UNITED STATES COURT 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, 

 Plaintiffs-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 deciding the appeal 

based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

 This order and judgment does not constitute binding 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 Court
2 

_________________________________ 

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges. 

_________________________________ 

 This appeal arises out of the firing of 22 African employees by Flight 

Services & Systems, Inc. The 22 employees invoke 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 excluded a letter from the 

Equal Employment Opportunity Commission (EEOC), which had found 

reasonable cause to believe that Flight Services had violated Title VII.2

 

But the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

1

 Two other African employees sued, but their claims are not involved 

in this appeal. 

2

 The letter states: 

I have considered all the evidence obtained during the 

investigation and find that there is reasonable cause to believe 

that there is a violation of Title VII in that [Flight Services] 

failed to provide language assistance when employees were 

required to take the SIDA Badge Test, and engaged in a 

nationwide pattern or practice of discrimination by requiring 

applicants to take and pass two 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. Likewise, [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 was substantially outweighed by the 

dangers that the jury would be unfairly prejudiced, confused, or misled. 

The plaintiffs appeal the exclusion of the EEOC letter. Because the district 

court did not abuse its discretion in excluding the letter, we affirm. 

I. We review the district court’s decision 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 should intensify our review when 

considering the admissibility of agency findings on discrimination. We 

disagree, for we have consistently reviewed the admissibility of agency 

findings under the conventional 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 race (Black) and national origin 

(nationalities which favor a language other than 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 regarding any other allegation 

made in the charges. 

Appellant’s App’x, vol. 2 at 48-49. 
4 

1993). Invoking Rule 403, the district court declined to admit into 

evidence a Wyoming Fair Employment Commission report that had found 

no discrimination. Id. at 1058. We affirmed, reasoning that “the district 

court is granted discretion to determine when otherwise relevant, thus 

admissible, evidence should 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 district court abused its discretion in 

excluding the EEOC letter. 

II. The district court did not abuse its discretion in excluding the 

EEOC letter.3

To avoid confusing the jury, the district court 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 influenced” by the EEOC report and 

 

3

 The plaintiffs argue that we must first analyze whether the EEOC 

letter (1) is relevant under Federal Rule of Evidence 401 and (2) falls 

under the public-record exception to the rule against hearsay (Federal Rule 

of Evidence 803(8)). We assume, without deciding, that the letter is 

relevant and that it qualifies as a public 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 engendered 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 coming to this conclusion. 

 First, if the district court allowed 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 needed to exclude the letter. See Hall, 988 F.2d at 1058 

(holding that it was not an abuse of discretion for the trial court to exclude 

an agency finding of no discrimination on the ground that the report would 

“suggest to the jury that it should reach the same conclusion” as the 

agency). 

Second, introduction of the EEOC letter might have confused the jury 

because different standards and theories 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 district court). In these 
6 

circumstances, the jury would have needed to temper deference to the 

EEOC based on recognition that it applied a different burden of proof. 

 The EEOC not only applied a different standard, but also considered 

different theories. The EEOC considered disparate impact,4

 but in the trial 

the plaintiffs did not claim a disparate impact.5

 Instead, they relied on a 

different theory: disparate treatment. See J.V. v. Albuquerque 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 discrimination.”) (internal quotation marks omitted)). 

Thus, if the EEOC letter had been introduced, the jury would have had to 

account for a difference in the claims. 

 Ignoring differences in the standards and the claims, the plaintiffs 

argue that the EEOC’s expertise would have helped the jury. That may be 

true. Even if it is, however, the difference in standards 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 “have a disparate impact based on race . . . and 

national origin”). 

5

 The trial transcript is not in our record on appeal. But we can take 

judicial notice of the admission 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) (stating that the court 

can take judicial notice of filings in district court). 
7 

B. The district court did not apply a per se rule of exclusion. 

 The plaintiffs argue that the district 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 58-59 (acknowledgment by the district 

court of the “serious danger that the jury will think . . . the agency has 

already decided that the plaintiff[s] win[] this case . . . [a]nd . . . perhaps 

[be] overly influenced”). In arriving at this determination, 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 plaintiffs 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 court must give the evidence its minimal 

reasonable risk of unfair prejudice. Deters v. Equifax Credit Info. Servs., 

202 F.3d 1262, 1274 (10th Cir. 2000). But the plaintiffs did not argue in 

their opening brief that 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. Rockwell 
8 

Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994) (stating that appellate 

courts will generally not entertain issues raised for the first time in a reply 

brief). 

 The argument is not only late but also invalid: the district court 

never said anything to suggest that it failed to give the evidence 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 plaintiffs, “[s]uch reasoning contradicts 

[Federal Rule of Evidence] 803(8).” Appellants’ Reply Br. at 13. We 

disagree: Rule 803(8) addresses hearsay, but does not vitiate Rule 403 or 

imply that agency findings will always be more probative than 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 prejudicial 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 determination satisfies the hearsay 

exception in Rule 803(8)). As a result, the district court could justifiably 
9 

rely in part on the fact that the EEOC letter covered matters that the jury 

was to determine. 

III. Disposition 

 We conclude that the district court did not abuse its discretion in 

excluding the EEOC letter. Thus, we affirm. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge