F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 6 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
EDDIE STEWART,
Plaintiff - Appellant,
vs. No. 99-1242
ADOLPH COORS COMPANY, a
Colorado corporation and COORS
BREWING COMPANY, a Colorado
corporation,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 97-B-1467)
David Lichtenstein, Denver, Colorado, for Plaintiff - Appellant.
K. Preston Oade, Jr. (and Monica M. Márquez, with him on the briefs), Holme,
Roberts & Owen, LLP, Denver, Colorado, for Defendants - Appellees.
Before BALDOCK, KELLY, and BRISCOE, Circuit Judges.
KELLY, Circuit Judge.
This case requires us to examine the grant of a 50(b) motion for judgment
as a matter of law in favor of an employer, after an adverse verdict on claims of
race discrimination. We affirm.
Background
Eddie L. Stewart, an African-American, was hired by Defendant Coors
Brewing Company (“Coors”) in 1970 and worked continuously for the company
until he was laid off in 1996. During that time, Mr. Stewart was employed
primarily in construction and the Fabrication Services department (“the fab
shop”). The workers in the fab shop were supervised by several front-line
supervisors, who reported to the manager, Harold Wheeler. Mr. Wheeler, in turn,
reported to the director Jay Martine.
Mr. Stewart worked his way up from a Class B Welder in 1971 to a multi-
craft specialist – the highest skill classification – in 1987. In May 1992, the
multi-craft specialist position was eliminated as part of a Coors’ reduction in
force. Mr. Stewart, along with the other multi-craft specialists, was bumped
down to the position of metalworker helper. Two to three months later, Mr.
Stewart was assigned to work in the electropolish area of the fab shop. This
decision was made by Mr. Wheeler and by Darrell Sielsky, the electropolish area
supervisor. Workers in the electropolish area used cranes to lower stainless steel
parts into large acid bath tanks containing electrical current in order to remove
impurities from the metal components. Mr. Stewart continued to work in the
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electropolish area until he was laid off in April 1996. Although Coors policy
provided for recall rights within one year of being laid off, Mr. Stewart opted to
waive those rights in exchange for cash payments of supplemental unemployment
benefits.
On March 20, 1996, Mr. Stewart filed a charge of race discrimination with
the EEOC. He filed the current action in district court on July 7, 1997 alleging
that Coors violated Title VII and 42 U.S.C. § 1981 by subjecting him to different
terms and conditions of employment (Claim One), and by not promoting him
(Claim Two) because of his race. Mr. Stewart also brought three state law
claims: breach of implied contract (Claim Three); promissory estoppel (Claim
Four); and breach of express contract (Claim Five). 1 Aplt. App. at 13-22 (Third
Amended Complaint). Both parties moved for summary judgment on various of
the claims: Coors on Claims One through Four, and Mr. Stewart on Claim Five.
In a December 14, 1998 order, the district court granted summary judgment
to Coors on Claims Two, Three and Four and partial summary judgment on Claim
One, limiting the charges of race discrimination to Mr. Stewart’s assignment to
the electropolish area. See 1 Aplt. App. at 395. The court originally granted
plaintiff’s motion for summary judgment on Claim Five, determining that an
ambiguous contract existed and the contract should be construed against Coors as
the drafter. See id. at 412. However, on Coors’ motion for reconsideration, the
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court denied summary judgment, reasoning that once a contract was determined
to be ambiguous, the meaning of its terms was a question of fact for the jury
under Colorado law. See id. at 427; 2 Aplt. App. at 591-92.
At the close of evidence, both parties moved for judgment as a matter of
law. The motions were denied and the case was submitted to the jury by special
verdict on two claims: (1) “Did Plaintiff prove that Defendant placed him in the
Electropolish area of the Fabrication Services Department because of his race?”
and (2) “Did Plaintiff prove that Defendant violated Personnel Policy R-9 by
failing to recall him to a Laborer II job after he was laid off?” The jury found
for Coors on the second claim, but determined that Mr. Stewart had been
assigned because of his race and awarded him $60,000 in compensatory damages
and $40,000 in punitive damages. 1 Aplt. App. at 474-75.
After judgment was entered on the jury verdict, Coors again moved for
judgment as a matter of law under Fed. R. Civ. P. 50(b) arguing that Mr. Stewart
had failed to show any evidence of racial animus, and his claim of race
discrimination was time barred. The district court granted the motion, set aside
the earlier judgment, and entered judgment in favor of Coors. This appeal
followed.
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Rule 50(b) motion
We review the grant of a Rule 50(b) motion de novo, reviewing all of the
evidence in the record. See Reeves v. Sanderson Plumbing Products, Inc. , No.
99-536, 2000 WL 743663, at *10 (U.S. June 12, 2000). All reasonable
inferences are drawn in favor of the nonmoving party and this court does “not
make credibility determinations or weigh the evidence.” Id. at *11. Judgment as
a matter of law is appropriate “‘only if the evidence points but one way and is
susceptible to no reasonable inferences which may support the opposing party's
position.’” Finley v. United States , 82 F.3d 966, 968 (10th Cir. 1996) (citation
omitted). The district court granted judgment as a matter of law to Coors on two
alternate grounds: Mr. Stewart’s failure (1) to bring a claim within the requisite
statute of limitations; and (2) to present any evidence that the assignment to
electropolish was motivated by race. 2 Aplt. App. at 1222, 1224. Mr. Stewart
asserts that there was sufficient evidence to support the verdict, and maintains
that the district court erred in addressing the statute of limitations defense
because Coors failed to raise that issue in its Rule 50(a) motion.
In our review of the sufficiency of the evidence claim, we assume that Mr.
Stewart met his burden of proving a prima facie case of racial discrimination and
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the claim properly went to trial. 1
On the merits, the burden shifting framework of
McDonnell Douglas is largely irrelevant and the issue is whether the adverse
employment action was motivated by race. See Sanchez v. Philip Morris, Inc. ,
992 F.2d 244, 246 (10th Cir. 1993). This “‘burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff remains at
all times with the plaintiff.’” Reeves , 2000 WL 743663, at *6 (quoting Texas
Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 253 (1981)). The
plaintiff can meet this burden through the combination of a prima facie case and
the presentation of “sufficient evidence to find that the employer’s asserted
justification is false.” Id. at *9. Having assumed that a prima facie case was
shown, we review the record to determine whether Mr. Stewart presented
sufficient evidence that Coors’ stated justification was pretextual.
At trial, Coors demonstrated that Mr. Stewart’s assignment was based
upon the recommendation of Mr. Ray Evans. Mr. Evans, an African-American
and the lead worker in electropolish, spoke with Mr. Sielsky, the electropolish
supervisor, and recommended that plaintiff be assigned to electropolish. Mr.
1
The district court denied summary judgment on this claim because, at the
pre-trial stage, Coors had failed to “proffer a non-discriminatory reason for
Stewart’s assignment to the electropolish area.” 1 Aplt. App. at 406. Our
assumption in this case does not imply that an assignment from one job to another
within the same company department will ordinarily be sufficient to constitute an
“adverse” employment action.
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Evans testified that his motivation for making this recommendation was to
protect Mr. Stewart’s job security because electropolish was less likely to be
affected by layoffs than other areas of the fab shop. 2 Aplt. App. at 677. He also
testified that Mr. Stewart knew about the recommendation. Id. at 678. This
testimony was corroborated by Mr. Wheeler, the department manager, who
testified that plaintiff was assigned to electropolish because of the
recommendation of Mr. Evans and “because we had the need at the time.” Id. at
889-90.
Mr. Stewart failed to show that these reasons were pretextual. First, the
circumstances surrounding the assignment do not raise the slightest inference of
discrimination. Mr. Stewart’s hours, benefits and wages were not adversely
affected, and with the exception of Mr. Evans, Mr. Stewart was the only African-
American among the several non-minority workers in the electropolish area.
Second, the isolated racial comments which Mr. Stewart attempts to use as
proof of racial discrimination are unrelated to the electropolish assignment. As
this court recently noted, “anecdotal evidence of discrimination should only be
admitted if ‘the prior incidences of alleged discrimination can somehow be tied
to the employment actions disputed in the case at hand.’” Heno v. Sprint/United
Management Co. , 208 F.3d 847, 856 (10th Cir. 2000) (citation omitted). None of
the comments in this case were tied to the alleged adverse employment action.
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Of the several comments, one was made about five years prior to Mr. Stewart’s
assignment to electropolish and the employee was ordered to refrain from any
further such remarks. A later comment by employee Kenny Hall was highly
inappropriate but it resulted in Mr. Hall’s suspension from work. The only
comment which was even attributable to either of the two decision-makers
responsible for Mr. Stewart’s assignment was a 1995 comment by Mr. Sielsky as
to whether “another employee was dumb enough to do [Mr. Stewart’s] job in
electropolish.” 2 Aplt. App. at 742. Even assuming that this comment was
racially motivated, we note that it was made some three years after Mr. Stewart’s
assignment to electropolish and is not probative of Mr. Sielsky’s motivations in
1992.
After a thorough review of the record, we agree with the district court that,
even when viewed in the light most favorable to the plaintiff, “[t]here is a dearth
of evidence that Mr. Wheeler and/or Mr. Sielsky assigned or placed Mr. Stewart
in the electropolish area because of his race.” 2 Aplt. App. at 1224. Mr. Stewart
has failed to offer sufficient evidence to prove that Coors’ stated reasons for the
assignment were pretextual.
[A]n employer [is] entitled to judgment as a matter of
law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or
if 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
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no discrimination had occurred.
Reeves , 2000 WL 743663, at *9. Therefore, the grant of judgment as a matter of
law was appropriate. 2
Express Contract Claim
Mr. Stewart claims that the district court erred in submitting his express
contract claim to the jury, rather than granting him judgment as a matter of law.
We review de novo the questions of contract ambiguity and the denial of a
motion for judgment as a matter of law, viewing the evidence and inferences
therefrom in the light most favorable to the nonmoving party. See Electrical
Distrib., Inc. v. SFR, Inc. , 166 F.3d 1074, 1081-82 (10th Cir. 1999); Baker v.
Barnard Const. Co. , 146 F.3d 1214, 1220 (10th Cir. 1998).
Coors Policy R-9 clearly provided laid off employees with a right of recall.
See 1 Aplt. App. at 528 (“Employees on extended layoff have recall rights for a
period of time equal to their [company] seniority, or one year, whichever is
less.”). However, the policy also provided that employees who were subject to
recall could “elect to receive supplemental unemployment benefit [sic] in lieu of
reassignment or recall rights, after signing a waiver of their recall rights.” Id. at
Given Mr. Stewart’s failure to present sufficient evidence of racial animus,
2
we need not address the statute of limitations or the issue of punitive damages.
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529. Mr. Stewart elected this option and received $7,458 in supplemental
unemployment benefits. In doing so, he signed a document entitled “Waiver of
Recall Rights” which is at the heart of this contract claim. That document
provided in relevant part:
In consideration for receipt of the supplemental
unemployment benefit and/or [sic] Employee waives all
rights to recall after sixty days past the date of layoff
and as set forth in Policy R-9. Employee understands
that if he/she exercises his/her right of recall within 60
days of layoff he/she must re-pay [Coors] the full
amount of the Supplemental Unemployment Benefit and
the Service Bonus.
....
I HAVE FULLY INFORMED MYSELF OF THE
CONTENTS OF THIS WAIVER BY READING IT
BEFORE I SIGN IT. I FURTHER UNDERSTAND
THAT I GIVE UP MY RECALL RIGHTS BY
SIGNING IT AND I SIGN IT VOLUNTARILY.
Id. at 524. Within 60 days after Mr. Stewart had been laid off, a laborer job
became available. Coors recalled Mr. Hung Tran – an employee with less
seniority than Mr. Stewart but who had not elected to receive supplemental
benefits in lieu of recall – to fill this position. Id. at 201. At no time during the
60 day period did plaintiff learn of this position or attempt to exercise his right of
recall.
Mr. Stewart contends that the language “Employee waives all rights to
recall after sixty days past the date of layoff” clearly means that the waiver only
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became effective on the 61st day. Therefore, his recall rights were still effective
and Coors breached the contract by not alerting him to the job opening. Coors
contends that either (a) an employee clearly waives all recall rights from day one,
absent a revocation in the first sixty days, or (b) the contract is ambiguous and
therefore was correctly submitted to the jury. See Anderson v. Eby , 998 F.2d
858, 865 (10th Cir. 1993) (meaning of the terms of an ambiguous contract is
question for fact finder under Colorado law); Dorman v. Petrol Aspen, Inc. , 914
P.2d 909, 912 (Colo. 1996) (same).
“A written instrument is ambiguous when it is reasonably susceptible to
more than one meaning, or where there is uncertainty as to the meaning of a
term.” Ad Two, Inc. v. City & County of Denver , 983 P.2d 128, 130 (Colo. Ct.
App. 1999). It is clear that the language of the Waiver form was “fairly
susceptible to more than one interpretation” as to whether the waiver became
effective immediately or only upon the 61st day. Dorman , 914 P.2d at 912. On
the one hand, the Waiver speaks in language which implies that Mr. Stewart
would retain his recall rights, i.e. “[e]mployee understands that if he/she
exercises his/her right of recall within 60 days of layoff . . . .” However, Coors
Policy R-9 specifically states that the supplemental unemployment benefit was
given “ in lieu of reassignment or recall rights, after signing a waiver of their
recall rights,” 1 Aplt. App. at 529, and the Waiver form itself stated that Mr.
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Stewart “G[A]VE UP” his recall rights by signing. The evidence also
demonstrated that Coors consistently applied its policy to mean that recall rights
were waived from the moment of signing the form. Taking this evidence in the
light most favorable to the plaintiff, the waiver was ambiguous and the district
court did not err in denying the motion for judgment as a matter of law. The
contract issue was properly submitted to the jury, which determined that Coors
did not breach Policy R-9.
Failure to Promote Claim
Finally, Mr. Stewart argues that the district court improperly granted
summary judgment to Coors on his failure to promote claims. We review the
grant of summary judgment de novo, examining the factual record and any
reasonable inferences therefrom in the light most favorable to the non-moving
party. See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). A
review of the record before the district court reflects uncontroverted evidence
that management had a justifiable non-discriminatory reason for all of the
promotions which Mr. Stewart failed to receive, i.e., the decision was based on
seniority and there were more senior employees; Mr. Stewart did not have the
requisite welding certifications or attendance record for the job; and a temporary
moratorium on bidding for construction jobs kept Mr. Stewart – as well as all
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other employees – from a new position. Mr. Stewart failed to produce any
evidence from which a reasonable inference could be drawn that these non-
discriminatory reasons were pretextual. Therefore, summary judgment was
appropriate.
AFFIRMED.
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