FILED
United States Court of Appeals
Tenth Circuit
October 20, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LAURA SCHMIDT,
Plaintiff-Appellant/Cross-
Appellee,
Nos. 07-3347 & 07-3354
v. (D. Kansas)
2:06-CV-02260-JWL
MEDICALODGES, INC.,
Defendant-Appellee/Cross-
Appellant.
ORDER AND JUDGMENT *
Before TACHA, SEYMOUR and HOLMES, Circuit Judges.
Laura Schmidt brought an action against her former employer,
Medicalodges, Inc. (“Medicalodges”), for hostile work environment sexual
harassment in violation of Title VII of the Civil Rights Act, 42 U.S.C. §
2000e-2(a)(1). She appeals the district court’s denial of her motion for a new
trial after the jury found that Medicalodges was not liable for the harassment Ms.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with F ED . R. A PP . P. 32.1 and 10 TH
C IR . R. 32.1.
Schmidt suffered at the hands of its employee, Shawn Garbin, because it proved
the affirmative defense recognized in Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
Medicalodges appeals the district court’s denial of its request for an award of
statutory attorney fees. We affirm.
Ms. Schmidt was a nurse at the Kansas City facility of Medicalodges
providing care to elderly patients. 1 During her employment, Shawn Garbin, the
Director of Nursing, was Ms. Schmidt’s immediate supervisor. Julie Melvin, the
facility’s administrator, was Garbin’s immediate supervisor and answered to
Cindy Frakes, a regional manager. In 2005, Garbin was immediately suspended
after Medicalodges received a report that he had sexually harassed an employee,
Angela Mitchell. Garbin was terminated after Ms. Frakes and Ms. Melvin
investigated Ms. Mitchell’s complaint and received evidence of additional
complaints of sexual harassment against Mr. Garbin.
Ms. Schmidt did not complain of sexual harassment during her employment
with Medicalodges. In her letter of resignation, she referred to her health and
need to cut back from her many jobs. Ms. Schmidt asserted a claim against
Medicalodges before the Equal Employment Opportunity Commission and the
district court after she learned that a former Medicalodges employee was pursuing
1
The undisputed facts are from the district court’s opinion denying in part
and granting in part Medicalodges’ motion for summary judgment. See Schmidt
v. Medicalodges, Inc., 492 F. Supp. 2d 1302, 1304 (D. Kan. 2007).
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an harassment claim. The jury found in favor of Medicalodges.
Ms. Schmidt bases her request for a new trial on two arguments. First, she
contends the district court erred in admitting testimony that one of her witnesses
lied on her employment application when she denied being convicted of a felony.
Ms. Schmidt argues that the testimony about a 1993 conviction for drug
possession should have been excluded under Federal Rules of Evidence 609 and
403. Second, she asserts that there was insufficient evidence to support the jury’s
finding that Medicalodges proved the Faragher/Ellerth affirmative defense.
Motions for a new trial are “not regarded with favor and should only be
granted with great caution” in the sound discretion of the trial court. United
States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991); Hinds v. Gen. Motors Corp.,
988 F.2d 1039, 1046 (10th Cir. 1993). In reviewing for an abuse of discretion,
we view “all the evidence in the light most favorable to the prevailing party.”
Escue v. N. OK Coll., 450 F.3d 1146, 1156-57 (10th Cir. 2006). “[T]he party
seeking to set aside a jury verdict must demonstrate trial errors which constitute
prejudicial error or that the verdict is not based on substantial evidence.” White
v. Conoco, Inc., 710 F.2d 1442, 1443 (10th Cir. 1983).
As to Ms. Schmidt’s first argument, one of the critical issues before the
jury was evaluation of the credibility of two of Ms. Schmidt’s witnesses, Dorothy
Joyner and Tonette Ealy. Ms. Joyner and Ms. Ealy both testified they had left
notes under Ms. Melvin’s office door explaining that Mr. Garbin had sexually
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harassed them. Ms. Melvin testified that she never received such notes.
Medicalodges’ counsel attempted to impeach Ms. Ealy, after she testified on
cross-examination that she was a truthful person, by offering into evidence the
employment application Ms. Ealy had submitted to Medicalodges in 2002. Ms.
Schmidt’s counsel objected, asserting that the conviction was too remote and that
the employment application was not listed or produced in advance.
Medicalodges’ counsel countered “that he wished to impeach Ms. Ealy’s
credibility with evidence that she was not truthful in her application when she
denied having been convicted of a crime, when in fact she had been convicted of
a drug offense in 1993.” Schmidt, 523 F. Supp. 2d at 1258. The district court
sustained Ms. Schmidt’s objection, excluding the application and any
documentary evidence of the conviction. But the court allowed Medicalodges’
counsel to “ask Ms. Ealy whether she had made the particular representation in
her application and whether she had in fact been convicted [of a crime], using the
documents only to refresh her recollection if necessary.” 2 Id. Immediately after
Ms. Ealy admitted her misrepresentation regarding her conviction, the district
court gave the jury a limiting instruction advising that the purpose of the question
was solely so they could evaluate whether the witness had made inconsistent
statements. Id. at 1259.
2
Ms. Ealy later admitted that she had made a similar representation to her
current employer.
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The record does not indicate any objection to the questioning of Ms. Ealy
about her lie on the employment application or about the conviction. “[A] party
that has forfeited a right by failing to make a proper objection may obtain relief
for plain error.” United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th
Cir. 2007). “Plain error is that which is obvious, or which seriously affects the
fairness or integrity of the trial.” United States v. Deters, 184 F.3d 1253, 1258
(10th Cir. 1999) (citation and quotation marks omitted).
Ms. Schmidt contends Medicalodges violated Rule 609’s advance notice
and balancing requirements and that somehow cures her counsel’s failure to
object. Rule 609 addresses situations where a counsel attempts to impeach a
witness by direct evidence of a criminal conviction. See F ED . R. E VID . 609. Ms.
Schmidt’s argument ignores the important fact that the district court only allowed
Medicalodges to impeach Ms. Ealy, a non-party-witness, by evidence of her
untruthfulness on an employment application under Rule 608(b). See Schmidt,
523 F. Supp.2d at 1260 (citing United States v. Norton, 26 F.3d 240, 243-44 (1st
Cir. 1994)). Rule 608(b) provides:
Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ credibility, other than conviction
of crime as provided in Rule 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the witness’
character for truthfulness or untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness of another witness as to
which character the witness being cross-examined has testified.
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F ED . R. E VID . 608(b). Because Medicalodges’ counsel impeached Ms. Ealy with
evidence of her untruthfulness, not by evidence of a crime, the district court
correctly concluded that the applicable rule was 608, not 609. See United States
v. Redditt, 381 F.3d 597, 602 (7th Cir. 2004) (Redditt’s failure to identify her
conviction on her employment application was relevant to her character for
truthfulness, thus, the district court properly permitted questioning about those
statements).
Ms. Schmidt is correct that Rule 608(b) is subject to the exclusion of
evidence whose “probative value is substantially outweighed by the danger of
prejudice.” F ED . R. E VID . 403; see also United States v. Olivo, 80 F.3d 1466,
1470 (10th Cir. 1996). Our review of the record, however, persuades us that “the
district court conducted the required balancing but simply failed to make explicit
findings in the record [at trial]. . . . [E]xplicit findings are not an absolute
requirement the nonperformance of which mandates reversal.” United States v.
Howell, 285 F.3d 1263, 1270 (10th Cir. 2002) (citation and quotation marks
omitted). Here, the court sufficiently explained in its written opinion how it
conducted the required balancing and the basis for its exercise of discretion under
Rule 608(b).
In this case, Ms. Ealy’s credibility became a material issue, as her
testimony was directly refuted by Mr. Garbin and Ms. Melvin.
Evidence that Ms. Ealy lied on her employment application was
probative of her truthfulness. See United States v. Girdner, 773 F.2d
257, 260-61 (10th Cir. 1985) (under Rule 608(b), a party may
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cross-examine a witness about previous falsehoods as probative of
truthfulness); . . . Davidson Pipe Co. v. Laventhol and Horwath, 120
F.R.D. 455, 462-63 (S.D.N.Y. 1988) (employment applications carry
an obligation for truthfulness, such that falsehoods thereon may be
probative of a lack of credibility under Rule 608(b)); see also United
States v. Drake, 932 F.2d 861, 867 (10th Cir. 1991) (rejecting
argument for exclusion under Rule 608(b); questions upon
cross-examination do not constitute extrinsic evidence under that
rule, even if they refer to records not in evidence).
Schmidt, 523 F. Supp. 2d at 1259-60.
In light of the limiting instructions to the jury, we conclude that the district
court’s exercise of its discretion to allow testimony probative of untruthfulness
did not amount to plain error where the truthfulness of the non-party-witness
played a material role. See Pinkham v. Me. Cent. R.R. Co., 874 F.2d 875, 878-79
(1st Cir. 1989) (where witness lied on employment application concerning prior
convictions, evidence was relevant to witness’ credibility, and the court’s limiting
instruction lessened any prejudicial impact under Rule 403).
Ms. Schmidt also contends the jury verdict based on the Faragher/Ellerth
defense was against the overwhelming weight of the evidence. Under
Faragher/Ellerth, an employer may be vicariously liable for a hostile work
environment unless it can prove by a preponderance of the evidence: “(1) it
exercised reasonable care to prevent and correct promptly any sexually harassing
behavior, and (2) the plaintiff unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise.” Pinkerton v. Colo. Dept. of Transp., 563 F.3d 1052, 1058-59 (10th
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Cir. 2009) (citing Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807) (internal
quotation marks omitted).
As to the first prong of the Faragher/Ellerth defense, the record reflects the
jury was presented sharply conflicting evidence addressing whether Medicalodges
had a sufficient anti-harassment policy and training, ignored prior complaints,
failed to discipline Mr. Garbin for alleged previous sexual assaults, or whether its
policy prohibited retaliation for complaining. For instance, the jury was
presented with evidence that Medicalodges had an extensive policy prohibiting
harassment, provided booklets containing the policy to all employees, trained its
employees, “required reporting of harassment, provided numerous avenues for
complaints, provided for prompt and confidential investigation of complaints,
provided for immediate suspension of an alleged harasser, and prohibited
retaliation for complaints.” Schmidt, 523 F. Supp. 2d at 1262. The parties also
presented contradictory evidence regarding whether other individuals had
submitted reports of sexual harassment by Garbin to Medicalodges. 3 The jury
also heard that Medicalodges terminated Garbin soon after it received a complaint
of sexual harassment.
As to the second prong of the defense, there was conflicting evidence
3
Although Schmidt contends notice of a prior complaint by Angela
Mitchell to her supervisor about sexual harassment by Mr. Garbin must be
imputed to defendant, the supervisor testified he did not pass along that complaint
after Ms. Mitchell urged him not to do so “because the incident would probably
blow over.” Schmidt, 523 F. Supp. 2d at 1262.
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regarding whether Ms. Schmidt unreasonably failed to take advantage of the
corrective opportunities provided by Medicalodges. Ms. Schmidt contends she
did not report Garbin’s behavior because she feared retaliation, and that any
complaint would have been futile. To refute Ms. Schmidt’s allegation,
Medicalodges provided the jury with relevant sections of its policy prohibiting
retaliation based on reports of harassment. In addition, Ms. Schmidt admitted she
reported Garbin’s alleged excessive use of profanity to Ms. Melvin without fear
of retaliation. “Jury findings on sharply conflicting evidence are conclusively
binding on appeal inasmuch as jurors are charged with the exclusive duty of
assessing the credibility of witnesses and determining the weight to be given to
their testimony.” White, 710 F.2d at 1443. “Thus, even if we do not necessarily
agree with the jury’s verdict, it must be upheld unless it is clearly, decidedly or
overwhelmingly against the weight of the evidence.” Escue, 450 F.3d at
1156-1157 (internal citations and quotation marks omitted). The jury verdict in
this case is not decidedly against the weight of the evidence.
In its cross-appeal, Medicalodges asserts the district court erred when it
refused to award it attorneys fees and expenses under 42 U.S.C. § 2000e-5(k).
Section 2000e-5(k) provides that the district court, in its discretion, may award
the prevailing party in a Title VII action reasonable attorney fees. See 42 U.S.C.
§ 2000e-5(k). But the Supreme Court has made clear that a Title VII defendant
is not entitled to an award of fees unless the court finds that the plaintiff’s “claim
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was frivolous, unreasonable, or groundless, or that the plaintiff continued to
litigate after it clearly became so.” Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 422 (1978); see also EEOC v. PVNF, LLC, 487 F.3d 790, 807 (10th Cir.
2007) (same). Medicalodges does not assert that Ms. Schmidt’s claim was
“frivolous, unreasonable, or groundless,” or that she “continued to litigate after it
clearly became so.” Id. We decline Medicalodges’ invitation to ignore clear
Supreme Court precedent supporting the denial of attorney’s fees in these
circumstances.
We AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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