                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 22 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LATASHA CONLEY TURNER,

                Plaintiff-Appellant,

    v.                                                    No. 00-6157
                                                    (D.C. No. 98-CV-866-L)
    AMERICAN RED CROSS TISSUE                             (W.D. Okla.)
    SERVICES, Southern Plains Area,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



         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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Appellant Latasha Conley Turner appeals from a jury verdict in favor of the

defendant and from denial of her motion for new trial in her employment


*
      This order and judgment is not binding precedent, except under the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.
discrimination action brought pursuant to Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e-17. Our jurisdiction arises under 28 U.S.C.

§ 1291, and we affirm.

      Ms. Turner’s appeals are based on her contention that the district court

erred in giving two jury instructions that allegedly do not accurately state the law

of racial discrimination in a failure-to-promote case brought under Title VII.

“[W]e review de novo the question of whether the court’s instructions, considered

as a whole, properly state the applicable law and focus the jury on the relevant

inquiry.” Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1509 (10th Cir. 1997)

(quotation omitted).   The first challenged instruction, number 12, stated, in

pertinent part:

      In order for plaintiff to prevail on her race discrimination claim, she
      must prove by a preponderance of the evidence:
      First:        That she was a member of a protected class;
      Second:       That she was qualified for the positions in question;
      Third:        That she was rejected for the positions in question; and
      Fourth:       That her race was a motivating factor in defendant’s
                    employment decision.

Appellant’s App. Vol. I at 70. Citing   McDonnell Douglas Corp. v. Green    , 411

U.S.792, 802 (1973), and   Thomas , 111 F.3d at 1510, Ms. Turner argues that the

instruction does not reflect the elements necessary to establish a prima facie case

of race discrimination based on failure to promote.

      Ms. Turner, however, ignores the principle that


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       the presumption and burdens inherent in the    McDonnell Douglas
       formulation drop out of consideration when the case is submitted to
       the jury on the merits. As the Supreme Court noted in  United States
       Postal Serv. Bd. of Governors v. Aikens , 460 U.S. 711, 713-14, 103
       S. Ct. 1478, 1480-81, 75 L.Ed.2d 403 (1983), the important issue is
       discrimination vel non not the orderly presentation of evidence.

Messina v. Kroblin Transp. Sys., Inc.    , 903 F.2d 1306, 1308 (10th Cir. 1990).

Although in Thomas we referenced a plaintiff’s prima facie burden under

McDonnell Douglas when discussing the propriety of a jury instruction,          see 111

F.3d at 1509-10, the issue there was whether the court properly instructed the jury

on the plaintiff’s burden to show that he was qualified for the position.       Id. at

1510. The district court in   Thomas had instructed the jury that the plaintiff had to

prove that he was “at least as well qualified for the position as the person hired”

before the jury could consider whether the reasons the defendant had given for

not promoting the plaintiff were pretextual.         See id. at 1511. This error was not

repeated in the case at bar. Instead, the district court properly instructed the jury

on the plaintiff’s burden to show that she was qualified for the position and on

her ultimate burden of establishing that defendant intentionally discriminated

against her because of her race.    See St. Mary’s Honor Ctr. v. Hicks      , 509 U.S.

502, 511 (1993).

       We also reject Ms. Turner’s claim that instruction number 12 misled the

jury to believe that discrimination could be proved only by direct, as opposed to

circumstantial, evidence. Instruction number 12 does not refer to the types of

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evidence that may satisfy a plaintiff’s burden. Instruction number 13, however,

specifically instructed the jury that the plaintiff was “not required to produce

direct evidence of an unlawful motive, or to prove that the reasons given by

defendant are false.” Appellant’s App. Vol. I at 73. Instruction number 13 also

instructed the jury that

       [i]f you find that the stated reasons given by defendant are
       inconsistent or implausible or that defendant substantially deviated
       from its own practices or policies, then you may conclude that the
       offered explanation is a mere pretext, excuse, sham, or cover-up for
       discrimination. If you find pretext, you may also infer that race was
       a motivating factor in the employment decisions, though you are not
       required to draw such an inference.

Id. at 72. Thus the district court specifically instructed the jury that it could find

discrimination through circumstantial evidence.

       Similarly, Ms. Turner’s claim that jury instruction number 13 is erroneous

and prejudicial to her because it does not make “reference to evidence of pretext

for which the jury can infer discrimination” and is not tailored “to fit the facts of

the case,” Appellant’s Br. at 20, is also without merit. We approved a similar

instruction in Mason v. Oklahoma Turnpike Authority        , 115 F.3d 1442, 1454-55

(10th Cir. 1997). Although the instruction is not as detailed as the instruction Ms.

Turner requested, it properly instructed the jury on types of circumstantial

evidence related to the case that may establish pretext.    Cf. F.D.I.C. v.

Schuchmann , 235 F.3d 1217, 1222 (10th Cir. 2000) (“[i]t is not error to refuse to


                                             -4-
give a requested instruction if the same subject matter is adequately covered in

the general instructions”) (quotation omitted).

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

Oklahoma is AFFIRMED .



                                                    ENTERED FOR THE COURT
                                                    PER CURIAM




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