351 F.3d 1001 (10th Cir. 2003), 01-1464, Maestas v. Lujan

Docket Nº:01-1464
Citation:351 F.3d 1001
Party Name:Maestas v. Lujan
Case Date:November 26, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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351 F.3d 1001 (10th Cir. 2003)

Cynthia D. MAESTAS, Plaintiff-Appellant/Cross-Appellee.

v.

Nestor LUJAN, Defendant-Appellee/Cross-Appellant,

and

State of Colorado, Department of Revenue, Defendant.

Nos. 01-1464, 01-1489.

United States Court of Appeals, Tenth Circuit

November 26, 2003

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Patricia S. Bangert, Powers Phillips, P.C., Denver, CO, appearing for Plaintiff-Appellant/Cross-Appellee.

Alan Epstein, Hall & Evans, L.L.C., (Joyce L. Jenkins, Hall & Evans, L.L.C., and George S. Meyer, Esq., Special Assistant Attorney General, Office of the Attorney General, Denver, CO, with him on the brief), appearing for Defendant-Appellee/Cross-Appellant.

Before TACHA, Chief Circuit Judge, ANDERSON, and BRISCOE, Circuit Judges.

TACHA, Chief Circuit Judge.

In the district court, Plaintiff-Appellant Cynthia Maestas brought Title VII, § 1983, and outrageous-conduct tort claims alleging sexual harassment. On appeal, Ms. Maestas argues that: (1) the district court improperly sent Defendant-Appellee Nestor Lujan's affirmative defense of qualified immunity to the jury, (2) the district court erred in the substance of its qualified immunity jury instruction, and (3) the district court erred in the substance of its § 1983 jury instruction. On cross-appeal, Mr. Lujan argues that, in relation to the tort of outrageous conduct, the district court erroneously applied the continuing violation doctrine to cure Ms. Maestas's failure to file timely notice as required by the Colorado Governmental Immunity Act. We AFFIRM the determination of the

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district court to send the qualified immunity issue to the jury and the jury instructions themselves, REVERSE the application of the continuing violation doctrine to the outrageous conduct claim, and REMAND with instructions to conduct a factual inquiry as to whether Ms. Maestas complied with the Colorado Governmental Immunity Act notice provisions.

I. Background

In February 1992, the Colorado Department of Revenue ("the Department") hired Ms. Maestas as a driver's license examiner in the Austin Bluffs Regional Office. In August of that year, the Department promoted Ms. Maestas to the Commercial Driver's License Compliance Division. Mr. Lujan served as the Regional Director for the Austin Bluffs Region.

According to Ms. Maestas, Mr. Lujan was her supervisor prior to her August promotion, and the Commercial License Program Coordinator, Jim Kilgore, was her formal supervisor after the promotion. Despite Mr. Kilgore's intermediate position in the chain of command, Ms. Maestas contends that Mr. Lujan continued to supervise her until January 1994, when the Department transferred her to the Security Office, and that his supervision continued on a periodic basis until May 1998. Mr. Lujan responds that he never supervised Ms. Maestas.

In late 1992, Mr. Lujan began expressing sexual interest in Ms. Maestas. According to Ms. Maestas, until his reprimand in May 1998, Mr. Lujan continuously made offensive, sexually oriented comments to her, touched her inappropriately, and leered at her. Moreover, in late 1992, he forcibly kissed Ms. Maestas following an after-hours gathering with coworkers. In February 1993, Mr. Lujan told Ms. Maestas he was in love with her and wrote her letters to that effect. In December 1997, while at an official meeting in Denver with Ms. Maestas, Mr. Lujan repeatedly requested that she spend the evening in his hotel room. In March 1998, Mr. Lujan ordered Ms. Maestas to accompany him on a business trip to Hugo, Colorado. On the return trip, Mr. Lujan purposely took a long route home and attempted several times to "pull off the road" with Ms. Maestas. Following her rebuffs, Ms. Maestas alleges that Mr. Lujan wrote offensive comments on her car and left upsetting messages on her voice mail. Mr. Lujan denies these allegations. Instead, he contends that he had a consensual sexual relationship with Ms. Maestas for four months in 1993 and denies all of the alleged offensive conduct.

Ms. Maestas states that she repeatedly complained to Mr. Kilgore about Mr. Lujan's conduct beginning in 1993, although Mr. Kilgore took no action until April 1998. At that time, the Department conducted an investigation and issued a reprimand to Mr. Lujan.

On August 18, 1998, Ms. Maestas filed a charge of discrimination with the Equal Employment Opportunity Commission. She later received a right-to-sue letter and filed a complaint in the District of Colorado. In her complaint, Ms. Maestas brought an action pursuant to 42 U.S.C. § 2000e ("Title VII") against the State of Colorado alleging sexual harassment, an action pursuant to 42 U.S.C. § 1983 (" § 1983") against Mr. Lujan alleging sexual harassment, and an outrageous-conduct tort claim against Mr. Lujan.

In his Answer, Mr. Lujan pleaded qualified immunity as an affirmative defense to the § 1983 claim. To determine whether a plaintiff can overcome a qualified immunity defense, courts decide (1) whether the plaintiff has asserted a violation of a constitutional or statutory right,

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(2) whether that right was clearly established (3) such that a reasonable person in the defendant's position would have known that his conduct violated that right. Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir. 1996). Given the highly contested nature of material facts, the district court presented the final prong of the qualified immunity defense--the reasonableness element--to the jury.

In addition to his qualified immunity defense, Mr. Lujan, in two separate motions to dismiss and in a motion for judgment as a matter of law, argued that the Colorado Governmental Immunity Act barred Ms. Maestas's tort claim because she failed to comply with its notice provisions. The district court denied these motions, holding that the continuing violation doctrine cured Ms. Maestas's untimely filing of notice.

The district court then conducted a jury trial. Although Ms. Maestas challenges several jury instructions on appeal, she did not object to them at trial. The jury found for the defendants on the Title VII and § 1983 claims, but for Ms. Maestas, in the amount of $37,500.00, for her outrageous-conduct tort claim against Mr. Lujan.

Ms. Maestas brings three issues on appeal. First, she contends that the district court erred in submitting the qualified immunity issue to the jury. Second, she argues that even if it was not error to submit the qualified immunity issue to the jury, the instruction itself was substantively erroneous. Third, she asserts that the § 1983 instruction was substantively erroneous.

Mr. Lujan, on cross-appeal, argues that, subsequent to the district court's ruling, the Colorado Supreme Court held that the continuing violation doctrine does not apply to the notice provisions of the Colorado Governmental Immunity Act. He asserts that the district court, therefore, erred in employing the doctrine. We take jurisdiction pursuant to 28 U.S.C. § 1291 and address these four issues in turn.

II. Discussion

A. Sending The Qualified Immunity Defense To The Jury

The district court properly sent the qualified immunity issue to the jury. We review de novo a district court's ruling on qualified immunity. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir. 2002). Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). To determine whether a plaintiff can overcome a qualified immunity defense, we first "determine whether the plaintiff has asserted a violation of a constitutional or statutory right, and then we decide whether that right was clearly established such that a reasonable person in the defendant's position would have known that [his] conduct violated that right." Garramone, 94 F.3d at 1449. Order is important; we must decide first whether the plaintiff has alleged a constitutional violation, and only then do we proceed to determine whether the law was clearly established. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

Although issues of qualified immunity normally are questions of law decided prior to trial, in exceptional circumstances historical facts may be so intertwined with the law that a jury question is appropriate as to whether a reasonable person in the defendant's position would have known that his conduct violated that right. Walker v. Elbert, 75 F.3d 592, 598 (10th Cir. 1996) (qualified immunity issues may be sent to the jury under special circumstances);

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see also Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir. 2003) ("The objective legal reasonableness of the [defendant's] actions is a legal question[,][b]ut where the historical facts material to that issue are in dispute there is an issue for the jury.") (quotations omitted) (internal citations omitted). But even under such special circumstances, whether plaintiff's claim asserts a violation of a constitutional right and whether this right was clearly established at the time remain questions of law. See Walker, 75 F.3d at 598 (limiting jury issue to question of reasonableness of defendant's actions).

We do not read Roska as providing an exclusive set of circumstances of when objective legal reasonableness properly poses a jury question. Roska, 328 F.3d at 1251 ("In considering the 'objective legal reasonableness' of the state officer's actions, one relevant factor is whether the defendant relied on a state statute ....") (emphasis added). Roska, then, falls in line with several other circuit courts, which hold that a contested issue of fact that...

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