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TCL > February 2004 Issue > Tenth Circuit Summaries

February 2004       Vol. 33, No. 2       Page  111
From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.
Full copies of the Tenth Circuit decisions are available on the CBA website at http: // (United States Courts link to the Tenth Circuit). Call
The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.


Race Discrimination—Hidden But Nondiscriminatory Motive—Favoritism Alone Does Not Violate Title VII

Neal v. Roche, No. 02-6381, 11/17/03, W.D.Okla., Judge McConnell.

Plaintiff, an African-American woman, sued her employer, alleging that the employer engaged in racial discrimination when it selected a less-qualified white woman to fill a job opening. Although the employer claimed that the white employee was more qualified, plaintiff argued that the employer’s concealed motive for its actions was to save the white employee from being laid off. The district court construed plaintiff’s position as a concession of a nondiscriminatory motive, and entered summary judgment for the employer.

The Tenth Circuit Court recognizes an exception to the general rule that a plaintiff can survive summary judgment by showing that the employer’s stated reason for the employment action was a pretext: when the plaintiff concedes that the real, albeit hidden, motive for the decision was not prohibited by the civil rights laws. Although that rule was dicta in the case announcing it, the rule has subsequently been adopted, so could be applied against this plaintiff. The Tenth Circuit Court holds that it was not unfair to apply the rule here, even though defendant had not raised it, because plaintiff conceded the nondiscriminatory motivation in her own position before the court. Next, the Court noted that employers are free to employ nondiscriminatory criteria that are unfair or even reprehensible. Here, the employer’s decision to save the white employee from an impending layoff by giving that employee preference over an African-American employee who did not face a layoff, does not give rise to an inference of discrimination. The judgment was affirmed.

Disability Discrimination—Rehabilitation Act—Termination—Accommodation

Tesh v. U.S. Postal Service, No. 02-5133, 11/21/03, N.D.Okla., Judge McKay.

Plaintiff sued his former employer, the United States Postal Service ("USPS"), under the Rehabilitation Act. He alleged he was fired because of his disability (injury to both knees), and that the USPS failed to accommodate him by meeting his physician’s job restrictions. The USPS argued that plaintiff had been dishonest in pursuing his workers’ compensation claim, including adding his own medical restrictions without his doctor’s authorization. The district court entered judgment as a matter of law in favor of the USPS.

The Tenth Circuit Court explains that if an employer presents a legitimate nondiscriminatory reason for taking an employment action, the employee must then show that the reason is a pretext for discrimination. Here, the USPS said it fired plaintiff because he was dishonest, not because he was disabled. The Tenth Circuit Court held that the USPS reasonably believed that plaintiff had been dishonest, based on its thorough investigation. Therefore, the USPS was entitled to a judgment on the termination issue for lack of evidence of pretext.

On plaintiff’s claim that the USPS failed to accommodate his disability, the Tenth Circuit Court determined that reasonable accommodation had been made or that plaintiff had failed in his duty to make his supervisor aware of his limitation. The district court’s judgment is affirmed.

Sexual Harassment—Qualified Immunity Defense Presents Jury Question—Jury Instructions Not Plain Error—Colorado Governmental Immunity Act—Continuing Violation Doctrine

Maestas v. Lujan, Nos. 01-1464 & 01-1489, 11/26/03, D.Colo., Chief Judge Tacha.

Plaintiff sued her employer and her former supervisor, Mr. Lujan, alleging sexual harassment. Lujan denied that he was ever Maestas’s supervisor. He claimed that he and Maestas had engaged in a consensual sexual relationship. He asserted a qualified immunity defense. The district court held a jury trial that resulted in verdicts in favor of the employer and Lujan on Maestas’s Title VII, § 1983 claims, but in favor of Maestas on her state-law outrageous conduct claim against Lujan. Both parties appealed.

The Tenth Circuit Court addresses Maestas’s claim that the qualified immunity issue should not have been presented to the jury. The trial court must first determine whether plaintiff alleged the violation of a constitutional right. If so, then the issue is whether a reasonable person in defendant’s position would have known that his conduct violated that right. In these unusual circumstances, the objective reasonableness of Lujan’s conduct turned on the factual issue of whether he was Maestas’s supervisor. If he was not her supervisor and the sexual relationship was consensual, then a reasonable person would not have known that his conduct violated Maestas’s equal protection rights. The converse is also true. Therefore, the district court properly presented the reasonableness element of the qualified immunity analysis to the jury.

The Tenth Circuit Court then rejects Maestas’ challenges to the jury instructions, finding no plain error after considering the instructions as a whole. Finally, the Tenth Circuit Court reverses the district court’s decision to apply the continuing violation doctrine to toll Maestas’s failure to comply with the 180-day notice provision of the Colorado Governmental Immunity Act. In a case announced after the judgment in this case, the Colorado Supreme Court held that plaintiffs cannot use the continuing violation doctrine to remedy untimely filings. The Tenth Circuit Court remands the issue to determine the facts surrounding when Maestas discovered her injury and when she gave notice. The district court’s judgment is affirmed in part, reversed in part, and remanded.

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