                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        MAR 31 1999
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    RITA SANCHEZ,

              Plaintiff-Appellant,

    v.                                                 No. 98-2061
                                            (D.C. No. CIV-96-1430-RPL/WWD)
    MORA-SAN MIGUEL ELECTRIC                            (D. N.M.)
    COOPERATIVE INC.; SUSANO
    F. ORTIZ; H. FELIX VIGIL; JOANN
    MARTINEZ; JOSEPH C. DE BACA;
    ELIAS DURAN; CARLOS LOVATO;
    HERMAN LUJAN; MARCELINO
    ORTIZ; DAMACIO RIVERA;
    FRANK ROYBAL; FRANK C.
    TRAMBLEY; and ERNESTO
    GONZALES, individually and in
    their official capacities,

              Defendants-Appellees.




                           ORDER AND JUDGMENT          *




Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       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); 10 th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Plaintiff lost her job after her position was eliminated. She then brought an

action against defendants, the Mora-San Miguel Electric Cooperative, Inc., its

general manager Ernesto Gonzales and individual members of the Board of

Trustees for the Cooperative, alleging Title VII and state law retaliatory discharge

claims and a breach of contract claim. A jury found in favor of defendants on the

retaliation claims and in favor of plaintiff on the breach of contract claim. Before

trial, on summary judgment, the district court    1
                                                      had ruled against plaintiff on the

issue of back pay. On appeal, plaintiff alleges errors in the jury instructions

and in denial of back pay. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

                                  I. BACKGROUND

       In December of 1994, the Cooperative hired plaintiff as an engineer.

In December of 1995, she filed a complaint with the New Mexico Human Rights

Commission alleging retaliation against her because of her sex and/or because of



1
      The summary judgment motions and the case were tried before the
magistrate judge upon the consent of the parties.

                                            -2-
a previous complaint. The New Mexico Human Rights Commission issued

a finding of probable cause in support of the complaint on July 3, 1996. The

Board, at its next scheduled meeting, on July 30, 1996, discussed whether there

was a need for the engineering position that plaintiff held. After the meeting,

Mr. Gonzales performed a cost analysis and recommended elimination of the

position for economic reasons.

      On August 29, 1996, the Board approved the recommendation. On

September 3, 1996, Mr. Gonzales notified plaintiff of the elimination of the

position, effective that day.

      Thereafter, plaintiff filed this action, alleging that her position was

eliminated in retaliation for filing the discrimination complaint. Also, she

alleged that her employment contract had been breached because elimination

of her position for retaliatory reasons was tantamount to termination of her

employment without just cause. Both parties submitted motions for partial

summary judgment on back pay and plaintiff’s duty to mitigate her damages

with respect to the retaliation claims. The court granted defendants’ motion and

denied plaintiff’s motion, holding that even if plaintiff prevailed on her retaliation

claims at trial, she would not be awarded back pay due to her failure to mitigate

damages. The jury returned a verdict finding no retaliation, but that defendants




                                          -3-
had breached plaintiff’s employment contract. It awarded her back pay of $1700

and punitive damages of $3750.


                              II. PRETEXT INSTRUCTION

       Plaintiff first challenges jury instruction No. 11, which addresses pretext.

She argues that the district court “erred by instructing the jury that [she] had to

do more than rebut the pretext of a legitimate, nonretaliatory reason” proffered by

defendants. Appellant’s Br. in Chief at 10. Specifically, she objects to the

instruction’s direction that the jury was not to second guess the employer’s

decision and that the employer was not required to prove that it was actually

motivated by the legitimate, nondiscriminatory reason it asserted. She argues

that the instruction is contrary to the law set forth in   St. Mary’s Honor Center v.

Hicks , 509 U.S. 502 (1993), because it requires proof of “pretext plus.”

St. Mary’s rejected “pretext plus” by holding that a factfinder’s rejection of the

employer’s proffered legitimate, non-discriminatory reason for its employment

decision along with the prima facie case is sufficient to show retaliation and the

plaintiff is not required to make an additional showing of retaliation.    See id. at

511. Plaintiff further believes that the instruction prevented the jury from judging

defendants’ credibility when assessing pretext.

       “We review a district court’s decision to give a particular instruction

for abuse of discretion.”    Medlock v. Ortho Biotech, Inc.    , 164 F.3d 545, 552

                                               -4-
(10th Cir. 1999). In determining whether the court properly instructed the jury

on the applicable law, however, we review all of the instructions to determine if

the jury was misled.     See id. Also, “we consider all the jury heard, and from the

standpoint of the jury, decide not whether the charge was faultless in every

particular, but whether the jury was misled in any way and whether it had

understanding of the issues and its duty to determine these issues.”        King v.

Unocal Corp. , 58 F.3d 586, 587 (10th Cir. 1995) (quotations omitted). We

therefore will reverse a jury instruction error only if we determine any error

is prejudicial after reviewing either the record as a whole or record excerpts

sufficient to determine the issue.     See id.


A. ADEQUACY OF THE RECORD

       In this case, we must first determine whether we have an adequate record to

decide this issue.   See id. Defendants argue that we do not because plaintiff’s

appendix failed to include all of the jury instructions and contained only limited

excerpts of the trial transcript.    Cf. Roberts v. Roadway Express, Inc.    , 149 F.3d

1098, 1109 (10th Cir. 1998) (determining objections to jury instructions could not

be considered where appellant failed to provide instructions or complete record of

proceedings on which instructions were based). Although plaintiff did not

include all of the jury instructions as is required,   see 10th Cir. R. 10.3(C)(6)

(formerly 10th Cir. R. 10.3.1(e)), defendants filed a supplemental appendix

                                              -5-
including all instructions,   see 10th Cir. R. 30.2(a)(1) (formerly 10th Cir. R. 30.2)

(permitting appellee to file appendix including items appellee believes should

have been included in appellant’s appendix). Plaintiff provided excerpts of the

transcript she believed were necessary to decide this issue. Defendants included

additional excerpts, which presumably they believe are sufficient for

consideration and determination of this issue.         2
                                                           Because defendants have provided

us with additional portions of the trial transcript and the complete jury

instructions, we conclude we have a sufficient record and therefore will consider

plaintiff’s challenge to the jury instruction.         Cf. United States v. Stoner , 98 F.3d

527, 530 (10th Cir. 1996) (although court is not required to consider challenge to

evidence when appellant fails to provide trial transcript, court did so because

government supplemented record with portions of trial transcript),            adhered to in

part on reh’g , 139 F.3d 1343 (10th Cir.),        cert. denied , 119 S. Ct. 403 (1998).


B. MERITS

       Proceeding to the merits, we first consider the relevant burdens of proof in

retaliation actions. The three-step approach to discrimination claims set forth in

McDonnell Douglas Corp. v. Green         , 411 U.S. 792, 802 (1973), and       Texas


2
       Neither plaintiff nor defendants provided any excerpts of plaintiff’s trial
testimony. Although defendants argue that plaintiff should have provided this
testimony, they fail to indicate why it is necessary for the determination of this
issue. We conclude that it is not needed.

                                                 -6-
Department of Community Affairs v. Burdine        , 450 U.S. 248, 252-53 (1981), also

applies to retaliation claims.   See Berry v. Stevinson Chevrolet , 74 F.3d 980, 985

(10th Cir. 1996). First, the plaintiff must set forth a prima facie case of

retaliation by establishing (1) she engaged in a protected activity; (2) her

employer took adverse employment action; and (3) a causal connection existed

between the protected activity and the adverse employment action.        3
                                                                             See McCue

v. Kansas , 165 F.3d 784, 789 (10th Cir. 1999).

       If the plaintiff meets this burden, the burden of production shifts to the

defendant to present evidence of a legitimate, nonretaliatory business reason for

its decision.   See Berry , 74 F.3d at 986; Sauers v. Salt Lake County       , 1 F.3d 1122,

1128 (10th Cir. 1993). If the defendant produces such evidence, the burden then

returns to the plaintiff to show by a preponderance of the evidence that the

defendant’s proffered reason was a mere pretext for retaliation.     See McCue ,

165 F.3d at 789; see also Randle v. City of Aurora , 69 F.3d 441, 451-52 (10th Cir.

1995) (citing Burdine , 450 U.S. at 256) (plaintiff may meet burden by showing

employer’s offered reason is unworthy of credence). The ultimate burden of


3
       Defendants argue that plaintiff failed to present a prima facie case.
Because the court submitted the case to the jury, we assume that plaintiff did.   Cf.
United States Postal Serv. Bd. v. Aikens     , 460 U.S. 711, 714-15 (1983) (where
defendant does everything required of him as if plaintiff made prima facie case,
whether plaintiff actually did so is irrelevant because factfinder could determine
ultimate question of whether defendant intentionally discriminated against
plaintiff).

                                            -7-
persuading the jury that the defendant retaliated against the plaintiff always

remains with the plaintiff.      See St. Mary’s , 509 U.S. at 507, 511, 518.

       The parties agree that the district court correctly instructed the jury as to

these three steps.   4
                         Jury instruction No. 11, the instruction in question, provided

further explanation of the burdens applicable after plaintiff made a prima facie

case. It provided:

             A legitimate, non-retaliatory reason is any reason or
       explanation unrelated to [plaintiff’s] participation in protected


4
       Instruction No. 10 provided:

             To establish a prima facie case of retaliation under Title VII or
       the New Mexico Human Rights Act, [plaintiff] must show the
       following:

            1. Participation in an activity protected by Title VII or the
       New Mexico Human Rights Act;

             2. Adverse action by an employer contemporaneous with or
       subsequent to the employee’s protected activity; and

            3. A causal connection between such activity and the
       employer’s action.

             If a prima facie case is established, the Defendant Cooperative
       must articulate a legitimate non-retaliatory reason for the adverse
       action. Once the Cooperative articulates its reason, [plaintiff] must
       demonstrate by a preponderance of the evidence that the articulated
       reason was a mere pretext for retaliation.

Appellant’s App. at 105.



                                              -8-
      activity. In considering the legitimate non-retaliatory reason stated
      by the Cooperative for its decision, you are not to second guess that
      decision or to otherwise substitute your judgment for that of the
      Cooperative.

             In this case, the ultimate burden of persuading the jury that the
      Cooperative intentionally discriminated against [plaintiff] because
      she filed a charge of discrimination remains at all times with the
      Plaintiff. The Defendant is therefore not required to prove that its
      decision was actually motivated by the legitimate, non-retaliatory
      reason.

Appellant’s App. at 106.

      In challenging the last sentences in both paragraphs of instruction No. 11,

plaintiff argues the instruction requires proof of “pretext plus.” Also, she argues

that the instruction effectively tells the jury it may not disbelieve defendants and

decide that the elimination of the position was pretext and effectively relieves

defendants of any exposure.    See Appellant’s Br. in Chief at 13-14. Plaintiff

believes that she could successfully attack the credibility of her former

employer’s reason, but defendants could still avoid liability. Thus, plaintiff

maintains that the instruction prevents the jury from judging the employer’s

credibility when determining pretext.

      We disagree with plaintiff’s challenges to the two sentences. Instruction

No. 11 properly stated that the jury should not second guess the Cooperative’s

decision to eliminate the position for economic reasons.   Cf. Beaird v. Seagate

Tech., Inc. , 145 F.3d 1159, 1169 (10th Cir.) (stating in Age Discrimination in


                                           -9-
Employment Act (ADEA) case that business decision need not be wise; it must

only be nondiscriminatory),    cert. denied , 119 S. Ct. 617 (1998);     Faulkner v. Super

Valu Stores, Inc. , 3 F.3d 1419, 1427 (10th Cir. 1993) (indicating in ADEA case

that courts will not second guess business decisions without evidence of

impermissible motives shown by plaintiff);        see also Manual of Model Civil Jury

Instructions for the District Courts of the Eighth Circuit ¶5.94, at 194 (1998)

(“You may not return a verdict for plaintiff just because you might disagree with

defendant’s (decision) or believe it to be harsh or unreasonable.”) (footnote

omitted). In meeting their burden, defendants were not required to “‘persuade the

[jury] that [they were] actually motivated by the proffered reasons.’”        St. Mary’s ,

509 U.S. at 510 (quoting   Burdine , 450 U.S. at 254); see also Considine v.

Newspaper Agency Corp. , 43 F.3d 1349, 1363 (10th Cir. 1994) (defendant does

not have to prove merits of reason or that it was bona fide).

       Also, the instructions, read as a whole, did not require a showing of

“pretext plus.” As is required, the instructions properly stated that plaintiff had

the burden of challenging the legitimate, nonretaliatory reason offered by

defendants to prove pretext and that she had the ultimate burden of proving

retaliation. If she disproved the reasons offered by defendants, the instructions

did not require her to produce additional evidence of discrimination to prevail.

Rather, the jury was permitted to determine which parties’ explanation of the


                                           -10-
employer’s motivation to believe.     See St. Mary’s , 509 U.S. at 519; Berry , 74 F.3d

at 987. 5

       Nothing precluded the jury from scrutinizing defendants’ decision to

determine whether it was so questionable that it was a pretext for discrimination.

See Beaird , 145 F.3d at 1169;    see also Sanchez v. Philip Morris Inc.    , 992 F.2d

244, 247 (10th Cir. 1993) (business decision relevant only insofar as it relates to

employer’s motive with respect to alleged illegal conduct). The instruction

correctly placed the burden upon plaintiff to prove that retaliation was the

motivating factor in the elimination of the engineer position.       See Mason v.

Oklahoma Turnpike Auth. , 115 F.3d 1442, 1455 (10th Cir. 1997).

       Although jury instruction No. 11 is not a model of clarity, it is not contrary

to other jury instructions which are more informative and more clear. For

example, one set of pattern jury instructions provides, in relevant part, as follows:

             If you determine that the plaintiff has made out a prima facie
       case of [retaliation], the burden shifts to the defendant to either



5
        The district court could have instructed the jury that its     “disbelief of the
reasons put forward by . . . defendant[s] . . . may, together with the elements of
the prima facie case, suffice to show intentional discrimination” and that
“rejection of the defendant’s proffered reasons, will        permit the trier of fact to
infer the ultimate fact of intentional discrimination.”        St. Mary’s , 509 U.S. at 511;
see Randle , 69 F.3d at 451 (after rejecting defendant’s proffered reason, jury may
find illegal discrimination upon nothing more than prima facie case and pretext)          .
Failure to give such an express instruction, however, did not improperly require
plaintiff to show “pretext plus.”

                                            -11-
      disprove an element of the plaintiff’s case, or to articulate a
      legitimate non-discriminatory reason for his action.

5 Leonard B. Sand et al., Modern Federal Jury Instructions ¶87.01, at 87-76

(1998).

             The defendant in this case has stated a legitimate,
      [non-retaliatory] reason . . . . By doing so, the defendant has met his
      burden of producing some explanation of his actions other than
      discrimination. It is not necessary that the reason be a good one, or
      even that you believe it to be true. All the defendant need do is state
      a reason other than [retaliation] for his action. It is the plaintiff’s
      obligation to disprove that it was the reason for the defendant’s
      action, not the defendant’s burden to convince you that it was his
      reason.

            By meeting this intermediary burden, the defendant shifted the
      burden of persuasion back to the plaintiff.

Id. at 87-83.

             The plaintiff has introduced evidence that the defendant’s
      articulated reason for his action is nothing more than a pretext for
      [retaliation]. In other words, the plaintiff has introduced evidence to
      show that the defendant’s reasons are not the true reasons why the
      defendant took adverse action(s) against the plaintiff, that such
      reasons are unworthy of belief and that the true reason for the
      adverse action(s) was [retaliation].

              When you consider the plaintiff’s evidence that the reason
      advanced by the defendant is pretext, keep in mind that the relevant
      question is whether the defendant’s reason was not the real reason
      for his actions. The question is not whether the defendant’s reason
      showed poor or erroneous judgment. You are not to judge the
      defendant’s wisdom. An employer is entitled to make an
      employment decision for a good reason, a bad reason or no reason at
      all, so long as the decision is not motivated by unlawful [retaliation].
      However, you may consider whether the defendant’s reason is merely
      a cover-up for [retaliation]. . . . You also should carefully evaluate

                                         -12-
      any subjective reasons that the defendant has asserted for taking the
      action(s) against the plaintiff that it did in deciding whether the
      plaintiff has met his burden of proof.

             It is the plaintiff’s burden to persuade you, by a preponderance
      of the evidence that the defendant took the adverse action(s) against
      the plaintiff because of [retaliation]. If you do not believe the
      defendant’s explanations for its action(s), then you may infer, but
      need not infer, that the plaintiff has satisfied his burden of proof that
      the defendant intentionally [retaliated] against him. . . .

Id. at 87-86.

      In Mason , 115 F.3d at 1454-55, this court upheld a challenged pretext

instruction in a political patronage and/or retaliation case. In part, the instruction

provided:

             The Defendants in this case allege that the Oklahoma Turnpike
      Authority had a legitimate reason for terminating the Plaintiff, i.e.,
      an agency reorganization. The Defendants do not bear the burden of
      proof with respect to the reason for terminating the Plaintiff. Thus,
      the Plaintiff can prevail only if he proves, by a preponderance of the
      evidence, that political patronage was a substantial or motivating
      factor in the decision to terminate him, in addition to any legitimate,
      non-discriminatory reasons.

             If you find that the stated reasons given by the Defendants are
      inconsistent or implausible . . . then you may conclude that the
      offered explanation is a mere pretext for political patronage. If you
      find pretext, you may also infer that political patronage was a
      substantial or motivating factor in the employment decision; though
      you are not required to draw such an inference.

             If you do not find that the Defendants’ explanations were a
      mere pretext, you must still consider whether political patronage was
      a determining factor in the Plaintiff’s termination.



                                         -13-
            The Plaintiff is not required to prove that political patronage
      was the sole motivation or the primary motivation for the
      Defendants’ decision to terminate his employment. The Plaintiff
      need only prove that political patronage was a substantial or
      motivating factor in the decision to discharge him.

Id. at 1454-55. This court determined these instructions properly placed the

burden of proof on the plaintiff to prove that political patronage and/or retaliation

was a substantial motivating factor in the employment decision.    See id. at 1455.

Furthermore, the instructions permitted the jury to determine an illegitimate

motive existed if it rejected the defendant’s proffered reason for the employment

decision. See id. ; see also Provencher v. CVS Pharmacy , 145 F.3d 5, 9 (1st Cir.

1998) (upholding retaliation instruction that placed burden on plaintiff to prove

that he was fired for retaliatory reason, even though some language in instruction

was problematic). Likewise, the instruction here properly placed the burden on

plaintiff and was not infirm.

      We also reject plaintiff’s argument that instruction No. 11 precluded the

jury from considering defendants’ credibility. The instructions as a whole

informed the jury it could choose to disbelieve the legitimate, non-retaliatory

reason proffered by defendants.    See Appellees’ Supp. App. at 263, 281




                                          -14-
(instructing jury that it was sole judge of disputed facts and that it was judge of

credibility of witnesses and weight to be given witnesses’ testimony).   6



       We conclude that the jury instructions as a whole accurately stated the

burdens of proof and that the jury was not misled. Accordingly, we further

conclude that there was no prejudice to plaintiff.     See McCue , 165 F.3d at 790.


                         III. BACK PAY AND MITIGATION

       Plaintiff argues that the district court erred in granting summary judgment

on the issue of back pay and mitigation with respect to the retaliation claims.

Plaintiff believes that defendants did not meet their burden of proving that she did

not sufficiently mitigate her damages by seeking other relevant work. Also, she

contends that mitigation is a jury issue, not appropriate for disposition on

summary judgment.

       Back pay is permitted to provide equitable relief for Title VII violations.

See id. at 791-92 (citing 42 U.S.C. § 2000e-5(g)). Inasmuch as plaintiff did not

prevail on her retaliation claims, she would not be entitled to back pay.



6
      Plaintiff suggests that the jury necessarily rejected defendants’ alleged
nondiscriminatory reason that they eliminated the position for economic reasons
because the jury found for plaintiff on the breach of contract claim. We do not
agree. The jury could find that defendants breached the contract without
determining that they retaliated against her. The jury may have believed the
evidence indicating that plaintiff was insubordinate and had performance
problems.

                                            -15-
Accordingly, this issue is moot, and we do not address its merits.        See Jones v.

Temmer , 57 F.3d 921, 922 (10th Cir. 1995) (exercise of judicial power requires

controversy and federal courts will not render advisory opinions).


                          IV. MITIGATION INSTRUCTION

       Lastly, plaintiff argues that the district court erred in instructing the jury

that it could award damages for breach of contract only after September 27, 1997,

the date of the summary judgment order,     7
                                                and thereby precluded the jury from

considering and awarding damages from the termination of her employment.

Because mitigation of damages for breach of contract is an affirmative defense,

defendants bear the burden of proving that plaintiff failed to mitigate her

damages. See Board of Educ. v. Jennings         , 701 P.2d 361, 363 (N.M. 1985).

Defendants must prove plaintiff failed to exercise reasonable diligence to

minimize her damages by seeking the same type and grade of employment from

which she was discharged.      See id. (wrongfully discharged teacher);      Pape v.

Ingram , 363 P.2d 1029, 1031 (N.M. 1961).

       From September 3, 1996, to September 27, 1997, plaintiff’s efforts to find

relevant work consisted of making three telephone calls to other electric

cooperatives, making one telephone call to the New Mexico Highway Department,


7
     The district court actually entered the summary judgment order on
September 22, 1997.

                                           -16-
and giving her resume to the New Mexico Department of Labor to forward to

Intel Corporation. These efforts all occurred in September of 1996. The record

does not indicate that she sought comparable employment in any geographical

area after that date and through September 27, 1997. Just as the district court

determined as a matter of law that plaintiff failed to make reasonable efforts to

mitigate her damages before September 27, 1997, with respect to the retaliation

claims, we too determine as a matter of law that plaintiff failed to make

reasonable efforts to mitigate her damages before September 27, 1997, with

respect to the breach of contract claim. We therefore conclude defendants met

their burden of proof and the district court did not err in instructing the jury that

it could award damages for breach of contract only after September 27, 1997.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED. Plaintiff’s motion to file a supplemental appendix is

GRANTED.



                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge




                                          -17-
