UNITED STATES COURT OF APPEALS Filed 12/24/96 TENTH CIRCUIT
AMANDA M. CHAPARRO,
Plaintiff-Appellant /Cross-Appellee, Case Nos. 95-3078 v. 95-3098
IBP, INC.,
Defendant-Appellee /Cross-Appellant, __________________________________
STATE OF KANSAS, DEPARTMENT OF HUMAN RESOURCES,
Movant/Cross-Appellee.
ORDER AND JUDGMENT*
Before HENRY, MURPHY and RONEY,** Circuit Judges.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** The Honorable Paul H. Roney, Senior Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation. 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 her 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
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
2 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
absence 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 restrictions on Ms. Chaparro’s use of her left hand and placed her on a “light
duty” paint crew job until November 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, Ms. Chaparro began
medical treatment with Dr. Lauren Welch. Dr. Welch initially diagnosed Ms. Chaparro as
suffering from carpal tunnel syndrome, but later changed this diagnosis to deQuervain’s
3 syndrome of the left wrist and tennis elbow. Due to her medical condition, Dr. Welch
restricted Ms. Chaparro to work assignments in which she would not be required to use
her left hand and continued to examined and treat Ms. Chaparro approximately every two
weeks following the December 7, 1990 visit. In accordance with Dr. Welch’s medical
recommendations, IBP reassigned Ms. Chaparro to a number of light duty jobs including
labeling, laundry room, clean-up, and lower rendering.
On March 5, 1991, Ms. Chaparro retained an attorney and filed a workers’
compensation claim to recover for her work-related 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.
Following a medical examination on May 1, 1991, Dr. Welch revised Ms.
Chaparro’s medical restrictions to allow the limited use of her left hand while not lifting
more than ten pounds. The new dispensary nurse, Rhonda Shipley, then 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
4 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, 1991, 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. Nonhoff, 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 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
5 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.1 Ms. Chaparro appealed 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
1 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 circumstances will be reviewed by your supervisor and the Personnel department) . . . . Aple’s App., Vol. I, at 79.
6 On May 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 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 causal 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 because she believes IBP unfairly assessed 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.
7 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
and subsequent treatment, and Mr. Bolton and Mr. Nimrick explained IBP’s personnel
policies and Ms. Chaparro’s termination. IBP 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 motion of the 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.2 Ms. Chaparro also challenges the district court’s exclusion of the
2 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 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,
8 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 its
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
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 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).
9 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.3d 1082, 1086 (10th Cir. 1995); Thompson v. State Farm Fire & Cas. Co., 34 F.3d
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. McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1483 (10th Cir. 1996), Rajala v.
Allied Corp., 919 F.2d 610, 615 (10th Cir. 1990). In a 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.3d 1460, 1464 (10th Cir. 1994).
1. The Kansas Burden of Proof
In Kansas, the employer-employee relationship is governed by the employment-at-
will doctrine. The doctrine holds that, in the absence of an express or implied agreement
to the contrary, the employment is terminable at the will of either party. Johnson v.
National Beef Packing Co., 551 P.2d 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.2d 186, 192
(Kan. Ct. App. 1981); Ortega v. IBP, Inc., 874 P.2d 1188, 1191 (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
10 having the burden of proving a discharge from employment in retaliation for having filed
a workers compensation claim must establish that claim by a preponderance of the
evidence, but the evidence 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. The court stated that evidence is “clear if it is
certain, unambiguous, 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 weighty; and the witnesses must be lacking in confusion as to the facts at issue.
Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 596 P.2d 816, 824 (Kan.
1979)(citations omitted).
2. Elements of Retaliatory Discharge in Kansas
To establish a prima facie case of retaliatory discharge 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
11 compensation claim or the fact that the plaintiff had 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 Elec. Co., Inc., 883 F. Supp.
1469, 1475 (D. Kan. 1995); Pilcher v. Board of County Comm’rs of Wyandotte County,
787 P.2d 1204, 1208 (Kan. Ct. App. 1990). Ultimately, the plaintiff can recover only
upon proving that the discharge was “based on” the employer’s intent to retaliate.3 See
Brown v. United Methodist Homes for the Aged, 815 P.2d 72, 88 (Kan. 1991).
3 The federal district courts in Kansas have applied the United States Supreme Court’s burden shifting approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for analyzing state retaliatory discharge claims. See Huffman, 883 F. Supp. at 1475; accord Robinson v. Wilson Concrete Co., 913 F. 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 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.2d 1188, 1196-97. We agree with the federal district courts that Kansas courts would presumptively apply the McDonnell Douglas 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.
12 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 that not” that IBP based its decision to terminate Ms. Chaparro on her filing of a
workers’ compensation claim. Regardless of whether there is a factual dispute as to
whether Ms. Chaparro should have been terminated for the three 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 to demonstrate that Nurse Meadows had a supervisory
13 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 to fire her ass, you know, because she’s complaining too
much.” Trial record, at 15. After being asked 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 this evidence provides no support for determining whether IBP
acted with retaliatory intent in discharging Ms. Chaparro.
14 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
an 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 efforts 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 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 approximately 2 months. We recognize that
close proximity in time may provide some probative evidence of retaliatory intent. In
15 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, it 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
1485. However, such evidence coupled with other, more probative evidence, will provide
support for a retaliatory discharge claim. 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.
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
16 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, 1990 or May
13, 1991, nor that she originally contested the assessment of an absence 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.
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, an employer may terminate an employee pursuant to a neutral
attendance policy--even where the employee is injured and the employer cannot provide
suitable work. Raymond v. Archer Daniels Midland, Co., 762 F.Supp. 901, 904-05
(D.Kan. 1991). Aside from insinuating conspiratorial action on the part of IBP’s
17 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 she stated: “I explained to [Mr. Nimrick] that I 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.
The foregoing evidence offers no proof that IBP terminated 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 claim. See Ortega, 874 P.2d at 1198; Brown, 815 P.2d 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 a workers’ compensation claim. Admittedly, this
evidence would be difficult to obtain. But it is Kansas law which sets this extremely high
18 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 IBP terminated Ms. Chaparro based on her filing of a workers’ compensation claim.
After carefully considering all the evidence presented at the trial, we find that IBP is
entitled to judgment as a matter of law on Ms. Chaparro’s retaliatory discharge claim.
B. The Testimony of Ms. Dombkowski and Mr. Russell
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 evidence constitutes
an abuse of discretion that results in “manifest injustice to the parties.” Thompson, 34
F.3d at 939 (citing Angelo v. Armstrong World Indus. Inc., 11 F.3d 957, 960 (10th Cir.
1993)). The district court is given broad discretion in deciding evidentiary matters.
Gilbert v. Cosco, Inc., 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.3d 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. Russell are both
19 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 are instructed to fire injured employees” and that they “are
asked to find pretext 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 relevant under Fed. R. Evid. 401 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; and (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 district 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 are such that their
statements can “logically or reasonably be tied to the decision to terminate [the plaintiff].”
20 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. Russell 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 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 claims. 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.
21 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. Ann. § 44-714(f) protects the KDHR from disclosing
information related to workers’ compensation claimants.
The mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry Circuit Judge