* This order and judgment is not binding precedent, e xcept under the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

** Honorable Myron H. Bright, Senior Circuit Judge, Un ited States Court of Appeals for the Eighth Circuit, sitting by designat ion.

UNITED STATES COURT OF APPEALS Filed 9/9/96 FOR THE TENTH CIRCUIT

CONNIE J. LAWRENCE,

Plaintiff-Appellant,

v. IBP, Inc., Defendant-Appellee. No. 95-3278 (D.C. No. 94-2027-EEO)

(Kan.)

ORDER AND JUDGMENT *

Before PORFILIO, BRIGHT, ** and KELLY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff Connie J. Lawrence appeals the district c ourt’s grant of summary judgment to defendant, IBP, Inc., on her claim of u nlawful discrimination in violation of the Americans with Disabilities Act ( ADA), 42 U.S.C. §§ 12101- 12213, and her claim of retaliatory discharge. We exercise jurisdiction pursuant to 28 U.S.C. §1291 and affirm. Because the parties are familiar with the facts of this case, which are largely undisputed, we will refer to them only summ arily. Plaintiff began working for IBP at its Emporia, Kansas, meat packin g plant in 1987. Over the course of her employment, plaintiff developed pain in her hands, neck, shoulders, and right arm. Because of these limitations, plain tiff was eventually assigned as a picker, the lightest duty job at the plant, where s he was to pick either bones or red meat from a conveyor belt. After accumulating seve ral warnings of poor job performance on these picking lines, plaintiff, who had by then filed a Workers’ Compensation claim, was discharged. A grant of summary judgment is reviewed de novo to determine whether there is any genuine issue of material fact and whe ther the moving party is entitled to judgment as a matter of law. White v. York Int’l Corp. , 45 F.3d 357, 360 (10th Cir. 1995). In the face of a properly supported motion for summary-3-

judgment, plaintiff, as the nonmoving party, was re quired to come forth with significant probative evidence tending to support h er complaint; she could not simply rely on unsupported allegations. See id. In order to prevail on her ADA claim, plaintiff had to establish: (1) that [she] is a disabled person within the mean ing of the ADA; (2) that [she] is qualified, that is, with or witho ut reasonable accommodation (which [she] must describe), [she] is able to perform the essential functions of the job; and (3) that th e employer terminated [her] because of [her] disability. Id. at 360-61. The parties do not dispute that plaint iff is a disabled person as contemplated by the ADA. The district court found, however, that plaintiff presented insufficient evidence to establish her st atus as a qualified person with a disability. Determining whether a person is a qualified person with a disability for purposes of the ADA requires a two-step analysis. First, we must determine whether the individual cou ld perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether anyreasonable accommodation by the employer would enable him to p erform those functions. Id. at 361-62 (quoting Chandler v. City of Dallas , 2 F.3d 1385, 1393-94 (5th Cir. 1993), cert. denied , 114 S. Ct. 1386 (1994)).-4-

Plaintiff admits that she could not perform the ess ential functions of her job without accommodation. R. Vol. I, tab 61 at 97; R. Vol II, tab 65 at 7. The question thus becomes whether plaintiff could perfo rm essential job functions with any reasonable accommodation by IBP. See York , 45 F.3d at 361-62. Except for last minute suggestions put forth in res ponse to defendant’s motion for summary judgment, the only accommodationsuggested by plaintiff was a job in the plant laundry. Plaintiff testifie d that she made this suggestion to a nurse in the IBP infirmary before her discharge. She also cited a laundry job as her only suggestion for accommodation in her answer s to interrogatories, R. Vol. I, tab 61 (Exhibits in Support of Defendant’s Motio n for Summary Judgment) and in the pre-trial order, id. , tab 50 at 4-5. In meeting its burden of production, defendant offe red testimony from its personnel manager which established that there were four laundry positions at IBP, two of which were already occupied by persons outranking plaintiff in seniority. It was company policy to reserve the ot her two positions for employees who were unable to work in the cold. At the time o f plaintiff’s termination, all four positions were occupied. R. Vol. I, tab 61, d oc. 2 (Affidavit of Roger D. Brownrigg) at 3-4. After a plaintiff advances enough evidence to make a facial showing of a possible accommodation, it is then up to the defend ant to produce evidence of its-5-

inability to accommodate. Milton v. Scrivner, Inc. , 53 F.3d 1118, 1124 (10th Cir. 1995). “[T]he ADA does not require an employer to promote a disabled employee as an accommodation, nor must an employer reassign the employee to an occupied position, nor must the employer create a new positi on to accommodate the disabled worker.” York , 45 F.3d at 362. We do not decide here whether plaintiff’s evidence regarding the laundry job was sufficient to make this “facial showing that accommodation is possible.” We conclu de, instead, that IBP has met its burden of production and has presented evid ence of its inability to accommodate. Because plaintiff has not rebutted IB P’s evidence, see id. at 361, she has failed to establish that she is a “qualifie d person” for ADA purposes. After defendant’s motion for summary judgment was f iled, plaintiff attempted to augment her list of suggested accommod ations with brief references to the possibility of using a stool to enable her t o trim contamination from the carcasses in the cooler, and to possible secretaria l jobs and trimming jobs. As mentioned above, however, plaintiff’s contentions i n the pre-trial order list only the laundry job as a possible accommodation. The d istrict court had discretion to disregard new issues of accommodation in plaintiff’ s response to defendant’s motion for summary judgment because of the preclusi ve and binding effect of the pre-trial order. See Hullman v. Board of Trustees , 950 F.2d 665, 667-68 (10th Cir. 1991).-6-

That course notwithstanding, the district court did consider the other alternatives mentioned by plaintiff but rejected th em because there was no evidence, beyond plaintiff’s personal speculation, that plaintiff was able to do the suggested jobs. See Milton , 53 F.3d at 1125 (affirming grant of summary judgment to employer where suggested job alternativ es were based only on plaintiffs’ conclusory allegations). We agree the district court properly rejected these alternatives. The district court also found that a statement made by defendant’s attorney at plaintiff’s Workers’ Compensation hearing indicating that alternative jobs were available for plaintiff was insufficient to establi sh that there was a specific position available for which plaintiff was qualifie d. We agree with the district court’s analysis of this issue and affirm that court’s conclusion that plaintiff was not a “qualified person with a disability” for purp oses of her ADA claim. With respect to plaintiff’s state law retaliatory d ischarge claim, we have noted above that plaintiff has admitted she could n ot do the jobs at the trim and bone lines from which she had been discharged. Thi s fact precludes plaintiff’s recovery on a theory of retaliatory discharge. In Rowland v. Val-Agri, Inc. , 766 P.2d 819 (Kan. Ct. App. 1988), the Kansas Court of Appeals affirmed the grant of summary judgment in favor of a defendant, where the plaintiff claimed unlawful dis charge in retaliation for filing1 Plaintiff has accepted Workers’ Compensation benefi ts arising from her

job-related injuries at IBP. -7- a Workers’ Compensation claim but where plaintiff w as unable to perform the duties of his job at the time of his discharge beca use of his physical condition. The court made it clear that an employee who has a Workers’ Compensation claim may be discharged if he is unable to perform work. Id. at 822. The court reasoned: If this court allows [the plaintiff] to pursue its [sic] claim for retaliatory discharge in addition to his workers’ c ompensation remedy, a disabled employee, who has received compe nsation for a permanent injury and cannot return to employment, w ill also be able to file an action in tort for retaliatory discharge against his or her former employer if another position cannot be found which the employee can fill

. Id. (emphasis added). 1 Plaintiff, relying on the italicized portion of the above quotation, argues that Rowlandshould not bar her claim because other positions at IBP could have been made available to her. For the reasons discus sed above, plaintiff has produced insufficient evidence regarding the availa bility of alternate positions at IBP. Her physical inability to perform the job fro m which she was terminated precludes her from prevailing on a retaliatory disc harge claim. Finally, plaintiff argues that the district court i mproperly applied the clear and convincing standard when reviewing IBP’s motionfor summary judgment,-8-

thus denying her right to a jury trial. After our de novo review of the briefs and record in this case, we cannot agree. The districtcourt did not err in applying the evidentiary standard announced by the Kansas Suprem e Court in Ortega v. IBP,
Inc. , 874 P.2d 1188 (Kan. 1994), at the summary judgment stage. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986). Nor did the district c ourt err in its interpretation of that standard. It follows th at when a case is not submissible to a jury, there is no denial of the right to a jury trial. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge