                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           June 1, 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 CLAUDIA CROY,

               Plaintiff-Appellant,                     No. 04-1282
          v.                                        District of Colorado
 COBE LABORATORIES, INC. and                   (D.C. No. 00-D-1976 (MJW))
 COBE CARDIOVASCULAR, INC.,

               Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before HENRY, MURPHY, and McCONNELL, Circuit Judges.


      Plaintiff Claudia Croy successfully sued her employer, Cobe Laboratories,

Inc. (“Cobe”), for breach of a contract to give her a promotion. The jury awarded

Ms. Croy $88,798.00 in damages, including both front and back pay. Ms. Croy

now appeals the district court’s refusal to grant her specific performance—in the

form of a promotion in title and duties—as well. We conclude that damages




      *
        This order and judgment is not binding precedent, except under the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.
provided Ms. Croy an adequate remedy at law and therefore AFFIRM the district

court’s denial of specific performance.

                                          I.

      Ms. Croy brought several claims against Cobe, including gender

discrimination under Title VII, disability discrimination under the Americans with

Disabilities Act, and breach of contract under Colorado law. The district court

granted Cobe summary judgment on all claims; in a prior appeal, we reversed the

grant of summary judgment on the breach of contract claim. See Croy v. Cobe

Laboratories, Inc., 345 F.3d 1199 (10th Cir. 2003).

      The contract claim then proceeded to trial. Ms. Croy alleged that Cobe had

breached a contract to promote her. On the first day of trial, and before the court

empaneled the jury, Ms. Croy informed the court that, in addition to damages for

back pay and emotional harm, she intended to seek specific performance of the

contract. Cobe then moved to strike Ms. Croy’s jury demand on the ground that

she was seeking primarily an equitable remedy. After hearing argument on the

issue, the district court ruled that Ms. Croy had to elect a remedy: either she could

try the case to a jury and seek back pay, non-economic damages, and front pay, or

she could try the case to the judge and seek back pay, non-economic damages, and

specific performance. But, according to the court, front pay and specific




                                          -2-
performance were inconsistent remedies; therefore, the election of remedies

doctrine required Ms. Croy to choose between them.

      Ms. Croy elected to try the case to a jury. At the close of trial, the court

instructed the jury that if it found a breach of contract, it should award damages

for both front and back pay. The jury found that Cobe had breached the contract,

and it awarded Ms. Croy $88,798.00 in economic damages. The verdict form did

not indicate what portion of damages constituted back pay and what portion

constituted front pay, although it did disclose that the jury found the breach was

not “willful and wanton” and declined to award non-economic damages.

      Ms. Croy then filed a post-trial motion asking the district court to order

specific performance. In her motion, she clarified that her request for specific

performance was not a request for a pay raise, because that had already been

awarded in the form of front pay; instead, she sought merely a “promotion in title

and duties” because she was still working for Cobe at her old position. The

district court denied her motion on the grounds that (1) damages provided Ms.

Croy with an adequate remedy at law, (2) specific performance was not an

appropriate remedy for breach of an employment contract, and (3) an award of

both damages and specific performance would result in a double recovery. This

appeal followed.




                                          -3-
                                          II.

      We review the district court’s denial of specific performance for abuse of

discretion. See Koch v. Koch, 903 F.2d 1333, 1335 (10th Cir. 1990).

      Specific performance is an equitable remedy, and in Colorado, as in other

jurisdictions, “equity will not act if there is a plain, speedy, adequate remedy at

law.” Szaloczi v. John R. Behrmann Revocable Trust, 90 P.3d 835, 842 (Colo.

2004). Whether to grant an equitable remedy when damages are inadequate

“depends on the circumstances of a particular case.” Subryan v. Regents of the

University of Colorado, 789 P.2d 472, 474 (Colo. App. 1989). Relevant

considerations may include: (1) whether money damages can be calculated with a

reasonable degree of certainty; (2) whether money damages can be collected once

awarded; (3) whether the contract involves a unique subject matter; or (4) whether

full relief would require multiple suits for damages. See 12-63 Corbin on

Contracts § 1142 (2005).

      Ms. Croy offers no argument for why damages are an inadequate legal

remedy in this case, and none appears from the record. At trial, she testified that

the promised promotion included a pay increase of a definite amount (3%) and

that she intended to continue working for a definite period of time (until age 65).

This was enough for the jury to calculate damages with a reasonable degree of

certainty. Cf. Tri-State Generation and Transmission Ass'n, Inc. v. Shoshone


                                          -4-
River Power, Inc., 874 F.2d 1346, 1362 (10th Cir. 1989) (denial of injunctive

relief was not an abuse of discretion where damages were reasonably calculable

based on the evidence presented at trial). Furthermore, as the district court

pointed out, a decree of specific performance is generally a disfavored remedy for

breach of an employment contract because it places the court in the difficult

position of monitoring an ongoing and often sour relationship. See Williston on

Contracts § 67:102 (4th ed. 2004).

      The district court also concluded that specific performance was an improper

remedy because, when combined with the jury’s award of front pay, it would

provide Ms. Croy with a double recovery. Ms. Croy counters that her request for

specific performance does not include the pay raise that went with her promised

promotion, but only a promotion in title and duties, and that therefore she is not

seeking a double recovery. As a theoretical matter, it is indeed possible to

separate the promised pay increase from the promised promotion in title and

duties, awarding damages for the former and specific performance for the latter.

However, the district court, in rejecting specific performance on the ground that it

would give Ms. Croy a double recovery, must have concluded that the award of

damages already compensated Ms. Croy for the lost promotion in title and duties.

This was not an abuse of discretion. Ms. Croy testified at trial that the promised

promotion included a pay increase of 3% until the expected date of her retirement.


                                         -5-
At oral argument (and in its post-trial motion for remittitur), Cobe argued that this

pay increase would support a damages award of no more than $45,034.41 (a 3%

annual wage increase ($955.18), compounded with 4% yearly merit increases,

until Ms. Croy’s expected retirement in 2025), a little more than half of the actual

award of $88,798.00. Aplt. App. 711. Rather than dispute these calculations, Ms.

Croy argued that the jury could have fashioned a different pay increase based on

other evidence presented at trial, such as the salaries of other employees at the

company. Aplt. App. 637-38. Although the district court ultimately rejected

Cobe’s motion for remittitur, the substantial discrepancy between the pay raise

claimed by Ms. Croy and the jury’s ultimate verdict supports the conclusion that

the jury compensated Ms. Croy not only for the forgone pay raise but also for the

lost promotion in title and duties. Thus, the district court drew the reasonable

inference that an award of specific performance on top of damages would provide

Ms. Croy with a double recovery. The district court therefore did not abuse its

discretion in denying specific performance. 1


      1
         Ms. Croy also challenges the district court’s application of the election of
remedies doctrine, on the basis of which the district court required her to choose
between front pay and specific performance before empaneling the jury.
According to Ms. Croy, front pay and specific performance are not inconsistent
remedies because both rest on an affirmation of the contract. See, e.g., 12-66
Corbin on Contracts § 1222 (2005). We need not decide whether the district
court erred on this issue, however, because any error it might have committed was
harmless. See Fed. R. Civ. P. 61 (“The court . . . must disregard any error or
                                                                       (continued...)

                                         -6-
                                        III.

      The judgment of the district court is AFFIRMED.

                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




      1
        (...continued)
defect in the proceeding which does not affect the substantial rights of the
parties.”). Ms. Croy ultimately received a jury trial, at which the jury determined
the issues of breach of contract and damages. After trial, on her motion to amend
the judgment, Ms. Croy also received the district court’s consideration of her
request for specific performance. This procedure is functionally identical to that
she would have received had the district court never required her to elect a
remedy at all. Therefore any error in applying the election of remedies doctrine
was harmless.

                                         -7-
