Coletti v. Cudd Pressure Control

• Decision Date: 05 January 1999
• Docket Number: No. 97-8125,97-8125
• Citation: 165 F.3d 767
• Parties: 137 Lab.Cas. P 58,519, 14 IER Cases 1351 Barbara COLETTI, Plaintiff-Appellant, v. CUDD PRESSURE CONTROL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 767

165 F.3d 767

137 Lab.Cas. P 58,519, 14 IER Cases 1351

Barbara COLETTI, Plaintiff-Appellant, v. CUDD PRESSURE CONTROL, Defendant-Appellee.

No. 97-8125.

United States Court of Appeals Tenth Circuit.

Jan. 5, 1999.

Walter Urbigkit of Frontier Law Center, Cheyenne, Wyoming, for Plaintiff-Appellant.

Stephen C. Key (Bruce S. Asay, Associated Legal Group, Cheyenne, Wyoming, with him on the brief) of Karger Key, P.C., Irving, Texas, for Defendant-Appellee.

Before ANDERSON, BRORBY and CAMPBELL, ^* Circuit Judges.

BRORBY, Circuit Judge.

Plaintiff, Ms. Barbara Coletti, appeals a jury verdict and judgment denying her retaliatory discharge, public policy tort claim against her former employer, Cudd Pressure Control ("Cudd"). Ms. Coletti alleges Cudd fired her for filing a workers' compensation claim. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Ms. Coletti raises several issues on appeal. First, she contends the trial court's jury instructions improperly defined the Wyoming Workers' Compensation public policy tort claim for retaliatory discharge, and included an improper "presumption" of regularity in the employer's business conduct. Second, she alleges the trial court improperly denied her the opportunity to introduce deposition testimony as substantive evidence because the deponents were present at trial and available to testify. Third, Ms. Coletti claims the trial court improperly dismissed her claims of fraudulent creation of evidence and intentional infliction of emotional distress. Fourth, she asserts the trial court erred by refusing to allow her to present testimony purporting to show Cudd's pattern of retaliatory conduct toward employees who made workers' compensation claims. Finally, Ms. Coletti contends the trial court should have imposed sanctions for Cudd's alleged failure to timely and adequately comply with the court's discovery orders.

BACKGROUND

Ms. Coletti was formerly an at-will employee working as an administrator for Cudd, an oil and gas well control and specialty services company, in its Rock Springs, Wyoming, office. She also supplemented her income by working as an independent contractor performing janitorial services for the company. On the evening of January 26, 1995, Ms. Coletti injured her back while attempting to close the front gate to Cudd's premises. Ms. Coletti mentioned her back pain to Cudd's district manager, Ralph Studdard, the following morning and later told the safety director, Gene Holt, about her injury; however, she did not seek medical attention or file a workers' compensation claim at that time. Three months later, while receiving medical treatment for an insect bite, Ms. Coletti asked the doctor to examine her back. Even after the visit to the doctor, she still did not apply for workers' compensation benefits.

In the Spring of 1995, Cudd supervisors visited the Rock Springs office in an attempt to cure certain problems the company was having with operations there, particularly with regard to certain aspects of Ms. Colletti's job performance. According to Ms. Starla Bradley, an administrative supervisor with Cudd, she traveled to the company's Rock Springs office to evaluate the state of affairs, observe Ms. Coletti, and help her improve her job performance. After her visit and review of the situation, Ms. Bradley informed Ms. Coletti she was placing her on a "30-day job improvement period." This meant Ms. Coletti had thirty days to make positive changes in her job performance or be fired. However, during this probationary period, Ms. Coletti's troubles at work continued. Her supervisors repeatedly disciplined her for leaving the office and forwarding phone calls over the lunch hour, and reprimanded her for unexcused absences from work.

Following these events, on May 5, 1995, the district manager, Don Rode, decided to Following her termination, Ms. Coletti filed suit against Cudd alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., retaliatory discharge under Wyoming law, and breach of the implied covenant of good faith and fair dealing. The trial court granted Cudd's initial motion for summary judgment and dismissed Ms. Coletti's Americans with Disabilities Act and covenant of good faith and fair dealing claims. However, the court subsequently allowed Ms. Coletti to amend her complaint to include allegations of "tortious creation of documents" and intentional infliction of emotional distress. The district court granted Cudd's motion to dismiss the tortious creation of documents claim because the cause of action was not recognized under Wyoming law, but refused to dismiss Ms. Coletti's intentional infliction of emotional distress claim. After trial, however, the district court found insufficient evidence to instruct the jury on intentional infliction of emotional distress, and dismissed the claim. Following deliberation, the jury returned a verdict in favor of Cudd on the sole remaining issue of retaliatory discharge.

terminate Ms. Coletti's employment. Mr. Rode cited poor job performance and unexcused absences as the basis for her discharge. Coincidentally, on the day she was terminated, Ms. Coletti completed a workers' compensation report for the injury she suffered January 26, 1995. However, Mr. Rode claimed he did not know Ms. Coletti had filed the workers' compensation claim at the time he fired her.

DISCUSSION

1. Contested Jury Instructions

Ms. Coletti contends the court gave two improper jury instructions. She argues the first instruction created an impermissible presumption of business regularity, and the second instruction misstated the law pertaining to her Wyoming Workers' Compensation retaliatory discharge claim. We disagree with her allegations and conclude neither instruction misled or confused the jury, improperly stated the applicable law, or resulted in prejudice.

It is well settled the admission or exclusion of a particular jury instruction is left to the sound discretion of the trial court. Harris Mkt. Research v. Marshall Mktg. & Communications, Inc., 948 F.2d 1518, 1528 (10th Cir.1991). We review the court's refusal to give a particular instruction for abuse of discretion. United States v. Lee, 54 F.3d 1534, 1536 (10th Cir.), cert. denied, 516 U.S. 895, 116 S.Ct. 247, 133 L.Ed.2d 173 (1995). When we review a claim of error relating to jury instructions, we read and evaluate the instructions in light of the entire record to determine if they "fairly, adequately and correctly state the governing law and provide the jury with an ample understanding of the applicable principles of law and factual issues confronting them." United States v. Barrera-Gonzales, 952 F.2d 1269, 1272 (10th Cir.1992) (internal quotation marks and citation omitted). We do not decide whether the instructions "are flawless, but whether the jury was misled in any way and whether it had an understanding of the issues and its duty to decide those issues." Brodie v. General Chemical Corp., 112 F.3d 440, 442 (10th Cir.1997) (internal quotation marks and citation omitted). "[S]o long as the charge as a whole adequately states the law, the refusal to give a particular requested instruction" is not grounds for reversal. United States v. Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir.1990).

In the first disputed instruction, the district court advised the jury:

Unless and until outweighed by evidence in the case to the contrary, you may find that official duty has been regularly performed; that private transactions have been fair and regular; that the ordinary course of business or employment has been followed; that things have happened according to the ordinary course of nature and the ordinary habits of life; and that the law has been obeyed.

Ms. Coletti argues this instruction created an impermissible presumption not supported by Wyoming law, and was tantamount to a directed verdict on the issue of the regularity of Cudd's business practice.

We disagree with Ms. Coletti's argument. The instruction permits, but does not require the jury to make certain reasonable inferences about the regularity of business practice. Certainly, as Ms. Coletti asserts, the instruction does burden the plaintiff with providing "affirmative disproof" to overcome the initial inference. However, we fail to see how this constitutes reversible error or results in any prejudice, considering the fact the plaintiff has the ultimate burden of persuasion as a matter of law in a retaliatory discharge action anyway--with or without the instruction. At worst, the quoted instruction is an example of over-instructing a jury, but it was not prejudicial error. The instruction did nothing to affect Ms. Coletti's existing evidentiary burden.

We also find Ms. Coletti's arguments regarding whether the instruction creates a "presumption" or an "inference" immaterial, and merely an exercise in semantics. What is truly important is whether the instruction improperly guided the jury or prejudiced a party. In this case, the instruction does not override or imply superiority to established facts, and it makes ample provision for nullifying the initial inference through countervailing evidence. Since, under the facts of this case, the instruction does not constrain the jury nor create an improper irrebuttable presumption not supported in the law, we find no error.

The second disputed instruction reads:

In order for the Plaintiff, Barbara Coletti, to prevail on her claim against the Defendant, Cudd Pressure Control, she must prove by a preponderance of the evidence that her decision to file a Workers' Compensation claim was the determining factor in the Defendant's decision to discharge her. Plaintiff need not prove that her decision to file a Workers' Compensation claim was the sole or exclusive motivation for defendant's discharge decision. Her decision to file a Worker's Compensation claim is a determining factor if Plaintiff would not have been discharged...