Alwine v. Buzas

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 27 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

HEATHER L. ALWINE,

Plaintiff-Appellant,

UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

v. No. 02-4185
(D.C. No. 2:99-CV-245-TC)
JOSEPH J. BUZAS; BUZAS (D. Utah)
BASEBALL, INC., doing business
as Salt Lake Buzz Baseball Team,
a Utah corporation; MINNESOTA
TWINS, a Minnesota partnership,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before O’BRIEN and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit
Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

*
This order and judgment is not binding precedent, except under the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.
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff Heather L. Alwine brought this sexual discrimination action,

charging that defendant Joseph J. Buzas, owner of the Salt Lake Buzz baseball

team (Buzz), had sexually harassed her during interviews for a general manager

position with the Buzz. 1
After a jury found for the defendants on each of her

claims, Ms. Alwine filed a renewed motion for judgment as a matter of law, or

alternatively, for a new trial. The district court denied her motions, and she

now appeals.

Ms. Alwine contends that the district court made rulings during the trial

that placed her case in a false light and thereby impermissibly skewed the jury’s

verdict. She asks us to consider: (1) whether the district court improperly

restricted her from advancing a theory that Mr. Buzas’ actions created a hostile

work environment; (2) whether this restriction led to the exclusion of directly

relevant evidence and to the use of improper jury instructions; (3) whether

1
She asserted eight causes of action against defendants Buzz and/or Buzas,
including Title VII sexual harassment and retaliation claims; a claim for violation
of the Fair Labor Standards Act (FLSA); and state law claims for invasion of
privacy, interference with prospective economic relations, negligent supervision,
intentional infliction of emotional distress, and defamation. Alwine dismissed the
defamation claim prior to trial, and the district court granted judgment as a matter
of law to defendants on the FLSA claim. The remaining claims were presented to
the jury.

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defense counsel presented improper closing argument so egregious as to require

a new trial; (4) whether the jury should have been permitted to consider evidence

from non-decision-makers about the Buzz’s reasons for not hiring her; and

(5) whether the district court presented improper jury instructions on a mixed

motive defense. Because we conclude that none of the alleged errors requires

reversal of the judgment entered in favor of defendants on the jury’s verdict,

or the disposition of the post-trial motions, we affirm.

FACTS

The parties hotly disputed the facts of this case at trial, and continue to

dispute them on appeal. Ms. Alwine contends that defendant Joseph J. Buzas

subjected her to a torrent of unwanted physical and verbal sexual abuse during her

two interviews with the Buzz. 2
Defendants maintain that Ms. Alwine invented

most of the incidents of harassment. They also assert that she was not even

interviewing for a job during her alleged second interview with Mr. Buzas.

2
Mr. Buzas died on March 19, 2003, during the pendency of this appeal.
Upon inquiry by this court, defendants filed a suggestion of death on the record,
in which they stated that they believed no substitution of his personal
representative was necessary.

The Minnesota Twins were never served in this case and are not a party to
this appeal. Intervenor United States declined to file a brief.

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 When we encounter factual conflicts in reviewing a post-trial motion for

judgment as a matter of law, we “construe the evidence and inferences most

favorably to the nonmoving party, and refrain from making credibility

determinations and weighing evidence.” Tyler v. RE/MAX Mountain States, Inc. ,

232 F.3d 808, 812 (10th Cir. 2000). With this standard in mind, we will

summarize the evidence presented at trial.

“Tammy’s job”

The factual background of this case begins with the Buzz’s previous

general manager, Tamra Felker-White. Ms. Felker-White came to work for

the Buzz in 1989, when she was twenty-four years old. Although she had no

prior experience in sports management, Ms. Felker-White advanced rapidly to

co-general manager of the team. By 1993, she was the team’s vice president

and general manager.

Ms. Alwine asserts that Ms. Felker-White had a sexual relationship with

Mr. Buzas. 3
She further theorizes that after Ms. Felker-White left the Buzz in

3
The evidence at trial was ambiguous on this point, and must therefore be
construed in favor of defendants. The testimony showed that on some occasions,
Mr. Buzas acknowledged having a sexual relationship with Ms. Felker-White.
On other occasions, he denied it. Ms. Felker-White was deposed on this issue.
She admitted performing personal services for Mr. Buzas, such as doing his
laundry, taking his clothes to the dry cleaner, making sure that his car had gas,
and transporting him places, but denied having a sexual relationship with him.

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July 1996, Mr. Buzas embarked on a campaign to replace Ms. Felker-White with

a new female “general manager” who would meet his sexual needs. She claims

that she was merely one of several women propositioned or otherwise harassed by

Mr. Buzas.

Ms. Alwine presented testimony from three women, Margaret-Ann Madson

Scott, Colleen Martin, and Emily Humphrey, each of whom stated that Mr. Buzas

offered them “Tammy’s job” after Ms. Felker-White’s departure. The job offers

came with the understanding that the women would provide Mr. Buzas with

sexual services. In each case, the woman testified that his proposition was

unwanted, offensive and was quickly rejected. Ms. Madson Scott and

Ms. Humphrey also testified that Mr. Buzas sexually harassed them in other ways,

verbally and physically. These incidents occurred both before and after

Ms. Alwine interviewed for a job with the Buzz.

The Chicago interview

In late 1996 and early 1997, Ms. Alwine began looking for a job in sports.

She testified that she holds a bachelor’s degree in communications and had

worked with several sports teams in the Fort Wayne, Indiana, area. She sent out

resumes to various teams, including the Buzz. The resume she sent to the Buzz

attracted the attention of Mr. Buzas. Ms. Alwine made telephone contact with

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Mr. Buzas in May 1997 and arranged to meet with him in Chicago for a

job interview.

Mr. Buzas met with her at their hotel. He asked Ms. Alwine to have lunch

with him. After lunch, she placed her travel bag in Mr. Buzas’ hotel room and

they went for a walk. During this walk, Mr. Buzas asked her if she had a

boyfriend. She told him that she had dated a ballplayer until recently, when they

had broken up. Mr. Buzas asked if she were still in love with him, and when she

replied “yes,” Mr. Buzas stated that “he must have been good in the sack.”

They returned to the hotel, where Mr. Buzas introduced her to several

people by telling them that she was interviewing for “Tammy’s position.”

Ms. Alwine knew from a baseball directory that Ms. Felker-White had been

general manager of the Buzz. These initial references to “Tammy’s position”

made Ms. Alwine understand that she was interviewing for a general manager

position.

Later that evening, as they were sitting at a short bistro table, Mr. Buzas

began rubbing his foot on Ms. Alwine’s leg between the ankle and her knee.

She believed this was accidental, at first, and so she moved her legs over, but he

continued. Mr. Buzas then invited her to attend a Utah Jazz game with him that

evening, but she declined.

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 On her way to the elevator to get her bag from Mr. Buzas’ hotel room,

Mr. Buzas met a man named Karl Malone. Mr. Buzas told Mr. Malone that

Ms. Alwine was interviewing for a position with the Buzz but that she was “a bit

of a dingbat.” (Mr. Malone did not testify at trial.)

Before they reached Mr. Buzas’ room, they stopped in another hotel room,

where a female friend of Mr. Buzas’ was waiting with her son. Ms. Alwine

contends that Mr. Buzas called her a dingbat and pushed her onto a bed in the

presence of the woman and her son. Defendants called Mickey Hale, who stated

she was the woman in the hotel room. She testified that she did not see

Mr. Buzas push Ms. Alwine onto a bed or call her a dingbat.

Ms. Alwine and Mr. Buzas proceeded to his hotel room to get her bag. He

asked her to stay the night with him in his bed. He also asked to hug her and was

trying to kiss her when the phone rang. While Mr. Buzas was talking on the

phone, Ms. Alwine left his room. Mr. Buzas later caught up with her and offered

her $200 for her travel expenses. She accepted $150 to end the conversation

and left.

Ms. Alwine left the hotel. As she was driving home to Fort Wayne,

Mr. Buzas called her twice on her cell phone, asking her to return to Chicago, to

attend the Jazz game, and to spend the night in his room. She refused.

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 Salt Lake City interview

During the next two weeks, Mr. Buzas called Ms. Alwine four more times.

She agreed to meet him in Salt Lake City for an additional interview. She was to

stay at the Holiday Inn. During one of their telephone calls after the Chicago

interview, Mr. Buzas told Ms. Alwine that he could not make her general manager

immediately, but hoped to do so within two years. He told her that if Tammy had

stayed with him, she would have been making $125,000 per year. He then asked

Ms. Alwine to stay at his hotel in Salt Lake City, Little America instead of the

Holiday Inn, because he “needed a woman to warm his bed.” 4

Notwithstanding his boorish behavior, Ms. Alwine testified that she agreed

to meet with Mr. Buzas in Salt Lake City for a second interview. She explained

that she was “naive” and believed the job interview was a huge opportunity. She

also believed that Mr. Buzas would behave himself better in front of his staff and

season ticket holders than he had in Chicago.

Costco incident/first day of interview

Ms. Alwine’s week-long interview in Salt Lake City began the morning

after she arrived, when she met with Mr. Buzas in his office. Mr. Buzas ate his

4
Dorsena Picknell, vice president and assistant general manager for the
Buzz, gave different reasons for Mr. Buzas’ desire to have Ms. Alwine stay at
Little America. She testified that Little America was less expensive and the
ballplayers stayed at the Holiday Inn, where Ms. Alwine wanted to stay.

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breakfast in front of Ms. Alwine, then asked her to go to Costco with him. On the

way to his car after their time at Costco, Mr. Buzas spilled some peach juice on

his inner thigh. He asked Ms. Alwine to clean it up for him. When she offered

him a tissue from her purse, he said, “Tammy would have cleaned it off for me.”

To her response that she was not Tammy, Mr. Buzas replied, “I’ve noticed.”

At the end of her first full day in Salt Lake City, Mr. Buzas offered to drive

Ms. Alwine back to her hotel. She testified that she refused, and accepted a ride

with a staff member instead. Brandi Redman, an employee of the Buzz, testified,

however, that Ms. Alwine told her that she had accepted a ride from Mr. Buzas,

and that he had “tried to put the moves on [her]” during the ride. Aplt. App.,

Vol. V at 1978. This was one of several inconsistencies in the evidence at trial

that undermined Ms. Alwine’s version of events.

Second day of interview

On the morning of the second day of her interview, Ms. Alwine found

Mr. Buzas angry with her. She testified that staff members told her that

Mr. Buzas was angry at her for riding back to her hotel with someone else.

He initially refused to speak with her, though he later helped her pass out

promotional items. From that time forward, Ms. Alwine testified, Mr. Buzas

began a campaign of physical sexual harassment, bumping her knees out from

under her and causing her to fall into his groin, snapping her brassiere strap,

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smacking and touching her on her bottom, and brushing his arm against

her breasts.

Ms. Alwine stated that she had complained about his behavior to numerous

other employees of the Buzz, including Dennis Wansor, Brett Hullinger, and Kent

Haslam. Oddly, however, she failed to mention until trial that Mr. Buzas had

snapped her bra strap and rubbed against her breasts. Counsel questioned her as

follows:

Q. (By Mr. Naegle) And this is the first time you’ve indicated that
those things happened?

A. It’s hard to believe.

Q. It is indeed.

A. I don’t believe that it’s never been said before.

Id. , Vol. III at 1095.

Mr. Haslam testified, however, that he saw Mr. Buzas flipping

Ms. Alwine’s bra strap when she stood in the door of the ticket office. He also

saw Mr. Buzas knock her knees out from under her, and heard him tell her to

“get off her fat ass and do some work.” Id. , Vol. IV at 1427 (depo. p. 57). This

was the only testimony at trial that directly corroborated Ms. Alwine’s allegations

of physical harassment by Mr. Buzas. Ms. Alwine also stated that when she

complained to Mr. Wansor about Mr. Buzas’ behavior after the first day, he said,

“I can’t believe you’ve figured it out already.”

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 One of these incidents of “knee knocking” allegedly occurred in a ticket

booth. Ms. Alwine testified that Lorraine Martinez witnessed this incident and

told her that Mr. Buzas had done this to her several times. Ms. Martinez testified,

however, that although she had witnessed Mr. Buzas knock the knees out of other

people, male and female (she called it “his little joke”), she had never seen him

do this to Ms. Alwine. 5

End of Salt Lake City interview

On the second-to-last day of her interview in Salt Lake City, Ms. Picknell

called Ms. Alwine and told her that Mr. Buzas was angry with her for not

spending enough time with him. Ms. Picknell told her that she needed to spend

more time with Mr. Buzas or get on a plane and go home. Ms. Alwine went to

Mr. Buzas’ office, and told him she thought she had done the right thing by

meeting with other members of the Buzz staff and by spending time with them.

Mr. Buzas had no response, but Ms. Alwine could tell that he was angry with her.

Ms. Alwine left Salt Lake City without a job with the Buzz. On August 12,

1997, she wrote a letter to Mr. Wansor in which she thanked him for “everything

that you and the rest of the office staff did for me while I was in Salt Lake for my

‘interview’.” Id. , Vol. VI at 2219. She stated that “[e]veryone made me feel very

5
Both Ms. Picknell and Hilary Drammis, Mr. Buzas’ daughter, also testified
that Mr. Buzas knocked the knees out from both men and women.

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at home and helped me out when I needed answers.” Id. She asked Mr. Wansor

to thank numerous Buzz employees, but did not mention Mr. Buzas.

Ms. Alwine stated that although Mr. Buzas never directly offered her

money for sex or a job for sex, she understood that in order to receive the general

manager job, she would have to have a personal relationship, including sex, with

Mr. Buzas. About a month after the interview, Ms. Alwine spoke with Mr. Buzas

on the telephone. He told her during the telephone conversation that she “was

interested in something else” during the interview. Defendants contend that this

“something else” was Shane Bowers.

Shane Bowers

Defendants presented a very different version of events. They argued that

Ms. Alwine did not go to Salt Lake City to interview with Mr. Buzas at all.

Instead, they claim, she went there to rekindle her romance with ballplayer

Shane Bowers.

On direct examination, Ms. Alwine testified that she did not come to

Salt Lake City to see anyone other than Mr. Buzas. She stated she had no other

objective than to interview for the position of general manager of the Buzz. On

cross-examination, however, she admitted that she saw Mr. Bowers at her hotel

room many of the evenings during her interview and that she did try to rekindle

their romantic relationship.

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 Defendants presented testimony that the Buzz has a policy against

employees dating ballplayers. Ms. Alwine countered with evidence that this

policy is unwritten and that Mr. Buzas had offered to set up another employee

with a ballplayer. She also presented evidence of the work she did for the Buzz

during her interview.

Finally, defendants presented a significant amount of testimony and other

evidence to show that Ms. Alwine was not qualified to be general manager of the

Buzz. Ms. Alwine countered with evidence that Ms. Felker-White had been only

twenty-four years old and relatively inexperienced when Mr. Buzas began training

her as assistant general manager.

ANALYSIS

1. Quid Pro Quo and Hostile Work Environment

Ms. Alwine’s first two issues essentially merge into one. In her first issue,

she complains that the district court incorrectly concluded that the facts of her

case did not give rise to a hostile work environment claim. In her second issue,

she contends that this threshold error led the district court to exclude evidence

and to instruct the jury incorrectly.

We review the district court’s determination on issues of law de novo .

See, e.g., EEOC v. W.H. Braum, Inc. , 347 F.3d 1192, 1195 (10th Cir. 2003).

We review its decision to admit or exclude evidence for an abuse of discretion.

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McCue v. State of Kan., Dep’t of Human Resources , 165 F.3d 784, 788 (10th Cir.

1999). The district court’s decision to give or not to give a particular instruction

is subject to review for an abuse of discretion; but where the real question raised

is whether the jury should decide the matter at all, we consider that a question of

law to be reviewed de novo . Id. at 787.

a. Legal standard

“Title VII is violated by either explicit or constructive alterations in the

terms or conditions of employment.” Burlington Indus., Inc. v. Ellerth , 524 U.S.

742, 752 (1998). “[C]ourts have consistently recognized two distinct categories

of sexual harassment claims: quid pro quo sexual harassment, and hostile work

environment sexual harassment.” Hicks v. Gates Rubber Co. , 833 F.2d 1406,

1413 (10th Cir. 1987). Where the plaintiff can show “that a tangible employment

action resulted from a refusal to submit to a supervisor’s sexual demands,” she

establishes an explicit change in her terms or conditions of employment, resulting

in a quid pro quo case of sexual harassment. Burlington , 524 U.S. at 753-54.

Where, however, her claim targets a supervisor’s “severe and pervasive” sexually

demeaning behavior rather than a fulfilled threat, the claim is properly

characterized as a “hostile work environment” claim. Id. at 754. 6

6
This case is unusual, because Ms. Alwine alleges that Mr. Buzas sexually
harassed her during a job interview rather than after she obtained employment.
(continued...)

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 The defendants initially moved for and received a directed verdict on

Ms. Alwine’s claim for hostile work environment sexual harassment. Aplt. App.,

Vol. V at 2005, 2008. The district court gave two reasons for the directed

verdict. First, it concluded that the essence of Ms. Alwine’s sexual harassment

claim was quid pro quo : i.e., that she refused Mr. Buzas’ sexual demands and

therefore did not receive a job with the Buzz. Second, Ms. Alwine had failed to

mention a hostile work environment theory in the pretrial order.

During a jury instruction conference the next day of trial, however, the

district court changed course and permitted Ms. Alwine, over defendants’

objection, to submit an instruction on hostile work environment sexual harassment

to the jury. Defendants do not argue, as they did before the district court, that

this instruction should not have been given because Ms. Alwine has no case for

hostile work environment sexual harassment. Instead, they contend that the

giving of this instruction, coupled with the fact that the district court did not grant

judgment to them on the hostile work environment theory until all the evidence

was in, means that Ms. Alwine was permitted to present her hostile work

environment claim in full.

6
(...continued)
Defendants do not contend, however, that a hostile work environment claim is
unavailable under these circumstances. We therefore need not decide whether
Ms. Alwine was barred from asserting a claim for hostile work environment,
where she never actually obtained employment with the Buzz.

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 Ms. Alwine asserts, however, that the district court’s belated change of

heart and submission of the instruction did not cure the prejudice to her case. She

claims that before changing course, the district court made a number of crucial

evidentiary rulings based on its false understanding of the law, requiring reversal.

b. Excluded evidence

Rather than itemizing these evidentiary rulings, Ms. Alwine points us to

sixty-seven pages in the record in which she contends we can find at least twenty

occasions of improper exclusion or limitation of evidence. Aplt. Opening Br.

at 31, 40. She only presents argument on two of these exclusions: the testimony

of Emily Humphrey, and evidence concerning Mr. Buzas’ penile implant. We will

address only those instances of excluded evidence on which she specifically

presents an argument. See Roska ex rel. Roska v. Peterson , 328 F.3d 1230, 1246

n.13 (10th Cir. 2003) (stating this court need not search the appellate record to

develop evidence not specifically identified in the appellate briefs).

(1) Emily Humphrey testimony

Ms. Humphrey testified by deposition. She was one of three women called

by Ms. Alwine to testify about how Mr. Buzas harassed other women besides

Ms. Alwine in the Buzz organization. This testimony bolstered Ms. Alwine’s

quid pro quo claim by showing that Mr. Buzas conditioned the general manager

position on submission to his sexual advances. Ms. Alwine contends, however,

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that the district court excluded other portions of Ms. Humphrey’s testimony that

would have bolstered her hostile work environment claim.

The district court excluded some of Ms. Humphrey’s testimony out of

concerns of relevance, hearsay, cumulative nature of the testimony, and prejudice

under Federal Rules of Evidence 403 and 404(b). We are not concerned with

these exclusions, except to the extent that they were tied to the district court’s

rejection of Ms. Alwine’s hostile work environment theory.

Even assuming the district court was wrong in its initial conclusion that a

hostile work environment claim was not available to Ms. Alwine, it did not abuse

its discretion by excluding the evidence from Ms. Humphrey. In establishing a

hostile work environment claim, Ms. Alwine could “only rely on evidence relating

to harassment of which she was aware during the time that she was allegedly

subject to a hostile work environment.” Hirase-Doi v. U.S. West

Communications, Inc. , 61 F.3d 777, 782 (10th Cir. 1995). The events described

by Ms. Humphrey occurred beginning in June and July 1998, nearly one year after

Ms. Alwine’s experiences. Ms. Alwine could not have been aware of them during

the time she was allegedly subject to a hostile work environment. Therefore, the

testimony was properly excluded.

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 (2) Penile implant testimony

Ms. Alwine challenges the exclusion of testimony about Mr. Buzas’ penile

implant. She sought to present testimony that Mr. Buzas obtained the implant to

facilitate his ability to engage in sexual intercourse. She argues that this evidence

would have been relevant to rebut defense counsel’s inappropriate references to

Mr. Buzas’ age and health condition.

The district court did not exclude this evidence because it related to hostile

work environment. Instead, it relied on the fact that the evidence was “terribly

prejudicial and its probative value is slight given the fact that it was not brought

up with the plaintiff.” Aplt. App., Vol. V at 1774. Ms. Alwine stated she had no

problem with the court’s ruling so long as the defendants did not bring up

Mr. Buzas’ prostate cancer or alleged inability to perform sexually. Relying on

this representation from Ms. Alwine, the court excluded all penile implant

testimony, unless either party opened the door to it. We discern no abuse of

discretion in the district court’s decision to exclude this testimony, particularly in

light of Ms. Alwine’s consent to the district court’s ruling.

Ms. Alwine argues, however, that the defense relied on the exclusion of

this testimony to make improper comments about Mr. Buzas’ health condition

during its closing arguments. We consider more generally Ms. Alwine’s

objections to the defense’s closing argument later in this order and judgment.

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The only question now before us is whether defense counsel made comments

about Mr. Buzas’ prostate cancer or inability to perform sexually that transgressed

the limitations by which the district court had justified exclusion of the penile

implant testimony. We hold that he did not. See id. , Vol. III at 774-803. While

counsel referred to Ms. Buzas’ terminal illness at the time of trial, this illness was

not prostate cancer, and counsel made no reference to Mr. Buzas’ inability to

perform sexually. We conclude that the district court did not abuse its discretion

by excluding evidence of the penile implant.

c. Plaintiff’s proposed jury instructions

Ms. Alwine also contends that the district court’s erroneous conclusion

about the availability of a hostile work environment theory led it to exclude two

proposed jury instructions she offered concerning the testimony of other women

who Mr. Buzas allegedly harassed. The first instruction, Plaintiff’s Instruction

No. 6, would have informed the jury that it could use the “testimony of other

females . . . that . . . Buzas also sexually harassed them . . . as a guide in

evaluating defendants’ intent to link tangible job benefits to the acceptance of

sexual advances.” Id. , Vol. I at 210. The second instruction, Plaintiff’s

Instruction No. 7, would have allowed them to “consider the sexual harassment of

other females as a guide in evaluating the totality of the circumstances

surrounding the working and interviewing environment at defendant Buzz and

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whether such conduct had the effect of unreasonably interfering with

Ms. Alwine’s performance as a job applicant or creating an intimidating, hostile,

or offensive interviewing environment.” Id. at 211.

The district court rejected instruction No. 6 because it represented “too

much of a comment on the evidence by me.” Id. , Vol. VI at 2132. It did give a

limiting instruction, however, prior to the testimony of the other female

witnesses. The first portion of this instruction informed the jury that “you may

consider this evidence only for the limited purpose of determining what were the

intent, purpose and motive of the defendants when they did not offer a job to

Ms. Alwine.” Id. , Vol. V at 1873. This instruction is substantially equivalent to

the instruction Ms. Alwine offered. The principal difference between this part of

the court’s limiting instruction and proposed Plaintiff’s Instruction No. 6 is that

the limiting instruction does not direct any conclusion about whether Mr. Buzas

sexually harassed the other females or about the defendants’ intent and purpose in

denying Ms. Alwine employment. We discern no abuse of discretion in the use of

the limiting instruction rather than the substantially equivalent Plaintiff’s

Instruction No. 6.

To the extent Ms. Alwine complains about the remainder of the limiting

instruction, we also discern no abuse of discretion. The district court instructed

the jury that “[y]ou may not consider this evidence in deciding whether the

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plaintiff has proven that Mr. Buzas did in fact engage in sexual harassment

toward her. And for the limited purpose for which this evidence is going to be

received, you may give it such weight as you feel it deserves.” Id. This is a

straightforward application of Fed. R. Evid. 404(b), which did not allow

Ms. Alwine to prove her claim simply by showing what Mr. Buzas did to

other women.

Plaintiff’s Instruction No. 7 would also have been improper. There was no

showing that Ms. Alwine was aware of the alleged harassment of other women.

Two of the three women were not even employed by the Buzz when Ms. Alwine

interviewed with Mr. Buzas. Such a broadly-worded instruction risked making

Mr. Buzas’ conduct toward other women part of the hostile work environment

allegedly experienced by Ms. Alwine, in contravention of Hirase-Doi , 61 F.3d

at 782.

2. Improper argument by counsel

Ms. Alwine argues that defense counsel’s argument was suffused with

errors and sufficiently egregious to entitle her to a new trial. The decision

whether any misconduct was so egregious to require a new trial is left largely to

the district court’s discretion. Abuan v. Level 3 Communications, Inc. , 353 F.3d

1158, 1175 (10th Cir. 2003). We will reverse only if the district court clearly

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abused that discretion. Id. Ms. Alwine must show prejudice from the misconduct

sufficiently serious to warrant retrial. See id.

Ms. Alwine complains that defense counsel improperly argued that the

evidence failed to corroborate her story. She contends that any lack of

corroboration resulted from the district court’s erroneous exclusion of “much of

the evidence that should have been admitted.” Aplt. Br. at 43. As we have seen,

however, the only two specific items of excluded evidence she points to in her

argument were part of Emily Humphrey’s testimony and evidence about

Mr. Buzas’ penile implant. Defense counsel mentioned Ms. Humphrey in his

closing argument, but only to say that her testimony did not directly prove what

had happened to Ms. Alwine. Aplt. App., Vol. III at 1160. Defense counsel

argued that Mr. Buzas was old and feeble at the time of trial, but did not

transgress the district court’s direction not to mention his prostate cancer.

On the other hand, Ms. Alwine handed defense counsel a great deal of

ammunition by her failure to call a number of other witnesses. Counsel noted that

she had failed to bring in person before the jury “Lorraine Martinez, Mickey

Hale, Julie, the receptionist, Kent Haslam, Dennis Wansor, Brett Hullinger,

Larry Corrigan, Bill Smith, Jim Hochstrasser and Jackie Riley.” Id. , Vol. III,

at 1152-53. (Some of these witnesses did testify by deposition.) The defendants

did call some of these witnesses, whom Ms. Alwine had not called, to present

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their testimony in person, and that testimony was frequently unfavorable to

Ms. Alwine. Ms. Alwine’s failure to subpoena these witnesses for trial testimony

was a legitimate subject of argument by the defense.

Ms. Alwine next complains that counsel improperly attempted to delve into

her sexual history with Shane Bowers, in violation of the court’s orders in limine.

This was a delicate issue at trial, because much of defendants’ case depended on

showing that Ms. Alwine was dating Mr. Bowers, without unduly implying

a sexual relationship between them. Accordingly, the district court gave defense

counsel latitude to inquire of Ms. Alwine “if she saw Mr. Bowers while there,

how many times she saw him, where she saw him, if they were alone, and if she

attempted or they attempted in any way to renew their old relationship.” Id.

at 1063. Ms. Alwine’s counsel stated she had no objection to this ruling. Id. at

1064. Ms. Alwine’s counsel even helpfully added that the defense could inquire

into whether “he visited in her motel room or she visited in his residence.” Id.

Defense counsel’s comments at closing did not contravene these

restrictions. Ms. Alwine complains that counsel referred to her telephone records,

allegedly showing thirty telephone calls to Mr. Bowers in forty-one days, to

characterize her as “a woman obsessed with Shane Bowers.” Aplt. Br. at 45

(quoting Aplt. App., Vol. III at 1145). This comment, however, did not refer to

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Ms. Alwine’s sexual history. 7
Although Ms. Alwine complains that there was no

evidence that the telephone calls were made to Shane Bowers, there was sufficient

evidence from which the jury could draw that conclusion. See Aplt. App., Vol. III

at 1050-51; Vol. VI at 2301-10. The remaining comments about Ms. Alwine’s

relationship with Mr. Bowers, while at times skirting the limits the district court

drew, see id. , Vol. III at 1148 (“And give her an A-plus for those rekindling

efforts. She got him into her hotel room almost every night after the games, late

at night alone, to rekindle her romantic relationships with Shane Bowers.”), do

not rise to the level of reversible error.

Ms. Alwine next complains that defense counsel improperly referred to

Mr. Buzas’ health during closing argument. Ms. Alwine subpoenaed Mr. Buzas

but he did not testify at trial because of poor health. In order to prevent undue

sympathy for Mr. Buzas, the district court stated that if Mr. Buzas could not

testify, it would “allow a very brief statement in the form of testimony to the

effect just probably one sentence that Mr. Buzas’ health and age related

infirmities do not permit him to testify, period.” Id. , Vol. V at 1735.

On the night before Mr. Buzas was scheduled to appear, Ms. Alwine

withdrew her subpoena. The next morning, however, Mr. Buzas entered the

7
There was no suggestion that these telephone conversations between
Ms. Alwine and Mr. Bowers were themselves sexually charged.

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courtroom in a wheelchair. He sat in the aisle. Id. at 1783. Ms. Alwine now

complains that “defense counsel . . . wheeled Buzas into the courtroom, disrupting

testimony, whereupon Buzas, in his extremely feeble condition, sat in a

wheelchair, in the aisle, for approximately one hour.” Aplt. Br. at 46. There is

no indication in the record that any disruption caused by Mr. Buzas’ presence

lasted more than a few moments; Ms. Alwine did not register any objection to

disruption of the proceedings or to Mr. Buzas’ presence at the time he entered the

courtroom. Moreover, as a party in the case, Mr. Buzas was entitled to be present

at trial. See generally Fed. R. Evid. 615, advisory committee notes (stating

exclusion of party to action from trial would “raise serious problems of

confrontation and due process.”).

After Mr. Buzas appeared in the courtroom, the district court stated it

would allow defendants’ counsel to explain to the jury that Mr. Buzas had

a terminal illness. Aplt. App., Vol. VI at 2039. The court considered this fact

relevant because Ms. Alwine was seeking punitive damages designed to deter

future misconduct. Counsel was, however, admonished not to belabor the point

about Mr. Buzas’ health at closing. Id. at 2089.

In spite of this admonition, defense counsel argued extensively about

Mr. Buzas’ health, presenting an emotional appeal to the jury:

Let me tell you also how disappointed I am personally that
Mr. Buzas was not able to be here. There’s no one in this trial that

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 wanted to testify more than he did. He dragged himself here Tuesday
and was – you were able to see him for a moment and saw the
condition that he’s in. His arms and legs are about that big. He was
diagnosed, as you know, with a terminal illness in 1994, and he is
suffering mightily from it.

Id. , Vol. III at 1138.

Now . . . you’ll note also that the plaintiff has asked for
punitive damages. Punitive damages are something to punish, to see
that it never happens again, to teach someone a lesson. Ladies and
gentlemen, this case is not a case of good versus evil. It’s not a case
about right versus wrong. This is a case about money. This is a case
where these folks want 1.6 million of Joe’s money. Will any award
against Joe or the Buzz teach Joe a lesson? How can it? You saw
him. He is terminally ill from chemotherapy, with legs and arms this
big around. He can’t even walk. He couldn’t even come to his own
trial and defend himself. He is 84 years old. He doesn’t have
anything to do with the Buzz organization other than sitting in the
sky box at this point, and hasn’t had for years.

. . . You won’t be affecting Joe. You’ll be affecting Joe’s
grandchildren, his grandchildren who I propose to you are far more
deserving of his money than the plaintiff.

Id. at 1165.5-1165.75 (omitted from appendix; attached to Aplt’s Br.).

Because Ms. Alwine did not object to this argument at the time it was

made, she must show “substantial injustice” to obtain reversal. Abuan , 353 F.3d

at 1175. 8 Although defense counsel’s argument violated the district court’s

8
In her reply brief, Ms. Alwine argues that she was not required to object to
every instance of improper argument to preserve her objections for appeal, and
that doing so would have prejudiced her in the eyes of the jury. See, e.g.,
Fineman v. Armstrong World Indus., Inc. , 980 F.2d 171, 207 n.26 (3d Cir. 1992).
The first comments to which she now objects, however, occurred shortly after
(continued...)

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admonitions and improperly evoked sympathy for Mr. Buzas and his

grandchildren, we conclude that it did not rise to the level of a substantial

injustice. First, the jury’s verdict is sufficiently supported by the record. Given

the inconsistencies and lack of corroborating evidence for much of Ms. Alwine’s

story, the jury could have found her not credible as a witness. Second, the court

specifically instructed the jury that it was “not to be governed by sympathy,

prejudice, or public opinion,” Aplt. App., Vol. VI at 2162, and that “[s]tatements

and arguments of counsel are not evidence,” id. at 2164. Third, the district court

had permitted counsel to refer to the fact that Mr. Buzas was terminally ill.

Fourth, counsel’s argument referred in part to matters that the jury had seen with

their own eyes: the deterioration of Mr. Buzas’ physical condition. Finally, much

of counsel’s improper argument went to the issue of punitive damages, which

could not be awarded unless the jury found for Ms. Alwine on her Title VII claim,

which it did not. See id. at 2201 (punitive damages instruction). In sum, we are

“satisfied that the verdict was not merely a result of passion aroused though

8
(...continued)
defense counsel began his argument, before she had interposed any other
objections. Aplt. App., Vol. III at 775. The other comments, which occurred
near the end of counsel’s argument, were by far the most egregious comments
made in the argument. We cannot say that strategic considerations excuse
Ms. Alwine’s failure to object to them.

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extreme argument.” Minshall v. McGraw Hill Broad. Co. , 323 F.3d 1273, 1285

(10th Cir. 2003) (quotation omitted).

3. Evidence from non-decision makers

Ms. Alwine next argues that reversal is required because Mr. Buzas, who

was the sole decision-maker, did not testify at trial. She claims there was

therefore no evidence of a legitimate, non-discriminatory reason for the Buzz’s

failure to hire her, and she is entitled to judgment as a matter of law on her sexual

harassment claim. 9
We review de novo the district court’s decision on a motion

for judgment as a matter of law. Weese v. Schukman , 98 F.3d 542, 547 (10th Cir.

1996). Such a judgment is appropriate “only if the evidence points but one way

and is susceptible to no reasonable inferences supporting the party for whom the

jury found; we must construe the evidence and inferences most favorably to the

nonmoving party.” Id. (quotation omitted).

Ms. Alwine has not met this standard. In order to require defendants to

come forward with a legitimate, non-discriminatory reason for this employment

action, she was first required to establish a prima facie case of sexual harassment.

9
Ms. Alwine’s argument relates logically only to her quid pro quo sexual
harassment claim, which challenges defendants’ failure to hire her and therefore
implicates the decision-maker’s reasoning for his employment action. Cf. Martin
v. Nannie & Newborns, Inc. , 3 F.3d 1410, 1417 n.8 (10th Cir. 1993) (stating
plaintiff’s failure to rebut legitimate, non-discriminatory reason for her firing was
relevant only to quid pro quo claim, not hostile work environment claim).

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See, e.g., Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 142 (2000).

Ms. Alwine’s quid pro quo claim charges that the Buzz failed to hire her;

accordingly, we apply the prima facie case requirement applicable to a failure to

hire claim. Cf. Martin v. Nannie & Newborns, Inc. , 3 F.3d 1410, 1416-17

(10th Cir. 1993) (tailoring prima facie case requirement in sexual harassment case

to adverse employment action claimed by plaintiff). A plaintiff establishes a

prima facie case of failure to hire by showing (i) that she belongs to a protected

class; (ii) that she applied for and was qualified for a job for which the employer

was seeking applicants; (iii) that despite her qualifications, she was rejected; and

(iv) that after her rejection, the position remained open and the employer

continued to seek applicants from persons of her qualifications. See McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 (1973).

There was evidence presented in this case from which the jury could have

concluded that Ms. Alwine was not qualified for the position of general manager

of the Buzz, and therefore did not satisfy her prima facie case. 10
She had limited

prior experience in professional sports. Aplt. App., Vol. III at 1173-77. When

she sent her resume to the Buzz, she sought a promotions/sales position rather

10
This “limited experience” as a factor in determining whether she met her
prima facie case should be distinguished from the defendants’ attempt to use her
limited experience as a legitimate, non-discriminatory reason for failing to hire
Ms. Alwine.

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than a management position. Id. , Vol. VI at 2215. Her resume did not include

any experience in sports management, other than as a director of group sales for a

basketball team. Id. at 2217. The rejection letters she received from numerous

other sports teams about this time contain no indication that she sought a position

as general manager. Id. at 2221-34. Although a finder of fact could have

concluded that she met her prima facie case, given this lacuna in her evidence,

she was not entitled to judgment as a matter of law. 11

4. Mixed motive defense instructions

Ms. Alwine challenges jury instructions 16 and 17, dealing with mixed

motive. She contends that a mixed motive analysis was applicable only to her

retaliation claim. These instructions, she says, muddied the waters by permitting

the defendants also to assert a mixed motive defense on her quid pro quo

harassment claim. In order to understand why Ms. Alwine’s argument fails,

we must first lay some groundwork concerning the role of the “mixed motive”

analysis in discrimination cases.

11
Ms. Alwine argues that the district court’s limiting instruction pertaining to
Mr. Buzas’ harassment of others prevented the jury from using their testimony “to
determine what the requirements of the general manager position, as Joe Buzas
envisioned it, were.” Aplt. Reply Br. at 22. If this were true, it might have an
effect on Ms. Alwine’s ability to present her prima facie case. We do not read the
limiting instruction so narrowly, however: it permitted the jury to use the
testimony of other women to determine “what were the intent, purpose and motive
of the defendants when they did not offer a job to Ms. Alwine.” Aplt. App.,
Vol. V at 1873. This, presumably, included the qualifications for the position.

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 In Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), the Supreme Court

held that “Title VII [condemns] even those decisions based on a mixture of

legitimate and illegitimate considerations.” Id. at 241. For this reason, once a

plaintiff has proved that impermissible discriminatory criteria played a motivating

part in the employer’s decision, the employer may avoid liability only if it proves,

by a preponderance of the evidence, that it would have made the same decision

even if it had not taken the discriminatory criteria into account. Id. at 259. This

mixed-motive analysis applies only in cases where the decision “was the product

of a mixture of legitimate and illegitimate motives,” id. at 247, and therefore does

not implicate the burden-shifting analysis described in McDonnell Douglas ,

411 U.S. 792. Instead, the employer’s burden under Price Waterhouse is properly

deemed an affirmative defense to the plaintiff’s showing that it relied in part on

discriminatory criteria to deny her an employment benefit. Id. at 246.

Using this characterization of the employer’s burden as an affirmative

defense as a jumping-off point, Ms. Alwine argues that the defendants were not

entitled to a mixed motive instruction because the Supreme Court has forbidden

the assertion of any affirmative defense to harassment when a supervisor’s

harassment culminates in a tangible employment action. See Burlington , 524 U.S.

at 765; see also Faragher v. City of Boca Raton , 524 U.S. 775, 808 (1998). This

argument, however, misapprehends the holding in Burlington , which forbids only

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the assertion of the particular affirmative defense to vicarious liability recognized

in that case, not of affirmative defenses in general. See 524 U.S. at 765. 12

Ms. Alwine cites no authority to the effect that the affirmative defense discussed

in Price Waterhouse is no longer available in “mixed motive” cases. 13
The recent

Supreme Court case of Desert Palace, Inc. v. Costa , 539 U.S. 90, 123 S. Ct. 2148

(2003), suggests that the defense is alive and well. See id. at 2151-52; see also

Smith v. Cashland, Inc. , 193 F.3d 1158, 1160-62 (10th Cir. 1999) (permitting

employer, in quid pro quo sexual harassment case decided after Burlington and

Faragher , to assert affirmative defense of legitimate business reason). Her

argument therefore lacks merit.

Ms. Alwine further argues that a mixed motive instruction is inappropriate

because defendants never presented any testimony from Mr. Buzas concerning his

reasons for not hiring her, and there was therefore no “mixed motive”

demonstrated in this case. She fails to show that she raised this argument in her

12
The Burlington defense to hostile work environment sexual harassment
requires the employer to show two elements: “(a) that the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior,
and (b) that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise.” Burlington , 524 U.S. at 765.
13
Ms. Alwine makes no argument concerning whether the limitation of the
mixed motive defense codified at 42 U.S.C. § 2000e-5(g)(2)(B) applies in this
case, and so we have no occasion to consider that issue.

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objections to the challenged jury instructions in the district court; therefore the

argument is waived.

5. Cumulative error

Finally, Ms. Alwine argues that this court should examine cumulatively all

the errors on appeal to determine whether, taken as a whole, they had a substantial

influence on the jury’s verdict. The only significant errors we have identified are

those to which Ms. Alwine did not object: defense counsel’s arguments

attempting to create sympathy for Mr. Buzas, and his comments about

Ms. Alwine’s relationship with Mr. Bowers. Even considered synergistically,

these errors did not rise to the level of reversible error.

The judgments of the district court are AFFIRMED.

Entered for the Court

Terrence L. O’Brien
Circuit Judge

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