                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     September 22, 2006
                             FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                        Clerk of Court

    R OY C. JO H N SO N ,

              Plaintiff-Appellant,

    v.                                                    No. 05-5122
                                                    (D.C. No. 02-CV-826-M )
    C ITY O F TU LSA , O K LA H O M A,                    (N.D. Okla.)

              Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.




         Plaintiff Roy Johnson appeals the adverse judgment of the district court

entered on a jury verdict in his employment discrimination and civil rights

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




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                               I. Procedural H istory

      Roy Johnson is an African-American who began working as a police officer

for the Tulsa Police Department (TPD ) in 1976. In 1994, he filed a complaint

against the City of Tulsa (City) alleging racial discrimination in employment.

That action was certified as a class action in 1998. In December 2001, the district

court stayed the case to facilitate settlement. In April 2002 and again in

December 2002, the parties filed proposed consent decrees with the district court.

The district court ultimately approved the second consent decree, a decision that

we affirmed in Johnson v. Lodge #93 of Fraternal Order of Police, 393 F.3d 1096

(10th Cir. 2004).

      On February 22, 2002, while the class action was stayed, the City

terminated Johnson’s employment. Johnson then filed this lawsuit, alleging that

his discharge w as because of his race and in retaliation for his role in the class

action in violation of 42 U.S.C. §§ 1981, 1983, and 1985; Title VII of the Civil

Rights A ct of 1964, 42 U.S.C. §§ 2000e to 2000e-17; and Oklahoma law . His

theory of the case was that a conspiracy existed among various TPD personnel to

fabricate a reason to discharge him because of his role in the class action lawsuit.

The alleged conspiracy included (1) imposing remedial measures related to his

DUI enforcement activities, (2) fabricating documentation showing that he failed

to comply with those measures, and (3) soliciting false complaints against him.




                                          -2-
      The case was tried to a jury. The jury found that, although race was not a

motivating factor, the City’s discharge of Johnson was motivated by retaliation

for having filed his earlier law suit but that the City would have terminated his

employment even in the absence of the retaliatory motive. Johnson filed a

post-trial motion for judgment as a matter of law (JM OL) under Fed. R. Civ. P.

50(b), arguing that there was insufficient evidence to support the C ity’s

“mixed-motive” defense. The district court denied the Rule 50(b) motion. The

district court also denied Johnson’s motion for a new trial in which he argued that

the court improperly instructed the jury as to the nature of the employment

relationship between the parties. This appeal followed.

                                  II. Background 1

      During Johnson’s twenty-five years of service with the TPD, he received

eighteen letters of commendation and was given awards in 1995, 1999, and 2000

for arresting a high number of drunk drivers. In October 2000, Sergeant Kirk

Hewitt wrote an internal TPD memorandum in which he expressed concern about

Johnson’s performance. Hewitt was not Johnson’s supervising sergeant but

worked a shift that overlapped with Johnson’s. A mong other things, Hewitt



1
       Because Johnson does not challenge the jury finding that race was not a
motivating factor, we will focus only on his retaliation claim. The background
facts are relevant to whether there was sufficient evidence to support the C ity’s
mixed-motive defense; therefore, we view the evidence in the light most favorable
to the City and draw all reasonable inferences from it in the City’s favor. See
Webco Indus., Inc. v. Thermatool Corp., 278 F.3d 1120, 1123 (10th Cir. 2002).

                                          -3-
described a number of DW I or DUI arrests Johnson had made in which the

suspect’s breath test was below the legal limit for blood alcohol content (BAC).

Johnson’s supervising sergeant, Ed Pierce, who previously had required Johnson

to videotape all of his traffic stops to assist in responding to citizen complaints

about Johnson, conducted an investigation of Hewitt’s allegations. He

independently examined seventy-six of Johnson’s DUI arrests and found that

twenty-nine of them, or 36% , resulted in a breath test below the legal limit,

although many of the suspects w ho tested low were arrested on other charges. H e

found that, department-wide, 211 out of 1,639, or 13% , of DUI arrestees tested

below the legal limit. He also noted that several of Johnson’s low test results had

generated written and verbal complaints to the TPD. Among other things, Pierce

recommended that Johnson review the standard field sobriety tests (SFSTs) and

provide more detail in his arrest reports.

      As a result of Pierce’s report, Johnson’s superior officers, M ajor Sidney

M erchant and Captain M ark M cCrory, implemented a variety of remedial

measures in December 2000. Those measures included that Johnson receive

SFST training to refresh the training he had received in 1994. To this end,

Johnson took an SFST class in M arch 2001, and in July 2001 he went to a

multi-day SFST course. The remedial measures also required Johnson to provide

his supervisors with a memo every time the result of a breath test he gave to a

suspect was below the legal limit. Seventeen such memos w ere discussed at trial,

                                             -4-
many indicating that, prior to arresting the suspect, Johnson had given only one of

the SFSTs, the horizontal gaze nystagmus (HGN) test, instead of all three SFSTs. 2

On M ay 31, 2001, M erchant imposed additional remedial measures on Johnson:

that he bring all DUI test subjects to the Uniform Division Southwest station for

chemical testing, that he acquire another officer to conduct the testing, and that he

have a supervisor approve any DUI arrest prior to transporting the suspect to the

detention center.

      M eanwhile, on M ay 5, 2001, Johnson pulled over Grady M aples for

speeding and running a red light. Approximately six minutes before, M aples had

left work at a local hospital where he had been assisting in the operating room as

a surgical nurse. After Johnson observed that M aples was unsteady on his feet,

slightly slurred his speech, and sweated profusely while sitting in Johnson’s

air-conditioned patrol car, Johnson administered the HGN test and obtained a lack

of smooth pursuit. 3 He then arrested M aples and took him in for a breath test,



2
      The other two SFSTs are known as the one-legged stand and the nine-step
walk and turn.
3
       The HGN test requires the suspect to follow a pen or other object as it is
moved laterally in front of the suspect’s eyes. Persons under the influence of
alcohol or some depressant drugs have difficulty pursuing the pen without their
eyes jerking (nystagmus), which is referred to as lack of smooth pursuit. A lack
of smooth pursuit can yield two of six possible clues on the HGN test, one for
each eye. A person under the influence also may exhibit nystagmus when the pen
is moved to a forty-five degree angle and when the eyes are held at maximum
deviation, each of which can yield two more clues per eye. The TPD instructs its
officers to test for all six clues.

                                         -5-
which was 0.00% BAC. M aples then agreed to a take blood test. The blood was

drawn but Johnson never requested a lab test of the sample. Johnson booked

M aples into jail on a charge of DUI-drugs, gave him a traffic citation, and

released him.

      The next day, M aples’ sister-in-law called the TPD to complain about the

arrest. Eckert and M erchant visited M aples on two occasions to discuss the

matter and provide him with a complaint form. M erchant requested that M aples’

blood sample be tested and, when the result came back negative, had the

DUI-drug charge dismissed.

      Although M aples did not file a formal complaint until some time in June,

an internal affairs (IA) investigation began on M ay 22. Also on M ay 22, Johnson

initiated an IA investigation into a different matter. H e claimed that the Hewitt

memo expressing concern about Johnson’s performance had been leaked and that

local defense attorneys used it to try to discredit his testimony during a driver’s

license suspension hearing before the Department of Public Safety (DPS hearing)

and in a court proceeding.

      The two IA investigations w ere conducted by Sergeant Todd Evans. His

role was to find facts, not reach conclusions. As to the M aples arrest, Evans

found that the probable cause Johnson documented in his arrest report for

believing M aples to be intoxicated consisted of M aples’ unsteadiness, bloodshot

eyes, slurred speech, and two of the six possible clues on the HGN test due to

                                          -6-
M aples’ lack of smooth pursuit. However, in his low breath test result memo,

Johnson stated he had obtained four of four HGN clues, and he told Evans during

the investigation that he had obtained six of six HGN clues. W hen Evans pointed

out this discrepancy, Johnson maintained that he never records H GN results in his

arrest report, preferring to testify from memory so as not to give evidence to the

defense. Evans also found that Johnson did not call to see if a drug recognition

expert was available, which is required by TPD policy prior to making an arrest

for a charge of D UI-drugs.

      Based on the conflicts among Johnson’s arrest report, his interoffice memo,

and his investigation testimony, as well as Johnson’s statement about testifying

from memory and what Evans described as Johnson’s inability to give clear

answers and his tendency to change his answers to the same questions over time,

Evans became concerned about Johnson’s ability to testify accurately in hearings

on other arrests. After further investigation, Evans found, among other things,

that Johnson gave sw orn testimony during a DPS hearing on M ay 22, 2001, in

which he described a portion of the HGN test as holding a pen in front of the

suspect’s eyes to see if the eyes balanced out. W hen Evans asked him about this,

Johnson reportedly said he had no idea what he meant by his testimony but that

“[i]t may not have been incorrect.” Aplee. Supp. App. at 75. Evans testified that

the procedure Johnson described is not part of any HGN test.




                                         -7-
      As to Johnson’s complaint about the Hewitt memo, Evans found no

evidence that it had been leaked. Johnson had maintained that the memo was

used against him while he gave sworn testimony during a court hearing on M ay 9,

2001. Evans found that Johnson was at the courthouse on that particular day for a

hearing on whether defense counsel was entitled to internal TPD documents

concerning Johnson’s DUI arrests. The hearing, however, was rescheduled, and

Evans found that no hearing had ever occurred in that case where sworn testimony

was given. W hen confronted with this information, Johnson remained adamant

that his recollection was correct.

      Johnson also maintained that the Hewitt memo was used against him by a

defense attorney during the M ay 22 DPS hearing referred to above. Johnson

claimed he saw the attorney holding a page of statistics from Hewitt’s memo that

was in Hewitt’s handwriting. W hen Evans told Johnson that his copy of the

Hewitt memo contained no handwritten pages, Johnson provided Evans with a

copy of a handwritten page from Pierce’s report and maintained that it was the

page he had seen in the defense attorney’s hand at the D PS hearing. Evans,

however, found evidence suggesting that the defense attorney had submitted, as

exhibits, copies of publicly-available breath-test logs and had created a page of

his own handwritten statistics derived from those logs. Evans also found that the

statistics the defense attorney recited during the DPS hearing were different than

those contained in the Hewitt memo and concerned a different time period.

                                         -8-
      Sergeant Eckert, Captain M cCrory, and M ajor M erchant reviewed Evans’s

findings. Each of them recommended termination or a pre-termination hearing

based on Johnson’s failure to properly build probable cause for the M aples arrest. 4

Eckert categorized Johnson’s failure to give all three SFSTs as “deliberate

indifference to prior training.” Id. at 113. Noting this failure as well as

Johnson’s failure to call for a drug recognition expert, M cCrory stated that

Johnson had “ignored the training, counseling and retraining he received

concerning DUI detection and arrests.” Id. at 116. M erchant found Johnson’s

conduct “notable” because the M aples “arrest occurred after Officer Johnson had

undergone approximately six months of special attention designed to address this

specific area.” Id. at 134. M cCrory and M erchant also recommended finding that

Johnson’s description of the HGN test during the M ay 22 DPS hearing not be

sustained as an instance of false testimony, although both thought this was further

evidence of Johnson’s incompetence.

      As to the other investigation, Eckert, M cCrory, and M erchant deemed

Johnson’s allegation that the Hewitt memo had been leaked to be unfounded.

Eckert and M cCrory recommended, therefore, sustaining the charges that Johnson

had made a false report and had lied during Evans’s investigation of his

complaint. M erchant, however, disagreed, reasoning that Johnson had merely

4
      Eckert and M cCrory made their recommendations to M erchant, and
M erchant made his recommendation to Deputy Police Chief Charlie Jackson, who
apparently forwarded them to Police Chief Ronald Palmer.

                                         -9-
been mistaken that the defense attorneys were in possession of the Hewitt memo.

Eckert recommended a fifteen-day unpaid suspension. It does not appear that

M cCrory or M erchant gave a specific recommendation on discipline or

termination arising from this investigation.

       After reviewing the recommendations and the IA file and conducting a

pre-termination hearing, Police Chief Ronald Palmer discharged Johnson for his

conduct in the M aples arrest and for making false or inaccurate statements,

specifically, his testimony about the HGN test during the M ay 22 DPS hearing,

his complaint that the Hewitt memo had been leaked, and his testimony during the

investigation by Evans into his IA complaint. As to the M aples arrest, Chief

Palmer wrote:

       After administering an incomplete and non-standard field sobriety
       test on M r. M aples, you subsequently arrested him for D UI-Alcohol.
       After M r. M aples’ breath test returned a result of 0.00% BAC, you
       failed to request a certified Drug Recognition Expert, and further
       found no evidence of legal or illegal drugs on or about M r. M aples.

Id. at 141.

                                  III. Discussion

       W e preface our discussion with a clarification of the issues presented in

this appeal. The mixed-motive defense applies once a plaintiff establishes a

retaliatory motive for an employment decision, and shifts the burden to the

defendant to prove by “a preponderance of the evidence that it would have




                                         -10-
reached the same decision . . . even in the absence of the protected conduct.”

M t. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

      In his opening brief on appeal, Johnson frames his first issue as whether

there was sufficient evidence to support giving a mixed-motive instruction,

including whether the City waived the mixed-motive defense. However, he

repeatedly refers to Instruction No. 3 as the instruction relevant to the

mixed-motive defense. Instruction No. 3 reads:

                        EM PLO YM ENT RELATIONSH IP

                    You are instructed that an employer is entitled to
             use its judgment as to how to run its business and the
             law does not generally control the reasons or basis on
             which an employer may discharge one of its employees.
             The employer may lawfully discharge an employee for
             any reason, good or bad, fair or unfair, reasonable or
             unreasonable unless the discharge was motivated by
             unlawful discrimination.

                   You are not to “second guess” the employers [sic]
             decision or substitute your judgment for that of the
             employer out of sympathy for the Plaintiff or because
             you think the decision was bad, unfair or unreasonable.

                    As applicable to this case, all the law requires is
             that the employer not terminate the employee because of
             his race or because he filed a lawsuit against the
             employer.

Aplt. App., Vol. I at 121. Although Instruction No. 3 potentially bears on the

mixed-motive defense, Instruction No. 4, titled “Discrimination in Employment,”

seems to set forth the defense squarely. In relevant part, that instruction reads:



                                         -11-
              [I]f you find that Defendant’s termination of Plaintiff’s
              employment was also motivated by factors other than his
              race or the filing of a lawsuit against Defendant, you
              must then decide whether Plaintiff is entitled to money
              damages. Plaintiff is entitled to money damages unless
              the greater weight of the evidence demonstrates that the
              Defendant would have terminated Plaintiff even in the
              absence of consideration of his race or the filing of a
              law suit against D efendant.

Id. at 123.

       At trial, Johnson objected to Instruction No. 3 but not to Instruction No. 4.

See id., Vol. VI at 774-76, 778-80. In fact, Johnson’s counsel argued in favor of

giving a mixed-motive instruction. See id. at 780 (stating, in response to the

City’s contention that a pretext instruction was proper instead, “that the jury

easily could find that there were mixed motives” and that “I’m not really sure

how [the City] claim[s] at this point that there’s no room in this case for a finding

of mixed motives”). In his post-trial motions, Johnson did not argue that it was

improper to give Instruction No. 4. Instead, he argued that the mixed-motive

defense was not supported by the evidence and that Instruction No. 3 was

improperly given because it failed to account for a collective bargaining

agreement (CBA) that governed the parties’ employment relationship.

       This confusion has obscured the contours of the issues on appeal. In view

of the foregoing, we construe the issues as follows: (1) whether the City waived

its mixed-motive defense; (2) w hether Johnson is entitled to JM OL because there

was insufficient evidence to support the jury finding that the City would have

                                         -12-
discharged him even in the absence of a retaliatory motive; and (3) whether

Johnson is entitled to a new trial because Instruction No. 3 failed to account for

the existence of the C BA .

      A. W aiver of the mixed-motive defense

      Johnson argues that the City waived the mixed-motive defense because it

was not affirmatively presented in the pretrial order, no witnesses were

designated to testify about it, and the City offered no evidence to support it. 5 The

City responds that Johnson did not raise this waiver argument in the district court

and is therefore barred from raising it on appeal. W e agree with the City. W e

review issues raised for the first time on appeal only “in the most unusual

circumstances,” such as “where manifest injustice would result.” Sm ith v. Rogers

Galvanizing Co., 128 F.3d 1380, 1386 (10th Cir. 1997) (quotations omitted).

Nothing in the record shows that Johnson raised waiver in the district court. W e

see no manifest injustice in declining to review the issue because, as noted above,

Johnson’s counsel argued in support of an instruction on the mixed-motive

defense and, as discussed below, sufficient evidence supported the defense.




5
      Johnson also contends that the City waived the mixed-motive defense
because it did not request Instruction No. 3. The City’s actions w ith regard to
Instruction No. 3 are not germane to the waiver issue because that instruction
does not set forth the defense.

                                         -13-
      B. Sufficiency of the evidence

      Johnson next argues that the district court erred in denying his motion for

JM OL because there was insufficient evidence to support the mixed-motive

defense. W e review the district court’s refusal to grant JM OL de novo, applying

the same standard as the district court. M ason v. Okla. Tpk. Auth., 115 F.3d 1442,

1450 (10th Cir. 1997). Under that standard, “we view the record in the light most

favorable to the prevailing party and give that party the benefit of all reasonable

inferences to be drawn from the evidence.” Webco Indus., Inc., 278 F.3d at 1123.

“[J]udgment as a matter of law is warranted only if the evidence points but one

way and is susceptible to no reasonable inferences supporting the party opposing

the motion.” M ason, 115 F.3d at 1450. It is well established that “[t]he jury . . .

has the exclusive function of appraising credibility, determining the weight to be

given to the testimony, drawing inferences from the facts established, resolving

conflicts in the evidence, and reaching ultimate conclusions of fact.” Thunder

Basin Coal Co. v. Sw. Pub. Serv. Co., 104 F.3d 1205, 1212 (10th Cir. 1997)

(quotations omitted).

      To prevail in a mixed-motive case, an employer does not need to provide

direct evidence that it would have made the same decision even in the absence of

an improper motive. See Foster v. Univ. of Ark., 938 F.2d 111, 114 (8th Cir.

1991). Rather, an employer may satisfy its burden on the mixed-motive defense

by presenting sufficient objective evidence from which the jury could reasonably

                                         -14-
conclude that the employee’s job performance was so unsatisfactory that he would

have been discharged even in the absence of an improper motive. See id.

      The City presented evidence that it found Johnson’s performance in

connection with the M aples arrest to be unsatisfactory and cited what is saw as

Johnson’s incompetence as a reason for terminating his employment. Although

Johnson presented some evidence that the M aples arrest was supported by

probable cause, he admits that there was contrary evidence on this point, Aplt.

Opening Br. at 24. W e do not weigh the evidence or evaluate the credibility of

the witnesses. M ason, 115 F.3d at 1450. After careful review of the record, we

conclude that there was sufficient evidence from which the jury could find that

Johnson’s performance in the M aples arrest, view ed in context of the specific

counseling and training the City had provided to Johnson, was sufficiently

unsatisfactory that the City would have terminated his employment even in the

absence of a retaliatory motive.

      Johnson’s specific arguments to the contrary lack merit. First, he asserts

that it is undisputed that no TPD officer had ever been terminated for

incompetence or for a bad DUI arrest. Even if true, this bald fact does not

necessitate a finding that the City’s reasons in this case were not mixed.

Johnson’s entire chain of command emphasized that Johnson had received

additional SFST training shortly before the M aples arrest and failed to perform




                                         -15-
appropriate SFSTs on M aples. Thus, this case involved more than simple

incompetence or a single bad DUI arrest.

      Second, Johnson argues that the percentage of suspects he arrested for DU I

that tested below the legal limit was less than the department-wide average. 6 The

implication we ostensibly are to draw is that this statistic means the City should

not have terminated his employment. However, it was not Johnson’s percentage

of low breath tests that motivated his discharge, but rather his performance in the

M aples arrest viewed in the context of the specific counseling and training he had

received. Thus, the jury was free to reach its conclusion despite any statistical

comparison favorable to Johnson that the evidence may have supported.

      Third, Johnson points to testimony concerning a comparison case in which

other officers beat and falsely arrested a suspect outside of their jurisdiction and

lied to IA investigators to conceal their conduct. Johnson contends that this

conduct was w orse than his arrest of M aples yet those officers w ere only

disciplined, not discharged, suggesting that his own discharge was fabricated.

However, there was no evidence that those officers had a history of poor

performance in an area in which they had just received specific counseling and

training, which was the basis for Chief Palmer’s opinion that the other case was

less serious than Johnson’s. Although M erchant testified that the comparison

6
      Apparently, this argument concerns Johnson’s DUI arrests in 2001, as
Pierce’s N ovember 2000 report showed his percentage of low breath test results
was higher than the department average.

                                         -16-
case was worse and warranted discharge, that opinion does not undermine the fact

that M erchant also recommended termination based on Johnson’s arrest of

M aples. That the City did not discharge the other officers, therefore, is an

insufficient basis for JM OL in Johnson’s favor.

      Johnson offers no argument concerning the other non-retaliatory basis for

discharge proffered by the City, namely, his false or incorrect testimony.

Accordingly, we need not address it. 7

      To the extent Johnson’s challenge to the sufficiency of the evidence

implicates Instruction No. 4, the mixed-motive instruction, our review is limited

to plain error review because he did not object to that instruction in the district

court, see Fed. R. Civ. P. 51(d)(2). As sufficient evidence supported the defense,

we see no plain error.

      In sum, we conclude that sufficient evidence supported the jury’s finding

that the C ity would have discharged Johnson even in the absence of a retaliatory

motive. As discussed below, the fact that there was no evidence of or instruction

regarding the CBA did not impermissibly affect that finding.




7
       Johnson argues for the first time in his reply brief, and without citation to
any legal authority, that the mixed-motive defense fails because the City did not
avail itself of any of a number of established methods of carrying its burden of
proof. W e decline to consider non-jurisdictional arguments raised for the first
time in a reply brief, Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994), or
arguments not supported by any legal authority, see Phillips v. Calhoun, 956 F.2d
949, 953-54 (10th Cir. 1992).

                                         -17-
      C. Instruction No. 3

      W e now turn to Johnson’s final issue. He argues that the district court

erred in denying him a new trial because Instruction No. 3 was materially

misleading to the extent it “invited the jury to find that [the City] could have

terminated [him] for no reason at all” rather than “whether [the City] truly had

good cause,” ostensibly under the CBA. Aplt. Opening Br. at 28.

      W e review the district court’s decision to give a particular instruction
      for abuse of discretion. To determine whether the jury was
      adequately instructed on the applicable law, we review the
      instructions in their entirety de novo to determine w hether the jury
      was misled in any way. The instructions as a whole need not be
      flawless, but we must be satisfied that, upon hearing the instructions,
      the jury understood the issues to be resolved and its duty to resolve
      them.

M edlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir. 1999) (citations

omitted).

      As an initial matter, we disagree that Instruction No. 3 permitted the jury to

find that the City could have terminated Johnson’s employment for no reason at

all. Instruction No. 3 provides that an “employer may lawfully discharge an

employee for any reason, good or bad, fair or unfair, reasonable or unreasonable

unless the discharge was motivated by unlawful discrimination.” Aplt. A pp.,

Vol. I at 121 (emphasis added). The instruction informed the jury that it was not

to “second guess” the C ity’s decision or substitute its judgment for the City’s

because it felt that the decision was bad, unfair, or unreasonable. Id. That



                                         -18-
instruction, taken together with Instruction No. 6, which advised the jury to

evaluate the credibility of the City’s explanation, see id. at 125, properly

informed the jury that part of its task was to determine if the City established a

non-retaliatory reason that was not pretextual. 8 Thus, Johnson’s suggestion that

the jury could have found in the City’s favor if it determined that the City

discharged him for a reason “as trivial as [its] dislike of the color of [his] eyes,”

Aplt. Opening Br. at 28 n.10, has no persuasive value in our evaluation of the

propriety of Instruction No. 3. W e are likewise unpersuaded by his suggestion

that “[t]he instructions might as well have advised the jury that . . . retaliation

was a valid reason for the termination,” Aplt. Reply Br. at 13.

      Johnson has not directed us to any case law, and we have found none,

supporting the propositions implicit in his briefs: that the CBA was material to

the mixed-motive defense or that an employer has the burden to show that it

discharged an employee according to the just-cause requirements of a contract or

CBA in order to avail itself of the mixed-motive defense. None of the cases

Johnson cites in support of his argument concerns whether contractual just-cause



8
       A pretext instruction in a mixed-motive case appears proper because the
issue of mixed motives “‘does not arise for the trier of fact until the plaintiff has
carried the burden of persuading the trier that the forbidden animus was a
motivating factor in the employment decision but has failed to persuade the trier
that non-discriminatory reasons proffered by the employer were pretexts and not
also motivating factors.’” Thom as v. Denny’s, Inc., 111 F.3d 1506, 1512
(10th Cir. 1997) (quoting Ostrowski v. Atl. M ut. Ins. Cos., 968 F.2d 171, 181
(2d Cir. 1992)).

                                          -19-
provisions are relevant to retaliation or discrimination claims; indeed, those cases

did not involve retaliation or discrimination at all, but rather a variety of state-law

breach of contract, wrongful termination, and constructive discharge claims. 9

      W e are persuaded instead by a case from the Seventh Circuit involving a

claim under the Age D iscrimination in Employment Act (ADEA):

      W hether a given employee serves at will, or for a term of years, or
      under a contract requiring “good cause” for discharge, is neither here
      nor there; violation of a “cause” requirement in a contract of
      em ployment does not make a discharge unlawful under the ADEA.
      Contractual terms could be pertinent to a state-law claim of wrongful
      termination joined with the federal claim, but Achor did not make
      such a claim.

Achor v. Riverside Golf Club, 117 F.3d 339, 341-42 (7th Cir. 1997). Although w e

conclude that, in a retaliation case, the existence of a “just cause” requirement in

a contract does not necessarily require a jury instruction describing the nature of

the employment relationship, a just cause violation could cast doubt on the

credibility of an employer’s proffered reasons for discharging an employee. If

Johnson wanted to question the credibility of the City’s proffered reasons in this

manner, he should have adduced some evidence that those reasons ran afoul of the

CBA. Even though the parties stipulated in the pretrial order that their



9
      See Aplt. Opening Br. at 27-28 citing Alexander v. Nextel Commc’ns, Inc.,
61 Cal. Rptr. 2d 293 (Ct. App. 1997); Haycock v. Hughes Aircraft Co., 28 Cal.
Rptr. 2d 248 (Ct. App. 1994); Lineberger v. Williams, 393 S.E.2d 23 (G a. Ct.
App. 1990); Barks v. Cosgriff Co., 529 N.W .2d 749 (Neb. 1995); M urphy v.
Publicker Indus., Inc., 516 A.2d 47 (Pa. Super. Ct. 1986); and Siekawitch v.
Wash. Beef Producers, Inc., 793 P.2d 994 (W ash. Ct. App. 1990).

                                          -20-
employment relationship was governed by a CBA, Johnson presented no evidence

of how the “just cause” provision of the CBA applied to his claim. Furthermore,

Johnson has not explained on appeal how the non-retaliatory reasons given by the

City violated the CBA. Thus, even if the CBA was relevant, a position we reject

on the evidence presented in this case, Johnson has not shown prejudice from the

failure of the district court to include in a jury instruction whatever “just cause”

m ight exist in the C BA .

       Johnson’s observation that the City did not request or argue in favor of

Instruction No. 3 has little relevance to this issue. A district court has a duty to

instruct the jury as to the applicable law based on the pleadings and the evidence.

See Radio Corp. of Am. v. Radio Station KYFM , Inc., 424 F.2d 14, 19 (10th Cir.

1970). Instruction No. 3 was necessary in order to explain to the jury that any

error or mistake of judgment the City might have made in deciding to discharge

Johnson was not to be a factor that swayed the jury’s finding on the mixed-motive

defense. Because no evidence of the CBA was presented, the district court had no

obligation to include any heightened “just cause” requirements in its instructions.

Even if Johnson had proposed his own jury instruction, which appears unlikely

because he has not included his proposed jury instructions in his appendix, the

district court likely would have rejected it due to the lack of any supporting

evidence. See id.




                                          -21-
      Based on the foregoing, we conclude that the district court did not abuse its

discretion in giving Instruction No. 3.

                                   V. Conclusion

      The judgment of the district court is AFFIRM ED.


                                                   Entered for the Court


                                                   Timothy M . Tymkovich
                                                   Circuit Judge




                                          -22-
