* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 6 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES CORRY, Plaintiff-Appellee,

v. No. 99-1158 ANALYSTS INTERNATIONAL CORPORATION, a Minnesota corporation, Defendant-Appellant.

__________________________ (D.C. No. 97-Z-17) (D. Colo.)

CHARLES CORRY, Plaintiff-Appellant,

v. No. 99-1189 ANALYSTS INTERNATIONAL CORPORATION, a Minnesota corporation, Defendant-Appellee. (D.C. No. 97-Z-17) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK, KELLY, and BRISCOE , Circuit Judges. Defendant Analysts International Corporation (AIC) appeals the jury2

verdict in favor of Charles Corry on his intentiona l interference with contract claim. Corry cross-appeals the jury verdict reject ing his religious discrimination and retaliation claims brought under Title VII §§ 7 03 and 704, 42 U.S.C. §§ 2000e-2 and 2000e-3. We exercise jurisdiction purs uant to 28 U.S.C. § 1291, reverse and remand the district court’s denial of A IC’s Rule 50 motion for judgment as a matter of law on Corry’s intentional interference with contract claim, and affirm the jury verdict on the religious discrimination and retaliation claims.
I. AiC TechWest, a division of AIC, contracts with companies to provide temporary computer consultants. U.S. West Marketin g Resources Group, now U.S. West Dex, (U.S. West) contracted with AIC for leased workers. The contract gave U.S. West “the right to request [AIC] to remove any Worker from an assignment or to refuse assignment of a Worker f or any or no reason.” Aplt. App. at 118. The contract also stated that “[l]oud talk, profanity or other activities which prove distracting shall not be tolerated.” Id. Quest Database Consulting (Quest), a subcontractor of AIC, provide s temporary computer consultants to AIC clients. The AIC-Quest contractprovided that “[AIC] may at any time subsequent to [Quest’s] acceptance, reques t [Quest] to remove any Worker . . . for its convenience, upon notice to [Quest].” Id. at 164. Quest and3

Corry entered into an employment agreement for Corry to be assigned to U.S. West from August 14, 1995, through February 14, 199 6, “unless terminated prior to this date, by [U.S. West].” Id. at 93. Corry understood that U.S. West could terminate his assignment at U.S. West. Several of Corry’s U.S. West coworkers testified attrial that Corry frequently used swear words at work, including “Jes us Christ,” “God,” “shit,” “damn,” “the F word, “GD,” “bastard,” “SOB,” “godda mn,” and “hell.” Testimony regarding the frequency of Corry’s use of the swear words varied from occasionally to constantly. In September 1995, Lyn da Fowler complained to Sean Golden, her supervisor at U.S. West, about Cor ry’s language. Golden contacted Ellen Ritt, the AIC technical staff manag er, and also spoke to Kenneth Kemple at U.S. West about the complaint. On Septem ber 22, 1995, Ritt received a message from Kemple requesting a replacement for Corry because of his language. On October 2, 1995, Ritt arranged a conf erence call with Kemple, Golden, and Tom Hickey, a manager at Quest, to disc uss the matter. Ritt asked Hickey to meet with Corry. On October 3, 1995, Hickey met with Corry and told him there had been a complaint about his language. Hickey testified that he told Corry he was being placed on a two-week probation to correct his langu age. After the meeting, Corry approached Ritt and asked who had complained. Corry claims Ritt told4

him a woman who “was very religious” was offended by his use of “God” and “Jesus Christ.” Supp. App. I at 176. On October 5, Ritt called a meeting of all the leas ed workers involved in Corry’s project. Ritt handed out copies of the U.S . West policies and told the workers to behave in a professional, courteous mann er at work. Corry testified that Ritt told them to refrain from saying “God” an d “Jesus Christ.” When Corry told Ritt he was not a Christian, he claims she tol d him he would abide by the Ten Commandments. Bradley Reeger testified that Ri tt told them to follow the Ten Commandments or lose their jobs, but Ritt testi fied that Reeger was not at the meeting. William Gatz testified that Ritt said some language could be “viewed as a sin.” Supp. App. I at 87. Ritt testi fied she mentioned the Ten Commandments as an example of why someone would be offended by the word “Goddamn,” but she did not tell anyone to follow th e Ten Commandments. According to Gatz and Michael Fanelli, Ritt broughtup the Ten Commandments as an example of why one might find use of the word s “Goddamn” and “Jesus Christ” offensive. Gatz, Fanelli, and Steve Justus testified that Ritt did not say they must follow the Ten Commandments. Gregory Pearman and Kenneth McFadden testified they did not hear any reference to the Ten Commandments during the meeting. On October 6, 1995, Corry made a verbal complaint t o U.S. West about5

Ritt’s statements. Corry filed a written complaintwith Quest on October 8 and with U.S. West on October 9. Golden told Corry to take his complaints to Ritt. According to Fowler, Corry’s language did not chang e after the October 5 meeting and McFadden testified that Corry’s languag e became worse after the meeting. Golden testified that he wanted Corry rem oved from the U.S. West project because he refused to change his language. Charles Swift, project manager at U.S. West (a temporary replacement for K emple), decided to cancel Corry’s contract. Swift called Ritt and asked thatCorry be replaced. Ritt then called Hickey at Quest and told him that U.S. West had requested that Corry’s assignment be terminated. Corry’s assignment to U. S. West was terminated on October 13, 1995. In his second amended complaint against AIC, Quest, and U.S. West, filed November 12, 1997, Corry presented three claims forrelief: (1) discrimination and retaliation based on Corry’s religion and oppos ition to unlawful employment practices, in violation of Title VII §§ 703 and 704 , 42 U.S.C. §§ 2000e-2 and 2000e-3; (2) tortious interference by AIC with the contractual relationship between Corry and Quest; and (3) breach of contract by Quest. Corry settled his claims with Quest and the district court dismissed the claims against U.S. West. A jury found that Corry failed to prove his claims of religious discrimination and retaliation, but awarded Corry actual damages of $3 4,160 on his intentional6

interference with contract claim against AIC.
II. Intentional interference with employment contract AIC contends there was insufficient evidence for th e jury to find AIC intentionally interfered with Corry’s employment co ntract with Quest. The district court denied AIC’s Federal Rule of Civil P rocedure 50 motions for judgment as a matter of law, asserted prior to subm ission of the case to the jury and again after the verdict. We review de novo the district court’s decision on a motion for judgment as a matter of law, applying th e same standard as the district court. Baty v. Willamette Indus., Inc. , 172 F.3d 1232, 1241 (10th Cir. 1999). “Such a judgment ‘is warranted only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.’” Id. (quoting Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442, 1450 (10th Cir. 1997)). We “‘do not weigh the evidence, pass on the credibility of the witnesses, or substitute our conclusions for [those] of the jury.” Id. (quoting Harold Stores, Inc. v. Dillard Dep’t Stores , 82 F.3d 1533, 1546-47 (10th Cir. 1996)). We “must enter judgment as a matter of law in favor of the moving party if ‘there is no legally sufficient evidentiary basi s . . . with respect to a claim or defense . . . under the controlling law,’” viewing “the evidence and any inferences to be drawn therefrom most favorably to the non-moving party.” Id.7

(internal quotations omitted). Colorado state law recognizes an action for intenti onal interference with contract. Amoco Oil Co. v. Ervin , 908 P.2d 493, 500 (Colo. 1995). To prove the tort of intentional interference with contract, Cor ry must show: “(1) the existence of a contract between [Corry] and [Quest] ; (2) knowledge by [AIC] of the contract or knowledge of facts which would lead [AIC] to inquire as to the existence of the contract; (3) intent by [AIC] to i nduce a breach of contract with [Quest]; (4) action by [Quest] which induces the br each of contract; and (5) damages to [Corry].” Galleria Towers, Inc. v. Crump Warren & Sommer, Inc. , 831 P.2d 908, 912 (Colo. App. 1991). At issue here is whether AIC intended to induce Quest to breach the contract and whether AIC ’s actions induced an actual breach of that contract. Viewing the evidence in the light most favorable to Corry, we conclude the trial testimony failed to establish that AIC intent ionally interfered with Corry’s contract with Quest. The evidence showed that U.S. West requested that Corry be removed from his assignment because of his langu age and Ritt relayed that information to Quest. There was no evidence that R itt or anyone at AIC made the decision to remove Corry or influenced U.S. Wes t’s decision to do so. Corry did not establish that AIC initiated or made the de cision to remove him from the U.S. West assignment or that AIC induced either Que st or U.S. West to remove1 Because there was insufficient evidence to suppor t the jury verdict on

Corry’s intentional interference with contract clai m, AIC’s contention that the district court erred in refusing to instruct the ju ry on the effects of the employment contracts is moot. 8 Corry from the U.S. West assignment. AIC also argues there was insufficient evidence for the jury to conclude that it caused Quest to breach the contract, or eve n that the contract was breached. AIC asserts that Quest did not breach Co rry’s employment contract because the contract was for at-will employment and could be terminated at any time. Corry’s contract with Quest provided that itcould be ended before its stated termination date and Corry acknowledged thatU.S. West could remove him at any time. To prove intentional interference with an at-will contract, Corry must show that AIC used “wrongful means, such as ph ysical violence, fraud, civil suit, or criminal prosecution.” Electrolux Corp. v. Lawson , 654 P.2d 340, 341-42 (Colo. App. 1982) (citing Restatement (Second) of T orts § 768 (1965)). Corry presented no such evidence. Viewing the evidence i n the light most favorable to Corry, we conclude that he failed to prove his clai m of intentional interference with contract. The district court erred in denying AIC’s Rule 50 motion for judgment as a matter of law. 12 On appeal, Corry argues the district court should have instructed the jury

that “[AIC], even if not Corry’s employer, could be held liable under Title VII for unlawfully interfering with Corry’s employment relationship with Quest.” (continued...) 9 Discriminatory or retaliatory interference On cross-appeal, Corry argues that the district cou rt erred in refusing to instruct the jury that AIC could be liable for reli gious discrimination and retaliation under Title VII even if it was not Corry’s employer. We review the district court’s decision on whether to give a part icular jury instruction for an abuse of discretion. Davoll v. Webb , 194 F.3d 1116, 1131 (10th Cir. 1999). We review de novo “whether, as a whole, the instructio ns correctly stated the governing law and provided the jury with an ample u nderstanding of the issues and applicable standards.” Id. Instructional error requires reversal only if we determine the error was prejudicial, based on a review of the entire record. Id. The district court refused to give Corry’s proposed instruction, which provided: If you determine that defendant was not an employme nt agency, you should next consider whether defendant, although no t the direct employer of plaintiff, was an “employer” under Titl e VII who controlled access to plaintiff’s employment opportu nities. A company is an “employer” if it has 15 or more emplo yees and does business in interstate commerce. Aple. Supp. App. at 71. We conclude the district c ourt did not err in instructing the jury. 2 The district court instructed the jury that to pr ove religious2 (...continued)

Cross-Aplt. Br. at 26. AIC contends Corry did not raise this issue with the district court. The instruction requested at trial includes the argument that AIC could be liable for Title VII violations even if itwas not Corry’s direct employer, if it controlled access to Corry’s employment opportunities. The instruction requested at trial does not include the issue Corry raises on appeal -- that Title VII prohibits an entity that meets Title VII’s defi nition of employer from engaging in discriminatory or retaliatory interfere nce with any individual’s employment opportunities with a third party, regard less of whether it was an employer of the plaintiff. Therefore, we will not consider this argument on appeal. See Tele-Communications, Inc. v. Commissioner , 104 F.3d 1229, 1232 (10th Cir. 1997) (noting that “[g]enerally, an appe llate court will not consider an issue raised for the first time on appeal”). 10 discrimination and retaliation Corry must show thatAIC was his employer. The district court further instructed the jury that “[i ]n order to determine whether [AIC] was [Corry’s] employer, the main focus of you r inquiry should be [AIC’s] right to control the means and manner of [Corry’s] work conduct. You should consider the totality of circumstances surrounding the working relationship between the parties.” Supp. App. III at 876. The district court properly instructed the jury that AIC was Corry’s employer i f it controlled the means and manner of Corry’s employment. See Atchley v. Nordam Group, Inc. , 180 F.3d 1143, 1153 (10th Cir. 1999) (holding that the main focus in determining whether an entity is the employee’s employer under Title VI I is the entity’s right to control the means and manner of employee’s performance). Further, a review of the record shows there was no evidence that AIC int entionally interfered with Corry’s contract with Quest, much less that it disc riminated or retaliated in doing11

so. Corry’s proposed jury instruction would not re quire a different conclusion.
III. As regards AIC’s appeal, the district court’s denia l of AIC’s Rule 50 motion is REVERSED and this case is REMANDED for en try of judgment as a matter of law for AIC on Corry’s intentional interf erence with contract claim. As regards Corry’s cross-appeal, the jury verdict agai nst Corry on his religious discrimination and retaliation claims is AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge