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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 811

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0758%3A1. Public record. Not legal advice.