UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ SENAYET TUFFA; SADIA ABDUSALEM; AGNES AIDOO; MARY BOATEMAH; AMINA BORIYO; NURIDA BORIYO; LENSSA BUBA; ABDI CHALTU; TIGEST DESTA; ELASABETH GETACHEW; ZEWDINEH GIZAW; BANCHEAMLAK HAILU; KAMIRIYA JIMJIMO; BERHANE KIDANE; MAKIDA LESISO; ADDISALEM NIGATU; OSHAIK OWMAR; MOMINA TUFA; FIKERETE WAKJIRA; ROBDU WALIO; REDA WELANSA; SHEWANARGAW WOLDEPSEICK; GEZAHEGNE WOLDHNNA; FISSEHA WONDAFRASH,
Pl aintiffs-Appellants,

v. FLIGHT SERVICES & SYSTEMS, INC., Defendant-Appellee. No. 15-1163 (D.C. No. 1:13- CV-03243-RBJ) (D. Colo.)

__________________ _______________ ORDER AND JUDGMENT *

* The plaintiffs have requested oral argument, but we do not believe oral argument would be helpful. As a result, we are deci ding 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. (continued) FILED United States Court of Appeals Tenth Circuit 

### April 5, 2016
Elisabeth A. Shumaker Clerk of Court2 __________________ _______________ Before GORSUCH , McKAY , and BACHARACH , Circuit Judges.

__________________ _______________ This appeal arises out of the firing of 22 African employees by Flight Services & Systems, In c. The 22 employees invok e Title VII, claiming disparate treatment based on race or national origin. 1 See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). After a jury trial, Flight Services obtained a judgment in its favor. For 18 of the plaintiffs , the district court excl uded a letter from the Equal Employment Opportunity Comm ission (EEOC), which had found reasonable cause to beli eve that Flight Services had violated Title VII. 2

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).

1 Two other Africa n employees sued, but thei r claims are not involved in this appeal.

2 The letter states: I have considered all the ev idence obtained during the investigation and find that there is reasonab le cause to believe that there is a violation of Titl e VII in that [F light Services] failed to provide language assi stance when employees were required to take th e SIDA Badge Test, and engaged in a nationwide pattern or practice of discrimination by requiring applicants to take and pass tw o internal tests that required applicants to be proficient in reading, writing and speaking English, a requirement that is not necessary for the satisfactory performance of their jobs. Likewi se, [Flight Services] failed to conduct an impact study, job task analysis, and/or studies to establish the validity of the two internal tests, which tests have (continued)3 The district court reasoned that under Federal Rule of Evidence 403, the probative value of the EEOC letter wa s substantially outweighed by the dangers that the jury would be unfairly prejudiced, confused, or misled. The plaintiffs appeal the exclusion of the EEOC lette r. Because the district court did not abuse its discretion in excluding the letter, we affirm.
I. We review the district court’s d ecision to exclude the EEOC letter for an abuse of discretion. In reviewing the evidentiary ruling, we apply the abuse-of-discretion standard. Frederick v. Swift Transp. Co. , 616 F.3d 1074, 1083 (10th Cir. 2010). The plaintiffs argue that we s hould intensify our review when considering the admissibili ty of agency findings on discrimination. We disagree, for we have co nsistently reviewed the admissibility of agency findings under the c onventional abuse-of-discretion standard. In Hall v. Western Product Co. , for example, the plaintiff alleged violation of the Age Discrimination in Employment Act. 988 F. 2d 1050, 1051 (10th Cir.

a disparate impact based on r ace (Black) and na tional origin (nationalities which favor a la nguage other th an English). [Flight Services’] discriminatory practices adversely affect a class of aggrieved individuals who are Black, or whose nationality favors a language other than English. . . . The Commission makes no finding re garding any other allegation made in the charges. Appellant’s App’x, vol. 2 at 48-49.4 1993). Invoking Rule 403, the district court dec lined to ad mit into evidence a Wyoming Fair Employment Commission report that had found no discrimination. Id. at 1058. We affirmed, reason ing that “the district court is granted discretion to dete rmine when otherwise relevant, thus admissible, evidence s hould be excluded.” Id. ; see also Nulf v. Int’l Paper
Co. , 656 F.2d 553, 563 (10th Cir. 1981) (“Trial courts have discretion in deciding whether to admit EEOC determinations into evidence . . . .”). Rule 403 grants the same discretion to the district court here. Accordingly, we ask only whether the di strict court abused its discretion in excluding the EEOC letter. II. The district court did not abus e its discretion in excluding the EEOC letter. 3 To avoid confusing the jury, the district co urt applied Rule 403, which allows exclusion of relevant evidence if the “probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury.” In applying this rule, the district court reasoned that

 the jury might be “overly infl uenced” by the EEO C report and

3 The plaintiffs argue that we must first analy ze whether the EEOC letter (1) is relevant under Federal Rule of Evidence 401 and (2) falls under the public-record exception to th e rule against hear say (Federal Rule of Evidence 803(8)). We assume, without deciding, that the letter is relevant and that it qual ifies as a pub lic record.5  the EEOC applied a different standard of proof than the standard to be applied by the jury. Appellant’s App’x, vol. 2 at 58-59. This evidentiary ruling did not constitute an abuse of discretion. A. The letter could have en gendered undue deference to the EEOC’s findings and confused the jury. The district court concluded that the letter posed too great a risk of unfair prejudice and juror confusion. In our view, the district court did not abuse its discretion in comi ng to this conclusion. First, if the district court allo wed introduction of the EEOC letter, the jury may have felt the need to defer to the EEOC because of its perceived expertise. To avoid this risk, the court may have reasonably thought it need ed to exclud e the letter. See Hall , 988 F.2d at 1058 (holding that it was not an abuse of disc retion for the tria l court to exclude an agency findi ng of no discrimination on the ground that the report would “suggest to the jury that it should reach the same c onclusion” as the agency). Second, introduction of the EEOC letter might ha ve confused the jury because different standards and theo ries were involved in the EEOC proceedings and the jury trial. In the EEOC proceedings, the standard was “reasonable cause,” but the jury had a different standard: “preponderance of the evidence.” See Jury Inst. No. 2, Dkt. No. 86; see also note 5, below (discussing judicial notice of the proceedings in di strict court). In these6 circumstances, the jury would have ne eded to temper deference to the EEOC based on recognition that it applied a different burden of proof. The EEOC not only applied a differe nt standard, but also considered different theories. The EEOC co nsidered disparate impact, 4 but in the trial the plaintiffs did not cl aim a disparate impact. 5 Instead, they relied on a different theory: di sparate treatment. See J.V. v. Albuque rque Pub. Schs. , ___ F.3d ___, 2016 WL 683282, at *7 (10th Cir. Feb. 19, 2016) (“Unlike a claim for disparate treatment, a claim for disparate impact doesn’t require proof of intentional disc rimination.”) (internal quo tation marks omitted)). Thus, if the EEOC letter ha d been introduced, the jury would have had to account for a differen ce in the claims. Ignoring differen ces in the standa rds and the claims, the plaintiffs argue that the EEOC’s expe rtise would have helped the jury. That may be true. Even if it is, howev er, the difference in stan dards and claims could easily have led to confusion as the jury attempted to separate its own inquiry from the EEOC’s.

4 Appellant’s App’x, vol. 2 at 48 -49 (EEOC’s statement that two of Flight Services’ tests “h ave a disparate impact based on race . . . and national origin”).

5 The trial transcript is not in our reco rd on appeal. But we can take judicial notice of the admi ssion by the plaintiffs’ counsel that he was not asserting a claim of disparate impact. Trial Trans. at 778; see Guttman v. Khalsa , 669 F.3d 1101, 1127 n.5 (10th Cir. 2012) (stati ng that the court can take judicial notice of filings in district court).7 B. The district court did not appl y a per se rule of exclusion. The plaintiffs argue that the distri ct court applied a per se rule of exclusion. We disagree; the court considered the EEOC letter and expressly determined that the letter would likely have

 confused and misled the jury and

 created unfair prejudice.
See Appellant’s App’x , vol. 2 at 58-5 9 (acknowledgment by the district court of the “serious da nger that the jury will think . . . the agency has already decided that the plaintiff[s] wi n[] this case . . . [a]nd . . . perhaps [be] overly influenced”). In arriving at this dete rmination, the court acted within its discretion. C. The district court did not fail to give the EEOC letter minimal reasonable risk of unfair prejudice. In addition, the plainti ffs argue in their reply brief that the district court failed to give the EEOC letter “minimum ” prejudicial value. Appellants’ Reply Br. at 18-19. This argument was waived and invalid. It is true that the district cour t must give the evidence its minimal reasonable risk of unfair prejudice. Deters v. Equifax Cr edit Info. Servs. , 202 F.3d 1262, 1274 (10th Ci r. 2000). But the plain tiffs did not argue in their opening brief th at the district court had failed to give the evidence its minimal risk of unfair prejudice. By the time the plaintiffs made this argument in their reply brief, it was too late. See Headrick v. Rockwell8 Int’l Corp. , 24 F.3d 1272, 1277-78 (10th Cir. 1994) (stating that appellate courts will generally not entertain issues raised for the fi rst time in a reply brief). The argument is no t only late but also inva lid: the district court never said anything to suggest that it failed to give the ev idence its minimal reasonable danger of unfair prejudice. D. The district court’s reasoning did not contradict Federal Rule of Evidence 803(8). Finally, the plaintiffs argue that the district court should not have been concerned that the EEOC letter covered the same matters that the jury was to determine. According to the pl aintiffs, “[s]uch r easoning contradicts [Federal Rule of Evidence] 803(8). ” Appellants’ Reply Br. at 13. We disagree: Rule 803(8) addresses hearsay, but does not vitia te Rule 403 or imply that agency findings will always be more probative th an prejudicial. See Coleman v. Home Depot, Inc. , 306 F.3d 1333, 1345 (3d Cir. 2002) (“[W]e decline Coleman’s invitation to conclude that, based on the presumption of admissibility under Rule 803(8)(C), EEOC Letters of Determination are per se more probative than pr ejudicial under Rule 403 . . . .”); Cortes v. Maxus Expl. Co. , 977 F.2d 195, 201 (5th Cir. 1992) (concluding that an EEOC determination, to be admissible, must pass the test under Rule 403 even if the EEOC determinatio n satisfies the hearsay exception in Ru le 803(8)). As a result, the district court could justifiably9 rely in part on the fact that the EEO C letter covered matters that the jury was to determine. III. Disposition We conclude that the district c ourt did not abuse its discretion in excluding the EEOC letter . Thus, we affirm. Entered for the Court

Robert E. Bacharach Circuit Judge