                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 6 2000
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 CHARLES CORRY,

          Plaintiff-Appellee,
 v.                                                      No. 99-1158
 ANALYSTS INTERNATIONAL                               (D.C. No. 97-Z-17)
 CORPORATION, a Minnesota                                 (D. Colo.)
 corporation,

      Defendant-Appellant.
 __________________________
 CHARLES CORRY,

          Plaintiff-Appellant,
 v.                                                      No. 99-1189
 ANALYSTS INTERNATIONAL                               (D.C. No. 97-Z-17)
 CORPORATION, a Minnesota                                 (D. Colo.)
 corporation,

          Defendant-Appellee.


                                ORDER AND JUDGMENT       *




Before BALDOCK, KELLY,             and BRISCOE , Circuit Judges.

      Defendant Analysts International Corporation (AIC) appeals the jury


      *
        This order and judgment is not binding precedent, except under the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.
verdict in favor of Charles Corry on his intentional interference with contract

claim. Corry cross-appeals the jury verdict rejecting his religious discrimination

and retaliation claims brought under Title VII §§ 703 and 704, 42 U.S.C. §§

2000e-2 and 2000e-3. We exercise jurisdiction pursuant to 28 U.S.C. § 1291,

reverse and remand the district court’s denial of AIC’s Rule 50 motion for

judgment as a matter of law on Corry’s intentional interference with contract

claim, and affirm the jury verdict on the religious discrimination and retaliation

claims.

                                             I.

       AiC TechWest, a division of AIC, contracts with companies to provide

temporary computer consultants. U.S. West Marketing Resources Group, now

U.S. West Dex, (U.S. West) contracted with AIC for leased workers. The

contract gave U.S. West “the right to request [AIC] to remove any Worker from

an assignment or to refuse assignment of a Worker for any or no reason.” Aplt.

App. at 118. The contract also stated that “[l]oud talk, profanity or other

activities which prove distracting shall not be tolerated.”   Id. Quest Database

Consulting (Quest), a subcontractor of AIC, provides temporary computer

consultants to AIC clients. The AIC-Quest contract provided that “[AIC] may at

any time subsequent to [Quest’s] acceptance, request [Quest] to remove any

Worker . . . for its convenience, upon notice to [Quest].”    Id. at 164. Quest and


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Corry entered into an employment agreement for Corry to be assigned to U.S.

West from August 14, 1995, through February 14, 1996, “unless terminated prior

to this date, by [U.S. West].”   Id. at 93. Corry understood that U.S. West could

terminate his assignment at U.S. West.

       Several of Corry’s U.S. West coworkers testified at trial that Corry

frequently used swear words at work, including “Jesus Christ,” “God,” “shit,”

“damn,” “the F word, “GD,” “bastard,” “SOB,” “goddamn,” and “hell.”

Testimony regarding the frequency of Corry’s use of the swear words varied from

occasionally to constantly. In September 1995, Lynda Fowler complained to

Sean Golden, her supervisor at U.S. West, about Corry’s language. Golden

contacted Ellen Ritt, the AIC technical staff manager, and also spoke to Kenneth

Kemple at U.S. West about the complaint. On September 22, 1995, Ritt received

a message from Kemple requesting a replacement for Corry because of his

language. On October 2, 1995, Ritt arranged a conference call with Kemple,

Golden, and Tom Hickey, a manager at Quest, to discuss the matter. Ritt asked

Hickey to meet with Corry.

       On October 3, 1995, Hickey met with Corry and told him there had been a

complaint about his language. Hickey testified that he told Corry he was being

placed on a two-week probation to correct his language. After the meeting,

Corry approached Ritt and asked who had complained. Corry claims Ritt told


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him a woman who “was very religious” was offended by his use of “God” and

“Jesus Christ.” Supp. App. I at 176.

      On October 5, Ritt called a meeting of all the leased workers involved in

Corry’s project. Ritt handed out copies of the U.S. West policies and told the

workers to behave in a professional, courteous manner at work. Corry testified

that Ritt told them to refrain from saying “God” and “Jesus Christ.” When Corry

told Ritt he was not a Christian, he claims she told him he would abide by the

Ten Commandments. Bradley Reeger testified that Ritt told them to follow the

Ten Commandments or lose their jobs, but Ritt testified that Reeger was not at

the meeting. William Gatz testified that Ritt said some language could be

“viewed as a sin.” Supp. App. I at 87. Ritt testified she mentioned the Ten

Commandments as an example of why someone would be offended by the word

“Goddamn,” but she did not tell anyone to follow the Ten Commandments.

According to Gatz and Michael Fanelli, Ritt brought up the Ten Commandments

as an example of why one might find use of the words “Goddamn” and “Jesus

Christ” offensive. Gatz, Fanelli, and Steve Justus testified that Ritt did not say

they must follow the Ten Commandments. Gregory Pearman and Kenneth

McFadden testified they did not hear any reference to the Ten Commandments

during the meeting.

      On October 6, 1995, Corry made a verbal complaint to U.S. West about


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Ritt’s statements. Corry filed a written complaint with Quest on October 8 and

with U.S. West on October 9. Golden told Corry to take his complaints to Ritt.

      According to Fowler, Corry’s language did not change after the October 5

meeting and McFadden testified that Corry’s language became worse after the

meeting. Golden testified that he wanted Corry removed from the U.S. West

project because he refused to change his language. Charles Swift, project

manager at U.S. West (a temporary replacement for Kemple), decided to cancel

Corry’s contract. Swift called Ritt and asked that Corry be replaced. Ritt then

called Hickey at Quest and told him that U.S. West had requested that Corry’s

assignment be terminated. Corry’s assignment to U.S. West was terminated on

October 13, 1995.

      In his second amended complaint against AIC, Quest, and U.S. West, filed

November 12, 1997, Corry presented three claims for relief: (1) discrimination

and retaliation based on Corry’s religion and opposition to unlawful employment

practices, in violation of Title VII §§ 703 and 704, 42 U.S.C. §§ 2000e-2 and

2000e-3; (2) tortious interference by AIC with the contractual relationship

between Corry and Quest; and (3) breach of contract by Quest. Corry settled his

claims with Quest and the district court dismissed the claims against U.S. West.

A jury found that Corry failed to prove his claims of religious discrimination and

retaliation, but awarded Corry actual damages of $34,160 on his intentional


                                         5
interference with contract claim against AIC.

                                              II.

Intentional interference with employment contract

       AIC contends there was insufficient evidence for the jury to find AIC

intentionally interfered with Corry’s employment contract with Quest. The

district court denied AIC’s Federal Rule of Civil Procedure 50 motions for

judgment as a matter of law, asserted prior to submission of the case to the jury

and again after the verdict. We review de novo the district court’s decision on a

motion for judgment as a matter of law, applying the same standard as the district

court. Baty v. Willamette Indus., Inc.     , 172 F.3d 1232, 1241 (10th Cir. 1999).

“Such a judgment ‘is warranted only if the evidence points but one way and is

susceptible to no reasonable inferences supporting the party opposing the

motion.’” Id. (quoting Mason v. Oklahoma Turnpike Auth.              , 115 F.3d 1442, 1450

(10th Cir. 1997)). We “‘do not weigh the evidence, pass on the credibility of the

witnesses, or substitute our conclusions for [those] of the jury.”        Id. (quoting

Harold Stores, Inc. v. Dillard Dep’t Stores         , 82 F.3d 1533, 1546-47 (10th Cir.

1996)). We “must enter judgment as a matter of law in favor of the moving party

if ‘there is no legally sufficient evidentiary basis . . . with respect to a claim or

defense . . . under the controlling law,’” viewing “the evidence and any

inferences to be drawn therefrom most favorably to the non-moving party.”            Id.


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(internal quotations omitted).

      Colorado state law recognizes an action for intentional interference with

contract. Amoco Oil Co. v. Ervin , 908 P.2d 493, 500 (Colo. 1995). To prove the

tort of intentional interference with contract, Corry must show: “(1) the

existence of a contract between [Corry] and [Quest]; (2) knowledge by [AIC] of

the contract or knowledge of facts which would lead [AIC] to inquire as to the

existence of the contract; (3) intent by [AIC] to induce a breach of contract with

[Quest]; (4) action by [Quest] which induces the breach of contract; and (5)

damages to [Corry].”   Galleria Towers, Inc. v. Crump Warren & Sommer, Inc.     ,

831 P.2d 908, 912 (Colo. App. 1991). At issue here is whether AIC intended to

induce Quest to breach the contract and whether AIC’s actions induced an actual

breach of that contract.

      Viewing the evidence in the light most favorable to Corry, we conclude the

trial testimony failed to establish that AIC intentionally interfered with Corry’s

contract with Quest. The evidence showed that U.S. West requested that Corry

be removed from his assignment because of his language and Ritt relayed that

information to Quest. There was no evidence that Ritt or anyone at AIC made

the decision to remove Corry or influenced U.S. West’s decision to do so. Corry

did not establish that AIC initiated or made the decision to remove him from the

U.S. West assignment or that AIC induced either Quest or U.S. West to remove


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Corry from the U.S. West assignment.

       AIC also argues there was insufficient evidence for the jury to conclude

that it caused Quest to breach the contract, or even that the contract was

breached. AIC asserts that Quest did not breach Corry’s employment contract

because the contract was for at-will employment and could be terminated at any

time. Corry’s contract with Quest provided that it could be ended before its

stated termination date and Corry acknowledged that U.S. West could remove

him at any time. To prove intentional interference with an at-will contract, Corry

must show that AIC used “wrongful means, such as physical violence, fraud, civil

suit, or criminal prosecution.”       Electrolux Corp. v. Lawson , 654 P.2d 340, 341-42

(Colo. App. 1982) (citing Restatement (Second) of Torts § 768 (1965)). Corry

presented no such evidence. Viewing the evidence in the light most favorable to

Corry, we conclude that he failed to prove his claim of intentional interference

with contract. The district court erred in denying AIC’s Rule 50 motion for

judgment as a matter of law.      1




       1
          Because there was insufficient evidence to support the jury verdict on
Corry’s intentional interference with contract claim, AIC’s contention that the
district court erred in refusing to instruct the jury on the effects of the
employment contracts is moot.

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Discriminatory or retaliatory interference

       On cross-appeal, Corry argues that the district court erred in refusing to

instruct the jury that AIC could be liable for religious discrimination and

retaliation under Title VII even if it was not Corry’s employer. We review the

district court’s decision on whether to give a particular jury instruction for an

abuse of discretion.       Davoll v. Webb , 194 F.3d 1116, 1131 (10th Cir. 1999). We

review de novo “whether, as a whole, the instructions correctly stated the

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

and applicable standards.”        Id. Instructional error requires reversal only if we

determine the error was prejudicial, based on a review of the entire record.        Id.

       The district court refused to give Corry’s proposed instruction, which

provided:

       If you determine that defendant was not an employment agency, you
       should next consider whether defendant, although not the direct
       employer of plaintiff, was an “employer” under Title VII who
       controlled access to plaintiff’s employment opportunities. A
       company is an “employer” if it has 15 or more employees and does
       business in interstate commerce.

Aple. Supp. App. at 71. We conclude the district court did not err in instructing

the jury.   2
                The district court instructed the jury that to prove religious


       2
        On appeal, Corry argues the district court should have instructed the jury
that “[AIC], even if not Corry’s employer, could be held liable under Title VII
for unlawfully interfering with Corry’s employment relationship with Quest.”
                                                                     (continued...)

                                               9
discrimination and retaliation Corry must show that AIC was his employer. The

district court further instructed the jury that “[i]n order to determine whether

[AIC] was [Corry’s] employer, the main focus of your inquiry should be [AIC’s]

right to control the means and manner of [Corry’s] work conduct. You should

consider the totality of circumstances surrounding the working relationship

between the parties.” Supp. App. III at 876. The district court properly

instructed the jury that AIC was Corry’s employer if it controlled the means and

manner of Corry’s employment.     See Atchley v. Nordam Group, Inc. , 180 F.3d

1143, 1153 (10th Cir. 1999) (holding that the main focus in determining whether

an entity is the employee’s employer under Title VII is the entity’s right to

control the means and manner of employee’s performance). Further, a review of

the record shows there was no evidence that AIC intentionally interfered with

Corry’s contract with Quest, much less that it discriminated or retaliated in doing


      2
        (...continued)
Cross-Aplt. Br. at 26. AIC contends Corry did not raise this issue with the
district court. The instruction requested at trial includes the argument that AIC
could be liable for Title VII violations even if it was not Corry’s direct employer,
if it controlled access to Corry’s employment opportunities. The instruction
requested at trial does not include the issue Corry raises on appeal -- that Title
VII prohibits an entity that meets Title VII’s definition of employer from
engaging in discriminatory or retaliatory interference with any individual’s
employment opportunities with a third party, regardless of whether it was an
employer of the plaintiff. Therefore, we will not consider this argument on
appeal. See Tele-Communications, Inc. v. Commissioner , 104 F.3d 1229, 1232
(10th Cir. 1997) (noting that “[g]enerally, an appellate court will not consider an
issue raised for the first time on appeal”).

                                         10
so. Corry’s proposed jury instruction would not require a different conclusion.

                                        III.

      As regards AIC’s appeal, the district court’s denial of AIC’s Rule 50

motion is REVERSED and this case is REMANDED for entry of judgment as a

matter of law for AIC on Corry’s intentional interference with contract claim. As

regards Corry’s cross-appeal, the jury verdict against Corry on his religious

discrimination and retaliation claims is AFFIRMED.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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