the judge denied it.- 13 - We review the language of a special verd ict form for an abuse of discretion. Webb v. ABF Freight Sys., Inc. , 155 F.3d 1230, 1249 (10th Cir. 1998). “Under the abuse-of-discretion standard, a trial court’ s decision will not be disturbed unless the appellate court has a definite and firm conviction that th e lower court made a clear error of judgment or exceeded the bou nds of permissible choice in the circumstances.” Okla. ex rel. Edmondson v. Tyson Foods, Inc. , 619 F.3d 1223, 1232 (10th Cir. 2010) (interna l quotation marks omitted). At the jury instruction conf erence, the district court agreed to Smith’s request to include “the segregation language,” Aplt. App. at H415 (internal quotation marks omitted), in the instructions describing the statutory bases for his discrimination claims, see id. at H412, H415, H416; see also id. at C2, C4, C6. But Smith neither requested inclusion of the se gregation language in any of the elements instructions related to his claims, nor obj ected to its absence. When later asked whether there were additional tendered instructions the j udge should consider, Sm ith again failed to appropriately respond. Nor did he ask th e judge to add segregation claims to the verdict form or object to their omission. See id. at H434-H437. When the judge continued the instruct ion conference the following day, Smith once again did not ask for an elements inst ructions on segregat ion or inclusion of those claims in the verdict form. After both parties indicated they had no further objections to the instructions, the judge then proceeded to read them and the verdict form to the jury. She then gave the parties another opportunity to raise any- 14 - objections, and Smith st ated he had none. See id. at H468-H469. Since Smith delayed raising the issue until after Global completed its closi ng argument, he was the author of his fate. There was no abuse of discretion in re fusing Smith’s request to modify the verdict form under the circumstances presented, particularly in li ght of the multiple opportunities Smith had to object to the in structions and verdict form, both before and after they were read to the jury; the reque st was untimely. See Fed. R. Civ. P. 51(b)(2) & (c)(2) (providing obj ections to instructions are timely if made “before the instructions and arguments ar e delivered”). Assuming the late blooming request was not a calculated attempt to gain unfair adva ntage, it would neces sarily have required supplemental jury instructions and re-argumen t; something that would be ungainly at best and possibly causing juror confusion. The judgment of the district court is affirmed. Smith’s motion for oral argument is denied.

Entered for the Court

Terrence L. O’Brien Circuit Judge