UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ JAYMEE BARRINGTON,
Pl aintiff - Appellant,

v. UNITED AIRLIN ES, INC.,
De fendant - 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 Ai rlines, Inc. under Title VII of the Civil Rights Act of 1964, claiming gender-base d discrimination and retaliation. After a trial, the jury rendered a verdict fo r United on both claims, and the district court entere d a final judgment. Ms. Barrington appeals, arguing that the district co urt erroneously failed to instruct the jury on pretext. We agree.

* 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. But our 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). FILED United States Court of Appeals Tenth Circuit 

### October 4, 2017
Elisabeth A. Shumaker Clerk of Court2 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 fo r a Pretext Instruction When an employer has provided an innocent explanation for the adverse action and the employ ee presents evidence of pretext, the jury may infer that the employ er acted with discriminatory intent. Reynolds v. Sch.
Dist. No. 1 , 69 F.3d 1523, 1533 (10th Cir. 1995). In light of the availability of th is 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, om ission of the instruc tion requires reversal. Id. III. Ms. Barrington’s Evidence of Pretext At the time of the underlying even ts, Ms. Barrington had worked at United for approximately 25 years. In 2011, she became an Airport Operations Ramp Supervisor in Denv er, Colorado. In he r 2011 performance review, Ms. Barrington received satisf actory or positive evaluations in all categories. But in roughly mid-2012, Ms. Barrington co mplained that United was engaging in gender discrimination. Following these complaints, Ms. Barrington’s 2012 evaluati on contained poor ratin gs in nearly every3 category. Ms. Barrington believed th at this poor revi ew rendered her ineligible for future promotions. Th is belief led Ms. Barrington to sue United for gender discrimi nation and retaliation. At trial, the district court allowe d Ms. Barrington to argue pretext but declined to instruct the jury on pr etext, reasoning that Ms. Barrington’s evidence related to the elemen ts of her claims rather than to pretext. In our view, however, a reason able 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 ev aluation in 2012. As noted above, the di strict court had to give a pretext inst ruction if a reasonable jury could find that Unit ed’s justification for Ms. Barrington’s evaluation constituted a pr etext 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 fa iled to consistently meet expectations in nearly every category: “Focusing on the Futu re Delivering T oday,” “Building on4 Dignity and Respect,” “Powering through Teamwork ,” “Making the Difference,” and “Fostering Open, Honest and Direct Communication.” 1 At trial, United defended the 2012 ev aluation 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 satisfa ctory employee.
2. Ms. Barrington’s dir ect supervisor was s upposed to administer Ms. Barrington’s performance reviews. This supervisor believed that Ms. Ba rrington had met all ex pectations in 2012. But contrary to United’s regu lar policy, Mr. Brown—who did not directly supervise Ms. Barrington—administered Ms. Barrington’s 2012 pe rformance 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 give n poor ratings to employees complaining of gender discrimination.

1 Mr. Brown stated th at “[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 ot her managerial employees. See Appellant’s App’x at 1287 (“You make frequent cl aims against station and department leaders with no legitimate grounds for doing so.”).5 6. For Ms. Barrington’s 2010 perfo rmance 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 wi th this evaluation. United points to its own evidence, which indi cated that Mr. Brown had sincerely be lieved that Ms. Barringt on’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 doi ng the evaluation himsel f, that Ms. Barrington had not been criticized in the year leading up to the ne gative evaluation, and that Ms. Barrington’s direct supe rvisor had opined that Mr. Brown’s negative evaluation was inaccurate. These categories of evidence could reasonably have le d the jury to rega rd United’s explanation for the 2012 evaluation as pretextual . In addition, Mr. Brow n gave Ms. Barrington a negative evaluation even in some area s unrelated to her 2012 emails (such as categories ostensibly involving operations). In light of Ms. Barrington’s evidence, the district cour t erred in failing to instru ct the jury on pretext. Reversed. Entered for the Court

Robert E. Bacharach Circuit Judge