UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ TAMESHA WILLIAMS,
Pl aintiff - Appellee,

v. RGA HOME HEALTH SERVICES, INC.,
De fendant - Appellant. No. 17-1150 (D.C. No. 1:15- CV-02466-MJW) (D. Colo.)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________ Before BRISCOE , HARTZ , and BACHARACH , Circuit Judges.

__________________ _______________ Ms. Tamesha Williams sued her fo rmer employer, RG A Home Health Services, Inc., for breach of contract. On this claim, Magistrate Judge Watanabe granted pa rtial summary judgment to Ms . Williams on liability, leaving the amount of damages to be decided at tria l. RGA verbally

* The parties do not request oral argu ment, and it would not materially help us to decide this appeal. As a re sult, we are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2 ); 10th Cir. R. 34.1(G). This order and judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### October 27, 2017
Elisabeth A. Shumaker Clerk of Court-2- requested a jury trial on da mages. But the court told RGA to request a jury trial in a reply to Ms. Williams’s brief on damage s. No such reply brief was filed, so the magist rate judge treated the da mages calculation in Ms. Williams’s brief as un contested and awarde d damages of $85,900. Afterward, RGA moved to set aside the judgment ba sed on the denial of a jury trial. This motion was denied. RGA appeals, arguing that

 issues of material fact should have precluded partial summary judgment for Ms. Williams and

 the magistrate judge erred in refu sing to set asid e the judgment based on the erroneous deni al of a jury trial. We reject both c ontentions. RGA admitted that a contract existed and that a reasonable factfinder could have found a breach of the contract. In addition, RGA failed to properly demand a jury trial on damages. For these reasons, we affirm.
I. The Award of Partial Summary Judgment The award of partial summa ry judgment was correct. A. Standard of Review A district court’s grant of summary judgment is re viewed de novo. Cillo v. City of Greenwood Vill. , 739 F.3d 451 , 461 (10th Cir. 2013). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We draw reasonable-3- inferences in the light most favorable to the nonmoving party, RGA. Cillo , 739 F.3d at 461.
B. Breach of Contract The elements of a breach of contract claim are: “(1) the existence of a contract; (2) performance by the pl aintiff or some justification for nonperformance; (3) failure to perform the contract by the defendant; and (4) resulting damages to the plaintiff.” W. Distrib. Co. v. Diodosio , 841 P.2d 1053, 1058 (Colo. 1992) (e n banc) (citation omitted). 1 RGA argues that Ms. Williams was te rminated for tard iness, pointing to a tardiness policy that required punctuality. Under the policy, termination was allowed for tardiness but only after successive verbal and written warnings. In district court, RGA did not point to evidence disputing four of Ms. Williams’s stated facts:
1. The tardiness policy was part of a contract.
2. In response to a charge of disc rimination, RGA stated that Ms. Williams had been terminated for violating the tard iness policy.
3. RGA policy required RGA offi cers to warn employees for policy violations.
4. Ms. Williams did not r eceive a warning about tardiness before her termination.

1 Ms. Williams and the district court stated that Colorado law applies, and RGA has not challenged the ap plicability of Colorado law.-4- These undisputed facts en titled Ms. Williams to pa rtial summary judgment on liability. RGA argues that it fire d Ms. Williams not only for tardiness but also for other deficiencies. But RGA never argued in district court that the firing was based even in part on some thing other than the tardiness policy. The district court could not deny summ ary judgment on an argument that RGA hadn’t made. 2
II. The Demand for a Jury Trial on Damages RGA also appeals the district court’s refusal to set aside the judgment based on the de nial of a jury trial on damages. At the final pretrial conference, RGA verbally requested a jury to determine damages. Magistrate Judge Watanabe stated that such a request shou ld be included in RGA’s reply to Ms. Williams’s brief on damages. But RGA never filed a reply or a written jury demand. Because Ms. Williams’s brief on damages was uncontested, Magistrate Judge Watanabe gr anted damages to Ms. Williams in the amount that she had requested. RG A filed a motion to set aside the judgment, which was de nied. RGA appeals this denial. We review the denial for an abuse of discretion. ClearOne Comm’ns,
Inc. v. Bowers , 643 F.3d 735, 754 (10th Cir. 2011 ). We will find an abuse

2 RGA apparently acknowledges that it failed to present this argument in district court, for RGA states that the plain-error standard applies. This standard applies only when the appellant failed to preserve an argument in district court. E.g. , United States ex rel. Bahrani v. Conagra, Inc. , 624 F.3d 1275, 1284 (10th Cir. 2010).-5- of discretion only if the district court committed an error that was “‘definite, clear or unmistakable.’” Thomas v. Parker , 609 F.3d 1114, 1119 (10th Cir. 2010) (quoting Zurich N. Am. v. Matrix Serv. , 426 F.3d 1281, 1289 (10th Cir. 2005)). We conclude that the magistrate judge acted within his discretion. A party can obtain a jury tr ial on timely demand. Fed. R. Civ. P. 38(b). This demand must be in writing, se rved, and filed with the court. Id . But the right to a jury trial is wa ivable. Fed. R. Civ. P. 38(d). Here RGA waived a jury trial by failing to f ile a written jury demand. See id . (“A party waives a jury trial unless its demand is properly served and filed.”); Vesper Const.
Co. v. Rain for Rent, Inc. , 602 F.2d 238, 241 (10t h Cir. 1979) (“Rain’s failure to file a timely jury demand pursu ant to [Rule] 38( b)[] constituted a waiver of its right to jury trial.”). Thus, the district court did not abuse its discretion in declining to set aside the judgment. Affirmed. Entered for the Court

Robert E. Bacharach Circuit Judge