F I L E D

United States Court of Appeals

Tenth Circuit

OCT 29 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff,

and

NANCY D. SMYLIE;

VAN WILLIAM SCHMITZ,

Plaintiffs-IntervenorsAppellants,

v.

LORAL AEROSPACE

CORPORATION, doing business

as Loral Aerospace Services,

Defendant-Appellee.

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

and

NANCY D. SMYLIE;

VAN WILLIAM SCHMITZ,

Plaintiffs-Intervenors,

No. 97-2333

(D.C. No. CIV-96-597-PK)

(D. N.M.)
* This order and judgment is not binding precedent, except under the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. 

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v.

LORAL AEROSPACE

CORPORATION, doing business

as Loral Aerospace Services,

Defendant-Appellee.

No. 97-2350

(D.C. No. CIV-96-597-PK)

(D. N.M.)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.

Plaintiff, Equal Employment Opportunity Commission (EEOC), and

plaintiffs-in-intervention, Nancy D. Smylie and Van William Schmitz, sued

defendant, now known as Lockheed Martin Aerospace Corp., claiming defendant

violated Title VII by removing Ms. Smylie from a flight director training program
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because she is a woman, and by retaliating against Mr. Schmitz by discharging

him when he complained about the unlawful treatment of Ms. Smylie. After a

jury trial, a verdict was returned in favor of defendant. The district court entered

a judgment on the verdict against the EEOC, Ms. Smylie and Mr. Schmitz, which

they now appeal. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm. 

On appeal, Ms. Smylie and Mr. Schmitz assert error in three jury

instructions and two evidentiary rulings. They also claim that cumulative error

requires a new trial. The EEOC’s appeal overlaps that of Ms. Smylie and

Mr. Schmitz on the issue of the district court’s failure to give one jury instruction. 

Defendant claims plaintiffs failed to preserve three of their appellate issues and,

in any event, the district court’s rulings were correct. 

Defendant claims that plaintiffs failed to register their objections to two of

the jury instructions because they did not renew their objections after all of the

instructions were read to the jury, as required by the district court. The district

court’s directive, however, required the parties to register any new objections

after the instructions were read. Because plaintiffs made their objections during

the jury instruction conference, their issues were preserved for appeal. See

Fed. R. Civ. P. 51. Defendant also asserts that plaintiffs waived their objections

to the evidentiary rulings, both of which were addressed in a pretrial order

disposing of various motions in limine, because they did not renew their
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objections. The record demonstrates that plaintiffs timely objected to the

exclusion of the evidence. We proceed to address the merits of plaintiffs’ claims. 

“We review a district court’s decision on whether to give a specific jury

instruction for abuse of discretion, but we review the instructions themselves de

novo to determine whether as a whole they state the governing law and provide

the jury with a proper understanding of the issues.” Gunnell v. Utah Valley State

College , 152 F.3d 1253, 1259 (10th Cir. 1998). Any error in the jury instructions

is harmless, however, if the appellant suffered no prejudice. See Osteguin v.

Southern Pac. Transp. Co. , 144 F.3d 1293, 1295 (10th Cir. 1998). 

Ms. Smylie, Mr. Schmitz and the EEOC appeal the district court’s refusal

to give a stipulated instruction stating that a causal connection may be inferred

from protected opposition to discrimination closely followed by adverse

employment action. The jury was permitted to draw such an inference, see Marx

v. Schnuck Mkts., Inc. , 76 F.3d 324, 329 (10th Cir. 1996), “but a judge need not

deliver instructions describing all valid legal principles,” particularly where the

inference is permissible but not obligatory, Gehring v. Case Corp. , 43 F.3d 340,

343 (7th Cir. 1994). The district court permitted plaintiffs’ counsel to argue that

the timing created an inference of retaliation. See R., vol. V at 1223. Plaintiffs

argue that they were prejudiced because the jury may not have understood that

this circumstantial evidence was sufficient to find that retaliation was a
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motivating factor in the decision to discharge Mr. Schmitz. Viewing the jury

instructions as a whole, particularly Instruction No. 5 (“Plaintiffs are not required

to produce direct evidence of discriminatory motive,” but may rely on

circumstantial evidence, Appellants’ App., vol. III at 113), we conclude that the

instructions stated the applicable law and provided a proper understanding of the

issues. 

The remaining claims of error are presented by Ms. Smylie and

Mr. Schmitz, but not by the EEOC. They challenge the jury instruction permitting

the jury to find that defendant may have had a mixed motive for discharging Mr.

Schmitz. The jury found that retaliation was not a motivating factor in Mr.

Schmitz’s termination, so did not reach the question of a mixed motive. 

Therefore, any error in the challenged instruction was harmless because plaintiffs

have suffered no prejudice. See Osteguin , 144 F.3d at 1295 & n.4. 

Plaintiffs next claim that Instruction No. 8E improperly imposed an

additional element of a cause of action for retaliation by requiring a finding that

Mr. Schmitz had a good faith, reasonable belief that defendant had removed

Ms. Smylie from the training program on the basis of her gender. Plaintiffs allege

that the instruction invited the jury to speculate on their good faith. The complete

jury instruction, however, is a correct statement of the law that plaintiffs did not

have to prove that defendant had in fact violated Title VII, but only that
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Mr. Schmitz had a reasonable, good faith belief that defendant’s actions violated

the law. See Love v. Re/Max of Am., Inc. , 738 F.2d 383, 385 (10th Cir. 1984)

(“[O]pposition activity is protected when it is based on a mistaken good faith

belief that Title VII has been violated.”). Accordingly, the instruction was not an

abuse of discretion. 

Plaintiffs also challenge the district court’s rulings on two evidentiary

matters. First, they claim the district court should have admitted into evidence

the EEOC’s findings and determinations of probable cause regarding defendant’s

alleged Title VII violations. The court excluded the evidence, finding that

admitting it would compromise defendant’s right to a fair trial. We review for an

abuse of discretion a district court’s determination of relevance and prejudice

regarding a report otherwise admissible under Fed. R. Evid. 803(8)(C). See

Vining ex rel. Vining v. Enterprise Fin. Group, Inc. , 148 F.3d 1206, 1217-18

(10th Cir. 1998). As the district court noted, the danger of unfair prejudice from

an agency’s finding of probable cause is greater in a jury trial than a bench trial,

particularly where the EEOC is a party to the litigation. See Walker v.

NationsBank of Fla. N.A. , 53 F.3d 1548, 1554 (11th Cir 1995). We find no abuse

of discretion in the district court’s ruling. 

Finally, we address plaintiffs’ claim that the district court erred in

admitting testimony that Mr. Schmitz had consumed alcoholic beverages during
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working hours. They assert that the evidence was inadmissible because defendant

was unaware of it until after Mr. Schmitz was fired, so it could not have

contributed to the decision to terminate his employment. Plaintiffs rely on the

affidavit and testimony of Mr. Schmitz’s supervisor who did not include alcohol

use in his reasons for terminating Mr. Schmitz’s employment. One of the stated

reasons was complaints from employees under Mr. Schmitz’s supervision. An

employee testified that Mr. Schmitz had appeared at work intoxicated and unable

to perform his duties. See R., vol. IV at 915-16. Other testimony was admitted to

show that employees were dissatisfied with Mr. Schmitz’s job performance. See,

e.g. , id., vol. IV at 953-54. The evidence was relevant to defendant’s reasons for

discharging Mr. Schmitz. Accordingly, we cannot say that the district court

abused its discretion in admitting it. See Breeden v. ABF Freight Sys., Inc. , 115

F.3d 749, 754 (10th Cir. 1997) (trial court’s rulings to admit or exclude evidence

reviewed for abuse of discretion). Plaintiffs claim of cumulative error must also

fail. See Allen v. Minnstar, Inc. , 97 F.3d 1365, 1374 (10th Cir. 1996) (finding no

error; therefore, no cumulative error). 
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The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.

Entered for the Court

Deanell Reece Tacha

Circuit Judge