                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                     October 4, 2017
                       _________________________________
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
JAYMEE BARRINGTON,

       Plaintiff - Appellant,
                                                      No. 16-1292
v.                                        (D.C. No. 1:15-CV-00590-CMA-CBS)
                                                       (D. Colo.)
UNITED AIRLINES, INC.,

       Defendant - Appellee.

                        _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                 _________________________________

      Ms. Jaymee Barrington sued United Airlines, Inc. under Title VII of

the Civil Rights Act of 1964, claiming gender-based discrimination and

retaliation. After a trial, the jury rendered a verdict for United on both

claims, and the district court entered a final judgment. Ms. Barrington

appeals, arguing that the district court erroneously failed to instruct the

jury on pretext. We agree.




*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
I.     The Standard of Review

       In this appeal, we apply the abuse-of-discretion standard. Cordova v.

City of Albuquerque, 816 F.3d 645, 660 (10th Cir. 2016).

II.    The General Need for a Pretext Instruction

       When an employer has provided an innocent explanation for the

adverse action and the employee presents evidence of pretext, the jury may

infer that the employer acted with discriminatory intent. Reynolds v. Sch.

Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). In light of the

availability of this inference, the district court must instruct the jury that it

may infer discriminatory intent from pretext if one can reasonably regard

the defendant’s explanation as false. Townsend v. Lumbermens Mut. Cas.

Co., 294 F.3d 1232, 1241 (10th Cir. 2002). When a pretext instruction is

requested and supported, omission of the instruction requires reversal. Id.

III.   Ms. Barrington’s Evidence of Pretext

       At the time of the underlying events, Ms. Barrington had worked at

United for approximately 25 years. In 2011, she became an Airport

Operations Ramp Supervisor in Denver, Colorado. In her 2011 performance

review, Ms. Barrington received satisfactory or positive evaluations in all

categories.

       But in roughly mid-2012, Ms. Barrington complained that United was

engaging in gender discrimination. Following these complaints, Ms.

Barrington’s 2012 evaluation contained poor ratings in nearly every


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category. Ms. Barrington believed that this poor review rendered her

ineligible for future promotions. This belief led Ms. Barrington to sue

United for gender discrimination and retaliation.

      At trial, the district court allowed Ms. Barrington to argue pretext

but declined to instruct the jury on pretext, reasoning that Ms. Barrington’s

evidence related to the elements of her claims rather than to pretext. In our

view, however, a reasonable jury could find pretext based on Ms.

Barrington’s evidence.

                                     * * *

      Pretext involves the falsity of the employer’s explanation. Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Thus, we

must consider Ms. Barrington’s evidence challenging the truthfulness of

United’s explanation for Ms. Barrington’s poor evaluation in 2012. As

noted above, the district court had to give a pretext instruction if a

reasonable jury could find that United’s justification for Ms. Barrington’s

evaluation constituted a pretext for discrimination. Townsend v.

Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1241 (10th Cir. 2002).

      The 2012 evaluation was administered by Mr. Ken Brown, United’s

Director of Airport Operations, Policies, and Procedures. Mr. Brown stated

that Ms. Barrington had failed to consistently meet expectations in nearly

every category: “Focusing on the Future Delivering Today,” “Building on




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Dignity and Respect,” “Powering through Teamwork,” “Making the

Difference,” and “Fostering Open, Honest and Direct Communication.” 1

      At trial, United defended the 2012 evaluation based on Mr. Brown’s

opinion that Ms. Barrington had sent a series of inappropriate emails to

supervisors. Ms. Barrington contended that United’s explanation served as

a pretext.

      Ms. Barrington’s evidence of falsity fell into six categories:

      1.     Other supervisory employees believed that Ms. Barrington was
             generally a satisfactory employee.

      2.     Ms. Barrington’s direct supervisor was supposed to administer
             Ms. Barrington’s performance reviews. This supervisor
             believed that Ms. Barrington had met all expectations in 2012.
             But contrary to United’s regular policy, Mr. Brown—who did
             not directly supervise Ms. Barrington—administered Ms.
             Barrington’s 2012 performance review.

      3.     Ms. Barrington had not been told, prior to the evaluation, that
             she had done anything wrong.

      4.     Mr. Brown had a motive to give a negative evaluation because
             he had been the subject of Ms. Barrington’s complaint to
             United. 2

      5.     In the past, United had given poor ratings to employees
             complaining of gender discrimination.


1
     Mr. Brown stated that “[o]perationally,” Ms. Barrington’s conduct
had met expectations. But “Operations” was not a stand-alone category.
2
       Mr. Brown relied partly on Ms. Barrington’s frequent assertion of
illegitimate claims against other managerial employees. See Appellant’s
App’x at 1287 (“You make frequent claims against station and department
leaders with no legitimate grounds for doing so.”).


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      6.    For Ms. Barrington’s 2010 performance review, two United
            executives had told Ms. Barrington’s supervisor to give Ms.
            Barrington a poor evaluation, which the supervisor did even
            though she disagreed with this evaluation.

      United points to its own evidence, which indicated that Mr. Brown

had sincerely believed that Ms. Barrington’s 2012 emails were

inappropriate. United’s evidence weighed against a finding of pretext but

did not preclude such a finding. For example, evidence of Mr. Brown’s

sincerity did not necessarily trump Ms. Barrington’s evidence that Mr.

Brown had a motive to make a negative evaluation, that he had deviated

from United’s policy by doing the evaluation himself, that Ms. Barrington

had not been criticized in the year leading up to the negative evaluation,

and that Ms. Barrington’s direct supervisor had opined that Mr. Brown’s

negative evaluation was inaccurate. These categories of evidence could

reasonably have led the jury to regard United’s explanation for the 2012

evaluation as pretextual. In addition, Mr. Brown gave Ms. Barrington a

negative evaluation even in some areas unrelated to her 2012 emails (such

as categories ostensibly involving operations). In light of Ms. Barrington’s

evidence, the district court erred in failing to instruct the jury on pretext.

      Reversed.

                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge


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