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

                             FOR THE TENTH CIRCUIT                            June 1, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MARY McDONALD,

      Plaintiff - Appellant,

v.                                                          No. 17-3043
                                                  (D.C. No. 6:14-CV-01020-GEB)
CITY OF WICHITA, KANSAS; GARY                                (D. Kan.)
REBENSTORF,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, KELLY, and MATHESON, Circuit Judges.
                  _________________________________

      Mary McDonald appeals the district court’s entry of judgment after a jury

verdict in favor of defendants on her Title VII retaliation claim. She argues that the

jury was improperly instructed on the legal standard for retaliation. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I

      McDonald served as Chief Prosecutor for the City of Wichita, Kansas, under

the supervision of Gary Rebenstorf, City Attorney and Director of Law for the

municipality. In February 2010, City Manager Robert Layton instructed Rebenstorf


      *
         This order and judgment is not binding precedent, except under the doctrines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.
to review the organization of the Law Department to determine if staff assignments

were properly aligned with the city’s legal needs. Layton later sent a memorandum

to all city departments warning of budget shortfalls and urging department heads to

develop plans to more efficiently provide services.

      In response, Rebenstorf circulated a comprehensive survey to all the

prosecutors in the Law Department’s Criminal Division, stating that he had been

asked to review the department due to budget pressures. Rebenstorf asked Sharon

Dickgrafe, at that time the First Assistant City Attorney in the Law Department’s

Civil Division, to develop a plan for addressing common issues identified in the

surveys. Dickgrafe made various recommendations, including that McDonald take a

more active role in handling cases. Rebenstorf instituted several of the proposed

changes.

      One of the attorneys in the office, Jan Jarman, was dissatisfied with her new

assignment. Jarman filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on November 24, 2010. Five days later,

McDonald claims that Rebenstorf angrily confronted her about Jarman’s charge.

Two weeks after this alleged meeting, Rebenstorf proposed significantly modifying

the Chief Prosecutor position. On April 7, 2011, Dickgrafe recommended

eliminating the position entirely. Rebenstorf adopted that recommendation. On

February 17, 2012, he informed McDonald that the Chief Prosecutor position would

be eliminated.



                                          2
      McDonald filed a charge of discrimination with the EEOC and the Kansas

Human Rights Commission, after which she initiated the present action. McDonald

brought several claims, among them an allegation that defendants retaliated against

her in violation of Title VII. The parties consented to have a magistrate judge

preside over a jury trial. After the jury returned a verdict in favor of defendants,

McDonald timely appealed.

                                            II

      McDonald argues that the trial court erred in instructing the jury that she was

required to prove retaliation was “the but for cause” for eliminating the Chief

Prosecutor position, rather than “a but for cause.” “We review a district court’s

decision to give a particular jury instruction for abuse of discretion, but we review de

novo legal objections to the jury instructions.” Lederman v. Frontier Fire Prot., Inc.,

685 F.3d 1151, 1154 (10th Cir. 2012) (quotations omitted). “We review de novo

whether, as a whole, the district court’s jury instructions correctly stated the

governing law and provided the jury with an ample understanding of the issues and

applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1132 (10th Cir.

2009) (quotation omitted).1

      McDonald is correct that jury instructions equating but-for causation and “sole

cause” are legally erroneous. See Gentry v. E. W. Partners Club Mgmt. Co., Inc.,

816 F.3d 228, 236 n.5 (4th Cir. 2016) (“While the district court at one point misspoke

      1
       Because we conclude McDonald’s appellate arguments fail on the merits, we
“need not opine on the waiver issue” raised by defendants. United States v. Wells,
873 F.3d 1241, 1250 (10th Cir. 2017).
                                            3
and stated that disability had to be the sole cause of Gentry’s termination, the court

corrected itself by providing oral and written instructions that disability need not be

the ‘only or sole cause’ of Gentry’s termination.”); Leal v. McHugh, 731 F.3d 405,

415 (5th Cir. 2013) (“[B]ut for cause does not mean sole cause.” (quotations

omitted)); Ponce v. Billington, 679 F.3d 840, 846 (D.C. Cir. 2012) (“Had the district

court stopped at the end of the second sentence—Ponce ‘must prove that illegal

discrimination . . . was the sole reason for his non selection’—we might well have

reversed.”); Miller v. Cigna Corp., 47 F.3d 586, 598-99 (3d Cir. 1995) (en banc)

(“Since the district court instructed that age must be shown to be the sole cause of the

employer’s decision and since the record would support a conclusion that, while

other factors played a role, age was a determinative factor, we will reverse and

remand for a new trial.”).

       But in this case, the jury was not instructed to find in defendants’ favor unless

McDonald proved that retaliatory animus was the sole cause of the elimination of the

Chief Prosecutor position. We reject McDonald’s contention that “the but for cause”

is the equivalent of a “sole cause” standard. Although “the” is generally used as a

definite article, the Supreme Court has explained “that Title VII retaliation claims

require proof that the desire to retaliate was the but-for cause of the challenged

employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352

(2013). It strains credulity to suggest that a jury instruction that articulates a

standard as it appears verbatim in a Supreme Court opinion constitutes a reversible



                                             4
error.2 As this court has previously held, a “district court’s emphasis on ‘the’ in ‘the

reason’” does not “implicitly, and necessarily, equate[] to stating ‘the sole reason.’”

Harley v. Potter, 416 F. App’x 748, 752 (10th Cir. 2011) (unpublished). We are not

persuaded by McDonald’s citation to conflicting state court case law. See Peterson

v. Gray, 628 A.2d 244, 246 (N.H. 1993) (“But if the jury determined that the

plaintiff’s arthritis was ‘a proximate cause’ of her wrist fusion, then the defendant’s

actions could not possibly have been ‘the proximate cause.’” (emphases omitted)).

                                           III

      McDonald’s second argument is that the trial court erred in declining to

instruct the jury with respect to her “perceived participation” or “mistaken belief”

retaliation theory. “We review the district court’s decision to give or to refuse a

particular jury instruction for abuse of discretion.” Cordova v. City of Albuquerque,

816 F.3d 645, 660 (10th Cir. 2016).

      We conclude the district court did not abuse its discretion in declining to give

McDonald’s proffered instruction. The magistrate judge provided four reasons for

declining the instruction: (1) the language was unnecessary because it was merely an

      2
         We acknowledge that the Nassar Court also prefaced “but for cause” with the
article “a.” See id. at 362 (“The text, structure, and history of Title VII demonstrate
that a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his
or her protected activity was a but-for cause of the alleged adverse action by
employer.” (emphasis added)). And the Court in Burrage v. United States, 134 S. Ct.
881 (2014), described its holding in Nassar as requiring a plaintiff bringing a Title
VII retaliation claim to prove “that the desire to retaliate was [a] but for cause of the
challenged employment action.” Id. at 888-89 (alteration in original). Although we
do not doubt that, on balance, “a” is preferable to “the” as an article to precede “but
for cause,” we stop short of holding that use of the article “the” suffices to constitute
reversible error.
                                            5
extension of McDonald’s primary theory; (2) McDonald had not preserved the theory

in the pretrial order; (3) the Supreme Court’s decision in Nassar suggested that the

plain text of Title VII did not support a “perceived participation” theory; and (4) the

proposed instruction would confuse the jury. Regardless of whether a perceived

participation theory is viable, the court did not abuse its discretion. See United

States v. Smalls, 752 F.3d 1227, 1246 (10th Cir. 2014) (“It is not error to refuse to

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

elsewhere.” (quotation omitted)); Rios v. Bigler, 67 F.3d 1543, 1549 (10th Cir. 1995)

(“The district court has discretion to exclude from trial issues and claims not set forth

in the pretrial order, and to refuse to instruct the jury on matters beyond the scope of

the pretrial order.” (quotation and citation omitted)); Smith v. Minster Mach. Co.,

669 F.2d 628, 634 (10th Cir. 1982) (holding that the “instruction which the court

gave was appropriate” as “plaintiff’s tendered instruction could have been very

confusing to the jury”).

                                           IV

      AFFIRMED.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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