Miller v. EBY Realty Group LLC

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 25 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

RICHARD MILLER,

Plaintiff - Appellee,

vs.
Nos. 03-3307 and 04-3073
EBY REALTY GROUP LLC, formerly
known as EMC, Inc.,

Defendant - Appellant,

-----------------------

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 01-CV-2333-CM)

Mick W. Lerner, Law Office of Mick Lerner, P.A., Overland Park, Kansas (and J.
Randall Coffey, Bioff, Finucane, Coffey, Holland & Hosler, LLP, Kansas City,
Missouri, with him on the brief), for Plaintiff - Appellee.

William E. Quirk, Shughart, Thomson & Kilroy, P.C., Kansas City, Missouri (and
Carl A. Gallagher, Mcanany, Van Cleave & Phillips, P.A., Kansas City, Kansas,
with him on the briefs), for Defendant - Appellant.

Susan L.P. Starr, (Eric S. Dreiband, General Counsel, Carolyn L. Wheeler, Acting
Associate General Counsel, and Vincent J. Blackwood, Assistant General
Counsel, with her on the brief), Equal Employment Opportunity Commission,
Washington, D.C., for Amicus Curiae.

Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge and
LUCERO, Circuit Judge.

KELLY, Circuit Judge.

Plaintiff-Appellee Richard Miller sued his former employer Defendant-

Appellant Eby Realty Group, LLC, (“Eby”), the successor in interest to Eby

Management Company, Inc. (“EMC”), alleging unlawful age discrimination and

retaliation under the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. §§ 621-634, and breach of contract. 1 The case was tried to a jury, which

returned a verdict for Mr. Miller finding that (1) Eby illegally discriminated

against Mr. Miller based on his age, (2) the discrimination was willful, and (3)

Eby breached its employment contract with Mr. Miller. The jury awarded

$222,087 for the age discrimination claim and $10,000 for the breach of contract

claim. The court further awarded liquidated damages based on the jury’s finding

of willfulness in the amount of $222,087, $278,316 for front pay, $51,000 for

attorney’s fees, and $4,880.72 in costs, for a total judgment of $788,370.72. On

appeal, Eby makes three arguments: (1) the evidence was insufficient to support a

1
Mr. Miller’s retaliation claim was dismissed by the district court on
summary judgment, which Mr. Miller has not appealed.

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finding of age discrimination, (2) the district court erred in instructing the jury,

and (3) the district court erred in excluding evidence offered by Eby. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

When reviewing a jury verdict, we review the record in favor of the

prevailing party, and “give that party the benefit of all reasonable inferences to be

drawn from the evidence.” Abuan v. Level 3 Communications, Inc., 353 F.3d

1158, 1164 (10th Cir. 2003). Viewed accordingly, the record reveals the

following facts.

At age 54, Mr. Miller was hired as general manager for what was then

EMC. EMC managed assisted living facilities, generating its revenue from

management fees charged to these facilities. EMC was wholly owned by Eby

Holdings, Inc., which in turn was owned by Dr. Ray Cook and several members of

the Eby family, including Don & Judy Eby and their sons Joe, Mike, and Andy.

Eby Holdings, Inc. also owned several other related entities, including Eby

Development and Management Company (“EDM”). EDM built assisted living

facilities and sold them to other companies once they became operational. EMC

then managed these facilities for the buyers. Although related, each of the Eby

companies were separate corporate entities with separate officers and boards of

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directors. During his employment with the Eby’s, Mr. Miller worked exclusively

for EMC.

Mr. Miller was hired by Don Eby (“Don”), the patriarch of the Eby family,

and his immediate superior was Mike Eby (“Mike”), who was the President of

EMC. Before he was hired, Mr. Miller’s age was not addressed. However, on his

first day with EMC, Don remarked that he had pain in his knees and hips and that

he was “getting old and creaky.” Mr. Miller then offered that Don was probably

younger than he was saying, “If you’re getting old and creaky, what’s that make

me?” Through this conversation, Don was surprised to learn that Mr. Miller was

two years his senior and commented on Mr. Miller’s youthful appearance.

Sometime within Mr. Miller’s first year with EMC he attended a business

conference with Don, Judy, and Mike Eby. During the conference a slide was

shown of an elderly man with “craggily and tight” skin wearing a bathing suit. In

front of Mr. Miller, Don leaned over and told his wife and son, “[T]hat’s what

[Mr.] Miller’s going to look like soon.”

Judy Eby also made comments about Mr. Miller’s age and appearance while

he was employed at EMC. Once she said, “I can’t believe you’re older than Don,

because he has a lot more gray hair or all gray hair and you don’t.” On another

occasion Judy saw Mr. Miller run down a hallway and remarked that he was in

“pretty good shape for his age,” unlike Don who had knee or hip problems.

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 After working for EMC for over two years, Mr. Miller was called into

Don’s office and terminated. Don told Mr. Miller the Eby companies were in

financial trouble and that he was being terminated due to a overall reduction in

force (“RIF”). Don also told Mr. Miller that his position was being eliminated,

and that his duties would be assumed either by Mike or Don. However, the day

after Mr. Miller was fired, Alan Fairbanks, who was 24 years younger than Mr.

Miller, was hired as EMC’s general manager at roughly the same salary Mr.

Miller had before he was terminated. Mr. Fairbanks had been an Eby employee

longer than Mr. Miller and had previously been employed by EMC. However,

immediately before Mr. Miller was terminated, Mr. Fairbanks was employed by

EDM, and Don testified the relative seniority of Mr. Fairbanks and Mr. Miller

was not a factor in his decision to terminate Mr. Miller.

Before bringing suit, Mr. Miller sought administrative review with the

Equal Employment Opportunity Commission (“EEOC”). During this process, Eby

wrote a letter to the EEOC detailing its reasons for terminating Mr. Miller, which

indicated that along with a RIF, Mr. Miller’s performance was a factor in its

decision to terminate him. However, after the EEOC issued a right to sue letter

and Mr. Miller filed this suit, Eby stipulated that his performance was not a factor

in its decision to fire him.

At the time Mr. Miller was terminated, some of the Eby companies,

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especially EDM, were experiencing financial difficulties due to a downturn in the

assisted living industry, but EMC was seemingly not experiencing these same

difficulties. Before Mr. Miller was hired, EMC had never made a profit;

however, after Mr. Miller’s first year as general manager, EMC made a profit of

over $300,000, and the company was forecasting similar results when Mr. Miller

was terminated.

Before trial, Mr. Miller filed a motion in limine seeking to exclude all

evidence of his performance as EMC general manager, and the financial condition

of the Eby companies other than EMC. However, Mr. Miller also indicated his

intent to introduce the EEOC letter stating Eby considered his performance in

deciding to terminate him as evidence that Eby gave the EEOC a false reason for

its actions. Eby objected, arguing that if the court allowed the EEOC letter to be

admitted it should have the opportunity to explain its statement with evidence of

Mr. Miller’s performance. The district court granted Mr. Miller’s motion, in part,

ruling that evidence of Mr. Miller’s prior performance was not admissible in light

of the parties’ stipulation, but that Mr. Miller could use the EEOC letter to prove

pretext. However, the district court denied the motion as to evidence of the

financial condition of the other Eby companies.

During trial, Eby twice moved for judgment as a matter of law (“JMOL”)

pursuant to Fed. R. Civ. P. 50(a), arguing the evidence was insufficient to support

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a finding of age discrimination. The district court denied both motions, and the

case was submitted to the jury. After deliberating for three hours, the jury

returned a verdict for Mr. Miller finding that Eby had willfully discriminated

against him on the basis of his age in violation of the ADEA, and that Eby

breached its employment contract with Mr. Miller. 2 Eby then filed a post-verdict

motion for JMOL, or in the alternative for a new trial, pursuant to Fed. R. Civ. P.

50(b), arguing, among other things, that (1) the evidence was insufficient to

support the verdict, (2) the district court erred in instructing the jury, and (3) the

district court erred in excluding evidence proffered by Eby. Again, Eby’s motion

was denied. Eby now appeals the district court’s denial of it motion for JMOL or

in the alternative for a new trial, raising these same three issues.

Discussion

A. Sufficiency of the Evidence

Eby argues the district court erred in denying its motion for JMOL as there

was insufficient evidence to support the jury’s finding of age discrimination, or

that such discrimination was willful. We review the denial of a motion for JMOL

de novo, using the same legal standard as the district court. Greene v. Safeway

2
As Eby has not appealed the jury’s verdict as to breach of contract claim,
this claim is not before us.

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Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996). JMOL is only proper when “the

evidence and all inferences to be drawn therefrom are so clear that reasonable

minds could not differ on the conclusion.” Id. In conducting our review, we

consider the record in its entirety and “draw all reasonable inferences in favor of

the nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

150 (2000). We do not however “weigh the evidence, pass on the credibility of

witnesses, or substitute [our] conclusions for that of the jury.” Minshall v.

McGraw Hill Broad. Co., Inc., 323 F.3d 1273, 1279 (10th Cir. 2003) (citation

omitted).

1. Age Discrimination

Mr. Miller’s theory in this case is that Eby’s proffered reasons for his

termination were a pretext for age discrimination. The evidentiary requirements

for pretext claims under the ADEA are well established. Initially, the employee

must prove the prima facie case by establishing that he was: (1) within the age

group protected by the ADEA when he was terminated, (2) performing his job

satisfactorily, (3) discharged, and (4) replaced by a younger person. Reeves, 530

U.S. at 142; McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.

1998). Once the prima facie case is established, a presumption of discrimination

arises and the employer has the burden to produce a “legitimate,

nondiscriminatory reason” for its action. Reeves, 530 U.S. at 142. If the

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employer proffers a legitimate reason, the employee then must prove, by a

preponderance of the evidence, that the employer’s explanation is merely a

pretext for unlawful discrimination. Id. at 143. At this point, the McDonnell

Douglas framework, with its presumptions and burden shifting, drops out and the

sole issue is whether unlawful discrimination occurred. Id. 142-43. However, in

deciding this issue, the jury is still entitled to consider the evidence establishing

the prima facie case and the reasonable inferences drawn therefrom. Id. at 143.

Here, the parties stipulated to the prima facie case, 3 and Eby has proffered a

legitimate, nondiscriminatory reason–RIF–for terminating Mr. Miller. Therefore,

the only question before us is whether Mr. Miller sufficiently established that

Eby’s proffered reason was a pretext for discrimination.

Pretext exists when an employer does not honestly represent its reasons for

terminating an employee. See The American Heritage Dictionary of the English

Language (4th ed. 2000) (pretext is defined as (1) “An ostensible or professed

purpose; an excuse” and (2) “An effort or strategy intended to conceal

something”). And while rejection of the employer’s explanation does not compel

a finding of discrimination, “it is permissible for the [factfinder] to infer the

3
Even though the parties did not expressly state they were stipulating to the
prima facie case, the parties’ stipulations included the following: (1) Mr. Miller’s
and Mr. Fairbanks’ relative ages, (2) that Mr. Miller was terminated, (3) that Mr.
Miller’s performance was not a factor in his termination, and (4) that Mr.
Fairbank replaced Mr. Miller.

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ultimate fact of discrimination from the falsity of the employer’s explanation.”

Reeves, 530 U.S. at 147. The Court further explained that “[s]uch an inference is

consistent with the general principle of evidence law that the factfinder is entitled

to consider a party’s dishonesty about a material fact as affirmative evidence of

guilt.” Id. (internal quotations and citation omitted). In drawing such inference,

the factfinder must be able to conclude, based on a preponderance of the

evidence, that discrimination was a determinative factor in the employer’s

actions–simply disbelieving the employer is insufficient. Id. at 146-47. However,

the evidence establishing the prima facie case, along with the reasonable

inferences drawn therefrom, coupled with a disbelief of the employer’s

explanation, can be sufficient to make this finding. Id. at 147; St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 511 (1993).

Eby argues that Mr. Miller failed to prove pretext because he did not

sufficiently establish that Eby’s RIF explanation was false, and that even if the

jury disbelieved its RIF justification, the evidence was insufficient to infer that

age discrimination motivated its decision. Upon reviewing the record, we

conclude that Mr. Miller has provided sufficient evidence upon which the jury

could reasonably conclude that Eby’s stated reasons for terminating him,

including a RIF, were disingenuous.

First, Mr. Miller has provided evidence that the explanation he was given

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the day he was fired was false. Mr. Miller was told that his position was being

eliminated and that Don or Mike would assume his duties, but this is not what

happened. Rather, Mr. Miller was replaced the day after he was fired by someone

from outside EMC who was hired at roughly the same salary and was twenty-four

years younger than Mr. Miller.

“One way a RIF plaintiff may show pretext is to present evidence that, in

fact, his job was not eliminated but remained ‘a single, distinct position.’” Abuan,

353 F.3d at 1169 (quoting Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir.

1996)). EMC retained “general manager” as a “single and distinct position,” even

though Mr. Miller was told the position was being eliminated. In explanation,

Don testified that EMC had not decided what they were going to do when Mr.

Miller was terminated. Eby further argues that eliminating a general manager

position is “facial[ly] implausib[le]” and shows Mr. Miller’s perception of EMC’s

plans was unreasonable, and that its representation of who would assume Mr.

Miller’s job was too vague to be relied on. Certainly the jury could have accepted

Eby’s argument; however, we cannot say that there was insufficient evidence

upon which to accept Mr. Miller’s explanation, which is clearly what the jury did.

Second, Mr. Miller also produced evidence that Eby gave the EEOC a false

reason for his termination. Eby stipulated at trial that Mr. Miller’s performance

was not a factor in its decision to fire him even though it had previously told the

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EEOC performance was a factor. Eby concedes, as it must, that this evidence

suggests it gave a false reason to the EEOC, but the company argues this does

nothing to prove that its other justification–RIF–was false. We disagree.

One of the primary roles of the factfinder is to assess credibility in deciding

how to view the evidence. Lamon v. City of Shawnee, Kan., 972 F.2d 1145, 1159

(10th Cir. 1992) (“It is the jury's exclusive province to assess the credibility of

witnesses and determine the weight to be given to their testimony.”). Indeed, the

jury in this case was instructed that it could consider credibility “in deciding the

weight and credit” to give the evidence. The same principle applies here. The

factfinder is entitled to infer from any “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in the employer's proffered

reasons for its action that the employer did not act pursuant to those reasons,

Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997), and we can see no

reason to limit this inference to the specific proffered reason suffering from an

inconsistency. If the factfinder concludes that one of the employer’s reasons is

disingenuous, it is reasonable for it to consider this in assessing the credibility of

the employer’s other proffered reasons.

Finally, the parties disagree on whether, in assessing the credibility of

Eby’s RIF justification, the jury must consider the financial condition and

employment actions of the Eby companies as a whole or only EMC. Eby argues

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that, considering the companies as a whole, there was sufficient evidence to

establish a RIF given that 29 other Eby employees were terminated around the

same time as Mr. Miller, and there was a general downturn in the assisted-living

industry causing financial problems for EDM and other Eby companies. Mr.

Miller argues that EMC is the only relevant company because it is an independent

corporation, and he was never employed by any other Eby company. Further, he

asserts that only considering EMC unmistakably shows the RIF explanation was

false because Eby admitted there was no RIF at EMC specifically, and when he

was terminated the company was projecting a profit for the second year in a row.

We refuse to find as a matter of law that the jury was required to accept

either party’s view of the evidence. Rather, this was a question of fact for the

jury to resolve. The district court admitted Eby’s evidence regarding the financial

condition of the Eby companies as a whole, and with all the evidence before it,

the jury rejected Eby’s RIF explanation. We cannot say this conclusion was

unsupported by substantial evidence. Dodoo v. Seagate Tech., Inc., 235 F.3d 522,

531 (10th Cir. 2000).

Eby also argues that even if the jury was reasonable in rejecting its RIF

explanation, the evidence was insufficient to prove that its actions were motivated

by age discrimination. Specifically, Eby argues the comments about Mr. Miller’s

age fail to establish discriminatory motive. Again, we disagree.

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 Addressing sufficiency of the evidence in ADEA cases, the Supreme Court

has established that once the employer has proffered a legitimate, non-

discriminatory justification

the trier of fact proceeds to decide the ultimate question: whether
plaintiff has proven “that the defendant intentionally discriminated
against [him]” . . . . The factfinder’s disbelief of the reasons put
forward by the defendant (particularly if disbelief is accompanied by
a suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination.

Hicks, 509 U.S. at 511. The evidence establishing the prima facie case

coupled with the jury’s rejection of the employer’s explanation will not

always support a finding of discrimination, such as in cases where the

“plaintiff created only a weak issue of fact as to whether the employer’s

reason was untrue and there was abundant and uncontroverted independent

evidence that no discrimination occurred,” Reeves, 530 U.S. at 148, but this

is not the case here.

As discussed above, Mr. Miller has done more than create a “weak

issue of fact” as to whether Eby was truthful in explaining why it

terminated Mr. Miller by showing multiple false explanations were given,

and once Eby’s explanation is rejected there is no apparent alternative

legitimate justification for Mr. Miller’s termination. See id. (citing cases

recognizing that in some cases the facts show there is an alternative

legitimate explanation that prevents a finding of discrimination). “Events

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have causes; if the only explanations set forth in the record have been

rebutted, the jury is permitted to search for others, and may in appropriate

circumstances draw an inference of discrimination.” Aka v. Washington

Hosp. Ctr., 156 F.3d 1284, 1292 (D.C. Cir. 1998). The employer is in the

best position to explain its actions, and when it chooses to lie about its

reasons for terminating an employee it runs the risk that “the lie will lead

the jury to draw an adverse inference.” Id. at 1293. This is true even

when there are possible legitimate explanations for the lie. Id. at 1294 n.8

(“[T]he fact that a lie could have multiple explanations, some of them well-

intentioned, cannot and should not foreclose the finder of fact, after hearing

witness testimony and assessing the evidence as a whole, from deciding

that the real motivation for lying was not innocent, but discriminatory.”).

And while we might agree that the comments made to Mr. Miller by

members of the Eby family are insufficient in themselves to prove

discriminatory motive, see Rea v. Martin Marietta Corp., 29 F.3d 1450,

1457 (10th Cir. 1994) (“Isolated comments . . . are insufficient to show

discriminatory animus in termination decisions.”) (citation omitted), this

was not the only evidence before the jury. Rather, the jury had the

evidence from the prima facie case and the fact that Eby lied about its

reasons for firing Mr. Miller, coupled with the comments. As such, when

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viewed as a whole, the record contains sufficient evidence to support the

jury’s finding of age discrimination.

2. Willfulness

Eby also contends the evidence was insufficient to support a finding

of willful discrimination. However, we agree with amicus EEOC that Eby

failed to preserve this issue for appeal. “To preserve a sufficiency of the

evidence claim for appellate review, a party must move for judgment as a

matter of law . . . under Federal Rule of Civil Procedure 50(a) at the close

of the evidence.” United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210

F.3d 1207, 1228 (10th Cir. 2000). One of the purposes of these motions is

to alert the opposing party (and the court) of any deficiencies in the case,

“thereby giving the party an opportunity to rectify any deficiencies prior to

the case being submitted to the jury.” Cummings v. Gen. Motors Corp.,

365 F.3d 944, 949 (10th Cir. 2004). Thus, the moving party must “specify

the judgment sought and the law and the facts on which the moving party is

entitled to the judgment.” Fed. R. Civ. P. 50(a)(2).

Failure to sufficiently raise an issue in a motion for JMOL bars

appellate review of that issue. Cummings, 365 F.3d at 949. In determining

whether an issue has been sufficiently raised, the court liberally construes

the party’s motion for JMOL. Id. Technical precision is not the standard.

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Rather, the moving party need only “adequately notify the court of the

issues being raised.” Id. at 950.

Here, Eby made two oral motions for JMOL before the case was

submitted to the jury. In both motions the company argued there was

insufficient evidence to support a finding of age discrimination based on

the evidentiary requirements for proving an ADEA claim discussed above;

however, neither motion asserted that (assuming the motion was denied) the

evidence still was insufficient to support a finding of willfulness under the

ADEA.

While it might be argued that a sufficiency challenge to finding

willful discrimination is encompassed in a challenge to finding age

discrimination in general, we find this position in error. See Wharf, 210

F.3d at 1228-29 (rejecting argument that damages challenge was raised by

implication in stated non-damage grounds for JMOL); Cummings, 365 F.3d

at 950 (refusing to find issue of liability in general was raised when

defendant only directly addressed a defense to liability). To prove willful

discrimination the plaintiff must establish that the “employer either knew or

showed reckless disregard” as to whether its conduct violated the ADEA.

Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993). This evidentiary

showing is distinct from the prima facie case and pretext standards

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discussed above. Therefore, by failing to challenge willfulness directly,

Eby did not alert Mr. Miller as to a possible evidentiary deficiency on this

issue, and Mr. Miller was not afforded an opportunity to correct such

problem before the case was submitted to the jury, if one existed.

Further, Eby failed to object to the jury instruction on willfulness.

See Atchely v. Nordam Group, Inc., 180 F.3d 1143, 1147-48 (10th Cir.

1999) (finding that where employer failed to raise punitive damage issue in

motion for JMOL and also failed to object to punitive damage jury

instruction, issue was not preserved for appeal). Thus, Eby failed to give

any indication during trial that sufficiency of the evidence regarding

willfulness was an issue. As such, Eby is barred from raising this issue on

appeal. To hold otherwise would be in contravention of the purposes of

Rule 50(a) motions.

B. Motion for a New Trial

Eby seeks a new trial on two grounds: (1) the district court erred in

instructing the jury on pretext, and (2) the district court erred in excluding

Eby’s evidence regarding Mr. Miller’s performance on the basis of the

parties’ stipulation that his performance was not an issue when Mr. Miller

was allowed to introduce the EEOC letter referencing performance. As

both of these arguments are factually related, we address them together.

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 First, Eby contends the evidence was insufficient to support a jury

instruction on pretext as the only evidence of pretext–the EEOC letter–was

inadmissible because it violated the parties’ stipulation that Mr. Miller’s

performance was not a factor in his termination. We disagree with Eby’s

characterization of the evidence.

The parties stipulated that “[i]n terminating [Mr. Miller’s]

employment, no consideration of any kind was given to [his] past

performance.” However, the EEOC letter specifically identified Mr.

Miller’s performance as one of the factors Eby considered in terminating

him. By referencing this letter, Mr. Miller was not attempting to prove that

his performance was factor, which would be in violation of the stipulation;

rather, he was attempting to show that Eby had lied to the EEOC about why

he was terminated, suggesting, in general, that Eby’s proffered reasons for

firing him were untruthful and a pretext. This was not a misuse of the

parties’ stipulation.

Further, as discussed previously, the EEOC letter was not the only

evidence suggesting pretext. Mr. Miller also produced evidence showing

the explanation Eby gave to him on the day he was terminated was false.

We have previously held that a pretext instruction “is required where, as

here, a rational finder of fact could reasonably find the [employer’s]

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explanation false and could ‘infer from the falsity of the explanation that

the employer is dissembling to cover up a discriminatory purpose.’”

Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1241 (10th Cir.

2002) (quoting Reeves, 530 U.S. at 134) (emphasis added). Thus,

reviewing the instructions de novo, we conclude they “state[d] the

applicable law and provide[d] the jury with an appropriate understanding of

the issues and the legal standards to apply.” 4 Faulkner v. Super Valu

Stores, Inc., 3 F.3d 1419, 1424 (10th Cir.1993).

Relatedly, Eby’s argument that it was entitled to introduce evidence

of Mr. Miller’s performance in an attempt to explain its statement in the

letter to the EEOC is in error. As Eby admits, the stipulation removing Mr.

Miller’s performance as an issue in this case was voluntarily entered into

by both parties for strategic reasons. Stipulations are generally considered

judicial admissions, Vallejos v. C.E. Glass Co., 583 F.2d 507, 510 (10th

Cir. 1978), and are routinely accepted as they increase efficiency in the

judicial process. As such, “[t]his court is . . . reluctant to relieve parties

from the benefits, or detriments of their stipulations.” Stafford v. Crane,

4
Mr. Miller asserts we should apply a plain error standard of
review, arguing Eby failed to preserve its jury instruction challenge for
appeal. Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1289 (10th Cir. 1999).
As we have resolved this issue in Mr. Miller’s favor using the standard
more preferable to Eby, we find it unnecessary to address this issue.

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382 F.3d 1175, 1180 (10th Cir. 2004) (internal quotations and citation

omitted). Further, the district court is vested with broad discretion in

deciding whether to enforce a parties stipulation or not, Wheeler v. John

Deere Co., 935 F.2d 1090, 1098 (10th Cir. 1991). Under the facts of this

case, we cannot say the district court abused its discretion in enforcing the

stipulation against Eby.

AFFIRMED.

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