F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 28 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
SANFORD LEE HERTZ,
Plaintiff - Appellee,
v. No. 02-1488
LUZENAC AMERICA, INC., a
Colorado corporation,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 99-N-417 (CBS))
Dale R. Harris of Davis Graham & Stubbs LLP (Andrew M. Low, Janet A.
Savage, Emily Hobbs-Wright, and Vinineath Nuon Gopal, with him on the briefs),
Denver, Colorado, for Defendant - Appellant.
Blain D. Myhre of Isaacson, Rosenbaum, Woods & Levy, P.C. (Theresa L.
Corrada, with him on the brief), Denver, Colorado, for Plaintiff - Appellee.
Before LUCERO , McKAY , and HARTZ , Circuit Judges.
HARTZ , Circuit Judge.
Luzenac America, Inc. (Employer), dismissed Sanford Lee Hertz from his
position as a technical manager. Hertz filed suit in Colorado federal district court
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq,
claiming that Employer had engaged in religious discrimination and had retaliated
against him for protesting the discrimination. Although Hertz failed to convince
the jury of the merits of his discrimination claim, it granted him compensatory
damages on his retaliation claim.
To succeed in a Title VII retaliation claim against an employer, a plaintiff
must show that “(1) the plaintiff engaged in protected opposition to
discrimination; (2) the plaintiff suffered an adverse employment action; and (3)
there is a causal connection between the protected activity and the adverse
employment action.” Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th
Cir. 2002) (internal brackets and quotation marks omitted). Protected opposition
can range from filing formal charges to voicing informal complaints to superiors.
See Robbins v. Jefferson County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir.
1999). A plaintiff need not convince the jury that his employer had actually
discriminated against him; he need only show that when he engaged in protected
opposition, he had a reasonable good-faith belief that the opposed behavior was
discriminatory. See Crumpacker v. Kansas Dep’t of Human Res., 338 F.3d 1163,
1172 (10th Cir. 2003).
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On appeal Employer complains of three rulings by the district court. One
ruling was the refusal to admit into evidence a memorandum of a meeting
between Hertz and his supervisor, which Employer contends was admissible under
the business-records exception to the hearsay rule, Fed. R. Evid. 803(6). The
other two rulings were refusals to give jury instructions requested by Employer.
One proposed instruction would have told the jury that unreasonable opposition to
allegedly discriminatory conduct is not protected activity under Title VII; the
other would have told the jury that an employer cannot be liable for retaliation if
it did not know that the employee had engaged in protected activity.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The district
court did not abuse its discretion in refusing to admit the meeting memorandum
into evidence or in refusing to give the proposed instructions.
I. FACTUAL BACKGROUND
Hertz, a Jewish male, testified that his supervisor, Ken Loritsch, made
several anti-Semitic comments to him over the course of his employment,
culminating in a particularly hostile exchange at a January 7, 1998, meeting
between the two. According to Hertz, he ended the exchange by indicating to
Loritsch that he intended to take action to end the alleged discrimination. For
doing so, Hertz claims, Loritsch terminated him, in violation of Title VII’s anti-
retaliation provision, 42 U.S.C. § 2000-e3(a).
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About four months before that meeting, Hertz had received a notice of
performance deficiency from Loritsch. The notice focused on Hertz’s inability to
work effectively with others. Loritsch testified that he called the January 7
meeting to discuss Hertz’s failure to follow Loritsch’s direct order to allow a
subordinate, Todd Yonker, to work directly with Jean-Pierre Grange, a vice
president in their parent company. Hertz testified that the meeting came about
informally, but for largely the same reason—that immediately after a meeting of
Loritsch, Yonker, and Hertz (at which they discussed whether Yonker could work
with Grange), Loritsch followed Hertz into his office and said “we need to talk
about this.” Aplt. App. at 698.
When the two were alone, Loritsch repeated that Hertz needed to let his
subordinates work directly with Grange. Hertz testified that Loritsch told him
Grange would not respond to him because he was “tainted.” Id. at 700. When
Hertz asked what being “tainted” meant, Loritsch leaned over and said, “Let my
people go,” id., which Hertz took as a reference to the Jewish Exodus. Hertz
testified as follows:
And I was outraged. And I just sprang to my feet. [Loritsch]
was startled, and he immediately apologized. He said, I’m sorry, I
apologize. I should not have brought your religion into it.
And I said, That’s it. You’re done. I’m through with your
harassment. I just said, You’re done.
....
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He apologized again. He said, That was terribly
unprofessional. And I said, Yes, it is. And I said, You’re done. And
he bolted out the door, and I yelled very loud, You’re done.
Id.
Loritsch, on the other hand, testified that the meeting was “calm” and
“subdued.” Id. at 1417. He said that he had not used the word “tainted,” id. at
1422, and rather than saying “Let my people go,” he had really said “Let your
people go work with Jean-Pierre [Grange].” Id. at 1094. Loritsch testified that
Hertz never raised his voice or yelled anything along the lines of “You’re done”
or “I’m not taking this anymore.” Id. at 1421. Two days later Loritsch wrote a
memo of the meeting, which made no mention of any outbursts by Hertz or
allegations of religious discrimination. The memo, which is the subject of
Employer’s first issue on appeal, was not admitted at trial.
Loritsch terminated Hertz’s employment, effective January 21, 1998. The
dismissal notice said he was being terminated “due to performance problems.” Id.
at 718. Loritsch testified that he was motivated by Hertz’s failure to work closely
with Grange, among “many” problems that Loritsch felt had been building for
some time. Id. at 1422.
II. DISCUSSION
A. Admissibility of Meeting Memo
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Employer argues that the district court erred in refusing to admit into
evidence Loritsch’s memo of the January 7, 1998, meeting. We review
evidentiary rulings for abuse of discretion. See Abuan v. Level 3
Communications, 353 F. 3d 1158, 1171 (10th Cir. 2003). Our review “is
especially deferential with respect to rulings on the admission of hearsay
evidence.” Id. Also, we “will affirm the rulings of the lower court on any ground
that finds support in the record, even where the lower court reached its
conclusions from a different or even erroneous course of reasoning.” Id. at n.3
(internal quotation marks omitted).
Federal Rule of Evidence 803(6) provides an exception to the hearsay rule
for:
Records of Regularly Conducted Activity.--A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record or data compilation . . . unless the source of
information or the method or circumstances of preparation indicate
lack of trustworthiness. . . .
To fall within this exception, a document must (1) “have been prepared in the
normal course of business; (2) . . . have been made at or near the time of the
events it records; and (3) . . . be based on the personal knowledge of the entrant
or of an informant who had a business duty to transmit the information to the
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entrant.” 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal
Evidence § 803.08[1], at 803-56 (2d ed. 2002) (cross references omitted). “To
have been prepared ‘in the normal course of business,’ the memorandum must
have been made in the regular course of business of a regularly conducted
business activity; and it must have been the regular practice of that business to
have made the memorandum.” Id.; see Echo Acceptance Corp. v. Household
Retail Servs., Inc., 267 F.3d 1068, 1090 (10th Cir. 2001). Even if a document is
found to meet all three requirements, it can be excluded if the “source of
information or the method or circumstances of preparation” make it
untrustworthy. Fed. R. Evid. 803(6).
Employer first tried to introduce the memo into evidence on cross-
examination of Loritsch after Hertz called him to the stand in his case-in-chief.
The sole foundation for admission was the following testimony by Loritsch during
questioning by Employer:
Q. And can you identify for us, please, what Exhibit 165 is.
A. These are my handwritten notes regarding a meeting with Lee Hertz
on January 7.
Q. And why did you keep these--why did you take these notes?
A. I think at the time I wrote those notes, I had decided that Lee was not
going to be a member of the team anymore, to document that, so I
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could give Barry [Nelson, Employer’s director of human resources,]
something to help communicate to Barry what the issues were.
Q. Did you take these notes in the normal course of your business?
A. Yes.
Q. And do these notes accurately reflect the conversation that you had
with Mr. Hertz in January 7 of 1998?
A. Yes.
Aplt. App. at 1129. Hertz objected that the memo was inadmissible as hearsay.
The district court sustained the objection, observing that the memo was “prepared
because [Loritsch] thought he was going to fire [Hertz] . . . . This is not a
business document.” Id. The ruling was clearly proper because there was no
evidence that it was the regular practice of Employer for such a memo to be
prepared. See Echo Acceptance Corp., 267 F.3d at 1090.
Employer again tried to introduce the memo when it called Loritsch to the
stand. This time Employer presented a better foundation for admissibility,
eliciting the following testimony from Loritsch:
Q. . . . Did you keep notes of that [January 7, 1998,] meeting?
A. Yes, I did.
Q. . . . Are these the notes that you kept of that meeting, Mr. Loritsch?
A. Yes.
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Q. Did you keep these notes in the regular course of business?
A. Yes.
Q. And what did you do with these notes after you kept them?
A. I sent these – these notes to Barry Nelson.
Q. And why did you send them to Mr. Nelson?
A. At that point I had taken some time to think about what to do about
the comments of that meeting and the direction that we were going.
And at that time I decided it was time to terminate [Hertz].
Q. Okay. And was it your regular practice to keep notes when you were
dealing with employee issues, such as the ones reflected in here?
A. Yes.
Q. And do the notes accurately reflect the content of the meeting that
you had with Mr. Hertz on January 7, 1998?
A. Yes.
Q. And can you tell us, please, how long after January 7 you wrote these
notes.
A. I think it was a couple of days. There is a date on the bottom, as I
recall.
Q. Take a look at the bottom, please.
A. January the 9th, two days later.
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Aplt. App. at 1418–19 (emphasis added). The question and answer emphasized
above, however, appear somewhat inconsistent with earlier testimony by Loritsch
concerning his practice with respect to preparing notes. On direct examination by
Hertz during Hertz’s case-in-chief, the following exchange occurred:
Q. After January 8, you decide to fire Mr. Hertz, yes or no?
A. That’s correct.
Q. Now, there is no written notice or memo you do, is there?
A. I recall talking to Barry Nelson, our HR director, about that.
Q. Is there a written notice or memo?
A. Not from me.
Q. It’s your practice to write these things up, isn’t it?
A. No, typically, I don’t write things up.
Id. at 1095–96. Although Employer’s brief on appeal provides a quite reasonable
way to reconcile Loritsch’s two answers, no attempt at reconciliation was offered
the district court. The district court sustained without any comment Hertz’s
objection that the memo was inadmissible hearsay.
Employer later buttressed Loritsch’s foundation testimony. Human
Resource Director Nelson testified that he had instructed Loritsch that “any time
that [the company was] dealing with serious performance issues,” it was
“appropriate [for Loritsch] to make certain that there is documentation about what
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[he] discuss[ed], to follow up the meeting, to make certain he had [a] record of
what was discussed during the meeting.” Id. at 1542. Yet Employer made no
further attempt to introduce the memo into evidence.
On appeal Employer argues that it established at trial, through Loritsch’s
testimony, that the Loritsch memo was admissible. It further points to the
confirming testimony by Nelson.
We are not persuaded. To begin with, we will not consider Nelson’s
testimony, which came after the district court’s final ruling on the memo. We do
not impose on trial judges the distracting burden of sua sponte reconsidering all
prior evidentiary rulings as new evidence is introduced. Judges have enough to
keep their minds occupied during trial without having to carry out this additional
chore. As a reviewing court, we may only “evaluate the trial court's decision
from its perspective when it had to rule and not indulge in review by hindsight.”
Old Chief v. United States, 519 U.S. 172, 182 n.6 (1997). A party that thinks
additional evidence calls for reconsideration of a prior evidentiary ruling must
therefore raise the matter with the trial judge after the new evidence is admitted.
Cf. United States v. Harrison, 296 F3d 994, 1002 (10th Cir. 2002) (when
objection to admissibility of evidence was originally made through motion in
limine, “[i]n the event of . . . new evidence . . . , the opponent has the duty to
bring the matter to the attention of the district court by renewing the objection”).
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Here, Employer made no attempt to reoffer the memo into evidence during or
after Nelson’s testimony.
Viewing the evidence as it appeared when the district court ruled, we hold
that the court was not compelled to believe that it was the ordinary course of
business for Loritsch to prepare such a memo. The only evidence supporting such
a finding was a one-word answer - “Yes” - to an artfully phrased
question—“[W]as it your regular practice to keep notes when you were dealing
with employee issues, such as the ones reflected in here?” Aplt. App. at 1418.
We recognize that such questioning is common in perfunctorily establishing the
foundation for the admission of documentary evidence. But this was counsel’s
second attempt to get the notes into evidence, after Loritsch had testified, “No,
typically, I don’t write [these] things up.” Id. at 1096. A reasonable judge could
find that a necessary element of the business-records exception had not been
established.
Moreover, the district court may have thought that the circumstances under
which the memo was created made it untrustworthy. We have identified several
factors that relate to trustworthiness: (1) the business significance of the
document outside the litigation context, (2) the level of experience of the preparer
in creating such documents, and (3) the neutrality of the preparer. See
United States v. Frazier, 53 F.3d 1105, 1110 (10th Cir. 1995). When it excluded
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the memo the first time, the district court observed that it was “prepared because
[Loritsch] thought he was going to fire [Hertz] . . . .” Aplt. App. at 1129.
Employer argues:
Merely because Loritsch was considering whether to recommend
terminating Hertz’s employment is no reason to exclude the
document as untrustworthy. If it were, employers’ notes and
memoranda concerning their grounds for termination would be
routinely inadmissible and not, as the cases show, routinely
admissible.
Aplt. Br. at 21–22. But this argument ignores the relevance of other factors that
will inform the trial judge’s exercise of discretion. The district court may well
have believed that the chief purpose for preparing the memo was to protect
against a discrimination claim by Hertz. We note that courts have properly
refused to admit purported business records because they were prepared in
anticipation of litigation. See Timberlake Construction Co. v. United States Fid.
& Guar. Co., 71 F.3d 335, 341–43 (10th Cir. 1995). The nature of the memo, the
timing of its preparation (two days after the event), and the less-than-definitive
testimony by Loritsch regarding his practice in preparing such memos, all
convince us that the district court would not have abused its discretion in finding
the memo untrustworthy.
We recognize that the district court did not express any reasons for its
second ruling denying admission of the memo, and its comment at the first ruling
was not tied to a specific provision of Rule 803(6). Nevertheless, when, as here,
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the record supports a proper ground for an evidentiary ruling, we will not
speculate that the district court must have based its ruling on a different,
erroneous ground. The burden falls on the objecting party to obtain clarification
from the district court if that party believes that the court has ruled on an
improper basis.
Employer complains that the district court’s ruling was inconsistent with its
ruling admitting Loritsch’s memo of a different meeting with Hertz—one that
occurred on October 29, 1997, to discuss what progress Hertz had made in
improving working relationships with others. Employer does not explain,
however, why such alleged inconsistency in itself creates error. Perhaps
Employer was simply fortunate that the other memo was admitted. We note that
when the district court admitted that memo, it said, “This is close enough.” Aplt.
App. at 1405. When the court later ruled on the January memo, it may have found
that additional concerns altered the balance of considerations just enough to
warrant exclusion. This was not an occasion when a court treated one party worse
than another, setting a higher bar to admission of evidence for one than for the
other. A party that benefitted from the court’s bending in that party’s favor in
admitting evidence cannot complain that the court later resumed an erect posture.
Employer also argues for reversal on the ground that it was prejudiced by
the district court’s remark upon rejecting the first proffer of the January memo:
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“[The memo was] prepared because he thought he was going to fire him, so the
objection is sustained. This is not a business document.” Aplt. App. at 1129.
Employer contends that the comment reflected adversely on Loritsch’s credibility.
Concerns about such remarks argue for courts not explaining evidentiary rulings
in front of the jury. But we see little chance of prejudice here. There was no
reversible error.
B. Proffered Instruction on Reasonableness of Opposition
Employer contends that the district court erred in declining to give a jury
instruction on a reasonableness-of-opposition defense to Hertz’s retaliation claim.
Employer proffered an instruction containing the sentence, “Unreasonable
conduct does not constitute protected activity.” Aplt. App. at 330. Under this
proposed instruction, if Hertz’s complaint to Loritsch had been conveyed in an
unreasonable way, retaliation by Employer would not have violated Title VII.
Employer relies on the test set forth in Rollins v. Florida Department of
Law Enforcement, 868 F.2d 397, 401 (11th Cir. 1989), which directs that
“reasonableness” of an employee’s conduct be determined “on a case by case
basis by balancing the purpose of [Title VII] and the need to protect individuals
asserting their rights thereunder against an employer’s legitimate demands for
loyalty, cooperation and a generally productive work environment.” Given this
test, it urges, the jury could have found Hertz’s response to Loritsch to have been
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“intimidating and disruptive” and therefore “unreasonable.” Aplt. Br. at 26. It
points to Hertz’s testimony that after Loritsch “bolted out the door” of Hertz’s
office, Hertz yelled at him “very loud” through the office door down the hall.
Aplt. App. at 700. According to Employer, “[I]t was unreasonable for Hertz to
express opposition to perceived anti-Semitism by losing his temper and shouting
at his superior, especially when Hertz concedes that other employees nearby heard
his shouting.” Reply Br. at 18.
The leading case on the issue in this circuit is Robbins v. Jefferson County
School District R-1, 186 F.3d 1253 (10th Cir. 1999). The plaintiff in Robbins was
a secretary employed by the defendant school district. In response to allegedly
discriminatory conduct, the plaintiff
lodged frequent, voluminous, and sometimes specious complaints and
engaged in antagonistic behavior toward her superiors. The record
reveals that, during the relevant time period, she (1) challenged [an]
Assistant Superintendent[‘s] . . . decision to deny her union
grievance; (2) accused [her supervisor] of slander, malicious intent,
and untruthfulness; (3) questioned [her supervisor’s] temporary
delegation of authority to [a female co-worker]; (4) complained that
[another] Assistant Superintendent[’s] response to her grievances
“contained false statements, and dripped with hostility and bias”; (5)
called [an administrator] a “puppet”; and (6) accused the School
District and specific individuals of intending to “cover up for . . .
inappropriate actions taken by Risk Management administrators.”
Id. at 1259 (citations omitted). After quoting the Rollins balancing test for
reasonableness, we “[b]alanc[ed] the purpose of Title VII against the barrage of
inflammatory memoranda [the plaintiff] wrote, often bypassing her immediate
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superiors to complain to the assistant superintendent and even school board
members” and held “that, as a matter of law, these activities were not reasonable
and did not constitute protected opposition.” Id. at 1260.
In the case before us now, the district court rejected the proffered
instruction, calling Robbins “an extreme case about an employee who was
disruptive over a period of time and whose disruption was much more serious
than [that of Hertz] . . . .” Aplt. App. at 1636. “We review for abuse of
discretion a district court’s decision not to give a tendered jury instruction.”
Quigley v. Rosenthal, 327 F.3d 1044, 1062 (10th Cir. 2003). The district court’s
implicit ruling that Employer had not presented sufficient evidence to justify the
proposed instruction was not an abuse of discretion.
Although a party may be “entitled to an instruction based on its theory of
the case if it has produced appropriate evidence to support it,” Woolard v. JLG
Industries, 210 F.3d 1158, 1177 (10th Cir. 2000), Employer did not do so here.
Because the jury rendered its verdict in favor of Hertz on the retaliation claim, we
must assume that Hertz’s outburst constituted a protest against perceived
discrimination. Even viewing that outburst in the light most supportive of the
proffered instruction, it was nevertheless a solitary event (there was no other
allegedly protected activity) that does not reach the threshold of unreasonableness
necessary to deprive him of the protections of Title VII. An emotional response
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to a racial or religious epithet is a most natural human reaction. It would be
ironic, if not absurd, to hold that one loses the protection of an antidiscrimination
statute if one gets visibly (or audibly) upset about discriminatory conduct. Of
course, there are limits. Actions accompanying an emotional outburst cannot be
unchecked. But there is absolutely no evidence in this record that Hertz’s
exclamations from his office caused any injury to Employer’s interests. Would
that the rest of humanity could match the admirable (or perhaps not so admirable)
self-restraint Employer recommends in accepting the unacceptable. To be sure,
Loritsch’s comments may not have been as offensive as some. But the nature of
those comments relates to whether Hertz could reasonably believe he was the
victim of discrimination, see Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
271 (2001) (dismissing retaliation claim when “[n]o reasonable person could have
believed that the . . . incident [complained of] . . . violated Title VII’s standard ”),
not whether his response (assuming the reasonableness of the belief) was
reasonable. The district court properly rejected the proffered instruction.
C. Proferred Instruction on Knowledge of Protected Activity
Employer urges that the district court erred in declining to submit a
knowledge-of-protected-activity instruction to the jury. Employer proffered the
following instruction relating to the causation element of a retaliation claim:
A causal connection does not exist if the person who instigated the
adverse employment action against the Plaintiff did not know of the
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employee’s engagement in the protected activity. Therefore, if you find
that Defendant took adverse actions against the Plaintiff without knowing
that Plaintiff had complained of discrimination, you must enter a verdict in
favor of Defendant on Plaintiff’s retaliation claim.
Aplt. App. at 331. The district court rejected the proffer, stating: “You can
certainly argue that, but I won’t. By that I mean, you can argue it to the jury, but
I won’t do it for you.” Id. at 1641.
We agree that the proposed instruction is founded on a correct
understanding of the law. Upholding a summary judgment in Petersen, 301 F.3d
at 1189, we held that “retaliation . . . would be prohibited by [42 U.S.C.] § 2000e-
3(a) only if the superior retaliating against [a Title VII plaintiff] knew that [the
plaintiff’s] opposition . . . was motivated by a belief that [the offending party]
was engaging in racial or religious discrimination.” Nevertheless, a party is not
entitled to a specific jury instruction on every correct proposition of law. When
the other instructions establish a sound basis for an argument by the party to the
jury on that proposition, an additional instruction is not essential and runs the risk
of suggesting that the trial judge has adopted the party’s view. See FDIC v.
Schuchmann, 235 F.3d 1217, 1222 (10th Cir. 2000) (“[I]t is not error to refuse to
give a requested instruction if the same subject matter is adequately covered in
the general instructions.” (internal quotation marks omitted)).
Townsend v. Lumbermens Mutual Casualty Co., 294 F.3d 1232, 1241 (10th
Cir. 2002), is instructive. In that employment-discrimination case we reversed for
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failure to instruct the jurors that they could reasonably infer discriminatory intent
if they disbelieved an employer’s proffer of an innocent explanation for an
adverse employment action. Noting that appellate courts had struggled with
whether such an inference is permissible, the panel observed: “This is a difficult
matter for courts, and would certainly be difficult for a jury.” Id. at 1241.
Concurring, Judge Henry stated that he was persuaded that “absent the proposed
instruction, jurors are left without adequate guidance as to the circumstances in
which they may infer discriminatory intent.” Id. at 1244 (Henry, J. concurring).
In this case the risk arising from omission of the proposed instruction is
much less. The jury was instructed that “plaintiff must prove [that] . . . there
exists a causal connection between [plaintiff’s actions opposing discrimination]
and the employer’s [adverse] action.” Aplt. App. at 311. The district court did
not abuse its discretion in deciding that the jury would perceive, particularly if
assisted by argument from Employer’s counsel, that there could be no such causal
connection unless Loritsch realized that Hertz had engaged in protected activity.
We will not reverse on this ground.
III. CONCLUSION
We AFFIRM the judgment below.
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