                                                                         FILED
                                                             United States Court of Appeals
                                     PUBLISH                         Tenth Circuit

                      UNITED STATES COURT OF APPEALS                July 27, 2018
                                                                Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                  Clerk of Court
                         _________________________________

MARCIA EISENHOUR,

      Plaintiff - Appellant,

v.
                                                      No. 17-4015
WEBER COUNTY, a political subdivision
of the State of Utah; CRAIG D. STOREY;
CRAIG DEARDON; KENNETH
BISCHOFF; JAN ZOGMAISTER, in their
official and individual capacities,

      Defendants - Appellees.

–––––––––––––––––––––––––––––––––––

MARCIA EISENHOUR,

      Plaintiff - Appellee,

v.
                                                      No. 17-4018
CRAIG D. STOREY,

      Defendant - Appellant,

and

WEBER COUNTY, a political subdivision
of the State of Utah; CRAIG DEARDON;
KENNETH BISCHOFF; JAN
ZOGMAISTER, in their individual and
official capacities,

      Defendants.
                         _________________________________
                     Appeal from the United States District Court
                               for the District of Utah
                           (D.C. No. 1:10-CV-00022-CW)
                       _________________________________

April Hollingsworth, Hollingsworth Law Office, LLC, Salt Lake City, Utah for Plaintiff-
Appellant.

Susan Black Dunn, Dunn & Dunn, P.C., Salt Lake City, Utah, for Defendant-Appellees
(W. Lewis Black, Dunn & Dunn, P.C., Salt Lake City, Utah, on the briefs)

Linette Bailey Hutton, Hutton Law Associates, Salt Lake City, Utah for Defendant-
Appellee, Craig D. Storey.
                        _________________________________

Before BRISCOE, EBEL, and HARTZ, Circuit Judges.
                   _________________________________

HARTZ, Circuit Judge.
                    ___________________________________

       Plaintiff Marcia Eisenhour worked for 24 years as a court administrator for the

Weber County Justice Court. In 2008, when her supervisor was Judge Craig Storey, the

only judge of that court, she complained to the county attorney about sexual harassment

by Storey. The matter was referred to Utah’s Judicial Conduct Commission, which found

no misconduct. Eisenhour then went public in 2009, and the press reported her

allegations. Several months later, three Weber County Commissioners—defendants

Craig Deardon, Kenneth Bischoff, and Jan Zogmaister—voted to close the Justice Court

and merge it with a similar court in another county. This eventually left Eisenhour

without a job.

       Eisenhour sued Storey, Weber County, and the three commissioners who voted to

close the Justice Court, raising a variety of claims. The district court granted summary



                                            2
judgment against Eisenhour on all claims, and she appealed. This court reversed in part.

Relevant to this appeal, we held that Eisenhour had presented enough evidence to support

(1) her claim under § 1983 against Storey for sexually harassing her in violation of her

right to equal protection and (2) her claim against the County and the three

commissioners under 42 U.S.C. § 1983, alleging that they retaliated against her for

exercising her First Amendment free-speech rights by closing the Justice Court and

depriving her of a job. See Eisenhour v. Weber Cty., 744 F.3d 1220, 1235–36 (10th Cir.

2014). We also remanded for trial her claim under the Utah Whistleblower Act against

the County (there was no whistleblower claim against the commissioners), see id., but no

issues relating to that claim are raised on this appeal.

       At the trial on the remanded claims, the jury rendered verdicts for Eisenhour on

the equal-protection harassment claim against Storey and the whistleblower claim against

the County but found against her on the First Amendment retaliation claims against the

County and the commissioners. The district court then granted a motion by the County

for a new trial on the whistleblower claim, and it sua sponte ordered a new trial on the

retaliation claims against the County and the commissioners. At the retrial on those

claims the court granted the commissioners’ motion for judgment as a matter of law

under Fed. R. Civ. P. 50(b) on the retaliation claim against them, and the jury found for

the County on the whistleblower and retaliation claims against it.

       After Eisenhour and Storey appealed, we consolidated the two appeals for

decision. Storey raises two issues on appeal: (1) the denial of his motion for judgment as

a matter of law because the evidence against him was insufficient, and (2) the admission


                                               3
into evidence of a poem he had written concerning Eisenhour. Eisenhour raises three

contentions with respect to the judgments in favor of the County and the commissioners:

(1) the judge who presided at the first trial should have recused himself after the jury

rendered its verdict in that trial, (2) her second trial was unfair because of the district

court’s evidentiary rulings, and (3) at the second trial the district court should not have

granted the commissioners a judgment as a matter of law but should have let the claim go

to the jury. With respect to her claims against Storey, she contends that the district court

should not have set aside the jury’s assessment of economic damages against Storey for

the loss of her job and should not have dismissed her punitive-damages claim. We reject

all challenges by both parties except the dismissal of the punitive-damages claim.

I.     STOREY’S APPEAL

       A.     Sufficiency of Evidence of Equal-Protection Claim

       The jury at the first trial rendered a verdict in favor of Eisenhour on her sexual-

harassment equal-protection claim against Storey. He unsuccessfully moved for

judgment as a matter of law. He now appeals the denial of that motion, contending that

there was insufficient evidence to establish that his conduct was “severe or pervasive

enough to create an objectively hostile or abusive work environment.” Storey 1st Br. at

21. In his view, “The evidence shows that no other employee of the Justice Court found

any conduct attributable to [him] severe, pervasive, humiliating, physically threatening,

hostile or abusive.” Id. at 22. “Rather,” he argues, “the witnesses found it was . . .

Eisenhour’s conduct that created a hostile and abusive work environment.” Id.




                                               4
       For us to adopt this argument, however, we would have to disregard Eisenhour’s

testimony. She testified as follows: Storey’s harassment began when he handed her,

albeit for the purported purpose of filing, the erotic poem that he wrote about her. His

misconduct escalated after that point and he began making physical contact with her. He

would either come up behind her when she was sitting at her desk and press his groin into

the back of her head or come up to her at the front counter and stand close enough that

his groin touched her thighs. On one occasion Storey had her come into his office and he

proceeded to tell her about a dream of his in which she was at work naked from the waist

up. In addition, Storey, who served as her direct supervisor, became possessive of her

after learning that she and her husband had separated. He began asking her co-employees

about her activities and began placing restrictions on when she could use leave time (that

is, only after informing him where she intended to go, whom she intended to go with, and

what she intended to do).

       Storey asserts that it was Eisenhour who created a hostile or abusive environment.

In support of this assertion, he cites only to the testimony of Eisenhour’s co-worker

Amanda Shipley, who testified about the atmosphere in the office. But the office

atmosphere in general has little to do with how Storey treated Eisenhower. And in any

event, a review of Shipley’s testimony reveals that her complaints about the working

environment all appear to postdate Storey’s harassment of Eisenhour and virtually all

relate to the period after Eisenhour complained to County officials about Storey’s

conduct and County officials took steps to minimize the contact between Eisenhour and

Storey. Thus, contrary to establishing that it was Eisenhour who created a hostile or


                                             5
abusive working environment, Shipley’s testimony indicates that it was Storey’s conduct,

and the County’s response to it, that caused the difficult working environment for the

other employees of the Justice Court.

       Considering the evidence as a whole, the jury could have reasonably found, and

indeed did find, that Storey’s actions created an objectively hostile or abusive working

environment for Eisenhour.

       B. Admission of Storey’s Poem Into Evidence

       Storey’s other argument on appeal is that the district court erred in admitting his

poem about Eisenhour into evidence. He argues (1) that the poem was irrelevant to

Eisenhour’s claims; (2) that there was insufficient evidence to support the district court’s

finding that Eisenhour discovered the poem in 2007 (we will discuss why the timing

matters below); and (3) that Federal Rule of Evidence 403 barred admission of the poem

because of its potential to cause unfair prejudice.

       These challenges to admission of the poem may well be barred under the law-of-

the-case doctrine because this court implicitly ruled in the first appeal that the poem was

relevant when we relied in part on the poem to hold that there was sufficient evidence to

support Eisenhour’s claim.

       In any event, admission of the poem was not reversible error. We review

decisions to admit evidence for abuse of discretion. See United States v. Boeing Co., 825

F.3d 1138, 1145 (10th Cir. 2016). “Under this standard, we will not reverse unless the

district court’s decision exceeded the bounds of permissible choice in the circumstances

or was arbitrary, capricious or whimsical.” Id. (internal quotation marks omitted).


                                              6
       Storey’s first point is mistaken; the poem was relevant. He suggests that “there is

absolutely no evidence that [the poem] was intended to harass or discriminate against

[Eisenhour].” Storey 1st Br. at 16. But it reveals Storey’s strong sexual feelings toward

her, which could provide a motive for his conduct, making it more likely that the

improper touching was intentional rather than accidental.

       We are also unpersuaded by Storey’s contention about the date of the poem’s

discovery. Although Eisenhour testified that she found the poem in April 2007, Storey

argues that the evidence establishes that Eisenhour discovered the poem in April 2004,

making its temporal connection to the alleged misconduct too remote for it to be relevant.

But even if, as Storey asserts, her testimony was against the weight of the evidence, the

district court could certainly leave for the jury to decide the accuracy of her testimony

about the date of discovery. See Fed. R. Evid. 104(b); 1 Jack B. Weinstein & Margaret

A. Berger, Weinstein’s Federal Evidence § 104.30, at 104-47 (2d ed. 1997) (“In deciding

preliminary issues under Rule 104(b), the judge must determine only that a reasonable

jury could make the requisite factual determination based on the evidence before it.”).

We note that in response to a special interrogatory, the jury found that Eisenhour

discovered the poem in 2007.

       Turning to Storey’s Rule 403 argument, the pertinent part of the rule states, “The

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

a danger of . . . unfair prejudice . . . .” “In performing the 403 balancing, the court should

give the evidence its maximum reasonable probative force and its minimum reasonable

prejudicial value.” Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th


                                              7
Cir. 2000) (internal quotation marks omitted). “Exclusion of evidence under Rule 403

that is otherwise admissible under the other rules is an extraordinary remedy and should

be used sparingly.” World Wide Ass’n of Specialty Programs v. Pure, Inc., 450 F.3d

1132, 1139 (10th Cir. 2006) (internal quotation marks and brackets removed). “The

district court is clearly in a superior position to perform this analysis, and thus is accorded

broad discretion in making such decisions.” Deters, 202 F.3d at 1274. We see no abuse

of discretion in the district court’s Rule 403 ruling. Certainly the poem’s introduction

harmed Storey’s defense, but the rule’s concern is only unfair prejudice, and we have

already noted that the poem was relevant. Given the strong preference for admitting

relevant evidence, the district court’s decision must stand.

II.    EISENHOUR’S APPEAL

       A.     Judgment in Favor of County and Commissioners

              1.     Motions to Disqualify Judge Waddoups

       Although he was not the judge who had granted summary judgment to the

defendants, Judge Clark Waddoups presided at both trials. Eisenhour filed two motions

to disqualify Judge Waddoups from proceeding after the jury verdict at the first trial—

one was decided by Judge Waddoups in August 2015, and a second by Judge David Sam

in October 2016. We review district-court denials of motions to recuse or disqualify for

an abuse of discretion. See Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297, 1308

(10th Cir. 2015).

       Both motions relied on the same factual predicate—an offhand comment by Judge

Waddoups. The context was as follows: At the close of Eisenhour’s evidence at the first


                                              8
trial, the defendants moved for directed verdicts. Discussing the motion outside the

jury’s presence, Judge Waddoups expressed doubt about the sufficiency of Eisenhour’s

evidence but nevertheless allowed the claims to go to the jury. We quote what he said,

emphasizing the challenged comment:

               I have serious questions about whether or not the plaintiff has stated
       enough—presented enough evidence. As I understand Rule 50, I can
       reserve making that final decision until after I see how the jury verdict [sic]
       rules. And I think for pragmatic reasons to protect the rights of everyone so
       that this doesn’t have to be done again, the best course of action is for me to
       allow the jury to decide this issue. . . .

                                          *   *    *

               I want to make it clear that I am reserving the right to take this away
       from the jury if they enter a verdict because I have serious questions about
       whether this evidence is sufficient. If the jury finds that there is no cause of
       action, we’re all better off. If the jury finds that there’s a cause of action
       and awards some damages, then I’ll allow you to re-brief and argue the
       question as to whether, as a matter of law, this jury—whether the verdict, if
       it’s entered, should be taken from the jury. I think it is, at best, a very, very
       close case. I have serious questions as to whether or not the plaintiff has
       met her burden of proof.

Eisenhour App., Vol. 4 at 1058–59 (emphasis added). After the jury rendered verdicts in

favor of Eisenhour on her First Amendment and equal-protection claims, the defendants

moved for judgment as a matter of law. Eisenhour then filed her first motion to

disqualify, stating that the emphasized sentence above had established that Judge

Waddoups could not fairly preside at further proceedings. Judge Waddoups denied the

disqualification motion. He later granted the County’s motion for a new trial on the

whistleblower claim on the ground that the jury’s findings were internally inconsistent

(because the jury found that the closure of the Justice Court constituted an adverse action



                                              9
for the purposes of Eisenhour’s claim under the state whistleblower act but not for the

purposes of her First Amendment retaliation claim), but he further ruled that this

inconsistency also required retrying the retaliation claims. Eisenhour then filed her

second motion to disqualify, which was denied by Judge Sam.

       We see no abuse of discretion in the denial of either motion. The claim of bias

here is unusual. Courts regularly see (meritless) claims that a judge must have been

biased because the judge ruled against the movant claiming bias. See Liteky v. United

States, 510 U.S. 540, 555 (1994) (“judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion”). Here, in contrast, the comment allegedly

displaying bias was uttered in the course of ruling in favor of the movant on a matter that

the judge considered to be a close question. That is not the stuff of bias. If the judge

really wanted to do what he purportedly thought would make everyone “better off,” one

would think that he would have directed a verdict against Eisenhour. We are not inclined

to reverse because of a comment that appears to be merely a facetious remark that there

would be less work for the attorneys and the judge if the jury rendered a verdict against

Eisenhour, thereby mooting the motions for directed verdict. Particularly ironic is that

the jury did find against Eisenhour on her retaliation claims yet the court ordered a retrial

of those claims.

              2.     Evidentiary Rulings During Second Trial

       Eisenhour contends that the district court’s evidentiary rulings during the second

trial, viewed collectively, deprived her of a fair trial. We reject the argument because it is

inadequately presented.


                                             10
       The problem with Eisenhour’s argument is that she never explains what was

wrong with any particular ruling. She merely points to a number of purportedly mistaken

evidentiary rulings and notes that the court sustained a much higher percentage of the

defendants’ objections than of hers. See Eisenhour 1st Br. at 23 (“By the undersigned’s

calculations, the court sustained 127, or 68% of the County’s 188 objections at trial, but

only 16% of Eisenhour’s objections.”). We are unwilling to assume, however, that the

objections of the opposing parties were equally meritorious. Perhaps the County was

simply more careful about limiting its objections to meritorious points. What is utterly

absent from Eisenhour’s brief is any description of the context of the disputed evidence, a

discussion of the arguments by the parties at trial regarding the evidentiary rulings, or the

explanation by the court of its rulings; nor does the brief contain citations to authority or

other analysis of why the rulings were incorrect. See Fed. R. App. P. 28(a)(8)(A)

(argument in appellant’s brief must contain “appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record on which the appellant

relies”); Benham v. Ozark Materials River Rock, LLC, 885 F.3d 1267, 1276 (10th Cir.

2018) (appellant waived argument that documents were inadmissible hearsay because it

“offer[ed] no explanation for why [admission of the documents] was erroneous”); In re

Motor Fuel Temperature Sales Practices Litig., 872 F.3d 1094, 1114–15 (10th Cir. 2017)

(rejecting as inadequately briefed, and thus waived, arguments for which appellant cited

no authority). Eisenhour is asking us to do all her work for her on this issue. We decline

to take on the responsibility.

              3.     Claims Against Commissioners


                                              11
       Eisenhour argues that the district court erred when it granted the commissioners

judgment as a matter of law after the close of evidence at the second trial. But “we need

not resolve whether a preverdict dismissal of a claim was proper if the jury’s verdict on

the remaining claims shows that any error in failing to present the dismissed claim to the

jury was harmless.” Abbasid, Inc. v. First Nat’l Bank of Santa Fe, 666 F.3d 691, 696

(10th Cir. 2012). At the second trial the jury did not decide claims against the

commissioners, but it did decide those against the County—and found that the County

had taken no adverse employment action against Eisenhour. No plausible view could

reconcile this finding with a finding that the commissioners were individually liable to

Eisenhour with respect to her § 1983 First Amendment claim. Any district-court error

here (if there was error) was thus harmless. Because we have found no ground for

reversing the judgment in favor of the County, we must also affirm the judgment in favor

of the commissioners.

       B.     Adverse Rulings Relating to Claim Against Storey

       Although Eisenhour generally prevailed on her claim against Storey, she

complains of two adverse rulings by the district court: (1) judgment as a matter of law

against her on her claim for economic damages (her loss of wages when the Justice Court

closed), and (2) rejection of her claim for punitive damages.

              1.     Economic Damages

       Eisenhour argues that the district court erred by granting Storey judgment as a

matter of law on liability for Eisenhour’s lost wages, which resulted from closure of the

Justice Court. A court should grant judgment as a matter of law “only when ‘a party has


                                            12
been fully heard on an issue during a jury trial and the court finds that a reasonable jury

would not have a legally sufficient evidentiary basis to find for the party on that issue.’”

Cox Enters., 871 F.3d at 1096 (quoting Fed. R. Civ. P. 50(a)(1)). We review grants of

judgment as a matter of law de novo, “drawing all reasonable inferences in favor of the

nonmoving party and applying the same standard as [should be] applied in the district

court.” Id.

       To be sure, there was evidence that could support finding a chain of causation

from the sexual harassment by Storey to the closure of the Justice Court. But Storey is

liable only for damages proximately caused by his violation of Eisenhour’s rights. See,

e.g., Trask v. Franco, 446 F.3d 1036, 1046–47 (10th Cir. 2006). Proximate causation

requires that the harm have been reasonably foreseeable to the wrongdoer, particularly

when there has been a superseding cause, such as the Commission’s decision to close the

court. See Martinez v. Carson, 697 F.3d 1252, 1255–56 (10th Cir. 2012); Trask, 446

F.3d at 1046–47 (when there is a superseding cause of the harm, there is no liability

unless the wrongdoer could have reasonably foreseen the intervening forces); see also

Staub v. Proctor Hospital, 131 S. Ct. 1186, 1192 (2011) (discussing proximate cause and

foreseeability in context of retaliatory-discharge claim).

       Although proximate cause is ordinarily a question of fact for the jury, it becomes

a question of law for a court to decide when no evidence supports proximate causation.

See Neece v. Internal Revenue Service, 96 F.3d 460, 464 (10th Cir. 1996). Since Storey

did not fire Eisenhour or even close the Justice Court, the issue is whether it was

reasonably foreseeable that his misconduct toward Eisenhour would cause the County to


                                             13
close that court, costing her a job.

       Someone might note recent events and argue that it would be reasonably

foreseeable that an entire enterprise would fail because of sexual harassment by one

person. But those events involved numerous victims of egregious conduct over many

years. And Eisenhour has not pointed to any enterprise failing for such reasons more

than 10 years ago, when Storey engaged in his misconduct. To say that closure of the

Justice Court was a consequence of Storey’s misconduct that was foreseeable at the time

would be sheer speculation, not a reasonable inference.

              2.      Punitive Damages

       Eisenhour argues that the district court erred by dismissing her punitive-damages

claim against Storey. During the jury-instruction conference the district court ruled that

Eisenhour had presented insufficient evidence to support a punitive-damages instruction

against any defendant, including Storey. 1 We review de novo a district court’s

determination of whether enough evidence exists to support a punitive-damages claim.

See Hardeman v. City of Albuquerque, 377 F.3d 1106, 1120 (10th Cir. 2004).

       “[A] jury may be permitted to assess punitive damages in an action under § 1983

when the defendant’s conduct is shown to be motivated by evil motive or intent, or when

it involves reckless or callous indifference to the federally protected rights of others.”

Smith v. Wade, 461 U.S. 30, 56 (1983); accord Hardeman, 377 F.3d at 1120. Because

“[t]he focus is on the character of the tortfeasor’s conduct—whether it is of the sort that

1
  Eisenhour does not appeal the district court’s decision that there was insufficient
evidence to support a punitive-damages claim against the defendants other than Storey.


                                              14
calls for deterrence and punishment over and above that provided by compensatory

awards,” no “extra showing” is required for punitive damages even “where the standard

for compensatory liability is as high as or higher than the usual threshold for punitive

damages.” Smith, 461 U.S. at 53–54; see Hardeman, 377 F.3d at 1120.

       The specific issue in this case is whether there was sufficient evidence that Storey

acted with “reckless or callous indifference to the federally protected rights of”

Eisenhour. For guidance on the meaning of that phrase, we look to the Supreme Court’s

opinion in Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999). Although Kolstad

concerned an employment-discrimination claim under Title VII, rather than a § 1983

claim, the Supreme Court noted that the pertinent language in Title VII was derived from

the opinion in Smith and concluded that the same standard applied in both contexts. See

id. at 535–36; Swipies v. Kofka, 419 F.3d 709, 718 (8th Cir. 2005) (applying Kolstad in §

1983 context); Iacobucci v. Boulter, 193 F.3d 14, 25 n.7 (1st Cir. 1999) (same).

       Kolstad made two points important to our resolution of this appeal. First,

“reckless or callous indifference” requires that the defendant have acted “in the face of a

perceived risk that its actions will violate federal law.” Kolstad, 527 U.S. at 536. In the

context of employment discrimination, the Court explained when intentional

discrimination may not in itself suffice for liability for punitive damages:

              There will be circumstances where intentional discrimination does
       not give rise to punitive damages liability under this standard. In some
       instances, the employer may simply be unaware of the relevant federal
       prohibition. There will be cases, moreover, in which the employer
       discriminates with the distinct belief that its discrimination is lawful. The
       underlying theory of discrimination may be novel or otherwise poorly
       recognized, or an employer may reasonably believe that its discrimination


                                             15
       satisfies a bona fide occupational qualification defense or other statutory
       exception to liability.

Id. at 536–37.
       Second, eligibility for punitive damages does not require that the defendant

engaged in egregious misconduct. It is the defendant’s mental state, not the scope

of the harm, that counts. As the Supreme Court stated:

                Egregious misconduct is often associated with the award of
       punitive damages, but the reprehensible character of the conduct is
       not generally considered apart from the requisite state of mind.
       Conduct warranting punitive damages has been characterized as
       “egregious,” for example, because of the defendant’s mental
       state. . . . That conduct committed with the specified mental state
       may be characterized as egregious, however, is not to say that
       employers must engage in conduct with some independent,
       “egregious” quality before being subject to a punitive award.

Id. at 538.

       From this we conclude that for Storey to be eligible for punitive damages, it was

not necessary that he engage in any intentional misconduct beyond that required for him

to be liable for compensatory damages under § 1983. It was necessary, however, for

there to be evidence of an additional required mens rea—that he perceived that he was

violating Eisenhour’s federal rights against sexual discrimination. We therefore turn to

the evidence of that element.

       Storey asserts on appeal that “there was no evidence presented during the [first]

trial that Storey’s conduct was motivated by evil motive or reckless indifference to

Eisenhour’s constitutional right to be free of gender discrimination in the workplace.”

Storey’s 1st Brief at 30. We disagree. There was evidence from which the jury could



                                             16
infer that he knew that his conduct toward Eisenhour constituted prohibited sexual

discrimination. First, he was not only a lawyer but a judge. And “[t]he events here took

place in [2007 and 2008], long after the law of sexual harassment had become well

established by the Supreme Court.” Molnar v. Booth, 229 F.3d 593, 604 (7th Cir. 2000).

Second, Storey had received special repeated training on the subject. As he testified at

trial:

         Q.   Did you take any sexual harassment training with the County?
         A.    Yes, I took the normal course over the years of sexual training,
               sexual harassment training for the County.
         Q.   What’s the normal course?
         A.   Well, every year they would have an annual training session.
Storey App., Vol. 13 at 3374. The jury could reasonably infer that a judge with such

additional training certainly knew that the conduct described by Eisenhour, particularly

the physical assaults, constituted unlawful sexual harassment. This was sufficient

evidence to require an instruction on punitive damages. It would then be in the discretion

of the jury whether to award any.

III.     CONCLUSION

         For the foregoing reasons, we REVERSE the district court’s decision not to

present to the jury the issue of punitive damages against Storey and remand for a new

trial on that issue. In all other respects, we AFFIRM the judgment of the district court.




                                             17
17-4015, 17-4018 – Eisenhour v. Weber County, et al.

HARTZ, J., Circuit Judge, concurring:

       I write separately to note that the law-of-the-case doctrine provides a potential

alternative ground for affirming the sufficiency of the evidence on Eisenhour’s equal-

protection claim.

       On Eisenhour’s prior appeal to this court, we reversed the summary judgment

against her on the equal-protection claim, holding that she had provided sufficient

evidence to sustain the claim. Under the law-of-the-case doctrine, “when a court decides

upon a rule of law, that decision should continue to govern the same issues in subsequent

stages in the same case.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d

1081, 1099 (10th Cir. 2017) (internal quotation marks omitted). In particular, “[a]n

appellate court decision on a particular issue, unless vacated or set aside, governs the

issue during all later stages of the litigation in the district court and thereafter on any

further appeal.” Id.

       Thus, our decision on the summary-judgment issue in the prior appeal could be the

law of the case on the judgment-as-a-matter-of-law issue on this appeal. After all, the

standard for both motions is whether a jury could infer the elements of the claim from the

evidence presented. As the Supreme Court has stated, “[T]he standard for granting

summary judgment mirrors the standard for judgment as a matter of law, such that the

inquiry under each is the same.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 150 (2000) (internal quotation marks omitted); see Roberts v. Jackson Hole

Mountain Resort Corp., 884 F.3d 967, 972 (10th Cir. 2018) (“Summary judgment is
inappropriate . . . if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” (internal quotation marks omitted)); In re Cox Enters., Inc. Set-

Top Cable Television Box Antitrust Litig., 871 F.3d 1093, 1096 (10th Cir. 2017) (“We

may grant judgment as a matter of law only when . . . ‘the court finds that a reasonable

jury would not have a legally sufficient evidentiary basis to find for the party on that

issue.’ Fed. R. Civ. P. 50(a)(1).”).

       This does not mean, however, that a party who lost a motion for summary

judgment can never be granted judgment as a matter of law on the same issue. The law-

of-the-case doctrine is not an “inexorable command.” Haynes Trane Serv. Agency, Inc. v.

Am. Standard, Inc., 573 F.3d 947, 956 (10th Cir. 2009) (internal quotation marks

omitted). We have recognized “three exceptions: (1) when the evidence in a subsequent

trial is substantially different; (2) when controlling authority has subsequently made a

contrary decision of the law applicable to such issues; or (3) when the decision was

clearly erroneous and would work a manifest injustice.” Wessel v. City of Albuquerque,

463 F.3d 1138, 1143 (10th Cir.2006) (internal quotation marks omitted).

       It appears to me that none of these exceptions would apply here. But the issue was

not raised by Eisenhour. On future appeals in other cases, perhaps one of the parties will

invoke this powerful doctrine.
