* This order and judgment is not binding precedent, e xcept under the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 6 1998 

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

WILLIAM R. CARUTHERS,

Plaintiff-Appellant,

v. PROCTOR & GAMBLE MANUFACTURING CO.,

Defendant-Appellee. Nos. 97-3318 & 98-3035 (D.C. No. 96-CV-2071-GTV)

(D. Kan.)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for decis ions on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument.1 Mr. Caruthers continues to be employed by defendant

. -2- In appeal No. 97-3318, plaintiff William R. Caruthe rs appeals from a final judgment of the district court denying him equitabl e relief after he prevailed at trial on his claim filed under the American with Di sabilities 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 appro ved to return to work with certain restrictions, no work was available which c ould accommodate those restrictions. Mr. Caruthers then filed a charge wi th the EEOC. He eventually returned to work as a fork truck operator. Followi ng 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 EE OC, 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 district2 Defendant asserted that Mr. Caruthers failed to pro perly preserve this issue

for appeal. Mr. Caruthers has supplemented his app endix with the portion of the transcript showing his objection to the instructionmade 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- court granted defendantsummary 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 hi s job with reasonable accommodation. The jury found that defendant had not discriminated against Mr. Caruthers because of his disability, but had in tentionally 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 dis criminate 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 whet her 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 jury3 This same sequence applied to Mr. Caruthers’ claim of retaliation. The jury

found that defendanthad retaliated against Mr. Caruthers because he wa s engaged in activities protected by the ADA and that the ret aliation was intentional. The jury then determined no damages were warranted. -4- instructions, as a whole, “adequately stated the go verning 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 discriminatio n, 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 acco mmodation that would provide plaintiff with an equally effective o pportunity. Plaintiff need not produce direct evidence of discr imination. 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 defendanthad discriminated against plaintiff because of his disability. See Appellee’s Supp. App., Verdict question 3. The ju ry found no discrimination. The jury was then asked to determine whether defendanthad 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. 3-5-

Jury Instruction No. 15 gave the jurors the law nec essary to determine whether defendanthad discriminated against Mr. Caruthers due to his disability. Mr. Caruthers does not contend that this instructio n improperly sets forth the law on discrimination under the ADA. As the jury foundno 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 i nstruction. 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 req uest for admissions and to attorney’s fees as a prevaili ng 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 t he stated exceptions applies. Here, defendantdeclined to admit that Mr. Caruthers was a qualifi ed disabled individual under the ADA. The court found that defendanthad a reasonable ground for maintaining that position to trial.-6-

“We review the district court’s determination wheth er 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 defendanthad good reasons for not admitting that Mr. Caruthers was di sabled and that he was a qualified individual under the ADA. “[T]he true te st under Rule 37(c) is not whether a party prevailed at trial but whether he a cted reasonably in believing that he might prevail.” Rule 37 Advisory Committee Note s, 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 whethe r 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 discreti on, to award the prevailing party, other than the United States, rea sonable 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 relie f on the merits that directly-7-

benefits him through an enforceable judgment, conse nt decree, or settlement. See Farrar v. Hobby , 506 U.S. 103, 111 (1992). “[A] plaintiff ‘prevai ls’ when actual relief on the merits of his claim materiallyalters the legal relationship between the parties by modifying the defendant’s be havior in a way that directly benefits the plaintiff.” Id. at 111-112. “[A] judicial pronouncement that the defendant has violated the [law] . . . unaccompanie d by an enforceable judgment on the merits, does not render the plaintiff a prev ailing party.” Pedigo v. P.A.M. Transport, Inc. , 98 F.3d 396, 398 (8th Cir. 1996) (quotation omitte d); see, e.g. , Farrar , 506 U.S. at 112 (“moral satisfaction . . . cannot bestow pre vailing party status”)

. Mr. Caruthers argues the legal relationship between the parties was altered as he benefitted from the verdict, he was functioni ng as a private attorney general in prosecuting the suit, and the district court cou ld 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 di scretion in denying fees.-8-

The judgment of the United States District Court fo r the District of Kansas is AFFIRMED. Plaintiff’s motion to supplement the record is GRANTED.

Entered for the Court

Deanell Reece Tacha Circuit Judge