D.C. No. 1:11-CV-00983-MSK-MEH, D. Colo.
Before GORSUCH, O'BRIEN, and PHILLIPS, Circuit Judges.
ORDER AND JUDGMENT [*]
TERRENCE L. O'BRIEN, CIRCUIT JUDGE
In a pro se complaint, Kenny Smith, an African American male with a disability, claimed Global Staffing (Global) discriminated against him based on his sex, his race, and his disability. The discriminatory acts, he claims, were not hiring him for a particular position and terminating his employment. Judgment as a matter of law was entered against him on some claims and a jury rendered a verdict in favor of Global on his remaining claims. He appeals from the resulting judgment and complains of the judge's resolution of some trial issues. There was no error. We affirm.
A. Pretrial Proceedings
After Smith's case had been pending for two years-and on the eve of trial- he retained counsel. The district judge denied his motion for a continuance and scheduled the final pretrial conference. In the final pretrial order, the judge listed the claims proceeding to trial as sex and race discrimination under Title VII, 42 U.S.C. § 2000e-2(a); race discrimination under 42 U.S.C. § 1981; and disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12112 (ADA). The judge excluded a state-law claim of wrongful discharge in violation of public policy because it was not contained in Smith's complaint.
B. Parties' Stipulations
The parties stipulated to certain facts, including the following: "Global Staffing is a staffing company that provides temporary staffing, temp-to-hire staffing, and direct-hire services. . . ." Aplt. App. at G14-G15. "[O]n or about June 27, 2005, Global Staffing hired Mr. Smith and placed him in a temp-to-perm assignment with Wabash Trailers, " one of Global's clients. Id. at G15. On September 23, 2005, Smith reported he had suffered a crush injury to his left foot while working at Wabash Trailers. He was released to light-duty work in December 2005, at which point Global offered him full-time light-duty work at its company office. Smith accepted that offer and, due to the limitations resulting from his injury, he remained in that assignment until June 11, 2008. His "job duties included scanning, filing, document shredding, and other clerical tasks as needed." Id. "[O]n June 17, 2008, Global . . . notified Mr. Smith that his assignment to a job in Global Staffing's office was terminated." Id. at G15-G16. Global further stipulated that Smith has a disability. The district judge also read the following additional stipulation to the jury:
Ladies and gentlemen of the jury, the parties have reached a stipulation which they hope and I hope will help you understand what the parties understood with regard to the modified duty period.
Smith and Global understood that the modified duty period would expire when he reached maximum medical improvement and his workers compensation case was resolved. When that period expired, his temporary employment in the Global office would be over and he would return to a temporary employee status. Smith thought that he might be able to return to Wabash as a permanent employee.
Id. at H345.
C. Rule 50(a) and Rule 15(b) Motions
After Smith had presented his case to the jury, Global moved for judgment as a matter of law under Fed.R.Civ.P. 50(a). It renewed the motion at the close of the evidence. In its view the evidence revealed no legally sufficient basis for the jury to find in favor of Smith on his claims of wrongful termination based on his sex, race, or disability. The judge agreed ...