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

                            FOR THE TENTH CIRCUIT                          June 4, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JOHN DOE,

             Plaintiff - Appellant,

v.                                                         No. 14-6187
                                                    (D.C. No. 5:13-CV-00108-F)
BOARD OF COUNTY                                            (W.D. Okla.)
COMMISSIONERS OF PAYNE
COUNTY, OKLAHOMA,

             Defendant - Appellee,

and

ADVANCED CORRECTIONAL
HEALTHCARE, INC.,

             Defendant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      John Doe appeals from the judgment entered on a jury verdict in favor of the

Board of County Commissioners of Payne County, Oklahoma (the Board) on his

claim for discrimination under Title II of the Americans with Disabilities Act,

42 U.S.C. §§ 12131-33 (ADA). Doe argues the district court erred in (1) excluding

his proposed expert witness testimony, and (2) instructing the jury that the decision

to move him from general to segregated housing had to be motivated solely by the

fact that he is HIV positive.1 Doe argues that either error standing alone entitles him

to a new trial. We have jurisdiction under 28 U.S.C. § 1291. Finding no error, we

affirm.

                                   BACKGROUND

      On February 23, 2012, Doe was arrested on charges of obstruction and assault

with a deadly weapon on a police officer. He was transported to the local municipal

lockup. The next day, February 24, Doe was sent to the Payne County Detention

Center (the Detention Center). During the routine booking process the facility

learned that Doe was HIV positive. Initially, Doe was assigned to a general housing

unit where inmates are permitted to freely socialize during the day and also have

unrestricted access to showers, telephones and television. General-housing detainees

are also permitted to attend group religious services.




1
      We granted the stipulated motion to dismiss Doe’s appeal against Advanced
Correctional Healthcare, Inc. with prejudice.


                                          -2-
      Later that same day, Annette Anderson, a Detention Center sergeant, decided

Doe should be moved to a segregation pod, where he remained for several weeks

until his release on April 11. In this pod, Doe did not enjoy all of the benefits,

programs or activities afforded to general-housing detainees. For example, Doe was

limited to one hour a day outside of his cell to shower and use the telephone. As a

result, he could not move freely within the pod to mingle with other inmates. Nor

could he attend group religious services.

      In a contemporaneous record made at the time of the transfer, Anderson wrote

that the reason Doe was transferred was “due to his HIV statutes [sic].” Aplt. App.,

Vol. 3 at 689. She explained later that she did not elaborate because of her mistaken

belief that there was not “enough room in our [computer] field of [sic] putting all the

reasons in the cell movement log.” Id., Vol. 14 at 3284. Anderson testified that

absent this mistaken belief, she would have expanded the entry to say she knew Doe

“personally” and “due to the nature of his charges” she worried about him getting

into a fight and exposing other inmates to “bodily fluids or blood.” Id. at 3285.

      Prior to trial the Board moved to exclude the testimony of Doe’s proposed

corrections expert, Emmitt Sparkman. Following a Daubert hearing, the district

court ruled that Mr. Sparkman would not be allowed to testify in Doe’s case-in-chief.

The court noted that the central issue for the jury was whether Doe “was or was not

segregated solely because of his HIV status.” Id., Vol. 13 at 2947. Because

Mr. Sparkman’s opinions concerned what the court characterized as “best practices,”


                                            -3-
it concluded the “proposed expert testimony has, at best, . . . only a slim toe hold on

relevance, or as the Supreme Court calls it ‘fit,’. . . [and] if [Mr. Sparkman] is a

candidate to give expert testimony at all, [it] would be . . . to do so only as a rebuttal

witness depending on what we hear from the defendant.” Id. at 2960-61.

       Later in the trial, the district court overruled Doe’s objection to the jury

instruction and verdict form that required him to prove that his HIV status was the

sole motivating factor in transferring him from general to segregated housing. In so

ruling, the court relied on Fitzgerald v. Corrections Corporation of America,

403 F.3d 1134, 1144 (10th Cir. 2005), which holds that “[u]nder . . . the ADA . . .

[the plaintiff] is obligated to show that he was otherwise qualified for the benefits he

sought and that he was denied those solely by reason of disability” (internal quotation

marks omitted). See Aplt. App., Vol. 14 at 3319. The jury answered “No” when

asked whether the “exclusion, denial of benefits, or discrimination was solely by

reason of [Doe’s] disability.” Id., Vol. 13 at 2912.

                                       ANALYSIS

Expert Witness

       On appeal, “we review de novo the question of whether the district court

applied the proper standard and actually performed its gatekeeper role in the first

instance. We then review the trial court’s actual application of the standard in

deciding whether to admit or exclude expert testimony for abuse of discretion.”

Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). As such, “we will not


                                           -4-
disturb the district court’s ruling unless it is arbitrary, capricious, whimsical or

manifestly unreasonable, or when we are convinced that the district court made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Id. (internal quotation marks omitted).

       Rule 702(a) of the Federal Rules of Evidence imposes a duty on the district

court to ensure that the proposed expert testimony is not only reliable, but relevant.

“A witness who is qualified as an expert . . . may testify in the form of an opinion or

otherwise if: [] the expert’s scientific, technical, or other specialized knowledge will

help the trier of fact to understand the evidence or to determine a fact in issue. . . .”

(emphasis added). See also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,

589 (1993).

       Relevant evidence means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence. See Fed. R. Evid. 401. Whether

an expert’s testimony is relevant has been described as a question of “fit.” Daubert,

509 U.S. at 591. This means that “[e]ven if an expert’s proffered evidence is

scientifically valid and follows appropriately reliable methodologies, it might not

have sufficient bearing on the issue at hand to warrant a determination that it has

relevant ‘fit.’” Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1234 (10th Cir. 2004).




                                           -5-
      Our review of the record convinces us that the district court did not abuse its

discretion in excluding Mr. Sparkman’s testimony. Despite Doe’s arguments to the

contrary, not a single one of Mr. Sparkman’s sixteen opinions pertained to the

question of whether Doe was placed in a segregated housing unit solely because of

his HIV status; instead Mr. Sparkman opined on the inadequacies of the Detention

Center’s policies on classifying prisoners with HIV and its failure to follow so-called

“best practices.” See Aplt. App., Vol. 3 at 813-15.

      There is no question the district court performed its gatekeeper function in the

first instance. As to its relevancy determination, the court explained that

Mr. Sparkman’s proposed testimony was not a “fit,” because it had nothing to do

with “whether [Doe] was or was not segregated solely because of his HIV status.”

Id., Vol. 13 at 2961. The court’s decision to exclude Mr. Sparkman’s testimony was

not an abuse of discretion.

Jury Instruction and Verdict Form

      We review the sole-motivating-factor instruction “de novo to determine

whether it accurately states the governing law.” EEOC v. Beverage Distribs. Co.,

780 F.3d 1018, 1020 (10th Cir. 2015) (footnote omitted). Title II of the ADA

provides that “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services,




                                          -6-
programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. § 12132.2

      As such, “[t]o state a claim under Title II, the plaintiff must [prove] that (1) he

is a qualified individual with a disability, (2) who was excluded from participation in

or denied the benefits of a public entity’s services, programs, or activities, and

(3) such exclusion, denial of benefits, or discrimination was by reason of a

disability.” Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1193

(10th Cir. 2007). We are concerned here with the third element of a cause of action

under Title II and Doe’s argument that the jury should have been instructed that he

had carried his burden if he could show that his HIV status was a motivating factor in

the decision to move him to segregated housing. We conclude there was no error in

the jury instruction and concomitant verdict form.

      In Fitzgerald, we held that a plaintiff claiming a violation of Title II of the

ADA “is obligated to show that he was otherwise qualified for the benefits he sought

and that he was denied those solely by reason of disability.” 403 F.3d at 1144

(internal quotation marks omitted) (emphasis added). Nonetheless, Doe urges us to

ignore our holding in Fitzgerald, arguing that it purports to overrule the “determining

factor” ADA causation standard established by our earlier decision in Bones v.

Honeywell International, Inc., 366 F.3d 869 (10th Cir. 2004). He also argues that

2
       “This provision extends to discrimination against inmates detained in a county
jail.” Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir.
2007).

                                          -7-
Fitzgerald is contrary to the Supreme Court’s decision in University of Texas

Southwestern Medical Center v. Nassar, --- U.S. ---, 133 S. Ct. 2517 (2013), which

according to Doe, “strongly suggests that motivating factor is the proper standard for

status-based discrimination under the ADA because the ADA specifically includes”

some of the same remedies included in Title VII. Aplt. Reply Br. at 3.

      In addition to the fact that our prior ruling in Bones concerned a Title I claim,

whether or not the plaintiff’s disability was the sole motivation for terminating her

employment was not at issue; instead, we stated, in the context of summary

judgment, that a plaintiff “must provide some evidence that her disability was a

determining factor in [the employer’s] decision to terminate her.” 366 F.3d at 878.

Moreover, we have had occasion to interpret and apply the Supreme Court’s Nassar

decision, and we concluded it stands for the proposition that the standard of causation

for a Title VII retaliation claim is “but for” causation. See, e.g., Ward v. Jewell,

772 F.3d 1199, 1203 (10th Cir. 2014) (“The Supreme Court [in Nassar] has likened

[the burden for a retaliation claim] to a showing of ‘but-for causation.’”). If Nassar

suggests anything regarding the instruction issue presented, it suggests that a

mixed-motive standard does not apply to any claims other than Title VII

discrimination claims.3


3
       We acknowledge that several of our sister circuits have relied on the Supreme
Court’s decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), to
apply a “but for” causation standard to ADA claims. To be sure, Gross concerned
a claim under the Age Discrimination in Employment Act of 1967 (ADEA) – not the
                                                                           (continued)
                                         -8-
         In summary, at present Fitzgerald is the controlling law in this circuit and

“[a]bsent en banc consideration, we generally cannot overturn the decision of another

panel of this court.” United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014)

(internal quotation marks omitted). At the same time, “when the Supreme Court

issues an intervening decision that is contrary to or invalidates our previous

analysis,” we can treat our prior ruling as overruled. Id. (internal quotation marks

omitted). A case that merely “suggests” a result contrary to our existent precedent

falls short of a decision that is contrary to, or invalidates, a prior decision of this

court.




ADA. However, the Supreme Court cautioned against incorporating the statutory
language of Title VII, which specifically “provide[s] that a plaintiff may establish
discrimination by showing that age was simply a motivating factor,” to
anti-discrimination statutes that do not contain such language. Id. at 174. See also
Palmquist v. Shinseki, 689 F.3d 66, 74 (1st Cir. 2012) (applying the “but for”
causation standard announced in Gross to claims under the Rehabilitation Act),
cert. denied, 134 S. Ct. 52 (2013); Lewis v. Humboldt Acquisition Corp., 681 F.3d
312, 319 (6th Cir. 2012) (applying Gross’s “but for” standard to claims under the
ADA); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010)
(same).

        In any event, we do not consider whether “but for” causation is the proper
standard because Doe failed to request such an instruction and does not argue plain
error. See EEOC v. Beverage Distribs. Co., 780 F.3d 1018, 1023 n.4 (10th Cir. 2015)
(citation omitted) (“Though we can consider forfeited arguments under the
plain-error standard, [when a party] has not argued plain error . . . we will not
consider the possibility of plain error on a forfeited theory”).

                                            -9-
      The judgment of the district court is affirmed. We grant Doe’s request to file

Volumes 12, 13 and 14 of the Appendix under seal.

                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




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