Coleman v. B-G Maintenance Management of Colorado, Inc.

• Decision Date: 10 March 1997
• Docket Number: B-G,No. 96-1147,96-1147
• Citation: 108 F.3d 1199
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 540, 69 Empl. Prac. Dec. P 44,553, 65 USLW 2663, 97 CJ C.A.R. 362 Stephanie COLEMAN, Plaintiff-Appellee, v.MAINTENANCE MANAGEMENT OF COLORADO, INC., a corporation doing business in Colorado, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1199

108 F.3d 1199

73 Fair Empl.Prac.Cas. (BNA) 540,

69 Empl. Prac. Dec. P 44,553, 65 USLW 2663,

97 CJ C.A.R. 362

Stephanie COLEMAN, Plaintiff-Appellee, v. B-G MAINTENANCE MANAGEMENT OF COLORADO, INC., a corporation

doing business in Colorado, Defendant--Appellant.

No. 96-1147.

United States Court of Appeals, Tenth Circuit.

March 10, 1997.

William C. Berger (Robert R. Miller with him on the brief), Stettner, Miller & Cohn, P.C., Denver, Colorado, for Defendant-Appellant.

Elisa Julie Moran (John Mosby with her on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, BRORBY and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiff Stephanie Coleman filed this action against Defendant B-G Maintenance Management Inc. (B-G Maintenance), alleging that her employment with B-G Maintenance was terminated because of her gender, and her gender plus her marital status, in violation of Title VII, 42 U.S.C. §§ 2000e to 2000e-17. She also claimed that her termination breached her employment contract. The case was tried to a jury, which returned a verdict in favor of Ms. Coleman on her gender-plus and contract claims, but rejected her gender claim. B-G Maintenance filed a post-trial motion for judgment as a matter of law or a new trial, which was denied. This appeal followed. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm in part and reverse in part.

Background

Ms. Coleman was employed by B-G Maintenance from 1983 until her 1992 termination. B-G Maintenance had a contract with the City and County of Denver to clean Stapleton International Airport, and beginning in 1986, Ms. Coleman supervised all B-G Maintenance personnel working the second shift at Stapleton--approximately 55 to 60 employees. One of the custodians working the second shift was Milton Newborn, Ms. Coleman's common-law husband.

At trial, B-G Maintenance presented evidence suggesting the following sequence of events. In 1988, Scott Murray, who oversaw the Stapleton operations of B-G Maintenance, began receiving complaints that Mr. Newborn had been leaving during his shift. Fearing that the complaints could result in the termination of the Stapleton contract, Mr. Murray asked Ms. Coleman about Mr. Newborn, and she gave assurance that Mr. Newborn was not leaving during his shift.

The complaints about Mr. Newborn continued, however, prompting Mr. Murray to issue Ms. Coleman a written warning regarding the issue. Finally, B-G Management personnel testified that they observed Mr. Newborn leaving the airport during his shift on two consecutive days in 1992. Mr. Murray thus concluded that Ms. Coleman's repeated assurances about Mr. Newborn had been false, and terminated her employment.

For her part, Ms. Coleman testified that Mr. Murray did not discuss with her the complaints about Mr. Newborn until the day she was terminated, and that she never received any kind of warning, written or verbal. She also contended at trial that Mr. Newborn never left the airport during his shift and that the person B-G Management eyewitnesses had seen leaving the airport was not Mr. Newborn, but someone who looked very much like him. In addition, she presented evidence that B-G Maintenance had not discharged male supervisors whose subordinate employees had left the airport during their shifts, and that none of Mr. Newborn's other supervisors, male or female, had been terminated.

On special interrogatories, the jury rejected Ms. Coleman's claim that B-G Maintenance discriminated against her because of gender, but returned a verdict in her favor on her claim that B-G Maintenance discriminated against her because of her gender plus her marital relationship. The jury also returned a verdict in Ms. Coleman's favor on her contract claim.

Discussion

B-G Maintenance argues that (1) the district court erroneously instructed the jury on the issue of Ms. Coleman's gender-plus claim under Title VII, and (2) the error prejudiced B-G Maintenance in defending against the breach of contract claim. We review jury instructions de novo, and must view the instructions in their entirety, deciding not whether the instruction was completely faultless, but whether the jury was misled in any way. Gardetto v. Mason, 100 F.3d 803, 816 (10th Cir.1996). Reversal is warranted when a deficient jury instruction is prejudicial. Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1262 (10th Cir.1995). Thus, "[w]here a jury instruction is legally erroneous, we must reverse if the jury might have based its verdict on the erroneously given instruction." City of Wichita, Kan. v. United States Gypsum Co., 72 F.3d 1491, 1495 (10th Cir.1996).

A. Instructions on the Gender-Plus Claim

B-G Maintenance contends that the jury was erroneously instructed ¹ on Ms Coleman's gender-plus claim, because the instructions failed to instruct that gender-plus claimants must establish that they were treated differently from similarly situated members of the opposite sex. We agree.

In Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (per curiam), the plaintiff's claim of gender discrimination was based on the fact that the employer refused to accept applications from women with pre-school-age children, but did not enforce that policy against men. The Supreme Court held that the "Court of Appeals ... erred in reading [Title VII] as permitting one hiring policy for women and another for men--each having pre-school-age children." Id. at 544, 91 S.Ct. at 498. The Court thus created a cause of action for "gender-plus" discrimination; that is, Title VII not only forbids discrimination against women in general, but also discrimination against subclasses of women, such as women with pre-school-age children. See, e.g., King v. Trans World Airlines, 738 F.2d 255 (8th Cir.1984) (alleging gender-plus-child care discrimination); Inda v. United Air Lines, 565 F.2d 554 (9th Cir.1977) (alleging gender-plus-marriage discrimination), cert. denied, 435 U.S. 1007, 98 S.Ct. 1877, 56 L.Ed.2d 388 (1978); Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir.) (same), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971).

To be actionable, however, gender-plus discrimination must be premised on gender. As one scholar has artfully explained, Title VII contemplates gender-plus claims because

when one proceeds to cancel out the common characteristics of the two classes being compared ( [e.g.,] married men and married women), as one would do in solving an algebraic equation, the cancelled-out element proves to be that of married status, and sex remains the only operative factor in the equation.

Lex K. Larson, Employment Discrimination § 40.04, at 40-12 (2d ed.1996) (emphasis added). Thus, although the protected class need not include all women, the plaintiff must still prove that the subclass of women was unfavorably treated as compared to the corresponding subclass of men. See, e.g., Fisher v. Vassar College, 70 F.3d 1420, 1448 (2d Cir.1995) (holding that plaintiff's gender-plus-child-care claim was not adequately supported by the evidence because she failed to compare the tenure experience of women who took leaves of absence for child rearing with the tenure experience of men who took similar leaves of absence); Bryant v. International Sch. Servs., 675 F.2d 562, 575 (3d Cir.1982) ("No evidence was before the trial court to show that married males, in circumstances similar to [the married female] appellants received better, or even different treatment."); Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084, 1089 (5th Cir.1975) ("The practical effect of interpreting Sec. 703 [of the Civil Rights Act] to include [gender-plus] discrimination is to impose an equal protection gloss upon the statute, i.e. similarly situated individuals of either sex cannot be discriminated against vis a vis members of their own sex unless the same distinction is made with respect to those of the opposite sex.").

Thus, despite Ms. Coleman's vigorous arguments to the contrary, gender-plus plaintiffs can never be successful if there is no corresponding subclass of members of the opposite gender. Such plaintiffs cannot make the requisite showing that they were treated differently from similarly situated members of the opposite gender. Ms. Coleman suggests that Bryant indicates that gender-plus plaintiffs can compare themselves to all persons outside the corresponding subclass. Bryant does not support such a proposition; the court merely observed that because the employer's policy applied to "all persons--male and female, single and married," it was not discriminatory. 675 F.2d at 576. Similarly, Ms. Coleman claims that Fisher supports her argument, because it states that "[t]here is nothing to show how Vassar treated married men or unmarried men." 70 F.3d at 1446. Read in its proper context, however, that quote was merely an observation regarding the state of the plaintiff's evidence; just two sentences later, the court held that "[t]o establish that Vassar discriminated on the basis of sex plus marital status, plaintiff must show that married men were treated differently from married women." Id. (citing Bryant, 675 F.2d at 575).

The district court instructed the jury that in order to recover against B-G Maintenance, "[Plaintiff] has the burden of proving by a preponderance of the evidence that the defendant's actions were motivated by the Plaintiff's gender or gender along with her personal relationship with Mr. Newborn." That instruction envisions a subclass of women who had a personal relationship with Mr. Newborn (or, in other words, Ms. Coleman) for which there is no corresponding subclass of men--that is, men with a common-law marriage to Milton Newborn. Viewing the jury instructions as a whole, we also note that the phrase "Plaintiff's ... gender along with her personal relationship with Mr. Newborn," appears many times throughout the instructions. We...