Raymond H. RYAN, Plaintiff-Appellant, v. Department of the Air Force, Secretary, Michael B. DONLEY, Defendant-Appellee.
No. 11-6335.
United States Court of Appeals, Tenth Circuit.
Feb. 14, 2013.
504 Fed. Appx. 687
3. Plan Interpretation
Benson claims that even if Kristy could work part-time, she would still be considered totally disable under the terms of the policy. The policy defines “totally disabled” or “total disability” as: “the Employee” being unable “to engage ... in any and every occupation or business ...,” and “Employee” is defined as a person who works full-time.” (Appellant‘s Br. at 29-30.) Therefore, part-time work does not disqualify an employee from being totally disabled. According to Benson, the term at least creates an ambiguity which must be construed in favor of the insured. Hartford contends “the term Employee in the Group Life Policy is the equivalent of ‘Insured,’ and its use in the disability definition does not modify or alter the unambiguous language of that definition concerning the requirement of disability.” (Appellee‘s Br. at 28-29.) Both arguments miss the point. Benson‘s interpretation appears contrived and Hartford‘s response fails to recognize that “employee” and “insured” are defined separately in the plan. (Vol. 2 at 280.)
“Where the plan administrator‘s decision relies on an interpretation of the language in the plan, as it does here, we begin by considering whether the provision is ambiguous; if the plan documents, examined as a whole, are unambiguous, we construe them as a matter of law.” Scruggs v. ExxonMobil Pension Plan, 585 F.3d 1356, 1362 (10th Cir.2009). The language in the plan here is unambiguous. The term “employee” is defined in relevant part as “a person who works full-time.” (Vol. 2 at 280.) In turn, “full-time” is defined as “regular, permanent employment for not less than the number of hours specified in the Policy Schedule.” (Id.) The Policy Schedule states: “Full-time Employment 20 hours per week.” (Id. at 275.) Thus, the unambiguous terms of policy resolve this issue. Kristy‘s ability to work 20 hours per week was sufficient to qualify her as a full-time employee. Hartford‘s decision was not contrary to those terms.
The motion to seal Volume 2 of the record (medical records) is GRANTED and the district court‘s decision is AFFIRMED.
Raymond H. Ryan, Saint Hedwig, TX, pro se.
Laura M. Grimes, H. Lee Schmidt, Kay Sewell, Office of the United States Attorney, Oklahoma City, OK, for Defendant-Appellee.
Before KELLY, McKAY, and O‘BRIEN, Circuit Judges.
ORDER AND JUDGMENT*
PAUL KELLY, JR., Circuit Judge.
Raymond H. Ryan, formerly a civilian Air Force employee, appeals the district court‘s judgment in favor of the Secretary
The Air Force first terminated Mr. Ryan‘s employment in 2006. Although the Merit Systems Protection Board (MSPB) rejected Mr. Ryan‘s claims of disability discrimination and retaliation for whistleblowing, in October 2007 it ordered him reinstated due to a procedural error. But Mr. Ryan never reported to Tinker Air Force Base in Oklahoma as ordered, and the Air Force removed him from employment for the second time effective February 15, 2008. This time, in addition to rejecting Mr. Ryan‘s claims of disability discrimination and retaliation for whistleblowing, the MSPB upheld the removal. The Equal Employment Opportunity Commission concurred with the MSPB‘s final decision finding no discrimination.
Mr. Ryan then filed suit in the district court. The court granted the Secretary‘s
On appeal, Mr. Ryan complains that the district court: (1) dismissed his whistleblower claims; (2) denied his motions to compel the Secretary to produce relevant evidence, instead allowing the Secretary to submit deficient privilege logs, and denied his third motion to extend the discovery schedule; (3) granted the Secretary‘s motion to voluntarily dismiss a counterclaim without ruling on Mr. Ryan‘s request for sanctions; (4) quashed certain witness subpoenas and excluded certain evidence at trial; (5) denied Mr. Ryan‘s motion to recuse; and (6) granted the Secretary‘s Rule 50 motion.
1. Whistleblower Claims
We review the district court‘s
To the extent that Mr. Ryan was seeking judicial review of the MSPB decision, the district court would have had jurisdiction to consider the claim. See
2. Discovery Rulings
We review the district court‘s discovery rulings for abuse of discretion. See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 647 (10th Cir.2008) (denial of motion to compel); Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir.2007) (denial of request for continuance). “Under this standard, we will reverse a district court only if it exceeded the bounds of permissible choice, given the facts and applicable law in the case at hand.” Regan-Touhy, 526 F.3d at 647 (internal quotation marks omitted). We have recognized that:
In the discovery context, the range of permissible choices available to the district court is notably broad. This is so because discovery decisions necessarily involve an assessment of the anticipated burdens and benefits of particular discovery requests in discrete factual settings, while at the same time also requiring the trial judge to take account of the amount in controversy, the parties’
resources, the importance of the issues at stake in the action, and the ability of the proposed discovery to shed light on those issues, among many other things.
Id.
We cannot conclude that any of the discovery decisions identified by Mr. Ryan were an abuse of the district court‘s discretion. In denying the motion to compel, the district court carefully evaluated the relevant factors, including the adequacy of the Secretary‘s privilege log, and gave supportable reasons for declining to compel further production of evidence. As for the third motion to continue discovery, the district court had granted two previous extensions, giving Mr. Ryan several extra months to complete discovery, and it had warned Mr. Ryan there would be no further extensions. Denying the motion cannot be considered an abuse.
3. Voluntary Dismissal of the Secretary‘s Counterclaim
After initially bringing a counterclaim to recover severance pay that Mr. Ryan received for the first removal, just before trial the Secretary moved under
Our review of this issue is also for abuse of discretion. Vanguard Envtl., Inc. v. Kerin, 528 F.3d 756, 759-60 (10th Cir.2008). Under
Regarding the sanctions request, it is unclear whether the district court overlooked the request, or if it simply did not consider a monetary sanction to be a proper condition of dismissal. We need not reverse for further consideration, however, because under these circumstances a grant of sanctions would have been an abuse of discretion. See Ashby v. McKenna, 331 F.3d 1148, 1151 (10th Cir.2003) (“[W]ith respect to a matter committed to the district court‘s discretion, we cannot invoke an alternative basis to affirm unless we can say as a matter of law that it would have been an abuse of discretion for the trial court to rule otherwise.” (internal quotation marks omitted)). Mr. Ryan essentially sought an award in the nature of an attorney‘s fee, without specifying any authority for compensating him for the time he spent on the counterclaim.2 But attorney‘s fee awards are not always available to pro se plaintiffs. See Kay v. Ehrler, 499 U.S. 432, 435 (1991) (42 U.S.C. § 1988 case). Moreover, the counterclaim was dismissed with prejudice. Where a claim is dismissed with prejudice under
4. Evidentiary Rulings
“[W]e review the court‘s evidentiary rulings, including the court‘s decision to exclude evidence or testimony, for abuse of discretion.” Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1189 (10th Cir.2010). “We revers[e] only if we have a firm and definite belief that the trial court made a clear error in judgment.” Tanberg v. Sholtis, 401 F.3d 1151, 1162 (10th Cir.2005) (internal quotation marks omitted).
The district court granted the Air Force‘s motion to quash six witness subpoenas on the ground that the witnesses had no testimony relevant to the second removal. Mr. Ryan argues that the witnesses falsely asserted that they had no knowledge of the second termination, and in fact they had knowledge about (1) Mr. Ryan‘s medical condition that they conveyed to other officials before the second removal, and (2) prior disciplinary actions that allegedly played a role in the removal decision.
We are not convinced that the district court made a clear error in judgment in excluding the six witnesses. And “even if we were to find an error that amounted to an abuse of discretion, reversible error may be predicated only upon errors that affect a party‘s substantial rights.” Id.;
As for the limitation of evidence at trial, the district court excluded all evidence regarding employment decisions other than the second removal. On appeal Mr. Ryan complains that he was precluded from introducing evidence (1) concerning the period between the first and second removals, (2) regarding the Secretary‘s counterclaim for recoupment of severance pay from the first removal, and (3) the validity of his reinstatement. We have held, however, that “a trial court has broad discretion to determine whether evidence is relevant and to exclude irrelevant evidence[.]” Garcia-Martinez v. City & Cnty. of Denver, 392 F.3d 1187, 1193 (10th Cir.2004) (internal quotation marks omitted). Moreover, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... confusing the issues, misleading the jury, undue delay, [or] wasting time[.]”
Mr. Ryan also asserts that his whistleblower claims were inextricably intertwined with his discrimination and retaliation claims, so that precluding evidence of the whistleblower claim fatally undermined his discrimination and retaliation claims. We are not persuaded that the different claims were so intertwined, and as discussed above, Mr. Ryan was not entitled to a trial on his whistleblowing allegations.
5. Motion to Recuse
“We review the denial of a motion to recuse for abuse of discretion, and under that standard we will uphold a district court‘s decision unless it is an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Higganbotham v. Okla. ex rel. Okla. Transp. Comm‘n, 328 F.3d 638, 645 (10th Cir.2003) (citation and internal quotation marks omitted).
In seeking recusal, Mr. Ryan argued that the district court‘s rulings against him showed bias and that the district court had engaged in ex parte communications with the Secretary‘s counsel. But allegations regarding adverse rulings “almost never constitute a valid basis for a bias or partiality motion.... Almost invariably, they are proper grounds for appeal, not recusal.” Liteky v. United States, 510 U.S. 540, 555 (1994). And the allegations regarding ex parte communications rested on speculation and suspicion, which also are insufficient to require recusal, see United States v. Cooley, 1 F.3d 985, 993 (10th Cir.1993); Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987) (per curiam). Therefore, the district court‘s denial of the recusal motion was not arbitrary, capricious, whimsical, or manifestly unreasonable.
6. Rule 50 Motion
Finally, we review the grant of the Secretary‘s
Mr. Ryan argues that he presented sufficient evidence for a reasonable jury to find that the Secretary‘s proffered reason for the second removal was pretext for discrimination and retaliation. Having reviewed the transcript of the trial, however, we agree with the district court that there was insufficient evidence for the jury properly to find in favor of Mr. Ryan.
The judgment of the district court is affirmed.