* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 31 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

RITA SANCHEZ,

Plaintiff-Appellant,

v. MORA-SAN MIGUEL ELECTRIC COOPERATIVE INC.; SUSANO F. ORTIZ; H. FELIX VIGIL; JOANN MARTINEZ; JOSEPH C. DE BACA; ELIAS DURAN; CARLOS LOVATO; HERMAN LUJAN; MARCELINO ORTIZ; DAMACIO RIVERA; FRANK ROYBAL; FRANK C. TRAMBLEY; and ERNESTO GONZALES, individually and in their official capacities,

Defendants-Appellees. No. 98-2061 (D.C. No. CIV-96-1430-RPL/WWD)

(D. N.M.)

ORDER AND JUDGMENT *

Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.1 The summary judgment motions and the case were trie d before the

magistrate judge upon the consent of the parties. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10 th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff lost her job after her position was elimi nated. She then brought an action against defendants, the Mora-San Miguel Elec tric Cooperative, Inc., its general manager Ernesto Gonzales and individual mem bers of the Board of Trustees for the Cooperative, alleging Title VII an d state law retaliatory discharge claims and a breach of contract claim. A jury foun d in favor of defendants on the retaliation claims and in favor of plaintiff on the breach of contract claim. Before trial, on summary judgment, the district court 1 had ruled against plaintiff on the issue of back pay. On appeal, plaintiff alleges er rors in the jury instructions and in denial of back pay. We have jurisdiction pu rsuant to 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND In December of 1994, the Cooperative hired plaintif f as an engineer. In December of 1995, she filed a complaint with the New Mexico Human Rights Commission alleging retaliation against her because of her sex and/or because of-3-

a previous complaint. The New Mexico Human Rights Commission issued a finding of probable cause in support of the compl aint on July 3, 1996. The Board, at its next scheduled meeting, on July 30, 1 996, discussed whether there was a need for the engineering position that plaint iff held. After the meeting, Mr. Gonzales performed a cost analysis and recommen ded elimination of the position for economic reasons. On August 29, 1996, the Board approved the recommen dation. On September 3, 1996, Mr. Gonzales notified plaintiff of the elimination of the position, effective that day. Thereafter, plaintiff filed this action, alleging t hat her position was eliminated in retaliation for filing the discrimination complaint. Also, she alleged that her employment contract had been breac hed because elimination of her position for retaliatory reasons was tantamo unt to termination of her employment without just cause. Both parties submitted motions for partial summary judgment on back pay and plaintiff’s duty t o mitigate her damages with respect to the retaliation claims. The court granted defendants’ motion and denied plaintiff’s motion, holding that even if pla intiff prevailed on her retaliation claims at trial, she would not be awarded back pay due to her failure to mitigate damages. The jury returned a verdict finding no re taliation, but that defendants-4-

had breached plaintiff’s employment contract. It awarded her back pay of $1700 and punitive damages of $3750.

II. PRETEXT INSTRUCTION Plaintiff first challenges jury instruction No. 11, which addresses pretext. She argues that the district court “erred by instru cting the jury that [she] had to do more than rebut the pretext of a legitimate, non retaliatory reason” proffered by defendants. Appellant’s Br. in Chief at 10. Speci fically, she objects to the instruction’s direction that the jury was not to se cond guess the employer’s decision and that the employer was not required to prove that it was actually motivated by the legitimate, nondiscriminatory reas on it asserted. She argues that the instruction is contrary to the law set forth in St. Mary’s Honor Center v. Hicks , 509 U.S. 502 (1993), because it requires proof of “pretext plus.” St. Mary’s rejected “pretext plus” by holding that a factfind er’s rejection of the employer’s proffered legitimate, non-discriminatoryreason for its employment decision along with the prima facie case is suffici ent to show retaliation and the plaintiff is not required to make an additional showing of retaliation. See id. at 511. Plaintiff further believes that the instructi on prevented the jury from judging defendants’ credibility when assessing pretext. “We review a district court’s decision to give a particular instruction for abuse of discretion.” Medlock v. Ortho Biotech, Inc. , 164 F.3d 545, 552-5-

(10th Cir. 1999). In determining whether the courtproperly instructed the jury on the applicable law, however, we review all of th e instructions to determine if the jury was misled. See id. Also, “we consider all the jury heard, and from t he standpoint of the jury, decide not whether the char ge was faultless in every particular, but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine these issues.” King v. Unocal Corp. , 58 F.3d 586, 587 (10th Cir. 1995) (quotations omi tted). We therefore will reverse a jury instruction error onl y if we determine any error is prejudicial after reviewing either the record as a whole or record excerpts sufficient to determine the issue. See id.

A. ADEQUACY OF THE RECORD In this case, we must first determine whether we have an adequate record to decide this issue. See id. Defendants argue that we do not because plaintiff’s appendix failed to include all of the jury instruct ions and contained only limited excerpts of the trial transcript. Cf. Roberts v. Roadway Express, Inc. , 149 F.3d 1098, 1109 (10th Cir. 1998) (determining objections to jury instructions could not be considered where appellant failed to provide ins tructions or complete record of proceedings on which instructions were based). Although plaintiff did not include all of the jury instructions as is required, see 10th Cir. R. 10.3(C)(6) (formerly 10th Cir. R. 10.3.1(e)), defendants fileda supplemental appendix2 Neither plaintiff nor defendants provided any excerpts of plaintiff’s trial

testimony. Although defendants argue that plaintif f should have provided this testimony, they fail to indicate why it is necessary for the determination of this issue. We conclude that it is not needed. -6- including all instructions, see 10th Cir. R. 30.2(a)(1) (formerly 10th Cir. R. 30. 2) (permitting appellee to file appendix including ite ms appellee believes should have been included in appellant’s appendix). Plaintiff provided excerpts of the transcript she believed were necessary to decide th is issue. Defendants included additional excerpts, which presumably they believe are sufficient for consideration and determination of this issue. 2Because defendants have provided us with additional portions of the trial transcriptand the complete jury instructions, we conclude we have a sufficient reco rd and therefore will consider plaintiff’s challenge to the jury instruction. Cf. United States v. Stoner , 98 F.3d 527, 530 (10th Cir. 1996) (although court is not re quired to consider challenge to evidence when appellant fails to provide trial tran script, court did so because government supplemented record with portions of trial transcript), adhered to in part on reh’g , 139 F.3d 1343 (10th Cir.), cert. denied , 119 S. Ct. 403 (1998).

B. MERITS Proceeding to the merits, we first consider the rel evant burdens of proof in retaliation actions. The three-step approach to di scrimination claims set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973), and Texas3 Defendants argue that plaintiff failed to present aprima facie case.

Because the court submitted the case to the jury, we assume that plaintiff did. Cf. United States Postal Serv. Bd. v. Aikens , 460 U.S. 711, 714-15 (1983) (where defendant does everything required of him as if pla intiff made prima facie case, whether plaintiff actually did so is irrelevant bec ause factfinder could determine ultimate question of whether defendant intentionall y discriminated against plaintiff). -7- Department of Community Affairs v. Burdine , 450 U.S. 248, 252-53 (1981), also applies to retaliation claims. See Berry v. Stevinson Chevrolet , 74 F.3d 980, 985 (10th Cir. 1996). First, the plaintiff must set fo rth a prima facie case of retaliation by establishing (1) she engaged in a pr otected activity; (2) her employer took adverse employment action; and (3) a causal connection existed between the protected activity and the adverse employment action. 3 See McCue
v. Kansas , 165 F.3d 784, 789 (10th Cir. 1999). If the plaintiff meets this burden, the burden of p roduction shifts to the defendant to present evidence of a legitimate, nonr etaliatory business reason for its decision. See Berry , 74 F.3d at 986; Sauers v. Salt Lake County , 1 F.3d 1122, 1128 (10th Cir. 1993). If the defendant produces s uch evidence, the burden then returns to the plaintiff to show by a preponderance of the evidence that the defendant’s proffered reason was a mere pretext for retaliation. See McCue , 165 F.3d at 789; see also Randle v. City of Aurora , 69 F.3d 441, 451-52 (10th Cir. 1995) (citing Burdine , 450 U.S. at 256) (plaintiff may meet burden by sh owing employer’s offered reason is unworthy of credence). The ultimate burden of4 Instruction No. 10 provided: To establish a prima facie case of retaliation under Title VII or the New Mexico Human Rights Act, [plaintiff] must s how the following: 1. Participation in an activity protected by Title VII or the New Mexico Human Rights Act; 2. Adverse action by an employer contemporaneous w ith or subsequent to the employee’s protected activity; an d 3. A causal connection between such activity and t he employer’s action. If a prima facie case is established, the Defendant Cooperative must articulate a legitimate non-retaliatory reason for the adverse action. Once the Cooperative articulates its reaso n, [plaintiff] must demonstrate by a preponderance of the evidence thatthe articulated reason was a mere pretext for retaliation. Appellant’s App. at 105.

-8- persuading the jury that the defendant retaliated a gainst the plaintiff always remains with the plaintiff. See St. Mary’s , 509 U.S. at 507, 511, 518. The parties agree that the district court correctlyinstructed the jury as to these three steps. 4Jury instruction No. 11, the instruction in quest ion, provided further explanation of the burdens applicable afterplaintiff made a prima facie case. It provided:

A legitimate, non-retaliatory reason is any reason or explanation unrelated to [plaintiff’s] participatio n in protected-9-

activity. In considering the legitimate non-retali atory reason stated by the Cooperative for its decision, you are not to second guess that decision or to otherwise substitute your judgment f or that of the Cooperative. In this case, the ultimate burden of persuading the jury that the Cooperative intentionally discriminated against [pl aintiff] because she filed a charge of discrimination remains at all times with the Plaintiff. The Defendant is therefore not required to prove that its decision was actually motivated by the legitimate, non-retaliatory reason. Appellant’s App. at 106. In challenging the last sentences in both paragraph s of instruction No. 11, plaintiff argues the instruction requires proof of “pretext plus.” Also, she argues that the instruction effectively tells the jury it may not disbelieve defendants and decide that the elimination of the position was pre text and effectively relieves defendants of any exposure. See Appellant’s Br. in Chief at 13-14. Plaintiff believes that she could successfully attack the cre dibility of her former employer’s reason, but defendants could still avoidliability. Thus, plaintiff maintains that the instruction prevents the jury fr om judging the employer’s credibility when determining pretext. We disagree with plaintiff’s challenges to the two sentences. Instruction No. 11 properly stated that the jury should not sec ond guess the Cooperative’s decision to eliminate the position for economic reasons. Cf. Beaird v. Seagate Tech., Inc. , 145 F.3d 1159, 1169 (10th Cir.) (stating in Age D iscrimination in-10-

Employment Act (ADEA) case that business decision n eed not be wise; it must only be nondiscriminatory), cert. denied , 119 S. Ct. 617 (1998); Faulkner v. Super Valu Stores, Inc. , 3 F.3d 1419, 1427 (10th Cir. 1993) (indicating inADEA case that courts will not second guess business decision s without evidence of impermissible motives shown by plaintiff); see also Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit ¶5.94, at 194 (1998) (“You may not return a verdict for plaintiff just b ecause you might disagree with defendant’s (decision) or believe it to be harsh orunreasonable.”) (footnote omitted). In meeting their burden, defendants were not required to “‘persuade the [jury] that [they were] actually motivated by the proffered reasons.’” St. Mary’s , 509 U.S. at 510 (quoting Burdine , 450 U.S. at 254); see also Considine v. Newspaper Agency Corp. , 43 F.3d 1349, 1363 (10th Cir. 1994) (defendant do es not have to prove merits of reason or that it was b ona fide). Also, the instructions, read as a whole, did not re quire a showing of “pretext plus.” As is required, the instructions p roperly stated that plaintiff had the burden of challenging the legitimate, nonretali atory reason offered by defendants to prove pretext and that she had the ul timate burden of proving retaliation. If she disproved the reasons offered by defendants, the instructions did not require her to produce additional evidence of discrimination to prevail. Rather, the jury was permitted to determine which p arties’ explanation of the5 The district court could have instructed the jury that its “disbelief of the

reasons put forward by . . . defendant[s] . . . may , together with the elements of the prima facie case, suffice to show intentional d iscrimination” and that “rejection of the defendant’s proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination.” St. Mary’s , 509 U.S. at 511; see Randle , 69 F.3d at 451 (after rejecting defendant’s proff ered reason, jury may find illegal discrimination upon nothing more than prima facie case and pretext) . Failure to give such an express instruction, howeve r, did not improperly require plaintiff to show “pretext plus.” -11- employer’s motivation to believe. See St. Mary’s , 509 U.S. at 519; Berry , 74 F.3d
at 987. 5 Nothing precluded the jury from scrutinizing defend ants’ decision to determine whether it was so questionable that it wa s a pretext for discrimination.
See Beaird , 145 F.3d at 1169; see also Sanchez v. Philip Morris Inc. , 992 F.2d 244, 247 (10th Cir. 1993) (business decision relevant only insofar as it relates to employer’s motive with respect to alleged illegal c onduct). The instruction correctly placed the burden upon plaintiff to prove that retaliation was the motivating factor in the elimination of the engineer position. See Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442, 1455 (10th Cir. 1997). Although jury instruction No. 11 is not a model of clarity, it is not contrary to other jury instructions which are more informati ve and more clear. For example, one set of pattern jury instructions provi des, in relevant part, as follows:

If you determine that the plaintiff has made out a prima facie case of [retaliation], the burden shifts to the def endant to either-12-

disprove an element of the plaintiff’s case, or to articulate a legitimate non-discriminatory reason for his action

. 5 Leonard B. Sand et al., Modern Federal Jury Instructions ¶87.01, at 87-76 (1998). The defendant in this case has stated a legitimate, [non-retaliatory] reason . . . . By doing so, the defendant has met his burden of producing some explanation of his actions other than discrimination. It is not necessary that the reaso n be a good one, or even that you believe it to be true. All the defen dant need do is state a reason other than [retaliation] for his action. It is the plaintiff’s obligation to disprove that it was the reason for the defendant’s action, not the defendant’s burden to convince you that it was his reason. By meeting this intermediary burden, the defendant shifted the burden of persuasion back to the plaintiff. Id. at 87-83.The plaintiff has introduced evidence that the defe ndant’s articulated reason for his action is nothing more than a pretext for [retaliation]. In other words, the plaintiff has i ntroduced evidence to show that the defendant’s reasons are not the true reasons why the defendant took adverse action(s) against the plaint iff, that such reasons are unworthy of belief and that the true re ason for the adverse action(s) was [retaliation]. When you consider the plaintiff’s evidence that the reason advanced by the defendant is pretext, keep in mind that the relevant question is whether the defendant’s reason was not the real reason for his actions. The question is not whether the d efendant’s reason showed poor or erroneous judgment. You are not to judge the defendant’s wisdom. An employer is entitled to mak e an employment decision for a good reason, a bad reasonor no reason at all, so long as the decision is not motivated by un lawful [retaliation]. However, you may consider whether the defendant’s r eason is merely a cover-up for [retaliation]. . . . You also should carefully evaluate-13-

any subjective reasons that the defendant has asserted for taking the action(s) against the plaintiff that it did in deci ding whether the plaintiff has met his burden of proof. It is the plaintiff’s burden to persuade you, by a preponderance of the evidence that the defendant took the adverse action(s) against the plaintiff because of [retaliation]. If you do not believe the defendant’s explanations for its action(s), then yo u may infer, but need not infer, that the plaintiff has satisfied hi s burden of proof that the defendant intentionally [retaliated] against hi m. . . . Id. at 87-86.
In Mason , 115 F.3d at 1454-55, this court upheld a challeng ed pretext instruction in a political patronage and/or retaliation case. In part, the instruction provided: The Defendants in this case allege that the Oklahom a Turnpike Authority had a legitimate reason for terminating the Plaintiff, i.e., an agency reorganization. The Defendants do not be ar the burden of proof with respect to the reason for terminating th e Plaintiff. Thus, the Plaintiff can prevail only if he proves, by a p reponderance of the evidence, that political patronage was a substantia l or motivating factor in the decision to terminate him, in additio n to any legitimate, non-discriminatory reasons. If you find that the stated reasons given by the De fendants are inconsistent or implausible . . . then you may conc lude that the offered explanation is a mere pretext for political patronage. If you find pretext, you may also infer that political pat ronage was a substantial or motivating factor in the employment decision; though you are not required to draw such an inference. If you do not find that the Defendants’ explanation s were a mere pretext, you must still consider whether polit ical patronage was a determining factor in the Plaintiff’s termination

.-14- The Plaintiff is not required to prove that politic al patronage was the sole motivation or the primary motivation f or the Defendants’ decision to terminate his employment. The Plaintiff need only prove that political patronage was a subs tantial or motivating factor in the decision to discharge him. Id. at 1454-55. This court determined these instructi ons properly placed the burden of proof on the plaintiff to prove that poli tical patronage and/or retaliation was a substantial motivating factor in the employment decision. See id. at 1455. Furthermore, the instructions permitted the jury to determine an illegitimate motive existed if it rejected the defendant’s proff ered reason for the employment decision. See id. ; see also Provencher v. CVS Pharmacy , 145 F.3d 5, 9 (1st Cir. 1998) (upholding retaliation instruction that place d burden on plaintiff to prove that he was fired for retaliatory reason, even thou gh some language in instruction was problematic). Likewise, the instruction here p roperly placed the burden on plaintiff and was not infirm. We also reject plaintiff’s argument that instructio n No. 11 precluded the jury from considering defendants’ credibility. The instructions as a whole informed the jury it could choose to disbelieve the legitimate, non-retaliatory reason proffered by defendants. See Appellees’ Supp. App. at 263, 2816 Plaintiff suggests that the jury necessarily reject ed defendants’ alleged

nondiscriminatory reason that they eliminated the p osition for economic reasons because the jury found for plaintiff on the breach of contract claim. We do not agree. The jury could find that defendants breache d the contract without determining that they retaliated against her. The jury may have believed the evidence indicating that plaintiff was insubordinat e and had performance problems. -15- (instructing jury that it was sole judge of dispute d facts and that it was judge of credibility of witnesses and weight to be given witnesses’ testimony). 6 We conclude that the jury instructions as a whole a ccurately stated the burdens of proof and that the jury was not misled. Accordingly, we further conclude that there was no prejudice to plaintiff. See McCue , 165 F.3d at 790.

III. BACK PAY AND MITIGATION Plaintiff argues that the district court erred in g ranting summary judgment on the issue of back pay and mitigation with respec t to the retaliation claims. Plaintiff believes that defendants did not meet the ir burden of proving that she did not sufficiently mitigate her damages by seeking other relevant work. Also, she contends that mitigation is a jury issue, not appro priate for disposition on summary judgment. Back pay is permitted to provide equitable relief f or Title VII violations.
See id. at 791-92 (citing 42 U.S.C. § 2000e-5(g)). Inasmu ch as plaintiff did not prevail on her retaliation claims, she would not be entitled to back pay.7 The district court actually entered the summary jud gment order on

September 22, 1997. -16- Accordingly, this issue is moot, and we do not address its merits. See Jones v.
Temmer , 57 F.3d 921, 922 (10th Cir. 1995) (exercise of ju dicial power requires controversy and federal courts will not render advi sory opinions).

IV. MITIGATION INSTRUCTION Lastly, plaintiff argues that the district court er red in instructing the jury that it could award damages for breach of contract only after September 27, 1997, the date of the summary judgment order, 7and thereby precluded the jury from considering and awarding damages from the terminati on of her employment. Because mitigation of damages for breach of contrac t is an affirmative defense, defendants bear the burden of proving that plaintif f failed to mitigate her damages. See Board of Educ. v. Jennings , 701 P.2d 361, 363 (N.M. 1985). Defendants must prove plaintiff failed to exercise reasonable diligence to minimize her damages by seeking the same type and g rade of employment from which she was discharged. See id. (wrongfully discharged teacher); Pape v. Ingram , 363 P.2d 1029, 1031 (N.M. 1961). From September 3, 1996, to September 27, 1997, plai ntiff’s efforts to find relevant work consisted of making three telephone c alls to other electric cooperatives, making one telephone call to the New Mexico Highway Department,-17-

and giving her resume to the New Mexico Department of Labor to forward to Intel Corporation. These efforts all occurred in S eptember of 1996. The record does not indicate that she sought comparable employ ment in any geographical area after that date and through September 27, 1997 . Just as the district court determined as a matter of law that plaintiff failed to make reasonable efforts to mitigate her damages before September 27, 1997, with respect to the retaliation claims, we too determine as a matter of law that pl aintiff failed to make reasonable efforts to mitigate her damages before S eptember 27, 1997, with respect to the breach of contract claim. We theref ore conclude defendants met their burden of proof and the district court did no t err in instructing the jury that it could award damages for breach of contract only after September 27, 1997. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED. Plaintiff’s motion to file a s upplemental appendix is
GRANTED.

Entered for the Court

Robert H. Henry Circuit Judge