UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JAYMEE BARRINGTON, 

 Plaintiff - Appellant, 

v. 

UNITED AIRLINES, INC., 

 Defendant - Appellee. 

No. 16-1292 

(D.C. No. 1:15-CV-00590-CMA-CBS) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges. 

_________________________________ 

 Ms. Jaymee Barrington sued United Airlines, Inc. under Title VII of 

the Civil Rights Act of 1964, claiming gender-based discrimination and 

retaliation. After a trial, the jury rendered a verdict for United on both 

claims, and the district court entered a final judgment. Ms. Barrington 

appeals, arguing that the district court erroneously failed to instruct the 

jury on pretext. We agree. 

 

*

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But our 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).

FILED 

United States Court of Appeals 

Tenth Circuit 

October 4, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

I. The Standard of Review 

In this appeal, we apply the abuse-of-discretion standard. Cordova v. 

City of Albuquerque, 816 F.3d 645, 660 (10th Cir. 2016). 

II. The General Need for a Pretext Instruction 

When an employer has provided an innocent explanation for the 

adverse action and the employee presents evidence of pretext, the jury may 

infer that the employer acted with discriminatory intent. Reynolds v. Sch. 

Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). In light of the 

availability of this inference, the district court must instruct the jury that it 

may infer discriminatory intent from pretext if one can reasonably regard 

the defendant’s explanation as false. Townsend v. Lumbermens Mut. Cas. 

Co., 294 F.3d 1232, 1241 (10th Cir. 2002). When a pretext instruction is 

requested and supported, omission of the instruction requires reversal. Id. 

III. Ms. Barrington’s Evidence of Pretext 

At the time of the underlying events, Ms. Barrington had worked at 

United for approximately 25 years. In 2011, she became an Airport 

Operations Ramp Supervisor in Denver, Colorado. In her 2011 performance 

review, Ms. Barrington received satisfactory or positive evaluations in all 

categories. 

But in roughly mid-2012, Ms. Barrington complained that United was 

engaging in gender discrimination. Following these complaints, Ms. 

Barrington’s 2012 evaluation contained poor ratings in nearly every 
3 

category. Ms. Barrington believed that this poor review rendered her 

ineligible for future promotions. This belief led Ms. Barrington to sue 

United for gender discrimination and retaliation. 

At trial, the district court allowed Ms. Barrington to argue pretext 

but declined to instruct the jury on pretext, reasoning that Ms. Barrington’s 

evidence related to the elements of her claims rather than to pretext. In our 

view, however, a reasonable jury could find pretext based on Ms. 

Barrington’s evidence. 

* * * 

Pretext involves the falsity of the employer’s explanation. Reeves v. 

Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Thus, we 

must consider Ms. Barrington’s evidence challenging the truthfulness of 

United’s explanation for Ms. Barrington’s poor evaluation in 2012. As 

noted above, the district court had to give a pretext instruction if a 

reasonable jury could find that United’s justification for Ms. Barrington’s 

evaluation constituted a pretext for discrimination. Townsend v. 

Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1241 (10th Cir. 2002). 

The 2012 evaluation was administered by Mr. Ken Brown, United’s 

Director of Airport Operations, Policies, and Procedures. Mr. Brown stated 

that Ms. Barrington had failed to consistently meet expectations in nearly 

every category: “Focusing on the Future Delivering Today,” “Building on 
4 

Dignity and Respect,” “Powering through Teamwork,” “Making the 

Difference,” and “Fostering Open, Honest and Direct Communication.” 1

At trial, United defended the 2012 evaluation based on Mr. Brown’s 

opinion that Ms. Barrington had sent a series of inappropriate emails to 

supervisors. Ms. Barrington contended that United’s explanation served as 

a pretext. 

 Ms. Barrington’s evidence of falsity fell into six categories: 

1. Other supervisory employees believed that Ms. Barrington was 

generally a satisfactory employee. 

2. Ms. Barrington’s direct supervisor was supposed to administer 

Ms. Barrington’s performance reviews. This supervisor 

believed that Ms. Barrington had met all expectations in 2012. 

But contrary to United’s regular policy, Mr. Brown—who did 

not directly supervise Ms. Barrington—administered Ms. 

Barrington’s 2012 performance review. 

3. Ms. Barrington had not been told, prior to the evaluation, that 

she had done anything wrong. 

4. Mr. Brown had a motive to give a negative evaluation because 

he had been the subject of Ms. Barrington’s complaint to 

United.2

5. In the past, United had given poor ratings to employees 

complaining of gender discrimination. 

 

1

 Mr. Brown stated that “[o]perationally,” Ms. Barrington’s conduct 

had met expectations. But “Operations” was not a stand-alone category. 

2

 Mr. Brown relied partly on Ms. Barrington’s frequent assertion of 

illegitimate claims against other managerial employees. See Appellant’s 

App’x at 1287 (“You make frequent claims against station and department 

leaders with no legitimate grounds for doing so.”). 
5 

6. For Ms. Barrington’s 2010 performance review, two United 

executives had told Ms. Barrington’s supervisor to give Ms. 

Barrington a poor evaluation, which the supervisor did even 

though she disagreed with this evaluation. 

 United points to its own evidence, which indicated that Mr. Brown 

had sincerely believed that Ms. Barrington’s 2012 emails were 

inappropriate. United’s evidence weighed against a finding of pretext but 

did not preclude such a finding. For example, evidence of Mr. Brown’s 

sincerity did not necessarily trump Ms. Barrington’s evidence that Mr. 

Brown had a motive to make a negative evaluation, that he had deviated 

from United’s policy by doing the evaluation himself, that Ms. Barrington 

had not been criticized in the year leading up to the negative evaluation, 

and that Ms. Barrington’s direct supervisor had opined that Mr. Brown’s 

negative evaluation was inaccurate. These categories of evidence could 

reasonably have led the jury to regard United’s explanation for the 2012 

evaluation as pretextual. In addition, Mr. Brown gave Ms. Barrington a 

negative evaluation even in some areas unrelated to her 2012 emails (such 

as categories ostensibly involving operations). In light of Ms. Barrington’s 

evidence, the district court erred in failing to instruct the jury on pretext. 

 Reversed. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge