                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 12 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 DONALD D. REED,
          Plaintiff-Appellee/Cross-               Nos. 02-1461 & 02-1462
          Appellant,
 v.                                            (D.C. No. 98-N-1298 (MJW))
 NORMAN Y. MINETA, Secretary of                    (District of Colorado)
 the Department of Transportation, on
 behalf of the United States Department
 of Transportation,
          Defendant-Appellant/Cross-
          Appellee.


                            ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.




I.    Introduction

      Plaintiff Donald Reed was terminated from his position as an air traffic

controller with the Federal Aviation Administration (FAA) when he failed to

report to work on five Saturdays in 1995. Reed thereafter filed suit in federal


      *
       This order and judgment is not binding precedent, except under the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.
district court alleging, inter alia, that the FAA violated Title VII by failing to

accommodate his religious beliefs and by intentionally discriminating against him

on the basis of his religion. The jury returned a verdict for Reed on both claims.

The matter is before this court on the FAA’s appeal from the denial of its motion

for judgment as a matter of law and Reed’s cross-appeal from the denial of his

request for prejudgment interest.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the denial

of the FAA’s motion for judgment as a matter of law and       reverse the denial of

Reed’s request for prejudgment interest.

II.   Factual Background

      Reed is a member of the Worldwide Church of God. His religious beliefs

require him to refrain from working between sundown Friday and sundown

Saturday. From November 1991 to August 1994, Reed was employed at the

Pueblo, Colorado Airport as a Quality Assurance and Training Specialist

(“QATS”). While in the QATS position, Reed was not required to work on his

Sabbath. In December 1993, George Hof became the manager of the Pueblo

facility. At trial, Reed testified that he informed Hof of his religious practice of

strictly observing the Sabbath on Saturdays. Reed further testified that Hof

routinely questioned him about his religious beliefs, repeatedly asked him which

hours he could not work, and frequently asked him to complete projects on


                                          -2-
Saturdays even though the QATS position did not ordinarily require him to work

on Saturday.

      Reed testified that Hof quizzed him several times about how he would be

impacted if the QATS position was eliminated and threatened to remove him from

the position. In August 1994, Hof arranged for the QATS position to be

converted from a permanent position to a temporary position with a one-year

term. Hof testified that his objective was to “give other controllers in the

[Pueblo] facility the opportunity at a career enhancing position.” Reed applied

for the QATS position but was not selected from among three applicants. Reed

testified that he thought his permanent QATS position was eliminated to create an

accommodation problem and that he believed his qualifications were superior to

those of Mike Turner, the individual chosen for the position. Reed did not,

however, challenge either the conversion of the position or Turner’s selection.

On August 21, 1994, Reed was reassigned as one of the twelve controllers

staffing the tower’s daily operations. Reed assumed Turner’s work schedule until

October 1, 1994. Because Turner’s regular days off were Thursday, Friday, and

every other Saturday, Reed was scheduled to work only two Saturdays. Turner

worked for Reed both of those Saturdays.

      A collective bargaining agreement (“CBA”) governs the rights and

obligations of the FAA and the air traffic controllers of the National Air Traffic


                                         -3-
Controllers Association. The CBA and a separately negotiated Facility Staffing

Order governed the work schedules and staffing procedures at the Pueblo facility

at the relevant time. The Facility Staffing Order could not be changed without

agreement between FAA management and the union. Work schedules were

established by a rotating bid system based on seniority. After October 1, 1994,

Reed was required to bid his days off under the rotating seniority system. Reed

was placed at the bottom of the list for selecting days off. 1 From October 1,

1994, through September 30, 1995, Reed was unable to obtain Saturdays off and,

consequently, he formally requested an accommodation. Marlin Long, the area

supervisor, sent Reed a written response to his request. Relying on his obligation

to comply with the terms of the Facility Staffing Order, Long refused to approve

Reed’s request to accumulate compensatory time during the week and use it to

avoid working between sunset Friday and sunset Saturday. Long suggested that

Reed use annual leave to avoid working on his Sabbath or attempt to swap shifts

with other controllers. Reed testified, however, that his ability to convince the

other controllers to swap shifts with him was adversely affected when Hof

instructed all the controllers to re-bid their days off, based on the hypothetical

assumption that Reed would never be scheduled to work on Friday or Saturday.


      1
        The Facility Staffing Order for the Pueblo facility states, “When a
permanent staff person returns to the controller workforce, he/she shall be placed
at the bottom of the NATCA bid list.”

                                         -4-
Reed testified that Hof’s behavior “soured the position of the controllers with

regard to [shift swapping] and with regard to me.”

      Reed proposed several alternative work arrangements but none were

permanently implemented. Reed, however, successfully avoided working on his

Sabbath until May 20, 1995, by swapping shifts, using annual leave, and earning

compensatory time.

      By March 1995, however, the number of air traffic controllers at the Pueblo

facility had decreased to seven. In September 1994, a controller was allowed to

transfer to another facility in order to be closer to a sick family member. That

controller was not replaced. In January 1995, a Pueblo controller was permitted

to swap assignments with Fred Arbuckle, a controller from a Houston, Texas

facility. Arbuckle, however, was never able to obtain full certification to work in

the Pueblo tower. In March 1995, the facility lost three additional controllers:

two were decertified for committing operational errors and one was released to

another facility to accept a promotion. Although the negotiated minimum staffing

level at the Pueblo facility was nine controllers, the union agreed to allow the

decrease in staffing on the condition that Hof, Turner, and Long cover

controllers’ leave requests. Reed testified that management worked for the other

controllers each time a request was made but worked to cover his religious leave

requests only twice.


                                         -5-
      Reed testified that his relationship with Hof deteriorated in the spring of

1995. On March 25, Hof accused Reed of violating procedures applicable to the

familiarization travel program (“FAM”). Reed had used the FAM program to

travel to California. When he was unable to obtain a seat on his originally

scheduled return flight, he departed from a different airport on a different flight.

Hof first reprimanded Reed for failing to inform management that he had

switched flights. Reed testified that when Hof realized he had traveled on a

Saturday the “meeting took a bad, bad turn, a real bad turn.” Hof pounded the

table, shouted, and swore. He asserted that Reed’s religion was a “scam” and

accused Reed of “scamming” the facility, the other controllers, and the FAA.

After the meeting, Hof contacted Reed’s minister to verify Reed’s religious

beliefs.

      After the March incident, Reed was scheduled to work a series of six

consecutive Saturdays in May and June 1995. Reed was unable to make

alternative arrangements for five of those Saturdays and Hof refused to work for

Reed on the five Saturdays.

      On Saturday May 20, 1995, Reed called Turner and requested eight hours

of annual leave. Turner denied the request due to “current and potential [air]

traffic.” Turner, however, testified that at the time Reed called, traffic was being

handled by only one controller. Turner further testified that he left work early on


                                          -6-
May 20 because traffic was so light. Reed did not report to work on May 20.

      On May 27, 1995, Reed requested “spot” leave for two, one-hour periods.

The controller in charge, Larry Halpern, granted Reed’s request for one of the

periods based on an “extremely light” level of traffic. When Hof learned that

Reed’s leave request had been granted, he ordered Halpern to turn the Pueblo

facility’s radar operations over to the Denver Air Route Traffic Control Center.

Later that day, Hof ordered the airspace turned over to Denver Center for a

second, one-hour period. Halpern testified that Hof’s decision to turn the Pueblo

airspace to Denver Center was unnecessary and “disruptive.” Another controller

on duty May 27, 1995, filed an unsatisfactory condition report regarding the

incident and Hof later admitted that his actions were “disruptive to air traffic and

could have compromised safety.”

      Reed was terminated on July 28, 1995, for failing to report to work on

May 20, June 3, June 10, June 17, and June 24. Reed challenged his termination

through the Merit Systems Protection Board (“MSPB”) and initially received a

favorable ruling from the administrative law judge. That ruling, however, was

reversed and the matter remanded by the MSPB. Reed v. Dep’t of Transp., 76

M.S.P.R. 126 (1997). On remand, the administrative law judge ruled in favor of

the FAA and Reed’s termination became effective May 9, 1998.

      Reed then filed a complaint in federal district court raising a retaliation


                                         -7-
claim, two Title VII claims, and a Religious Freedom Restoration Act (“RFRA”)

claim. The case proceeded to trial. At the close of Reed’s case and again at the

close of all the evidence, the FAA filed a motion for judgment as a matter of law.

See Fed. R. Civ. P. R. 50. The district court granted the motion as to Reed’s

RFRA claim and his retaliation claim but denied the motion as to the Title VII

claims for failure to accommodate and intentional religious discrimination. The

jury found that the FAA failed to accommodate Reed’s religious beliefs and that

the FAA intentionally discriminated against Reed based on his religious beliefs.

The jury awarded Reed compensatory damages of $1.5 million and returned an

advisory award of $248,356 in past economic damages and $508,088 in future

economic damages. The district court adopted the advisory awards in its

judgment.

      After judgment was entered, the FAA filed a renewed motion for judgment

as a matter of law and filed a separate motion to alter or amend the judgment.

Reed filed a motion pursuant to Rule 60 of the Federal Rules of Civil Procedure

requesting prejudgment interest. The district court denied the FAA’s motion for

judgment as a matter of law, reduced Reed’s compensatory damage award to

$300,000, and decreased the front-pay award to $440,302. Finally, the district

court denied Reed’s motion for prejudgment interest, concluding only that the

request should have been raised in a Rule 59(e) motion.


                                        -8-
       The matter is now before this court on the FAA’s appeal from the denial of

its motion for judgment as a matter of law, No. 02-1461, and Reed’s cross-appeal

from the denial of his motion for prejudgment interest, No. 02-1462.

III.   Discussion

A.     Appeal No. 02-1461

       1.    Standard of Review

       This court “review[s] de novo the grant or denial of a judgment as a matter

of law.” Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996). In

the course of that review, we apply the same legal standard as the district court

and construe the evidence in the light most favorable to the nonmoving party. Id.

“Unless the proof is all one way or so overwhelmingly preponderant in favor of

the movant as to permit no other rational conclusion, judgment as a matter of law

is improper.” Id. (citation omitted).

       2.    Reed’s Intentional Discrimination Claim

       Title VII makes it “an unlawful employment practice for an employer . . .

to discharge . . . any individual . . . because of such individual’s . . . religion. 42

U.S.C. § 2000e-2(a)(1). The term “religion is defined to “include[] all aspects of

religious observance and practice . . . unless an employer demonstrates that he is

unable to reasonably accommodate to an employee’s . . . religious observance or

practice without undue hardship on the conduct of the employer’s business.”       Id.


                                          -9-
§ 2000e(j). The FAA argues that the district court erred in denying its motion for

judgment as a matter of law on Reed’s intentional discrimination claim because

Reed presented no evidence from which a jury could conclude that his

termination resulted from religious discrimination. It is the FAA’s position that

Reed was terminated because he failed to report to work. We reject the FAA’s

argument because a reasonable jury could conclude that Reed’s failure to report

to work and, hence, his termination resulted from intentional discrimination.

       Evidence presented at trial supports Reed’s contention that Hof

orchestrated the situation which led to Reed’s absences and, ultimately, his

termination. First, Hof converted the QATS position to a one-year, temporary

assignment. Reed then was required to bid for his days off and the

accommodation problem arose. Although Hof testified that he was motivated by

a desire to give other controllers the “   opportunity at a career enhancing position,”

the jury was free to disregard his explanation. Hof then instructed the other

controllers to re-bid their days off under the hypothetical assumption that Reed

would be given every Friday and Saturday off. Reed testified that this created

hostility and made it more difficult for him to convince other controllers to swap

shifts with him. Hof then approved personnel actions that resulted in a staffing

shortage at the Pueblo facility. Although the union agreed to the decrease in

staffing, it was on the condition that Hof and the other members of management


                                            -10-
agree to cover leave requests. Reed testified that Hof nevertheless refused to

cover his Saturday shifts. There was also evidence that Hof refused to implement

alternative staffing plans that would have alleviated most of the accommodation

problem.

      Other evidence in the record supports the jury’s finding that Hof’s actions

were motivated by intentional discrimination. Reed testified that Hof quizzed

him repeatedly about his religious beliefs and frequently asked him to work on

Saturdays while he was in the QATS position. Further, at a meeting in March

1995, Hof referred to Reed’s religion as a “scam” and a religion of convenience.

Hof’s actions on May 27, 1995, when he turned the Pueblo airspace over to

Denver Central after learning that Reed had been granted spot leave, could be

interpreted by a jury as an indication of his hostility toward Reed.

      3.     Conclusion

      Construing the evidence and the inferences in the light most favorable to

Reed, we conclude that the jury’s finding of intentional religious discrimination

was not unreasonable. Accordingly, it is unnecessary for us to address the

verdict premised on the failure to accommodate claim and the FAA’s argument

that it reasonably accommodated Reed’s religious beliefs. The district court

order denying the FAA’s motion for judgment as a matter of law is      affirmed .




                                         -11-
B.    Appeal No. 02-1462

      1.     Standard of Reveiw

      The grant or denial of an award of prejudgment interest is reviewed for

abuse of discretion. Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1286

(10th Cir. 2002).

      2.     Denial of Reed’s Motion   Seeking Prejudgment Interest

      The Civil Rights Act of 1991 amended Title VII to allow for interest on

awards against the government, including back pay awards. 42 U.S.C. § 2000e-

16(d); Edwards v. Lujan, 40 F.3d 1152, 1154 n.1 (10th Cir. 1994). Reed

requested prejudgment interest in his amended complaint and his request was

noted in the pretrial order. During trial, he presented expert testimony on the

issue of damages, including the calculation of back pay. The judgment entered by

the district court, however, did not contain an award of prejudgment interest.

Reed then filed a motion pursuant to Rule 60(a) to alter or amend the judgment to

include prejudgment interest. The motion was denied solely because the district

court concluded the issue should have been raised in a Rule 59(e) motion. This

court, however, has held that a request for prejudgment interest in a complaint is

sufficient to raise the issue in district court. Macsenti v. Becker, 237 F.3d 1223,

1245 (10th Cir. 2001) (“[D]efendant cites no authority, nor are we aware of any,

which holds that a plaintiff must raise this issue by a Rule 59(e) motion in the


                                        -12-
trial court rather than taking an appeal.”); McNickle v. Bankers Life & Cas. Co.,

888 F.2d 678, 680-81 (10th Cir. 1989). The district court’s decision to deny

Reed’s motion without considering the merits of his request for prejudgment

interest amounts to a failure to exercise discretion which is an abuse of discretion.

McNickle, 888 F.2d at 680. (“A clear example of an abuse of discretion is where

the trial court fails even to consider either an applicable legal standard or the

facts upon which the exercise of its discretionary judgment is based.”).

      3.     Conclusion

      The district court’s order denying Reed’s request for prejudgment interest

is reversed and the matter remanded for further proceedings not inconsistent

with this opinion.

                                                ENTERED FOR THE COURT



                                                Michael R. Murphy
                                                Circuit Judge




                                         -13-
