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

                       FOR THE TENTH CIRCUIT                         April 5, 2016
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
SENAYET TUFFA; SADIA
ABDUSALEM; AGNES AIDOO;
MARY BOATEMAH; AMINA
BORIYO; NURIDA BORIYO;
LENSSA BUBA; ABDI CHALTU;
TIGEST DESTA; ELASABETH
GETACHEW; ZEWDINEH GIZAW;
BANCHEAMLAK HAILU;
KAMIRIYA JIMJIMO; BERHANE                           No. 15-1163
KIDANE; MAKIDA LESISO;                     (D.C. No. 1:13-CV-03243-RBJ)
ADDISALEM NIGATU; OSHAIK                             (D. Colo.)
OWMAR; MOMINA TUFA;
FIKERETE WAKJIRA; ROBDU
WALIO; REDA WELANSA;
SHEWANARGAW WOLDEPSEICK;
GEZAHEGNE WOLDHNNA;
FISSEHA WONDAFRASH,

       Plaintiffs-Appellants,

v.

FLIGHT SERVICES & SYSTEMS,
INC.,

       Defendant-Appellee.
                     _________________________________

                        ORDER AND JUDGMENT *


*
      The plaintiffs have requested oral argument, but we do not believe
oral argument would be helpful. As a result, we are deciding the appeal
based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

     This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
                                                                    (continued)
                           _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                 _________________________________

      This appeal arises out of the firing of 22 African employees by Flight

Services & Systems, Inc. The 22 employees invoke Title VII, claiming

disparate treatment based on race or national origin. 1 See Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). After a jury trial,

Flight Services obtained a judgment in its favor.

      For 18 of the plaintiffs, the district court excluded a letter from the

Equal Employment Opportunity Commission (EEOC), which had found

reasonable cause to believe that Flight Services had violated Title VII. 2


But the 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).
1
       Two other African employees sued, but their claims are not involved
in this appeal.
2
      The letter states:

      I have considered all the evidence obtained during the
      investigation and find that there is reasonable cause to believe
      that there is a violation of Title VII in that [Flight Services]
      failed to provide language assistance when employees were
      required to take the SIDA Badge Test, and engaged in a
      nationwide pattern or practice of discrimination by requiring
      applicants to take and pass two internal tests that required
      applicants to be proficient in reading, writing and speaking
      English, a requirement that is not necessary for the satisfactory
      performance of their jobs. Likewise, [Flight Services] failed to
      conduct an impact study, job task analysis, and/or studies to
      establish the validity of the two internal tests, which tests have
                                                                    (continued)
                                          2
The district court reasoned that under Federal Rule of Evidence 403, the

probative value of the EEOC letter was substantially outweighed by the

dangers that the jury would be unfairly prejudiced, confused, or misled.

The plaintiffs appeal the exclusion of the EEOC letter. Because the district

court did not abuse its discretion in excluding the letter, we affirm.

I.    We review the district court’s decision to exclude the EEOC letter
      for an abuse of discretion.

      In reviewing the evidentiary ruling, we apply the abuse-of-discretion

standard. Frederick v. Swift Transp. Co., 616 F.3d 1074, 1083 (10th Cir.

2010).

      The plaintiffs argue that we should intensify our review when

considering the admissibility of agency findings on discrimination. We

disagree, for we have consistently reviewed the admissibility of agency

findings under the conventional abuse-of-discretion standard. In Hall v.

Western Product Co., for example, the plaintiff alleged violation of the

Age Discrimination in Employment Act. 988 F.2d 1050, 1051 (10th Cir.



      a disparate impact based on race (Black) and national origin
      (nationalities which favor a language other than English).
      [Flight Services’] discriminatory practices adversely affect a
      class of aggrieved individuals who are Black, or whose
      nationality favors a language other than English. . . . The
      Commission makes no finding regarding any other allegation
      made in the charges.
Appellant’s App’x, vol. 2 at 48-49.


                                      3
1993). Invoking Rule 403, the district court declined to admit into

evidence a Wyoming Fair Employment Commission report that had found

no discrimination. Id. at 1058. We affirmed, reasoning that “the district

court is granted discretion to determine when otherwise relevant, thus

admissible, evidence should be excluded.” Id.; see also Nulf v. Int’l Paper

Co., 656 F.2d 553, 563 (10th Cir. 1981) (“Trial courts have discretion in

deciding whether to admit EEOC determinations into evidence . . . .”).

      Rule 403 grants the same discretion to the district court here.

Accordingly, we ask only whether the district court abused its discretion in

excluding the EEOC letter.

II.   The district court did not abuse its discretion in excluding the
      EEOC letter. 3

      To avoid confusing the jury, the district court applied Rule 403,

which allows exclusion of relevant evidence if the “probative value is

substantially outweighed by a danger of . . . unfair prejudice, confusing the

issues, [or] misleading the jury.” In applying this rule, the district court

reasoned that

           the jury might be “overly influenced” by the EEOC report and



3
       The plaintiffs argue that we must first analyze whether the EEOC
letter (1) is relevant under Federal Rule of Evidence 401 and (2) falls
under the public-record exception to the rule against hearsay (Federal Rule
of Evidence 803(8)). We assume, without deciding, that the letter is
relevant and that it qualifies as a public record.

                                       4
           the EEOC applied a different standard of proof than the
            standard to be applied by the jury.

Appellant’s App’x, vol. 2 at 58-59. This evidentiary ruling did not

constitute an abuse of discretion.

      A.    The letter could have engendered undue deference to the
            EEOC’s findings and confused the jury.

      The district court concluded that the letter posed too great a risk of

unfair prejudice and juror confusion. In our view, the district court did not

abuse its discretion in coming to this conclusion.

      First, if the district court allowed introduction of the EEOC letter,

the jury may have felt the need to defer to the EEOC because of its

perceived expertise. To avoid this risk, the court may have reasonably

thought it needed to exclude the letter. See Hall, 988 F.2d at 1058

(holding that it was not an abuse of discretion for the trial court to exclude

an agency finding of no discrimination on the ground that the report would

“suggest to the jury that it should reach the same conclusion” as the

agency).

      Second, introduction of the EEOC letter might have confused the jury

because different standards and theories were involved in the EEOC

proceedings and the jury trial. In the EEOC proceedings, the standard was

“reasonable cause,” but the jury had a different standard: “preponderance

of the evidence.” See Jury Inst. No. 2, Dkt. No. 86; see also note 5, below

(discussing judicial notice of the proceedings in district court). In these
                                       5
circumstances, the jury would have needed to temper deference to the

EEOC based on recognition that it applied a different burden of proof.

      The EEOC not only applied a different standard, but also considered

different theories. The EEOC considered disparate impact, 4 but in the trial

the plaintiffs did not claim a disparate impact. 5 Instead, they relied on a

different theory: disparate treatment. See J.V. v. Albuquerque Pub. Schs.,

___ F.3d ___, 2016 WL 683282, at *7 (10th Cir. Feb. 19, 2016) (“Unlike a

claim for disparate treatment, a claim for disparate impact doesn’t require

proof of intentional discrimination.”) (internal quotation marks omitted)).

Thus, if the EEOC letter had been introduced, the jury would have had to

account for a difference in the claims.

      Ignoring differences in the standards and the claims, the plaintiffs

argue that the EEOC’s expertise would have helped the jury. That may be

true. Even if it is, however, the difference in standards and claims could

easily have led to confusion as the jury attempted to separate its own

inquiry from the EEOC’s.


4
      Appellant’s App’x, vol. 2 at 48-49 (EEOC’s statement that two of
Flight Services’ tests “have a disparate impact based on race . . . and
national origin”).
5
      The trial transcript is not in our record on appeal. But we can take
judicial notice of the admission by the plaintiffs’ counsel that he was not
asserting a claim of disparate impact. Trial Trans. at 778; see Guttman v.
Khalsa, 669 F.3d 1101, 1127 n.5 (10th Cir. 2012) (stating that the court
can take judicial notice of filings in district court).

                                       6
      B.    The district court did not apply a per se rule of exclusion.

      The plaintiffs argue that the district court applied a per se rule of

exclusion. We disagree; the court considered the EEOC letter and expressly

determined that the letter would likely have

           confused and misled the jury and

           created unfair prejudice.

See Appellant’s App’x , vol. 2 at 58-59 (acknowledgment by the district

court of the “serious danger that the jury will think . . . the agency has

already decided that the plaintiff[s] win[] this case . . . [a]nd . . . perhaps

[be] overly influenced”). In arriving at this determination, the court acted

within its discretion.

      C.    The district court did not fail to give the EEOC letter
            minimal reasonable risk of unfair prejudice.

      In addition, the plaintiffs argue in their reply brief that the district

court failed to give the EEOC letter “minimum” prejudicial value.

Appellants’ Reply Br. at 18-19. This argument was waived and invalid.

      It is true that the district court must give the evidence its minimal

reasonable risk of unfair prejudice. Deters v. Equifax Credit Info. Servs.,

202 F.3d 1262, 1274 (10th Cir. 2000). But the plaintiffs did not argue in

their opening brief that the district court had failed to give the evidence its

minimal risk of unfair prejudice. By the time the plaintiffs made this

argument in their reply brief, it was too late. See Headrick v. Rockwell


                                        7
Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994) (stating that appellate

courts will generally not entertain issues raised for the first time in a reply

brief).

      The argument is not only late but also invalid: the district court

never said anything to suggest that it failed to give the evidence its

minimal reasonable danger of unfair prejudice.

      D.    The district court’s reasoning did not contradict Federal
            Rule of Evidence 803(8).

      Finally, the plaintiffs argue that the district court should not have

been concerned that the EEOC letter covered the same matters that the jury

was to determine. According to the plaintiffs, “[s]uch reasoning contradicts

[Federal Rule of Evidence] 803(8).” Appellants’ Reply Br. at 13. We

disagree: Rule 803(8) addresses hearsay, but does not vitiate Rule 403 or

imply that agency findings will always be more probative than prejudicial.

See Coleman v. Home Depot, Inc., 306 F.3d 1333, 1345 (3d Cir. 2002)

(“[W]e decline Coleman’s invitation to conclude that, based on the

presumption of admissibility under Rule 803(8)(C), EEOC Letters of

Determination are per se more probative than prejudicial under Rule 403

. . . .”); Cortes v. Maxus Expl. Co., 977 F.2d 195, 201 (5th Cir. 1992)

(concluding that an EEOC determination, to be admissible, must pass the

test under Rule 403 even if the EEOC determination satisfies the hearsay

exception in Rule 803(8)). As a result, the district court could justifiably


                                       8
rely in part on the fact that the EEOC letter covered matters that the jury

was to determine.

III.   Disposition

       We conclude that the district court did not abuse its discretion in

excluding the EEOC letter. Thus, we affirm.

                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




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