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UNITED STATES COURT OF APPEALS
United States Court of Appeals
Tenth Circuit
TENTH CIRCUIT
June 1, 2005
PATRICK FISHER
Clerk
JOYCE L. JONES,
Plaintiff - Appellant,
v.
GENEVA PHARMACEUTICALS, INC.,
a Colorado corporation,
No. 04-1079
(D. Ct. No. 01-MK-1510 (PAC))
(D. Colo.)
Defendant - Appellee.
ORDER AND JUDGMENT*
Before TACHA, Chief Circuit Judge, ANDERSON, and OBRIEN, Circuit Judges.
Plaintiff-Appellant Joyce L. Jones was fired after she physically and verbally
assaulted her coworker Marissa Bustamante while the two women were at work. As a
result, Ms. Jones sued her former employer, Defendant-Appellee Geneva
Pharmaceuticals, Inc. (Geneva), alleging that her employment was terminated in
violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et
seq. The jury entered a verdict for Geneva. Ms. Jones appeals the District Courts in
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*
limine rulings excluding evidence of Ms. Bustamantes employment record and Ms.
Joness offer to take a polygraph test. We take jurisdiction under 28 U.S.C. 1291,
GRANT Ms. Joness motion to file a supplemental appendix, and, finding no abuse of
discretion, AFFIRM.
I. BACKGROUND
Ms. Jones began her employment with Geneva as a production line inspector in
1994. From 1998 until her termination on December 10, 2000, John Looney served as her
immediate supervisor. On December 6, 2000, Ms. Bustamante, who was a Geneva
employee in a different department, was temporarily assigned to the production-line
inspection department as an accommodation to her recent surgery.
Although she held no supervisory role over Ms. Bustamante, Ms. Jones did not
find Ms. Bustamantes performance satisfactory. As a result, Ms. Jones became very
angry at Ms. Bustamante, yelled at her several times, and, according to Ms. Bustamante,
physically shook her. These incidents were witnessed by other employees and were
reported to various supervisors.
Mr. Looney conducted an investigation. He interviewed all involved, interviewed
witnesses, reviewed written statements, and watched the security camera footage. During
her interview with Mr. Looney, Ms. Jones insisted that she did not shake Ms. Bustamante.
Indeed, she offered to take a polygraph test to demonstrate her veracity. Based on his
investigation, however, Mr. Looney determined that Ms. Jones had seriously violated
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Genevas workplace policies; he therefore terminated her employment on December 8,
2000. At that time, Ms. Jones was sixty years old and, with the exception of this single
incident, had a sterling work-history record at Geneva.
Ms. Bustamante, who was fifty years old at the time, was not disciplined as a result
of the shaking incident. Her previous work history at Geneva, however, was far from
spotless. Ms. Bustamante was involved in twenty-one incidents that resulted in
reprimands or warnings. None of these actions, it is key to note, involved assaulting
fellow employees. Rather, these infractions generally involved the use of foul language,
failure to follow procedures, poor communications with coworkers, and paperwork errors.
Further, because Ms. Bustamante had only been supervised by Mr. Looney on the day of
the alleged assault, none of these incidents had been reported to Mr. Looney, nor had Mr.
Looney ever disciplined Ms. Bustamante for them.
At the close of discovery, Geneva moved for summary judgment. In its opening
brief, however, it did not argue that Ms. Bustamantes disciplinary record was
inadmissible. In Ms. Joness brief in opposition, she relied upon Ms. Bustamantes
disciplinary record to argue that a genuine issue of fact existed as to whether Genevas
reason for firing her was pretextual. Only in its reply brief did Geneva argue that this
evidence was inadmissible. The District Court denied the motion for summary judgment,
in large part, because it would not consider Genevas inadmissibility argument raised for
the first time in a reply brief. See Beaird v. Seagate Technology, Inc., 145 F.3d 1159,
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116465 (10th Cir. 1998).
The parties then prepared for trial. In Genevas trial brief, it again argued that Ms.
Bustamantes disciplinary record was inadmissible. The District Court treated Genevas
argument as a motion in limine and partially granted it. It ruled that it would allow the
evidence in, but only for the limited purpose of proving that Ms. Bustamante had a motive
to lie about the shoving incident. The District Court held the evidence inadmissible as
similarly-situated employee evidence because, except for the day of the incident, Ms.
Bustamante was not supervised by the same people as Ms. Jones and because her
disciplinary record, while poor, did not reflect any incidents as serious as Ms. Joness
physical assault. This evidence was introduced, and the District Court provided the jury
with a limiting instruction consistent with its ruling.
Geneva also moved in limine to exclude as evidence Ms. Joness offer to take a
polygraph test to demonstrate that she did not shove Ms. Bustamante. Although Ms.
Jones sought to introduce evidence that she offered to take a polygraph test in an effort of
bolster her credibility with the jury, she did not seek to introduce the results of any such
polygraph test. The District Court granted Genevas motion in full.
After a full trial, the jury returned a verdict for Geneva. Ms. Jones then filed a
motion for a new trial. See Fed. R. Civ. P. 50(b). In her motion, she renewed her
objections to the District Courts in limine rulings and argued that the in limine rulings
were contrary to law of the case doctrine. The District Court denied this motion. Ms.
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Jones timely appeals.
II. STANDARD OF REVIEW
We review the District Courts ruling on the exclusion of evidence for abuse of
discretion. Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995). We also review the
District Courts denial of Ms. Joness motion for a new trial for abuse of discretion.
United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994). Applying that standard, we
will reverse the district court only if it made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances. Moothart v. Bell, 21 F.3d 1499,
1504 (10th Cir. 1994) (citation omitted).
III. DISCUSSION
A.
Admissibility of Ms. Bustamantes Work History
ADEA claims are reviewed under the burden-shifting framework delineated by
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 80204 (1973). See Greene v.
Safeway Stores, Inc., 98 F.3d 554, 55859 (10th Cir. 1996). Under that framework, the
plaintiff first has the burden to make a prima facie case of discrimination. Sanchez v.
Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998). The burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for taking the adverse action
against the plaintiff. Id. If the employer meets this burden, the plaintiff must show that
the employers articulated reasons are pretextual. Id.
A plaintiff may establish pretext by showing that [s]he was treated differently
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from other similarly-situated employees who violated work rules of comparable
seriousness. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir.
2000).1 An employee is similarly situated to the plaintiff if the employee deals with the
same supervisor and is subject to the same standards governing performance evaluation
and discipline as the plaintiff. Id. at 1232. With respect to violations of work rules, the
comparison need not be based on identical violations of identical work rules. English v.
Colorado Dept. of Corrections, 248 F.3d 1002, 1011 (10th Cir. 2001). Instead, the
relevant inquiry hinges on whether the violations are of equal gravity. Id.
In this case, Ms. Jones sought to introduce Ms. Bustamantes work history to
demonstrate that Ms. Bustamante, a significantly younger employee, was allowed to keep
her job even though the two women were similarly situated and had violated similar
workplace rules. The District Court excluded Ms. Bustamantes work history as not
relevant to establish pretext. It did, however, find Ms. Bustamantes work history to be
relevant as to Ms. Bustamantes credibility and allowed evidence of her work history to
demonstrate this limited point. On appeal, Ms. Jones argues that the District Court erred
in excluding Ms. Bustamantes work history as irrelevant to her pretext argument.
Evidence is relevant if it has tends to prove or disprove any fact that is of
Kendrick involves a 1981 claim, rather than a claim under the ADEA.
Nonetheless, because ADEA claims follow the same McDonnell Douglas burden-shifting
analysis as 1981 claims, 1981 cases are highly persuasive in the ADEA context. See
O'Connor, 517 U.S. at 31112. For the same reason, Title VII cases are similarly
persuasive. Id.
1
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consequence to the action. Fed. R. Evid. 401. Ms. Jones argues that Ms. Bustamantes
work history is relevant to whether Genevas reason for firing Ms. Jones was pretextual.
Pretext based on the similarly-situated employee theory, the only theory Ms. Jones
advances, may only be established when the plaintiff and the other employee have the
same supervisor, are subject to the same disciplinary standards, and have violated work
rules of similar seriousness. Ms. Jones, however, has not shown this to be the case. Ms.
Bustamante had never committed an infraction of similar seriousness to Ms. Joness
physical assault. Further, excepting the day of the shoving incident, Ms. Jones and Ms.
Bustamante did not share the same supervisor. As we held in Kendrick, such evidence
simply does not constitute similarly-situated employee evidence. See 220 F.3d at 1232.
Therefore, Ms. Bustamantes work history does not further any fact that is of consequence
to the issue of pretext, and we hold that the District Court did not abuse its discretion by
admitting Ms. Bustamantes work history only for the limited purpose of showing that
Ms. Bustamante had a motivation to fabricate the shoving incident.
B.
Admissibility of the Offer to Take a Polygraph
Ms. Jones next argues that the District Court erred by precluding Ms. Jones from
testifying that she had offered to take a polygraph test when she also did not seek to admit
the polygraph results. The District Court refused to admit this testimony because the
court viewed it as an end run around Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993) and because any probative value the testimony would have had was substantially
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outweighed by the danger of unfair prejudice to Geneva. Fed. R. Evid. 403. The court
did not abuse its discretion in excluding the testimony.
Polygraph tests are generally inadmissible in this circuit. Palmer v. City of
Monticello, 31 F.3d 1499, 1506 (10th Cir. 1994). If a party seeks to admit a polygraph
test, that party must satisfy the criteria for admission under Daubert. United States v.
Call, 129 F.3d 1402, 1404 (10th Cir. 1997). For this same reason, we agree with the
District Court that testimony establishing that Ms. Jones simply offered to take a
polygraph test is also inadmissible:
By offering such evidence, the plaintiff intends the jury to presume that her
submission to a polygraph examination would have revealed the truth. In
other words, the probative value of the plaintiffs proffer is dependent upon
the jury believing that the polygraph examination is a reliable indicator of
honesty. . . . The plaintiff, however, has no intention of making the rigorous
showing of the examinations reliability and effectiveness under Daubert or
[Fed. R. Evid.] 702. Thus, under these circumstances, permitting the
plaintiff to testify as to her offer without first qualifying the polygraph
testing under Daubert would be improper.
Moreover, given that the probative value of Ms. Joness proffered testimony rides
on the reliability of the polygraph itself and that Ms. Jones does not wish to demonstrate
the polygraphs reliability or effectiveness, we agree with the District Court that this
evidences probative value is substantially outweighed by the danger of unfair prejudice
to Geneva. Therefore, we find no abuse of discretion in prohibiting Ms. Joness proffered
testimony that she offered to take a polygraph.
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C.
Law of the Case Doctrine
Finally, Ms. Jones argues that because she survived summary judgment on the
theory that Ms. Bustamantes work history created a genuine issue of material fact
regarding pretext, the admission of Ms. Bustamantes work history is law of the case. In
essence, law of the case doctrine requires that when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent stages in the same
case. Phelps v. Hamilton, 122 F.3d 1309, 1322 (10th Cir. 1997) (quotations omitted).
Here, however, the District Court did not decide upon the admissibility of Ms.
Bustamantes work history until after refusing to grant summary judgment. Indeed, the
District Court explicitly stated that Ms. Jones survived summary judgmentnot because
it ruled on the merits that Ms. Bustamantes work history was admissiblebut because it
would not consider Genevas inadmissibility argument that was raised for the first time in
a reply brief. Hence, the first time the court ruled on admissibility was in the in limine
motion, rendering the law of the case doctrine inapplicable. Because we find no abuse of
discretion regarding the exclusion of evidence or application of law of the case doctrine,
we affirm the District Courts denial of Ms. Joness motion for a new trial.
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IV. CONCLUSION
We GRANT Ms. Joness motion to file a supplemental appendix and, for the
foregoing reasons, AFFIRM the District Courts rulings.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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