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

                             FOR THE TENTH CIRCUIT                       November 29, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
WILLIAM GAIGE,

      Plaintiff - Appellant,

v.                                                         No. 15-6191
                                                   (D.C. No. 5:14-CV-00470-BA)
SAIA MOTOR FREIGHT LINE, LLC, a                            (W.D. Okla.)
Louisiana limited liability company,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

      After William Gaige was fired from his job while on leave from work under

the Family and Medical Leave Act, 29 U.S.C. §§ 2601-54 (“FMLA”), he sued his

former employer, SAIA Motor Freight Line, LLC, for interference with his FMLA-

created rights in violation of 29 U.S.C. § 2615(a)(1).1 During the litigation, the

district court made three rulings based on Federal Rule of Evidence 403 that Gaige

claims were abuses of discretion. On these grounds, Gaige seeks reversal of the

      *
         This order and judgment is not binding precedent, except under the doctrines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.
      1
         Appellant sued for retaliation for exercising his rights under the FMLA in
violation of 29 U.S.C. § 2615(a)(2), but later elected to proceed only on his
interference claim.
district court’s denial of his Motion for New Trial. The district court acted within its

discretion in finding that the proposed evidence’s unfair prejudice substantially

outweighed its probative value. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                  BACKGROUND

I.      Facts

        Weeks before losing his job, Gaige broke his ankle playing soccer. But weeks

before that, SAIA had started investigating him for a conflict of interest. On October

21, 2013, after a caller left an anonymous tip on SAIA’s hotline, SAIA began

investigating Gaige for a conflict of interest. The caller accused Gaige of using his

SAIA contacts to generate business for a side venture. Initially, SAIA’s internal-audit

group conducted the investigation without involving Gaige’s supervisors. SAIA

planned to continue investigating Gaige during its November audit of the Oklahoma

City terminal, where Gaige worked.

        On November 15, 2013, Gaige broke his ankle playing soccer. Gaige applied

for FMLA leave after his regional manager, Rodney Warmke, insisted he take it. On

December 12, 2013, he received approval and his leave dated back to November 25,

2013.

        Meanwhile, between Gaige’s injury and his FMLA-leave approval, SAIA

continued investigating Gaige. SAIA discovered that a small transport company

named Batak, LLC was registered to Gaige’s wife. Although SAIA is a national

freight transporter, SAIA determined that Batak conflicted with some of its

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operations. SAIA concluded that the conflict violated company policy and was

grounds for termination. On December 18, 2013, though Gaige was on FMLA leave,

SAIA fired him.

II.   Procedural History

      Gaige sued SAIA for interference with his FMLA rights under 29 U.S.C. §

2615(a)(1). Before trial, SAIA moved in limine to exclude evidence of past

discrimination from former SAIA employees. The district court excluded (1)

testimony from Theodies Nelson, a former SAIA employee who had earlier taken

FMLA leave; (2) references to the case Gray v. SAIA Motor Freight Line, Inc., No.

CJ-2001-2844 (Dist. Ct. Okla.) (“Gray case”), a workers’-compensation suit that

SAIA lost;2 and (3) testimony about SAIA’s FMLA policies from David Crites, a

former SAIA employee who worked in SAIA’s Indiana terminal.

      During his case-in-chief, Gaige introduced evidence to disprove that SAIA

fired him for a conflict of interest. Gaige testified that Batak’s operations differed

from SAIA’s. A former SAIA employee from SAIA’s Salt Lake City terminal, Gary

Holyoak, testified that SAIA fired him after he had taken FMLA leave. He also

testified that SAIA had a policy of disciplining employees who take FMLA leave.

      In its jury instructions, the district court stated that Gaige had satisfied the first

two elements of his interference claim and that SAIA had the burden of proving that

Gaige’s termination was unrelated to his FMLA leave. The jury returned a verdict for

      2
        The district court agreed to allow references to the Gray case if SAIA opened
the door at trial.

                                            3
SAIA, and Gaige filed a Rule 59 Motion for New Trial, arguing that the district

court’s three evidentiary exclusions made the trial unfair. The district court denied

the motion. We consider each of the three evidentiary rulings below and hold that the

district court acted within its discretion.

                                      DISCUSSION

       On appeal, Gaige argues that the district court erroneously excluded past-

discrimination evidence. He seeks reversal of the district court’s denial of his Motion

for New Trial on this ground. We first discuss the evidence’s relevancy within an

FMLA claim’s context. We then conclude that the district court acted within its

discretion in excluding the evidence because it properly applied factors to determine

the evidence’s relevance, instead of applying a per se rule, and excluded the evidence

under Federal Rule of Evidence 403. Thus, we affirm the district court’s denial of

Gaige’s Motion for New Trial.

I.     Standard of Review

       We review the district court’s evidentiary exclusions for abuse of discretion.

Frederick v. Swift Transp. Co., 616 F.3d 1074, 1083 (10th Cir. 2010). A district court

abuses its discretion “only when it makes a clear error of judgment, exceeds the

bounds of permissible choice, or when its decision is arbitrary, capricious or

whimsical, or results in a manifestly unreasonable judgment.” Mathis v. Huff & Puff

Trucking, Inc., 787 F.3d 1297, 1309 (10th Cir. 2015) (quoting Queen v. TA

Operating, LLC, 734 F.3d 1081, 1086 (10th Cir. 2013)). We will affirm the “district

court’s evidentiary ruling ‘absent a distinct showing it was based on a clearly

                                              4
erroneous finding of fact or an erroneous conclusion of law or manifests a clear error

of judgment.’” Eller v. Trans Union, LLC, 739 F.3d 467, 474 (10th Cir. 2013)

(quoting Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995)).

II.   Relevant Evidence and the FMLA

      Generally, relevant evidence is admissible, and irrelevant evidence is

inadmissible. Fed. R. Evid. 402. Relevant evidence is evidence having “any tendency

to make a fact more or less probable than it would be without the evidence” when

“the fact is of consequence in determining the action.” Fed. R. Evid. 401. The

relevance of past discrimination is “determined in the context of the facts and

arguments in a particular case, and thus [is] generally not amenable to broad per se

rules.” See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (2008). Still,

the district court can exclude relevant evidence when “its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

      A.     FMLA-Interference Claim

      We examine the evidence’s relevance within the context of an FMLA-

interference claim. See Sprint, 552 U.S. at 387 (explaining that relevance is

determined within the context of a particular case). For an FMLA-interference claim,

an employee must prove: “(1) that he was entitled to FMLA leave, (2) that some

adverse action by the employer interfered with his right to take FMLA leave, and (3)

that the employer’s action was related to the exercise or attempted exercise of his

FMLA rights.” Jones v. Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005).

After the employee proves the first two elements, the burden shifts to the employer to

                                           5
prove that the adverse decision was “[un]related to the exercise or attempted exercise

of [the employee’s] FMLA rights.” Dalpiaz v. Carbon Cty., 760 F.3d 1126, 1132

(10th Cir. 2014) (second alteration in original) (quoting Campbell v. Gambro

Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007)). When the employer satisfies

its burden, the burden never shifts back to the employee to prove pretext because

“intent is not necessary [to prove] FMLA interference claims.” Brown v. ScriptPro,

LLC, 700 F.3d 1222, 1228 (10th Cir. 2012) (citing Metzler v. Fed. Home Loan Bank

of Topeka, 464 F.3d 1164, 1180 (10th Cir. 2006)).

      Here, the first two elements are undisputed. The parties agreed that (1) Gaige

was entitled to FMLA leave (element 1); and (2) Gaige’s termination constituted an

“adverse action” that interfered with Gaige’s FMLA rights (element 2). So SAIA had

the burden of proving it fired Gaige for an unrelated reason. And because Gaige

satisfied the first two elements, Gaige’s past-discrimination evidence could have only

been relevant to dispute SAIA’s unrelated-reason evidence. See Brown, 700 F.3d at

1228 (analyzing pretext evidence in an interference claim as offered to dispute the

employer’s evidence).

      B.     Nexus Between Past Discrimination and Plaintiff’s Circumstances

      The relevance of past-discrimination evidence is determined by finding a

nexus between it and the plaintiff’s circumstances. See Minshall v. McGraw Hill

Broad. Co., 323 F.3d 1273, 1282 (10th Cir. 2003). Whether a logical nexus exists

“depends on many factors, including how closely related the evidence is to the

plaintiff’s circumstances and theory of the case.” See Sprint, 552 U.S. at 388. And it

                                          6
is an abuse of discretion for a district court to apply per se rules of exclusion. Id. at

387. Some relevant factors include: i) proximity in time; ii) the decision-makers

involved; and iii) similar treatment of the witness and plaintiff. Griffin v. Finkbeiner,

689 F.3d 584, 599 (6th Cir. 2012).

       The district court applied these factors and ultimately excluded the evidence

under Rule 403. The following three subsections analyze the district court’s

evidentiary exclusions.

       1.    Theodies Nelson

       Gaige contends the district court excluded Nelson’s testimony by applying a

“same supervisor” requirement. Had the district court applied such a per se rule of

exclusion, Gaige is correct that it would have abused its discretion. Sprint, 552 U.S.

at 388. But the record shows that the district court did not apply a per se rule. Rather,

it examined the evidence’s relevance under Rule 401 and its admissibility under Rule

403.

       From 2008 to 2011, Nelson worked as a dock supervisor at SAIA’s Burr

Ridge, Illinois terminal. Nelson alleges that SAIA fired him for taking FMLA leave.

In its Rule 401 analysis, the district court properly analyzed the nexus between

Nelson and Gaige. Noting that Nelson and Gaige had worked in different regions

under different supervisors, the district court concluded that Nelson’s testimony was

minimally relevant. The district court stated that it was a “very thin read to say that

[Nelson’s testimony has] a tendency to make it more likely than not that Mr. Gaige



                                           7
had his FMLA rights interfered with because someone in a different region had this

happen.” Appellee Supp. App’x vol. 4, 894.

      The district court applied Rule 403 to exclude the testimony. “[T]he district

court may exclude relevant evidence if its probative value is substantially outweighed

by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid.

403. The district court balanced the testimony’s minimal relevance against its risk of

creating an illogical inference and leading to a mini-trial. We find the district court

acted within its discretion in excluding the testimony.

      2.     Gray Case

      Gaige contends the district court erroneously applied a “same supervisor”

requirement to exclude references to the Gray case. But again, the record shows that

the district court considered the evidence’s relevance under Rule 401 and excluded it

under Rule 403.

      The Gray case involved a former-SAIA employee who claimed retaliation for

taking workers’-compensation benefits and involved allegations that SAIA had

fabricated evidence. In its relevancy analysis, the district court examined the

differences between the Gray case and Gaige’s termination, including differences

between the supervisors, the claims, and the timing. Ultimately, the district court

excluded the evidence under Rule 403 for unfair prejudice. Unfair prejudice exists

when the evidence has a tendency to suggest a decision on an improper basis. United

States v. Cerno, 529 F.3d 926, 935 (10th Cir. 2008). Finding that the evidence

                                           8
provoked this type of response, the district court stated, “I can easily see a jury going

back and saying ‘You know, these [SAIA] guys deserve to lose every single lawsuit

[because] they fabricate evidence.’” Appellee Supp. App’x vol. 4, 863–67. The

district court acted within its discretion when it excluded the evidence on this basis.

      3.     David Crites

      Finally, we consider whether the district court abused its discretion when it

excluded testimony from David Crites about SAIA’s FMLA policies. The district

court excluded Crites’s testimony based on Federal Rules of Evidence 602 and 403,

not on a per se “same supervisor” rule, as Gaige contends.

      Crites attended a national- and Chicago-regional-SAIA meeting where he

heard supervisors discuss a policy of terminating employees who take FMLA leave.

The district court worried that Crites lacked personal knowledge of SAIA’s

nationwide policy, so it conducted voir dire. See Fed. R. Evid. 602 (“A witness may

testify to a matter only if evidence is introduced sufficient to support a finding that

the witness has personal knowledge of the matter.”). During voir dire, Gaige’s

attorney failed to establish foundation for Crites’s testimony that SAIA had a national

policy of discrimination. When Crites was at the national meeting, he heard the

discussions in a breakout session for SAIA’s eastern region. And the two supervisors

leading the session worked in SAIA’s eastern region. The same two supervisors led

the discussion at the Chicago-regional meeting.

      Because Crites lacked information about the SAIA-western-regional policy,

where Gaige worked, the district court concluded that Crites lacked proper

                                           9
foundation to testify about SAIA’s national policy. The district court was concerned

the jury would unfairly attribute the statements of two supervisors to SAIA as a

whole. Because of these Rule 602 concerns, the district court acted within its

discretion in excluding the evidence under Rule 403.

                                  CONCLUSION

      Because Gaige’s appeal for a new trial depends on a finding that the district

court abused its discretion in excluding the evidence and we find that the district

court acted within its discretion in excluding the evidence, we affirm the district

court’s denial of Gaige’s Motion for New Trial.



                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




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