Petition for Writ of Certiorari — Chaparro v. IBP, Inc.

FILEN |

96182 8 MAY 1 2 1997

DOCH fo THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

AMANDA CHAPARRO,

Petitioner,

vs.

Respondent,

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Tenth Circuit.

PETITION FOR WRIT OF CERTIORARI

David O. Alegria

MCCULLOUGH, WAREHEIM & LaBUNKER, P.A.

1507 S.W. Topeka Boulevard

Topeka, Kansas 66612

(913) 233-2323

CL EEEESS'=~'S ~~ rrr

QUESTIONS PRESENTED FOR REVIEW

Whether Plaintiff Presented

Sufficient evidence to allow her case

to be decided by the jury.

- Whether the court abused its

discretion in excluding the testimony

Of Jennifer Dombkowski and Timothy

Russel].

LIST OF ALL PARTIES

Petitioner/Appellant, Amanda

Chaparro.

Respondent /Appellee, IBP, inc.

There are no parent of Subsidiary

companies to be listed.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ... i

LIST OF ALL PARTIES . i ae © |

TABLE OF CITATIONS De es a iii

APPENDIX ...... oe a

BASIS FOR JURISDICTION ... . a 1

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES,

ORDINANCES, AND REGULATIONS e « 1

STATEMENT OF THE CASE eo. ou ee 1

ARGUMENT ...,..,. ae a |S? o-~ > 2

REASONS FOR GRANTING THE WRIT... . 4

CONCLUSION ..,... eee were gg « 2S

TABLE OF CITATIONS

Cases:

Huffman v. Ace Elect. Co. Inc., 883 F.

Supp. 1469, 1475 (D. Kan. 2995) ... 5

McDonnell] Douglas Corp. v. Green, 411 U.S.

as) Sie Cae * 2

Pilcher v. Board Of Wyandotte County

Commissioners, 787 P.2a 1204, 1208 (Kan.

Ct. App. 1990) ioe ° ie = % S

Statutes:

28 U.S.C. § 2101(c)

Fed. R. Civ. P. 50(a)

PPEND

APPENDIX A - ENTRY OF JUDGMENT OF THE

UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF KANSAS FILED

FEBRUARY 10, 1995 er ee

APPENDIX B - ORDER AND JUDGMENT OF

THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

DATED DECEMBER 24, 1996

APPENDIX C =- ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT DATED FEBRUARY 11,

1997 ee Chet ree tee ig

iv

1A

21A

22A

s OR J CTION

DATE OF JUDGMENT

December 24, 1996

DATE OF ORDER ON REHEARING

February 11, 1997

STATUTORY PROVISIONS FOR JURISDICTION

28 U.S.C. § 2101 (c)

NOTIFICATION

N/A

CONSTITUTION PROVISIONS

TREATIES, STATUTES,

ORDINANCES, AND REGULATIONS

Petitioner’s Cause of action is based

On State common law.

STAT NT _O HE CASE

This isa retaliatory discharge case,

a tort action. The petitioner, Amanda

Chaparro, was fired from her employment

with respondent, IBP, inc., in retaliation

for her pursuit of workers’ compensation

remedies under the Kansas Workers

Compensation Act, and for absences related

to her work-related injury.

In a judgment from the bench at the

conclusion of al} evidence at trial on

February 9, 1995, District Judge G. T. Van

Bebber issued judgment as a matter of law

for defendant. pursuant to Fed. R. Civ. P.

50(a). Judge Van Bebber found that

Plaintiff failed to Present clear and

convincing evidence of retaliatory

discharge.

2

In this petition for certiorari,

plaintiff submits to the court that

plaintiff presented sufficient evidence

for a jury to have decided her case.

Plaintiff survived defendant’s motion for

Summary judgment and directed verdict at

the close of plaintiff’s evidence.

However, at the conclusion of all of the

evidence, and just immediately prior to

deliberations by the jury, the court,

improperly entered judgment as a matter of

law on behalf of defendant.

Jurisdiction of this action was

conferred upon the district court on the

basis of diversity of citizenship, 28

U.S.C. § 1332. Ms. Chaparro, the

petitioner, is an individual, resident of

the state of Kansas. Respondent is a

Nebraska corporation with its primary

place of business in Nebraska.

ARGUMENT

i. Whether plaintiff presented

sufficient evidence to allow her case to

be decided by the jury.

Defendant alleges in this case that

it fired Ms. Chaparro because she violated

its unexcused absenteeism policy. More

specifically, defendant contends that Ms.

Chaparro was fired for three "no call, no

show" unexcused absences. The alleged

absences occurred on October 29, 1990, May

11 and May 13, 1991.

Under Kansas law, the analysis of

this case must employ the burden shifting

approach of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). In this case,

3

defendant alleges that it fired Ms.

Chaparro for three unexcused absences.

Plaintiff presented Substantial evidence

that the absence of October 29, 1990 was

a far cry from being a no call, no show

unexcused absence. In fact, Ms. Chaparro

worked most of her shift and left early

for a doctor’s appointment. Following her

doctor’s appointment her shift was over

and she did not return to work. The

evidence in this case indicates that under

any analysis or definition of the no call

no show absence, Ms. Chaparro’s absence of

October 29, 1990 does not constitute a no

call no show.

With respect to the absences of May

11 and 13, 1991, it was Clear from the

evidence that defendant had sent Ms.

Chaparro home sick on May 10, 1991 ana

instructed her not to come back to work

until she had a release from a physician.

She was not able to obtain a release and

see a physician until May 13, 1991 when

she returned to work. She worked for a

period of time until she was called to the

office and fired.

Plaintiff presented evidence that

defendant fired Ms. Chaparro as a pretext

to conceal its retaliatory motives because

of her exercise of Statutory rights under

the Kansas Workers’ Compensation Act.

Defendant does not articulate any other

reason for firing Ms. Chaparro.

Therefore, the issue of causal connection

between the exercise of statutory rights

and her firing must be shown by

circumstantial evidence. In this regard,

Ms. Chaparro presented an abundance of

circumstantial evidence indicating that

4

defendant’s reason for firing Ms. Chaparro

was in retaliation for her exercise of

Statutory rights under the Kansas Workers’

Compensation Act. In the final analysis,

the issue presented for resolution is

defendant’s intent. The issue of

defendant’s motive and intent is not an

issue appropriate for the court to decide

and the court erroneously usurped the

function of the jury.

Having survived Summary judgment and

directed verdict at the close of

Plaintiff’s evidence and having presented

Substantial circumstantial evidence of

retaliatory discharge, with the case only

moments away from being decided by the

jury, except in extreme circumstances, the

role of the court in entering judgment as

a matter of law is very narrow. In order

for the court to enter judgement as a

matter of law at the Close of all

evidence, the court is required to make a

finding that no reasonable juror could

find that defendant’s motive in firing

Plaintiff was retaliatory. It is not

the function of the court to assess and

weigh the evidence to declare a victor.

The function of the court is much more

limited and when the court weighs the

evidence, assesses Credibility, and takes

the case away from the jury, the practice

usurps the function of the jury.

Under a Constitutional

jurisprudential System of law, plaintiff

is entitled to trial by jury. Only on

those occasions in which the evidence is

So one sided that only but one conclusion

can be reached by any reasonable

individual, the court is entitled to enter

ro

Ms. Chaparro.

ELEMENTS OF CASE

In a retaliatory discharge case, a

Plaintiff needs to show that the employee

was injured at work, the employer knew of

the injury, Che employee’ exercised

statutory rights, adverse employment

action and a causa] connection between the

adverse employment action and the exercise

of statutory rights. Huffman v. Ace

Elect. Co. Inc., 883 F. Supp. 1469, 1475

(D. Kan. 1995); Pilcher y. Board of

Wyandotte County Commissioners, 787 P.2q

1204, 1208 (Kan. Ct. App. 1990)

The facts in this case disclose that

beginning on October 22, 1990, Ms.

Chaparro developed a repetitive type of

injury. She exercised Statutory rights

and hired an attorney on March 5, 1991.

Shortly after her initial injury related

complaints of October 22, 1990 Ms.

Chaparro was charged with the first no

call no show of October 29, 1990. The

proximity in time between plaintiff’s

Physical problems in this case and the

Beginning on March 5S, 1991 Ms.

Chaparro’s Claim became litigated.

Shortly after Ms. Chaparro’s claim went

into litigation, on May 13, 1991 she was

fired after she had been sent home with

ee

6

instructions not to return unless she had

a doctor’s release.

As the Court of Appeals noted in its

decision on appendix page 8A, Ms. Chaparro

presented evidence that Ms. Chaparro’s

Supervisor and the nurse made derogatory

comments about her, IBP has a practice of

imposing arbitrary limits on the cost of

workers’ compensation benefits, the

proximity in time between her exercise of

Statutory rights and defendant’s adverse

employment action against her and the fact

that the charge of no call no show excuses

for October 29, 1990 and May 11 and 13,

1991 appear pretextual.

Plaintiff agrees that the elements of

retaliatory discharge contained in the

court of appeals decision on appendix page

13A. Plaintiff also agrees that the

question was whether the jury could find

for Ms. Chaparro. In its decision, the

court of appeals, just as the district

court, found that "Ms. Chaparro failed to

present clear and convincing evidence that

IBP’s termination decision was improperly

motivated by her filing of a workers’

compensation claim." Appdx. p. 15A.

Plaintiff submits that it is not the

function of the court to make a finding of

whether plaintiff presented Clear and

convincing evidence of defendant’s

improper motive. That determination might

be appropriate in a case in which a

plaintiff is trying a case to the court.

However, such determination is reserved

for the jury in this case, and the

district court as well as the court of

appeals in deciding that Plaintiff did not

present clear and convincing evidence of

en

5

defendant’s motive, usurped the function

of the jury.

It is the job of the jury to look at

the evidence and make the determination as

to whether the evidence Of defendant’s

motive was clear and convincing.

Plaintiff submits to this court of

last resort, that the current trend by

lower courts to weigh evidence and make a

finding for the Plaintiff prior to

allowing a case to reach the jury is

inappropriate and it violates plaintiff’s

right to trial by a jury.

In the court of appeals decision on

appendix pages 15A-21A, the court reviews

a synopsis of plaintiff’s evidence and

makes arguments against the same.

However, striking is the fact that the

court looks at each piece of evidence on

an individual basis ruling that such

evidence is not sufficient for a

reasonable juror to find for Plaintiff.

The panel undertook to evaluate each

piece of evidence in isolation and to

conclude that such evidence, standing

alone, was not probative of retaliatory

discharge. Plaintiff Submits that in any

case you can take the evidentiary record

and conclude that each Particular piece of

evidence did not prove the whole clain,

even in the best case ever. The court

could dismiss any case as a matter of law

by taking the position that each piece of

evidence presented, alone, does not prove

plaintiff’s case. It would be impossible

for a plaintiff to win a case if this type

of analysis was proper. It is the

8

combination of various pieces of evidence

that allows a Party to prevail. In this

case, plaintiff presented a vast amount of

evidence of defendant’s retaliatory

practices, defendant’s retaliatory

motives, the methodology used to

retaliate, direct evidence of retaliation

and a great amount of circumstantial

evidence of retaliation. Thus, her case

Should have been decided by the jury.

The court’s failure to view the

evidence in a Cumulative fashion to

determine whether a Cumulative nature of

such evidence may allow a reasonable juror

to find for Ms. Chaparro.

Plaintiff submits that the district

court and the court of appeals dismissal

of substantial evidence presented by

Plaintiff and the arguments against such

evidence are not appropriate functions of

the court but are jury work.

There could have been no reason as to

which the court should not have allowed

this case to be decided by the jury. The

jury was ready to commence deliberations

and the practice of taking away cases from

the jury Particularly when there is such

a substantial amount of evidence is

Clearly erroneous. In fact, as the court

of appeals admits. in its decision,

Plaintiff even presented direct evidence

from witnesses. that heard that Ms.

Chaparro would be fired because of her

injuries. To argue that the record does

not reflect that individuals that made

such comments had supervisory Capacity

over Ms. Chaparro stretches the function

of the court far away from the proper

pane nineel

9

elasticity of the court’s function. In

fact, plaintiff presented @€vidence that

Ms. Chaparro’s supervisor specifically

indicated that he was going to fire her

because of her complaints related to her

injury. Again, to argue that Ms.

Chaparro’s supervisor may not have had too

much influence on the personnel department

in Ms. Chaparro’s firing, again stretches

the elasticity of the court’s discretion

far beyond an appropriate point.

In this’ case, having presented

evidence that the nurse and her own

supervisor both made derogatory comments

about impending adverse employment action

against Ms. Chaparro as a result of her

work related injuries is powerful

compelling evidence of defendant’s

retaliatory motive.

Plaintiff also offered evidence of

defendant’s self-insured status and a

number of ways in which defendant seeks to

improperly save money by retaliating

against injured employees.

Finally, Ms. Chaparro presented

evidence of the proximity in time between

her exercise of statutory rights and

defendant’s adverse employment action.

Plaintiff submits to the court that

of paramount importance is the fact that

defendant falsified its records with

respect to the absences for which Ms.

Chaparro was fired. An absence that was

listed as excused was later Changed and

listed as unexcused. However, defendant’s

Own records indicated that defendant was

well aware that Ms. Chaparro was sick for

10

Such absence and the same Should have been

excused.

Therefore, at the very least, there

was a substantial factual dispute

concerning Ms. Chaparro’s termination of

employment and the case should have been

decided by the jury. Even the Court of

Appeals indicates "while this evidence

does indicate that there is a factual

dispute as to whether Ms. Chaparro should

other pieces of important evidence

including testimony about the nurse and

Supervisor’s comment of mr. Chaparro’s

impending termination because of her

injuries provides Clear evidence from

which a jury could have made a finding in

favor of Plaintiff.

Supervisors worked at the Emporia, Kansas

facility rather than the Holcomb, Kansas

facility where ms. Chaparro worked.

Plaintiff submits to the court that

defendant’s practice of instructing its

Supervisors to fire injured employees,

Ra Soh i Bu

11

even if it is at a different facility,

presents important circumstantia] evidence

of defendant’s retaliatory motive with

REASONS FOR GRANTING THE WRIT

This case illustrates a System that

has run amuck of its Purpose’ and

objective. First, Kansas appears to be

and convincing evidence. Second, the

Onerous burden of Proof required, coupled

with a Philosophical requirement by

federal courts that plaintiff Satisfy the

court of proof by the applicable burden of

Proof in order to allow a jury to decide

the case, results in a system that all but

Obliterates the cause of action ana

deprives Plaintiffs of a constitutional]

right of trial by jury.

Plaintiff is cognizant that in a

diversity Claim, this court rarely grants

a writ. However, the absence of a federal

question should not eliminate Plaintiff’s

right to tria} by jury. Thus, plaintiff

respectfully requests that the court

afford her the same constitutional rights

@as it would a plaintiff presenting an

important federa) question.

Plaintiff submits that the decision

of the court of appeals in this case,

appears to have undertaken to advance a

series of arguments’ to justify the

decision by the District Court, rather

12

than attempting to employ applicable legal

maxims designed to accomplish justice and

to perform its review functions in an

objective and critical matter regardless

case to reach the jury, it will be a rare

Plaintiff in this type of case that wil]

be able to ever have trial by jury.

CONCLUSION

send this matter for trial to be decided

by a jury with instructions that Ms.

Dombkowski and mr. Russell be allowed to

testify.

Respectfully submitted,

MCCULLOUGH, WAREHEIM & LaBUNKER, P.A.

By: POND _G.

A O. ALEGRIA, #13111

1507 S. W. Topeka Boulevard

P. O. Box 1453

Topeka, Kansas 66601-1453

(913) 233-2323

ATTORNEYS FOR AMANDA CHAPARRO

Petitioner

3

f

i

1A

APPENDIX A = ORDER AND JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT DATED DECEMBER 24,

1996

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

AMANDA CHAPARRO,

Plaintiff-Appellant

/Cross Appellee.

Case Nos. 95-3078

Vv. 95-3098

IBP, INC.,

Defendant-Appellee

/Cross Appellant,

STATE OF KANSAS, DEPARTMENT

OF HUMAN RESOURCES,

Movant/Cross-Appellee.

ORDER AND JUDGMENT"

®

This order and judgment is not

binding precedent, except under. the

doctrines of law of the case, res

judicata, and collateral estoppel. The

court generally disfavors the Citation of

Orders and judgments; nevertheless, an

order and judgment may be cited under the

terms and conditions of 10th Cir. R. 36.3.

2A

Before HENRY, MURPHY, and RONEY,”™” Circuit

Judges.

In this retaliatory discharge case

filed in diversity, Plaintiff-appellant

Amanda Chaparro appeals the district

court’s entry of judgment as a matter of

law in favor of defendant-appellee IBP,

Inc. ("IBP")., Ms. Chaparro argues that

the district court erred in ruling that

she did not meet the evidentiary burden

necessary to support her claim that IBP

terminated her employment in retaliation

for exercising her rights under the Kansas

Workers’ Compensation Act. Ms. Chaparro

also claims that the district court erred

in excluding the testimony of two of their

witnesses. IBP cross-appeals, arguing

that the district court erred in excluding

statements Ms. Chaparro made to the Kansas

Department of Human Resources ("KDHR") in

the course of applying for workers’

compensation benefits. In response, Ms.

Chaparro and KDHR argue that Ms.

Chaparro’s written and recorded statements

to the KDHR are protected as confidential

pursuant to Kan. Stat. Ann. § 44-714(f).

We assert jurisdiction under 28 U.S.C. §

1291, and for the reasons stated below,

affirm the district court’s judgment.

I. BACKGROUND

A. Factual History

we

Honorable Paul H. Roney, Senior

Circuit Judge, United States Court of

Appeals for the Eleventh Circuit, sitting

by designation.

3A

Ms. Chaparro worked at IBP’s Finney

County, Kansas meat packing and processing

facility from May 8, 1989 until IBP

terminated her employment on May 14, 1991

for allegedly violating its unexcused

absences policy. On October 22. 1990, Ms.

Chaparro began experiencing pain in her

left arm while working on the job and

reported this pain to the dispensary

nurse, Juanita Meadows. After examining

her, Nurse Meadows placed her in a special

program for monitoring and treating work-

related injuries and returned Ms. Chaparro

to her regular job.

The first absence relevant to Ms.

Chaparro’s termination occurred on October

29, 1990. That day, she left work early

to see her personal physician, Dr. Nonhof.

Because her appointment ended after her

shift, she did not return to work that day

nor did she call in to report that she

would not be returning. The next day, she

returned to work with a doctor’s excuse

which stated that she had been under the

doctor’s care and would be unable to work

until November 1, 1990. IBP assessed Ms.

Chaparro an unexcused aabsence for failing

to return to work or to call in after her

appointment on October 29, 1990. Ms.

Chaparro discussed the unexcused absence

with her supervisor at the time, Steve

Widler, but she did not seek

administrative review of the decision to

IBP’s personnel director.

On November 1, 1990, after several

visits to the dispensary, Nurse Meadows

imposed restriction s on Ms. Chaparro’s

use of her left hand and placed her on a

"light duty" paint crew job until November

4A

26, 1990, On December 4, 1990, after

being placed back in her former job

trimming cow tails, Ms. Chaparro reported

further problems with her left arm to the

nurse. On December 7, 1990, at IBP’s

direction, ws. Chaparro began medica]

treatment with Dr. Lauren Welch. Dr.

Welch initially diagnosed Ms. Chaparro as

later changed this diagnosis to

deQuervain’s Syndrome of the left wrist

and tenhis elbow. Due to her medical

condition, pr. welch restricted Ms.

following the December 7, 1990 visit. In

accordance with Dr. Welch’s' medica]

recommendations, IBP reassigned Ms.

Chaparro to a number of light duty jobs

including labeling, laundry room, clean-

UP, and lower rendering.

On March 5S, 1991, Ms. Chaparro

retained an attorney and filed a workers’

compensation claim to recover for her

work-relateg injuries. IBP received

notification of the claim on March 8,

1991. In her Claim, Ms. Chaparro sought

compensation for temporary total

disability benefits along with job

accommodation and a vocational]

rehabilitation evaluation.

lifting more than ten pounds. The new

dispensary nurse, Rhonda Shipley, then

)

.

5A

assigned Ms. Chaparro to wrapping rounds,

which consists of using both hands to tear

off a sheet of plastic wrap and place it

on exposed carcasses or "rounds." On May

6, 1991, Ms. Chaparro informed Nurse

Shipley, that because of her injury, she

was having difficulty wrapping rounds

because it entailed using both of her

hands and raising her arm above her

shoulder. At Ms. Chaparro’s urging, on

May 9, 1991, Nurse Shipley called Dr.

Welch who, based upon Nurse Shipley’s

description, ascertained that the job

description fell within Ms. Chaparro’s

medical restrictions. Ms. Chaparro

visited Dr. Welch that same day, at which

time Dr. Welch concluded that, while Ms.

Chaparro’s description of the job differed

from that of Nurse Shipley’s, the job fell

within her medical restrictions.

On May 10, i991, Ms. Chaparro

complained to Nurse Shipley of fever,

nausea, achiness, dizziness, and vomiting.

Nurse Shipley instructed Ms. Chaparro to

see her personal physician and to obtain

a release from her physician prior to

returning to work. Nurse Shipley also

instructed Ms. Chaparro to call in every

day that she would be unable to work at

least 30 minutes prior to her shift. Ms.

Chaparro testified that she told Nurse

Shipley that she did not have a phone and

the nearest one to which she had access

was two to three blocks away. Ms.

Chaparro then went to see Dr. Nonhof, but

was unable to get an appointment until

Monday, May 13, 1991. Ms. Chaparro

testified that, after making her

appointment, she returned to IBP and told

Nurse Shipley about the appointment. She

6A

also testified that she telephoned the

personnel office on May 11, 1991 at

approximately 6:00 a.m. and left a message

on the office’s answering machine stating

that: "I wouldn’t be able to make it in

because I couldn’t get a doctor’s excuse.

I couldn’t get to see the doctor until the

13th." Trial record, at 157. On May 14,

1991, Ms. Chaparro returned to work with

a medical release.

That same day, her Supervisor, Dennis

Jones, informed her of the decision of the

personnel manager, Rick Nimrick, to

terminate her from employment based on two

personnel office"employee action reports"

which documented that she had unexcused

absences for May 11 and 13, 1991, and had

failed to notify the personnel office that

she would be absent. These two absences,

in addition to her October 29, 1990

absence, violated IBP’s three unexcused

absences Policy.’ Ms. Chaparro appealed

’ IBP’s "Unexcused Absence and

Tardy Policy" provides that an employee

will be terminated from employment for

receiving three unexcused absences. The

policy defines an "unexcused absence" as:

(1) any absence where an employee

fails to notify the company at least

thirty (30) minutes prior to his starting

time;

(2) any absence from which an

employee cannot Satisfactorily provide a

justifiable reason for absence;

(3) any absence for personal reasons

if the employee does not get prior

approval for taking time off from his

supervisor (emergencies and unusual

Mid pende dime tee Fhe

a er ee 2 ee

A OO A A IES Mp CLT LO de Nee ee I ites

WT Ti Eh aT SNS it heal Pins

7A

her termination to Mr. Nimrick, stating

that she had called in and left a message

on the answering machine on May 11, 1991.

Mr. Nimrick testified at trial from his

notes that Ms. Chaparro had said that she

thought she did not need to call in for

the two days she missed since she was sent

home by the nurse. Mr. Nimrick stated

that he did not recall Ms. Chaparro saying

that she had called in and that, if she

had, he would have mentioned it in his

notes and checked the answering machine to

verify whether or not she had left a

message. Because the company keeps the

tapes for approximately two months, the

tape was not available at trial. Mr.

Nimrick declined to excuse her absences

and terminated her employment based upon

her three unexcused absences.

B. Procedural History

On Mey 14, 1993, Ms. Chaparro filed

the present action Claiming that IBP

terminated her employment in retaliation

for her filing of a claim under the Kansas

Workers’ Compensation Act. At trial, Ms.

Chaparro presented testimony by five

witnesses relevant to this appeal: Martha

Arteaga, a co-worker; Minh Doung, the

present personnel manager at the IBP’s

Finney County facility; Doug Bolton, the

present complex personnel manager at IBP’s

Finney County facility; Gary Korte, a

former IBP in-house attorney; and Ms.

Chaparro herself. The district court

circumstances will be reviewed by your

Supervisor and the Personnel department)

- « + Aple’s App., Vol. I at 79.

8A

excluded the testimony of Jennifer

Dombkowski and Tim Russell, Supervisors at

Other IBp facilities, who Ms. Chaparro

Sought to have testify regarding IBP’s

employment practices.

Through her witnesses, Ms. Chaparro

Sought to establish several facts that,

taken together, would establish a causa]

connection between her filing of a

workers’ Compensation claim and IBP’s

termination of her employment. These

included: (1) derogatory comments made

about her by her Supervisor and the former

nurse; (2) IBP’s Policies which Sought to

limit workers’ compensation costs to the

company; (3) the proximity in time between

her filing of her workers’ compensation

Claim and the events leading to her

termination; and (4) IBP’s use of the

three unexcused absences Policy as a

pretext for retaliating against her

all three absences against her. At the

Close of Ms. Chaparro’s case, IBP moved

for judgment as a matter of law. The

court denied IBP’s motion.

IBP then called four witnesses: Dr.

Lauren Welsh, Rhonda Shipley, Dennis

Jones, and Rick Nimrick. Dr. Welsh and

Nurse Shipley documented Ms. Chaparro’s

injuries ana Subsequent treatment, and Mr.

Bolton and mr. Nimrick explained IBP’s

Personnel policies and Ms. Chaparro’s

termination. Ipp also sought to Subpoena

documents from the KDHR concerning written

and oral Statements made by Ms. Chaparro

to the KDHR in connection with her

application for workers’ compensation

benefits. The district court, on the

.

4

AP Re toate Bt:

rr ee Ve vee

9A

motion of KDHR, excluded this evidence on

the basis that it was protected as

privileged and confidential pursuant to

Kan. Stat. Ann § 44-714(f). At the close

of all the evidence in the case, IBP

renewed its motion for judgment as a

matter of law. The district court granted

IBP’s motion and this appeal followed.

II. DISCUSSION

Ms. Chaparro challenges the district

court’s grant of IBP’s motion for judgment

aS a matter of law on the basis that she

produced sufficient evidence to support a

finding by a reasonable jury that IBP

acted with retaliatory intent in

dismissing her from employment.’ Ms.

e Ms. Chaparro also challenges the

district court’s grant of IBP’s motion for

judgment as a matter of law on the basis

that it denied her of her Seventh

Amendment right to a trial by jury.

Insufficiency of the evidence was one of

the common law grounds existing prior to

the adoption of the Seventh Amendment in

1791 which allowed a trial judge to direct

a verdict in a case. Montgomery Ward &

Co. v. Duncan, 311 U.S. 243, 250 (1940).

It is well established that this

procedure, from which the present Fed. R.

Civ. P. 50 is derived, does not violate

the Seventh Amendment. Galloway v. United

States, 319 U.S. 372, 389-92 (1943); see

United States v. Hess, 341 F.2d 444, 448

(10th Cir. 1965). On this basis, we

consider Ms. Chaparro’s Seventh Amendment

Claim as subsumed within her challenge to

the district court’s grant of judgment as

10A

Chaparro also challenges the district

court’s exclusion of the testimony of

Jennifer Dombkowski and Tim Russell as an

abuse of discretion. IBP cross appeals,

asserting that the district court erred in

quashing its subpoena duces tecum on the

KDHR as_ privileged and _ confidential

information pursuant to Kansas statute.

The KDHR responds as cross-appellee that

Kan. Stat. Ann § 44-714(f) protects from

disclosure information and documents it

generates related to the filing of

workers’ compensation claims.

Because we uphold the district

court’s grant of IBP’s motion for judgment

as a matter of law, we decline to consider

whether Kan. Stat. Ann. §44-714(f)

protects the KDHR from disclosing

information it generates concerning

workers’ compensation claimants.

Therefore, we limit our consideration to

the following issues on this appeal: (1)

did the district court err in granting

IBP’s motion for judgment as a matter of

law on Ms. Chaparro’s retaliatory

discharge claim; and (2) did the district

court abuse it s discretion in excluding

the testimony of plaintiff’s witnesses who

would testify regarding employment

conditions at another of IBP’s facilities?

A. Motion for Judgment as a Matter of

Law

a matter of law for IBP and the question

of whether there was a "legally sufficient

evidentiary basis for a reasonable jury"

to find in her favor. Fed. R. Civ. P.

50(a) (1).

|

11A

We review the grant of a Fed. R. Civ.

P. 50(a) motion for judgment as a matter

of law de novo, applying the same legal

standards as did the district court.

Clark v. Brien, 59 F.3q 1082, 1086 (10th

Cir. 1995); Thompson v. State Farm Fire &

; Cas. Co., 34 F.3a 932, 941 (10th Cir.

: 1994). In conducting this review, we must

: determine whether, viewing the evidence in

the light most favorably to the non-moving

party, the inferences to be drawn from the

evidence are so clear that reasonable

minds could not differ as to the

conclusion. cKenzie v. Renberg’s —..

94 F.3d 1478,1483 (10th Cir. 1996), Rajala

Vv. Allied Corp., 919 F.2a 610, 615 (10th

Cir. 1990). Ina diversity case such as

this one, "we examine the evidence in

terms of the underlying burden of proof as

dictated by state law." Vasey _v. Martin

Marietta Corp., 29 F. 3q 1460, 1464 (10th

Cir. 1994).

i. The Kansas Burden of Proof

7 nF VOL

In Kansas, the employer-employee

relationship is governed by the

employment-at-will doctrine. The doctrine

j holds that, in the absence of an express

or implied agreement to the contrary, the

employment is terminable at the will of

either party. J SON _v. National Beef

Packing Co., 551 P.2a 779, 781 (Kan.

1976). An exception to this general rule

exists if an employee is dismissed in

retaliation for exercising his or her

rights under the Kansas Workers’

Compensation Act. Murphy v. City of

Topeka, 630 P.2ad 186, 192 (Kan. ct. App.

1981); Ortega v IBP, 874 P.2a 186, 192

12A

(Kan. Ct. App. 1981); Ortega v. IBP, inc.,

255 Kan. 874 P.2d 1188, 119 (Kan. 1994).

In Ortega, the Kansas Supreme Court

set out the evidentiary standard for

evaluating a retaliatory discharge claim

in Kansas. The court there provided: "A

party having the burden of proving a

discharge from employment in retaliation

for having filed a workers’ compensation

Claim.must be clear and convincing in

nature." 874 P.2d at 1198. In defining

this somewhat unique, hybrid standard, the

court explained that the "preponderance of

the evidence standard" requires "evidence

which shows a fact is more probably true

than not true." id. at 1197. MThe court

Stated that evidence is "clear if it is

certain, ambiguous, and plain to the

understanding"; and "it is convincing if

it is reasonable and persuasive enough to

cause the trier of facts to believe it."

id. at 1198 (citing Chandler v. Central

Oil Corp., 853 P.2d 649, 655 (Kan. 1993)).

For the evidence to be "clear. and

convincing":

(T]he witnesses to a fact must

be found to be credible; the

facts to which the witnesses

testify must be distinctly

remembered; the details in

connection with the transaction

must be narrated exactly and in

order; the testimony must be

Clear, direct and weight; and

the witnesses must be lacking in

confusion as to the facts at

issue.

13A

Modern Air Conditioning, Inc. Vv.

Cinderella Homes ne., 596 P.2d 816,824

(Kan. 1979) (citations omitted).

2. Elements of Retaliatory Discharge in

Kansas

To establish a prima facie case of

retaliatory Gischarge under Kansas law, a

Plaintiff must produce evidence

demonstrating: (1) that the plaintiff

filed a claim for workers’ compensation

benefits or sustained an injury for which

he or she might assert a future Claim for

Such benefits; (2) that the employer had

knowledge of the Plaintiff’s compensation

Claim or the fact that the plaintiff haa

Sustained a work-related injury for which

he or she might file a future claim for

benefits; (3) that the employer terminated

the plaintiff’s employment; and (4) that

a causal connection existed between the

protected activity or injury, and the

termination. Huffman v. Ace Elect. Co.

inc., 883 F. Supp. 1469, 1475 (D. Kan.

1995); Llche .. Oard o Wyandotte

County Commissi ers, 787 P.2d 1204, 1208

(Kan. Ct. App. 1990). Ultimately, the

Plaintiff can recovery only upon proving

i that the discharge was "based on" the

employer’s intent to retaliate.3 See

ana Bee RD ea

SRN eI Maniatis ay da WP

FRANC ed

ae aSinthae Bing tte hp

3 The federal district courts in

Kansas have applied the United States

Supreme Court’s burden shifting approach

established in McDonne uglas Corp. vy.

Green. 411 U.S. 792 (1973), for analyzing

state retaliatory discharge claims. See

Huffman, 883 PF. Supp at 1475; accord

Robinson v. Wilson Concrete Co., 913 f.

14A

Brown v. United Methodist Homes for the

Aged, 815 P.2d 72, 88 (Kan. 1991).

Supp. 1476, 1483 (D. Kan. 1996), Rosas v.

IBP, Inc., 869 F. Supp. 912,916 n. 1 (D.

Kan. 1994). Under the burden shifting

approach, once the plaintiff establishes

a prima facie case, the burden of

Production shifts to the defendant to

rebut the inference that its motives were

retaliatory by articulating a legitimate,

non-retaliatory motive for the

termination. If the defendant carries

this burden Of production, thereby

refuting the plaintiff’s prima facie

case, the burden then shifts back to the

plaintiff to prove by a preponderance of

the evidence, which is Clear and

convincing in nature, that the defendant

acted with the retaliatory intent. Rosas,

869 F. Supp. at 916.

While the Kansas courts have never

Specifically held that this burden

shifting approach applies in the context

of retaliatory discharge cases, the Kansas

Supreme Court in Ortega discussed its

application in employment discrimination

and public employee discharge cases within

the context of elaborating the standard

for analyzing retaliatory discharge

Claims. 874 P.2a 1188, 1196-97. We agree

with the federal district courts that

Kansas courts would presumptively apply

the McDonnell Ougias burden shifting

approach in retaliatory discharge cases.

However, because we hold that Ms. Chaparro

has not established a prima facie case for

retaliatory discharge under Kansas law, we

do not analyze her claim in the context of

this burden shifting approach.

15A

The central issue on this appeal is

whether Ms. Chaparro met the fourth

element of her prima facie case. That is,

whether, at the close of all of the

evidence in the case, there was "clear and

convincing" evidence by which a reasonable

juror could find "it more probable than

not" that IBP based its decision to

terminate Ms. Chaparro on her filing of a

workers’ compensation clain. Regardless

of whether there is a factual dispute as

to whether Ms. Chaparro should have been

terminated for the tree unexcused absences

assessed against her, we conclude that Ms.

Chaparro failed to present clear and

convincing evidence that IBP’s termination

decision was improperly motivated by her

filing of a workers’ compensation claim.

3. Ms. Chaparro’s Evidence

Our task on appeal is to review Ms.

Chaparro’s evidence to determine if it

provides the "preponderance of evidence

which is clear and convincing" as required

by Kansas law. First, Ms. Chaparro

introduced evidence alleging that IBP

employees made derogatory statements about

her and sought to terminate her from

employment after she reported and began

receiving treatment for her injuries.

Martha Arteaga, an IBP employee who worked

with Ms. Chaparro, testified that she

overheard former IBP nurse Juanita Meadows

refer to Ms. Chaparro as a "lazy bitch"

and that she observed Nurse Meadows

mistreating Ms. Chaparro in her. work

assignments following Ms. Chaparro’s

accident. The difficulty in utilizing

this testimony to show retaliatory intent

is that Ms. Chaparro offered no evidence

16A

to demonstrate that Nurse Meadows had a

Supervisory capacity at IBP or had any

influence regarding Ms. Chaparro’s

termination. Most significantly, it is

undisputed that Nurse Meadows left her

dispensary job in March 1991, two months

prior to Ms. Chaparro’s termination.

Ms. Arteaga also testified that she

Overheard Dennis Jones, Ms. Chaparro’s

work supervisor, discussing Ms. Chaparro

with another IBP employee in which she

stated: "they was saying, oh, I’m going

te fire her ass you know, because she’s

complaining too mu." Trial record, at

15. After being asxed whether there was

any question that she heard Mr. Jones say

that he was going to fire Ms. Chaparro,

Ms. Arteaga responded: "No. He just say

that she was making trouble." Id. While

this evidence might provide some--

although far from "clear and convincing"--

evidence of retaliatory intent, there is

a problem in linking these comments

directly with IBP’s decision to terminate

Ms. Chaparro’s employment. The testimony

of Mr. Jones and the personnel director,

Rick Nimrick, indicates that Mr. Jones had

no influence over whether or not to

terminate an employee for absences. The

decision to discharge employees for

unexcused absences is generated by Mr.

Nimrick in the personnel department and

only sent to the supervisor to relay the

decision to the employee. The only input

of the supervisor regarding absences,

according to Messrs. Jones and Nimrick, is

to relay information to the personnel

office concerning employee absences.

Without any such connection to her

dismissal from employment, we find that

a er nee ae ee on

17A

this evidence provides no support for

determining whether IBP acted with

retaliatory intent in discharging Ms.

Chaparro.

Second, Ms. Chaparro offers evidence

regarding IBP’s efforts to reduce workers’

compensation costs in seeking to prove

that there is a corporate policy to

retaliate against employees who file

workers’ compensation claims. Gary Korte,

a former IBP corporate attorney, testified

that IBP is self-insured for workers’

compensation benefits, that the company

offers prizes for employees to promote

workplace safety, that the company

disseminated information to discourage the

hiring of attorneys in bringing workers’

compensation claims, and that the company

has an annual goal for workers’

compensation of $350.00 per employee.

This evidence, however, even if it

demonstrates and attempt by the company to

discourage workers’ compensation claims,

does nothing to support a claim that the

company retaliated against employees once

such claims were filed. Indeed, many

large businesses make such effcrts and

understandably so. Furthermore, Mr. Korte

stated on cross-examination that he

believed that it actually costs’ the

company more money when they terminated an

employee because it increased the average

weekly wage and could trigger vocational

retraining which would increase the cost

of providing workers’ compensation

benefits.

Third, Ms. Chaparro asserts that the

proximity in time between the filing of

her workers’ compensation claim and

18A

termination from IBP is indicative of

retaliatory intent. IBP received notice

of Ms. Chaparro’s claim on March 8, 1991

and dismissed her from employment on May

14, 1991--a period of 2 months. We

recognize that close proximity in time may

provide some probative evidence of

retaliatory intent. In Robinson v. Wilson

Concrete Co., 913 F. Supp. 1476 (D. Kan.

1996), for instance, in reviewing

retaliatory discharge cases in Kansas, the

district court stated that while proximity

in time can provide some evidence of

retaliatory motive, st alone is

"insufficient to show by evidence of a

clear and convincing nature that

defendant’s proffered nonretaliatory

explanation for plaintiff’s termination .

- + Was pretextual." id. at 1484-85.

However, such evidence coupled with other,

more probative evidence, will provide

Support for a retaliatory discharge clain.

Id. at 1484-85,

Finally, Ms. Chaparro focuses most of

her attention on rebutting IBP’s proffered

reason for dismissing her--the neutral

unexcused absences policy--which she

claims IBP used merely as a pretext for

retaliation. As discussed above, Ms.

Chaparro testified (1) that she had spoken

with Nurse Shipley on May 10, 1991,

informing her that she would be unable to

see a doctor until May 14; (2) that she

had called in from a neighbor’s phone on

May 11 and left a recorded message with

IBP’s personnel office; and (3) that she

returned to work on May 14 with a doctor’s

excuse.

— |

ee _—

. ee ae

St al ts ne

19A

Ms. Chaparro introduced IBP’s

employment calendar into evidence to

Support her contention that she had called

in that day. IBP’s attendance calendar

for Ms. Chaparro shows that the number

"12"~-the code for an excused absence--had

originally been written down for May 11,

1991. Written over the "12" is an "11]"--

the code for an unexcused absence. In

addition, on the back of the calendar

where the explanation for absences are

contained, is written "sick" for May 11.

At trial, neither party offered any clear

evidence as to who made the change or why

it was made, other than IBP’s suggestion

that it was a clerical error.

IBP’s written policy and testimony by

IBP personnel Supervisors Messrs. Doung

and Nimrick provide that an employee is

required to inform the company prior to

each day he or she will be absent. Trial

record, at 29, 34, 385-86. Ms. Chaparro

also acknowledged in her testimony that

Nurse Shipley had instructed her to call

in every day that she would be absent when

she left IBP on May 10, 1991 to see her

family physician. id. at 216. Ms.

Chaparro does not contend that she called

in on October 29--the two other days for

which IBP cited her unexcused absences.

Furthermore, there is no evidence in the

record that returning with a doctor’s

excuse after an unexcused absence will

excuse that absence. Thus, the only issue

remaining to this argument is whether Ms.

Chaparro called in on May 11, and whether

the calendar change supports her

testimony.

20A

While this evidence does indicate

that there is a factual dispute as to

whether Ms. Chaparro should have been

assessed an unexcused absence on May 11,

it does not demonstrate that IBP acted

with retaliatory intent in dismissing her

from employment. As Kansas law

recognizes, and employer may terminate an

employee pursuant to a neutral attendance

policy--even where the employee is injured

and the employer cannot provide suitable

work. a nd_v. Archer Daniels Midland

Co., 762 F. Supp. 901, 904-5 (D. Kan.

1991). Aside from insinuating

conspiratorial action on the part of IBP’s

personnel office, Ms. Chaparro does not

provide any evidence to Support her

contention that the personnel office acted

with retaliatory intent in citing her an

unexcused absence on May 11. The

personnel director’s notes of his

conversation with Ms. Chaparro on May 14

do not indicate that Ms. Chaparro made any

Claim that she had telephoned IBP. More

Significantly, on cross-examination, Ms.

Chaparro’s testimony seemed unclear as to

whether she called in when sh stated: "I

explained to [Mr. Nimrick]) that is did not

have a phone at that time. And I couldn’t

get to a phone. I couldn’t possibly

disturb my neighbor at six, five o’clock

in the morning to use her Phone. That’s

what I had told Mr. Nimrick." Trial

record, at 224-25. On balance, the

evidence offered by Ms. Chaparro on this

issue does not meet the "Clear and

convincing" standard required by the

Kansas courts to demonstrate retaliatory

intent.

21A

The foregoing evidence offers no

proof that IBP terminate Ms. Chaparro for

filing a workers’ compensation claim. The

evidence presented by Ms. Chaparro falls

Short of evidence of retaliatory intent

that is "certain, unambiguous, and Plain

to the understanding" or "reasonable and

persuasive enough to cause the trier of

facts to believe" that defendant

terminated plaintiff "based on" her filing

Of a workers’ compensation clain. See

Ortega, 874 P.2d at 1198; Brown, 815 P.2q

at 88. No evidence exists to show that an

excused absence was later altered because

anyone at IBP desired to retaliate against

Ms. Chaparro for filing ai workers’

compensation claim. Admittedly, this

evidence would be difficult to obtain.

But it is Kansas law which sets this

extremely high hurdle and it is Ms.

Chaparro’s responsibility to offer more

than just Speculation to meet her

evidentiary burden of proof. In sum, we

agree with the district court that a

reasonable jury could not find, based on

a preponderance of evidence which is clear

and convincing, that IBpP terminated Ms.

Chaparro based on her filing of a workers’

compensation clain. After carefully

judgment as a matter of law on Ms.

Chaparro’s retaliatory discharge claim.

B. The testimony of Ms. Dombkowski and

Mr. Fussel)]

Where a trial court excludes evidence

and the offering party properly objects at

trial, we will reverse the court’s

decision only if the exclusion of the

22A

evidence constitutes an abuse of

discretion that results. in "manifest

injustice to the parties." Thompson, 34

F.3d at 939 (citing Vv t

W , 11 F.3d 957, 960 (10th

Cir. 1993)). The district court is given

broad discretion in deciding evidentiary

matters. ilbe Vv. Cosc nce., 989 F.2d

399, 402 (10th Cir. 1993). 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 the lower court

made a clear error of judgment or exceeded

the bounds of permissible choice in the

circumstances." Pandit v. American Honda

Motor Co., Inc., 82 F.3qd 376, 379 (10th

Cir. 1996).

Ms. Chaparro appeals the district

court’s decision to exclude the testimony

of Jennifer Dombkowski and Tim Russell.

Ms. Dombkowski and Mr. Russel] are both

former supervisors at IBP’s Emporia,

Kansas facility. Ms. Chaparro sought to

offer their testimony regarding specific

events and conversations at IBP’s Emporia

facility to demonstrate that "supervisors

ar instructed to fire injured employees"

and that they "are asked to find pretest

to fire injured employees." Aplt’s Br.,

at 39. According to Ms. Chaparro, such

testimony would have allowed her to

present to the jury " the whole rational

(sic) for which plaintiff was terminated"

by providing direct evidence of IBP’s

state of mind. Id. at 41-42.

The district court excluded the

testimony based on three independent

grounds: (1) that the evidence was not

be

a ET ee

23A

relevant under Fed. R. Evid. 491 in that

it had no tendency to prove any ultimate

facts at issue in the case; (2) that Ms.

Chaparro failed to demonstrate pursuant to

Fed R. Evid. 104(b) a necessary condition

of fact, that is, that what allegedly

occurred at the Emporia facility had

anything to do with events at the Finney

County facility; ana (3) that even if it

were relevant, the probative value of the

proffered testimony was Substantially

outweighed by the danger of confusion of

the issues in the case under Fed. R. Evid.

403. Trial record, at 183-85.

We find no abuse of discretion in the

Gistrict court’s ruling to exclude the

testimony of both witnesses. While the

testimony of other employees as to their

treatment by an employer is relevant in

assessing an employer’s retaliatory

intent, a plaintiff must demonstrate that

the circumstances involving the other

employees ar such that their statements

can "logically or reasonably be tied to

the decision to terminate {the

Plaintiff)." Spulak v. K Mart Corp., 894

F. 2d 1150, 1156 n.2 (10th Cir. 1990). In

this instance, the events to which both

Ms. Dombkowski and Mr. Russel] would have

testified occurred after Ms. Chaparro’s

termination from employment at the Finney

County facility on May 14, 1991.

Specifically, Ms. Dombkowski sought to

testify regarding conversations with her

immediate supervisor at the Emporia

facility which occurred between October

1992 and July 1993. Though Ms. Chaparro

did not offer the Substance of Mr.

Russell’s testimony into evidence, the

district court concluded that his

24A

testimony would be excluded on the same

basis as Ms. Dombkowski’s testimony.

Trial record, at 188. Ms. Chaparro also

failed to establish any similarity in the

employment situations of the two

facilities, that either witness knew

anyone or anything about personnel

decisions at the Finney County facility,

or that their testimony would provide

evidence of a company-wide policy of

retaliation against employees who file

workers’ compensation clains. See Trial

record, at 180-85.

On this basis, the proffered

testimony did not have "any tendency to

make the existence of any fact that is of

consequence to the determination of the

action more probable or less probable than

it would be without the evidence." Fed.

R. Evid. 401. Such evidence, if

introduced, could also lead to confusion

of the issues by members of the jury which

Fed. R. Evid. 403 seeks to prohibit.

Thus, we find that the district court did

not abuse its discretion in excluding the

testimony of Ms. Dombkowski and Mr.

Russell.

III. CONCLUSION

For the reasons discussed fully

above, that is, that Ms. Chaparro failed

to establish a prima facie case for

retaliatory discharge pursuant to Kansas

law and that the district court did not

abuse its discretion in excluding the

testimony of Ms. Dombkowski and Mr.

Russell, we AFFIRM the judgment of the

district court. We need not reach the

-Cross~appeal issue of whether Kan. Stat.

a

25A

Ann. §44-714(f) protects the KDHR from

disclosing information relaited to workers’

compensation claimants.

The mandate shall issue forthwith.

Emtered for the

Court,

Roobert H. Henry

Ciircuit Judge

26A

APPENDIX B - ENTRY OF JUDGMENT OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF KANSAS FILED FEBRUARY 10,

1995

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

AMANDA CHAPARRO, )

Plaintiff, )

) CIVIL ACTION

vs. ) No. 93-2200-

Defendant.

WH

w

'~0

H

=z

2)

ENTRY OF JUDGMENT

Trial in this case was held on

February 6-9, 1995. At the close of all

evidence, defendant moved for judgment as

a matter of law pursuant to Fed. R. Civ.

P. 50(a). For the reason stated on the

record, the court grants defendant’s

motion and enters judgment in favor of

defendant, with defendant to recover its

costs.

Copies of this order shall be mailed

dot counsel of record for the parties.

IT IS SO ORDERED.

Dated at Kansas City, Kansas this 10

day of February, 1995.

G. T. VAN BEBBER

United State District Judge

eta Aa ala Lids

27A

APPENDIX C = ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH

CIRCUIT DATED FEBRUARY 11, 1997

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AMANDA CHAPARRO,

Plaintiff-Appellant,

Nos. 95-3078

Vv. 95-3098

Defendant-Appellee,

STATE OF KANSAS, DEPARTMENT

OF HUMAN RESOURCES,

Movant~-Appellee.

ORDER

Filed February 11, 1997

Before HENRY, Circuit Judge, RONEY,”

Senior Circuit Judge, and MURPHY, Circuit

Judge.

“Honorable Paul H. Roney, Senior

Circuit Judge, United States Court of

Appeals for the Eleventh Circuit, sitting

by designation.

28A

The appellant’s motion to file the

petition for rehearing out of time is

granted. The request to_ sanction

contained in appellee’s response is

denied.

The appellant’s petition for

rehearing is denied by the panel that

rendered the decision. The suggestion for

rehearing en banc was transmitted to all

of the judges of the court who are in

regular active service as required by Fed.

R. App. P. 35. No member of the panel and

no judge in regular active service on the

court requested that the court be polled

on rehearing en banc so the suggestion for

rehearing is also denied.

Entered for the Court

PATRICK FISHER, Clerk of the Court

by: L. Balzano

Deputy Clerk