                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS                  May 19, 2010
                            FOR THE TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court



    DELLA LOWBER,

                Plaintiff-Appellee,

    v.                                                  No. 09-6130
                                                (D.C. No. 5:07-CV-00713-M)
    THE CITY OF NEW CORDELL,                           (W.D. Okla.)
    OKLAHOMA,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.



         Della Lowber won a jury verdict on her claim that the City of New Cordell

discriminated against her on the basis of sex by failing to hire her as an Animal

Control Officer. The City contends that the district court erred in denying its

motion for summary judgment and its motion for judgment as a matter of law.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
The City also asserts that the district court abused its discretion in admitting and

excluding certain evidence at trial. We have jurisdiction under 28 U.S.C. § 1291

and we affirm.

                                   I. Background

       Della Lowber worked as an Animal Control Officer (ACO) for the City

from June 1990 until January 2004, when her position was eliminated for

budgetary reasons. In June 2005, the City decided to create a new ACO position.

Ms. Lowber and another woman applied for the position but the City selected a

male applicant for the position, C.J. Dalke. Mr. Dalke had never worked as an

ACO.

       Ms. Lowber subsequently filed an action against the City for gender

discrimination in violation of 42 U.S.C. § 2000e. The City moved for summary

judgment. The district court denied the motion, concluding that Ms. Lowber

“presented sufficient evidence to create a genuine issue of material fact as to

whether or not [the City’s] proffered reasons for hiring someone other than her

were pretextual.” Aplt. App., Vol. II at 490-91. The case proceeded to trial. At

the close of Ms. Lowber’s case, the City moved for judgment as a matter of law

under Fed. R. Civ. P. 50. The court denied the motion, finding that “reasonable

minds could differ concerning whether [the City’s] actions were motivated by

[Ms. Lowber’s] gender, and also whether or not gender played a motivating part

in the decision not to hire [or] rehire [Ms. Lowber].” Id., Vol. III at 1112-13.

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The court further explained that “reasonable minds could differ as to whether or

not the reasons stated by the city for not hiring [Ms. Lowber] were pretextual.”

Id. at 1113. The jury ultimately found in favor of Ms. Lowber, awarding her

$33,758 in compensatory damages. The City now appeals.

             II. Summary Judgment and Judgment as a Matter of Law

      The City first argues that the district court erred in denying its motion for

summary judgment. But “the denial of summary judgment based on factual

disputes is not properly reviewable on an appeal from a final judgment entered

after trial.” Haberman v. Hartford Ins. Group, 443 F.3d 1257, 1264 (10th Cir.

2006); see also Kelley v. City of Albuquerque, 542 F.3d 802, 820 (10th Cir. 2008)

(“We cannot review the denial of a motion for summary judgment when that

motion raises a claim of sufficiency of the evidence.”). Instead, we must limit

our review to the denial of the City’s motion for judgment as a matter of law. See

Kelley, 542 F.3d at 820; Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250-51

(10th Cir. 1992).

      We review de novo the district court’s decision to deny the City’s motion

for judgment as a matter of law. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245,

1250 (10th Cir. 2005). “To overturn a denial, we must conclude that, viewed in

the light most favorable to the non-moving party, the evidence and all reasonable

inferences to be drawn from it point but one way, in favor of the moving party.”

Id.

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      The City argues that it was entitled to judgment as a matter of law because

Ms. Lowber failed to demonstrate that its reasons for not hiring her were

pretextual. We disagree. “Pretext may be shown by such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder

could rationally find them unworthy of credence and hence infer that the

employer did not act for the asserted non-discriminatory reasons.” Rivera v. City

and County of Denver, 365 F.3d 912, 925 (10th Cir. 2004) (quotation and

alteration omitted). “[R]ejection of the defendant’s proffered reasons will permit

the trier of fact to infer the ultimate fact of intentional discrimination.” Reeves v.

Sanderson Plumbing, 530 U.S. 133, 147 (quotation and alteration omitted).

Viewing the evidence and all reasonable inferences in the light most favorable to

Ms. Lowber, we conclude there was sufficient evidence for the jury to infer that

the City’s stated reasons for not hiring Ms. Lowber were pretextual and that the

City discriminated against Ms. Lowber.

      The City claimed it did not hire Ms. Lowber for the new ACO position

because she had expressed that she was not interested in the position if it was

part-time and because there were concerns that she may have improperly worked

another part-time job at a restaurant during her prior service as an ACO. As to

the City’s first reason, Ms. Lowber testified that she was told by the City

Administrator, Fred Smith, that the new ACO position was part-time and she

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responded that she was interested. She testified that she submitted an application

and then met with Mayor Alex Damon. At the end of her meeting with

Mayor Damon, she told him she wanted the job. She testified she never told

anyone she was not interested in the position if it was not full-time. She

explained she had been part-time for twelve of the thirteen years she worked as an

ACO for the City and she had no problem working part-time. Lydia Hall also

testified about a conversation she had with Ms. Lowber about the new ACO

position. Ms. Hall testified that she and Ms. Lowber had discussed the new

position and that Ms. Lowber had told her she needed the job and she did not care

whether it was full time or part time.

      As to the second reason, Ms. Lowber worked for the City for thirteen and a

half years as an ACO. After her position was eliminated, she was told that she

would be given first consideration for any new job openings with the City. In the

spring of 2004, she was invited to apply for an open position with the City in the

Water Department, but she ultimately decided not to apply for that position.

Fred Smith, who was the City Administrator for part of Ms. Lowber’s prior

service and was the City Administrator when she applied for the new position,

testified that Ms. Lowber was an excellent employee and that he was satisfied

with her job performance. He further testified that Gary Coburn, the police chief

and Ms. Lowber’s former supervisor, had not made him aware of any issues or

problems with Ms. Lowber’s performance when she was an ACO. He did not

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know of any reason why the City Council would oppose hiring Ms. Lowber for

the new ACO position. Several other City employees who worked with

Ms. Lowber when she was an ACO testified that she did a good job during her

prior service with the City and that she was qualified for the new ACO position.

      Ms. Lowber testified that no one ever complained to her about her part-time

work at the restaurant. She explained that the ACO position was part-time for the

majority of the time she worked in that position and that her supervisor,

Mr. Coburn, gave her permission to work another part-time job at the restaurant

while she was working part-time as an ACO. Mayor Damon, who made the

decision not to recommend Ms. Lowber for the new ACO position, testified that

he had concerns about Ms. Lowber’s part-time job at the restaurant during her

prior service as an ACO. But he also testified that he did not have any specific

information about the part-time job issue; he did not conduct any investigation to

determine whether his concerns were based in fact; he did not review

Ms. Lowber’s prior work schedule or time sheets; he did not talk to Mr. Coburn,

Ms. Lowber’s prior supervisor who was still working for the City at the time; and

he did not review Ms. Lowber’s personnel file. Mayor Damon also testified that

he operated a photography business during his tenure with the City and that it was

permissible for City employees to have other employment outside of their City

jobs. Mayor Damon ultimately recommended C.J. Dalke for the new ACO

position, although Mr. Dalke had no prior experience as an ACO.

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      The City has failed to show that “the evidence and all reasonable inferences

to be drawn from it point but one way, in [its] favor.” Praseuth, 406 F.3d at

1250. Accordingly, the district court did not err in denying the City’s motion for

judgment as a matter of law.

                               III. Evidentiary Rulings

      The City contends that the district court committed reversible error when it

admitted two pieces of evidence: a recommendation letter from Mr. Coburn and a

letter from former Mayor Bob Adams inviting Ms. Lowber to apply for a position

in the Water Department. The City also contends that the district court committed

reversible error when it excluded evidence of Ms. Lowber’s arrests and

misdemeanor conviction, which occurred after the hiring decision. Evidentiary

rulings made at trial are reviewed for an abuse of discretion. See Echo

Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1087 (10th Cir.

2001). “[I]f there is error in the admission or exclusion of evidence, we will set

aside a jury verdict only if the error prejudicially affects a substantial right of a

party. The effect on the jury of evidence can only be prejudicial if it can be

reasonably concluded that with or without such evidence, there would have been a

contrary result.” Hinds v. Gen. Motors Corp., 988 F.2d 1039, 1049 (10th Cir.

1993) (citations omitted).

      With respect to the first piece of evidence, the City filed a pre-trial motion

in limine to exclude a recommendation letter allegedly written by Mr. Coburn that

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contained statements about Ms. Lowber’s job performance as an ACO. The City

produced the letter from Ms. Lowber’s personnel file during an investigation into

Ms. Lowber’s claim by the Equal Employment Opportunity Commission.

Because Mr. Coburn died in 2006 and was unavailable during discovery and at

trial, the City argued that the letter constituted inadmissible hearsay. The district

court agreed that the letter was hearsay, but it concluded that the letter was

admissible as a business record under Fed. R. Evid. 803(6), and it denied the

City’s motion in limine. The City again objected to the letter when it was

admitted at trial, but the district court overruled the objection.

      Rule 803(6) permits the admission of a

      [m]emorandum, report, record, or data compilation, in any form . . .
      if kept in the course of a regularly conducted business activity, and if
      it was the regular practice of the business activity to make the
      memorandum, report, record or data compilation, all as shown by the
      testimony of the custodian or other qualified witness.

Fed. R. Evid. 803(6). The City argues that the Coburn letter does not meet the

requirements in Rule 803(6) because it was not made as part of a regularly

conducted business activity. We assume without deciding that the district court

abused its discretion in admitting the Coburn letter, but we conclude that any

error was harmless because the City has failed to show that the jury verdict would

have been different if this letter was not admitted.

      A review of the trial transcript shows that the admission of this letter

played a minimal role in the evidence presented. As noted earlier, there was other

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evidence that Ms. Lowber performed well during her prior service as an ACO.

Moreover, Ms. Lowber’s counsel did not mention the letter in his opening or

closing arguments. Instead, in his closing argument, counsel focused on the fact

that Mayor Damon did not give Ms. Lowber’s application any real consideration,

noting, among other things, that the Mayor did not review her personnel file; did

not talk to her former supervisor, Mr. Coburn; and did not talk to city

administrator Fred Smith about Ms. Lowber’s former service as an ACO.

      With respect to the second piece of evidence, the City filed a motion in

limine to exclude a letter written by Mayor Adams in which he notified

Ms. Lowber about a position in the Water Department and invited her to apply for

it. The City renewed its objection to the admission of the letter at trial. The City

asserted that the letter was inadmissible hearsay, but the district court admitted it

as a business record under Rule 803(6) and as an admission of a party-opponent

under Fed. R. Evid. 801(d)(2)(D). We see no abuse of discretion in the district

court’s decision to admit this evidence.

      With respect to the third piece of evidence, the City argues that the district

court should not have excluded its evidence that Ms. Lowber was arrested in 2007

and 2008 and convicted of a misdemeanor in 2008. The City contends this

evidence was relevant to the issue of damages because, even if the City had hired

her in 2005, it would have terminated her in 2007 or 2008 based on her

arrests/conviction. The district court granted Ms. Lowber’s motion in limine to

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exclude this evidence, concluding that “any probative value would be

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, and misleading the jury.” Aplt. App., Vol. II at 563. We see no abuse of

discretion in the district court’s decision to exclude this evidence.

                                   IV. Conclusion

      The judgment of the district court is AFFIRMED.



                                                     Entered for the Court


                                                     Michael R. Murphy
                                                     Circuit Judge




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