Martin v. Pub. Serv. Co. of Colo.
| Decision Date | 28 July 2022 |
| Docket Number | 21-1354 |
| Parties | ANITA MARTIN, Plaintiff - Appellant, v. PUBLIC SERVICE COMPANY OF COLORADO, a wholly-owned subsidiary of Xcel Energy, Inc., d/b/a Excel Energy, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
ANITA MARTIN, Plaintiff - Appellant,
v.
PUBLIC SERVICE COMPANY OF COLORADO, a wholly-owned subsidiary of Xcel Energy, Inc., d/b/a Excel Energy, Defendant-Appellee.
No. 21-1354
United States Court of Appeals, Tenth Circuit
July 28, 2022
D.C. No. 1:20-CV-00076-RBJ, (D. Colo.)
Before MATHESON, KELLY, and CARSON, Circuit Judges.
ORDER AND JUDGMENT [*]
Joel M. Carson, III Circuit Judge
In this employment-discrimination case, Anita Martin appeals from a judgment entered on the jury's verdict in favor of her former employer, Public Service Company of Colorado (PSC). Ms. Martin contends the district court erred by placing statute-of-limitations language in a jury instruction and the verdict form. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Background
Ms. Martin is Hispanic and Native American. She started working for PSC, a public utility company, in 1983 as a laborer. In 1987, she was promoted to a full-time pipe fitter position in PSC's Street Department. In 2005, she transferred to PSC's Pressure Control workgroup.
She eventually became eligible for promotion to the position of lead pipe fitter, which involved "responding quickly to emergency situations occurring due to severe weather and other events compromising the public utility services provided by [PSC]." Aplt. App. at 31.
The Pressure Control workgroup had three full-time lead pipe fitters until October 2012, when lead pipe fitter Nick Lawlor retired. Ms. Martin claims that when he retired, she was "next in line for promotion to full time Lead." Id. at 86.
In 2015, 2016, and 2017, Pressure Control operated with just two full-time lead pipe fitters, Randy Ohelert and Bob Ramsey, both white males. Nevertheless, PSC assigned Ms. Martin to perform lead pipe fitter duties during those years, but on a less than full-time basis. Under the collective bargaining agreement applicable to Ms. Martin's employment, temporary performance of higher classification duties resulted in a pay upgrade.
Ms. Martin inquired as early as 2014 about being promoted to a full-time position, alongside Mr. Ohelert and Mr. Ramsey, but PSC "failed to take any steps to ensure [a] full-time lead pipe fitter vacancy was posted." Id. at 34. Because she was not promoted, Ms. Martin decided to retire, effective May 31, 2017. Mr. Ohelert and Mr. Ramsey also
retired on that date. Afterward, PSC promoted two individuals to the position of full-time lead pipe fitter.
On February 12, 2018, Ms. Martin filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). She alleged that "[o]n or about March 17, 2017, [she] was denied a promotion to the position of lead pipe fitter." Aplee. Suppl. App., Vol. I at 25. But she also indicated generally that discrimination occurred as late as May 30, 2017. On September 27, 2019, the EEOC issued Ms. Martin a right-to-sue letter.
On December 23, 2019, Ms. Martin sued PSC in Colorado state court. PSC removed the case to federal court, where Ms. Martin filed an amended complaint, alleging she was denied a promotion because of (1) her race, in violation of Title VII and 42 U.S.C. § 1981; and (2) her sex, in violation of Title VII. She sought back pay, front pay, damages, and attorney fees.
PSC moved for summary judgment, arguing, among other things, that Ms. Martin's claims were time barred. Specifically, PSC argued that Ms. Martin's Title VII claims were untimely because she alleged PSC refused to promote her on March 17, 2017, but she did not file her EEOC charge within 300 days of that event. See 42 U.S.C. § 2000e-5(e)(1) (providing that, in states like Colorado where there is a state agency to review employment claims, an EEOC charge must be filed with that agency within 300 days of the alleged discriminatory act); see also Colo. Rev. Stat. § 24-34-306 (establishing a process through the Colorado Civil Rights Commission for resolving discriminatory or unfair practices). As to her § 1981 claim, PSC argued that it was
untimely because it was filed more than four years after the date she believed a vacancy arose due to Mr. Lawlor's 2012 retirement. See Cross v. The Home Depot, 390 F.3d 1283, 1289 (10th Cir. 2004) (observing that a § 1981 failure-to-promote claim in Colorado has a four-year limitations period unless a "new and distinct relation between [the employee] and [the employer] would have resulted from [the employee's] promotion," in which case the period is two years (internal quotation marks omitted)).
The district court denied PSC's summary judgment motion. The court stated that (1) Ms. Martin's EEOC charge referenced a discrimination date as late as May 30, 2017-within the 300-day filing period, and (2) Ms. Martin's § 1981 claim was filed within four years of her employment.[1]
The case proceeded to trial, where the district court instructed the jury on the applicable law, including PSC's timeliness defenses. Instruction Number 10 told the jury that Ms. Martin could not recover under Title VII "for any alleged discrimination that occurred prior to April 18, 2017," which was 300 days before she filed her EEOC charge. Aplt. App. at 232. The instruction further told the jury that Ms. Martin could not recover under § 1981 "for any alleged discrimination that occurred prior to December 23, 2015," which was four years before she filed suit. Id.
The district court's verdict form combined PSC's timeliness defenses with Ms. Martin's substantive burdens. The verdict form is reproduced in relevant part below, with the jury's findings indicated:
I. TITLE VII: DISCRIMINATION BASED ON SEX AND/OR RACE
1. Has Plaintiff proven by a preponderance of the evidence that
Defendant denied her a promotion within the statute of limitations period and that Plaintiff's sex was a motivating factor in Defendant's decision?
Yes___ No __x_
2. Has Plaintiff proven by a preponderance of the evidence that
Defendant denied her a promotion within the statute of limitations period and that Plaintiff's race was a motivating factor in Defendant's decision?
Yes___ No __x_
...
III. SECTION 1981: DISCRIMINATION BASED ON RACE
8. Has Plaintiff proven by a preponderance of the evidence that Defendant denied her a promotion within the statute of limitations period and that Plaintiff's race was a but-for...
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