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

### JUL 6 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDDIE STEWART, Plaintiff - Appellant, vs. ADOLPH COORS COMPANY, a Colorado corporation and COORS BREWING COMPANY, a Colorado corporation, Defendants - Appellees. No. 99-1242

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. No. 97-B-1467)

David Lichtenstein, Denver, Colorado, for Plaintiff - Appellant. K. Preston Oade, Jr. (and Monica M. Márquez, with h im on the briefs), Holme, Roberts & Owen, LLP, Denver, Colorado, for Defendan ts - Appellees.

Before BALDOCK , KELLY , and BRISCOE , Circuit Judges.

KELLY , Circuit Judge.
This case requires us to examine the grant of a 50( b) motion for judgment as a matter of law in favor of an employer, after an adverse verdict on claims of- 2 -

race discrimination. We affirm.

Background Eddie L. Stewart, an African-American, was hired byDefendant Coors Brewing Company (“Coors”) in 1970 and worked contin uously for the company until he was laid off in 1996. During that time, M r. Stewart was employed primarily in construction and the Fabrication Servi ces department (“the fab shop”). The workers in the fab shop were supervise d by several front-line supervisors, who reported to the manager, Harold Wh eeler. Mr. Wheeler, in turn, reported to the director Jay Martine. Mr. Stewart worked his way up from a Class B Welderin 1971 to a multicraft specialist – the highest skill classification – in 1987. In May 1992, the multi-craft specialist position was eliminated as p art of a Coors’ reduction in force. Mr. Stewart, along with the other multi-cra ft specialists, was bumped down to the position of metalworker helper. Two to three months later, Mr. Stewart was assigned to work in the electropolish area of the fab shop. This decision was made by Mr. Wheeler and by Darrell Sie lsky, the electropolish area supervisor. Workers in the electropolish area used cranes to lower stainless steel parts into large acid bath tanks containing electri cal current in order to remove impurities from the metal components. Mr. Stewart continued to work in the- 3 -

electropolish area until he was laid off in April 1 996. Although Coors policy provided for recall rights within one year of being laid off, Mr. Stewart opted to waive those rights in exchange for cash payments of supplemental unemployment benefits. On March 20, 1996, Mr. Stewart filed a charge of ra ce discrimination with the EEOC. He filed the current action in district court on July 7, 1997 alleging that Coors violated Title VII and 42 U.S.C. § 1981 by subjecting him to different terms and conditions of employment (Claim One), and by not promoting him (Claim Two) because of his race. Mr. Stewart also brought three state law claims: breach of implied contract (Claim Three); p romissory estoppel (Claim Four); and breach of express contract (Claim Five). 1 Aplt. App. at 13-22 (Third Amended Complaint). Both parties moved for summary judgment on various of the claims: Coors on Claims One through Four, and M r. Stewart on Claim Five. In a December 14, 1998 order, the district court gr anted summary judgment to Coors on Claims Two, Three and Four and partial summary judgment on Claim One, limiting the charges of race discrimination to Mr. Stewart’s assignment to the electropolish area. See 1 Aplt. App. at 395. The court originally granted plaintiff’s motion for summary judgment on Claim Fi ve, determining that an ambiguous contract existed and the contract should be construed against Coors as the drafter. See id . at 412. However, on Coors’ motion for reconsider ation, the- 4 -

court denied summary judgment, reasoning that once a contract was determined to be ambiguous, the meaning of its terms was a que stion of fact for the jury under Colorado law. See id . at 427; 2 Aplt. App. at 591-92. At the close of evidence, both parties moved for ju dgment as a matter of law. The motions were denied and the case was subm itted to the jury by special verdict on two claims: (1) “Did Plaintiff prove that Defendant placed him in the Electropolish area of the Fabrication Services Department because of his race?” and (2) “Did Plaintiff prove that Defendant violate d Personnel Policy R-9 by failing to recall him to a Laborer II job after he was laid off?” The jury found for Coors on the second claim, but determined that Mr. Stewart had been assigned because of his race and awarded him $60,00 0 in compensatory damages and $40,000 in punitive damages. 1 Aplt. App. at 4 74-75. After judgment was entered on the jury verdict, Coo rs again moved for judgment as a matter of law under Fed. R. Civ. P. 5 0(b) arguing that Mr. Stewart had failed to show any evidence of racial animus, and his claim of race discrimination was time barred. The district courtgranted the motion, set aside the earlier judgment, and entered judgment in favorof Coors. This appeal followed.- 5 - Rule 50(b) motion We review the grant of a Rule 50(b) motion de novo, reviewing all of the evidence in the record. See Reeves v. Sanderson Plumbing Products, Inc. , No. 99-536, 2000 WL 743663, at *10 (U.S. June 12, 2000) . All reasonable inferences are drawn in favor of the nonmoving party and this court does “not make credibility determinations or weigh the evidence.” Id . at *11. Judgment as a matter of law is appropriate “‘only if the eviden ce points but one way and is susceptible to no reasonable inferences which may s upport the opposing party's position.’” Finley v. United States , 82 F.3d 966, 968 (10th Cir. 1996) (citation omitted). The district court granted judgment as amatter of law to Coors on two alternate grounds: Mr. Stewart’s failure (1) to bri ng a claim within the requisite statute of limitations; and (2) to present any evid ence that the assignment to electropolish was motivated by race. 2 Aplt. App. at 1222, 1224. Mr. Stewart asserts that there was sufficient evidence to suppo rt the verdict, and maintains that the district court erred in addressing the statute of limitations defense because Coors failed to raise that issue in its Rul e 50(a) motion. In our review of the sufficiency of the evidence cl aim, we assume that Mr. Stewart met his burden of proving a prima facie cas e of racial discrimination and1 The district court denied summary judgment on this claim because, at the

pre-trial stage, Coors had failed to “proffer a non -discriminatory reason for Stewart’s assignment to the electropolish area.” 1 Aplt. App. at 406. Our assumption in this case does not imply that an assi gnment from one job to another within the same company department will ordinarily be sufficient to constitute an “adverse” employment action. - 6 - the claim properly went to trial. 1 On the merits, the burden shifting framework of McDonnell Douglas is largely irrelevant and the issue is whether the adverse employment action was motivated by race. See Sanchez v. Philip Morris, Inc. , 992 F.2d 244, 246 (10th Cir. 1993). This “‘burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” Reeves , 2000 WL 743663, at *6 (quoting Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 253 (1981)). The plaintiff can meet this burden through the combinat ion of a prima facie case and the presentation of “sufficient evidence to find th at the employer’s asserted justification is false.” Id . at *9. Having assumed that a prima facie case w as shown, we review the record to determine whether Mr . Stewart presented sufficient evidence that Coors’ stated justificatio n was pretextual. At trial, Coors demonstrated that Mr. Stewart’s as signment was based upon the recommendation of Mr. Ray Evans. Mr. Evan s, an African-American and the lead worker in electropolish, spoke with Mr . Sielsky, the electropolish supervisor, and recommended that plaintiff be assig ned to electropolish. Mr.- 7 -

Evans testified that his motivation for making this recommendation was to protect Mr. Stewart’s job security because electrop olish was less likely to be affected by layoffs than other areas of the fab sho p. 2 Aplt. App. at 677. He also testified that Mr. Stewart knew about the recommendation. Id . at 678. This testimony was corroborated by Mr. Wheeler, the department manager, who testified that plaintiff was assigned to electropol ish because of the recommendation of Mr. Evans and “because we had the need at the time.” Id . at 889-90. Mr. Stewart failed to show that these reasons were pretextual. First, the circumstances surrounding the assignment do not rai se the slightest inference of discrimination. Mr. Stewart’s hours, benefits and wages were not adversely affected, and with the exception of Mr. Evans, Mr. Stewart was the only AfricanAmerican among the several non-minority workers in the electropolish area. Second, the isolated racial comments which Mr. Stew art attempts to use as proof of racial discrimination are unrelated to the electropolish assignment. As this court recently noted, “anecdotal evidence of d iscrimination should only be admitted if ‘the prior incidences of alleged discri mination can somehow be tied to the employment actions disputed in the case at hand.’” Heno v. Sprint/United Management Co. , 208 F.3d 847, 856 (10th Cir. 2000) (citation omitted). None of the comments in this case were tied to the alleged adverse employment action.- 8 -

Of the several comments, one was made about five ye ars prior to Mr. Stewart’s assignment to electropolish and the employee was or dered to refrain from any further such remarks. A later comment by employee Kenny Hall was highly inappropriate but it resulted in Mr. Hall’s suspens ion from work. The only comment which was even attributable to either of th e two decision-makers responsible for Mr. Stewart’s assignment was a 1995 comment by Mr. Sielsky as to whether “another employee was dumb enough to do [Mr. Stewart’s] job in electropolish.” 2 Aplt. App. at 742. Even assumin g that this comment was racially motivated, we note that it was made some t hree years after Mr. Stewart’s assignment to electropolish and is not probative of Mr. Sielsky’s motivations in
1992.After a thorough review of the record, we agree wit h the district court that, even when viewed in the light most favorable to the plaintiff, “[t]here is a dearth of evidence that Mr. Wheeler and/or Mr. Sielsky ass igned or placed Mr. Stewart in the electropolish area because of his race.” 2 Aplt. App. at 1224. Mr. Stewart has failed to offer sufficient evidence to prove th at Coors’ stated reasons for the assignment were pretextual.

[A]n employer [is] entitled to judgment as a matterof law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decisio n, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence th at2 Given Mr. Stewart’s failure to present sufficient e vidence of racial animus,

we need not address the statute of limitations or t he issue of punitive damages. - 9 - no discrimination had occurred.
Reeves , 2000 WL 743663, at *9. Therefore, the grant of judgment as a matter of law was appropriate. 2

Express Contract Claim Mr. Stewart claims that the district court erred in submitting his express contract claim to the jury, rather than granting hi m judgment as a matter of law. We review de novo the questions of contract ambigui ty and the denial of a motion for judgment as a matter of law, viewing the evidence and inferences therefrom in the light most favorable to the nonmoving party. See Electrical Distrib., Inc. v. SFR, Inc. , 166 F.3d 1074, 1081-82 (10th Cir. 1999); Baker v. Barnard Const. Co. , 146 F.3d 1214, 1220 (10th Cir. 1998). Coors Policy R-9 clearly provided laid off employee s with a right of recall.
See 1 Aplt. App. at 528 (“Employees on extended layoff have recall rights for a period of time equal to their [company] seniority, or one year, whichever is less.”). However, the policy also provided that employees who were subject to recall could “elect to receive supplemental unemplo yment benefit [sic] in lieu of reassignment or recall rights, after signing a waiver of their recall rights.” Id . at- 10 -

529. Mr. Stewart elected this option and received $7,458 in supplemental unemployment benefits. In doing so, he signed a do cument entitled “Waiver of Recall Rights” which is at the heart of this contra ct claim. That document provided in relevant part:

In consideration for receipt of the supplemental unemployment benefit and/or [sic] Employee waives a ll rights to recall after sixty days past the date of layoff and as set forth in Policy R-9. Employee understan ds that if he/she exercises his/her right of recall wi thin 60 days of layoff he/she must re-pay [Coors] the full amount of the Supplemental Unemployment Benefit and the Service Bonus.

. . . . I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS WAIVER BY READING IT BEFORE I SIGN IT. I FURTHER UNDERSTAND THAT I GIVE UP MY RECALL RIGHTS BY SIGNING IT AND I SIGN IT VOLUNTARILY.

Id . at 524. Within 60 days after Mr. Stewart had bee n laid off, a laborer job became available. Coors recalled Mr. Hung Tran – an employee with less seniority than Mr. Stewart but who had not elected to receive supplemental benefits in lieu of recall – to fill this position. Id . at 201. At no time during the 60 day period did plaintiff learn of this position or attempt to exercise his right of recall. Mr. Stewart contends that the language “Employee wa ives all rights to recall after sixty days past the date of layoff” cl early means that the waiver only- 11 -

became effective on the 61st day. Therefore, his r ecall rights were still effective and Coors breached the contract by not alerting him to the job opening. Coors contends that either (a) an employee clearly waives all recall rights from day one, absent a revocation in the first sixty days, or (b) the contract is ambiguous and therefore was correctly submitted to the jury. See Anderson v. Eby , 998 F.2d 858, 865 (10th Cir. 1993) (meaning of the terms of an ambiguous contract is question for fact finder under Colorado law); Dorman v. Petrol Aspen, Inc. , 914 P.2d 909, 912 (Colo. 1996) (same). “A written instrument is ambiguous when it is reaso nably susceptible to more than one meaning, or where there is uncertainty as to the meaning of a term.” Ad Two, Inc. v. City & County of Denver , 983 P.2d 128, 130 (Colo. Ct. App. 1999). It is clear that the language of the W aiver form was “fairly susceptible to more than one interpretation” as to whether the waiver became effective immediately or only upon the 61st day. Dorman , 914 P.2d at 912. On the one hand, the Waiver speaks in language which i mplies that Mr. Stewart would retain his recall rights, i.e. “[e]mployee un derstands that if he/she exercises his/her right of recall within 60 days of layoff . . . .” However, Coors Policy R-9 specifically states that the supplementa l unemployment benefit was given “ in lieu of reassignment or recall rights, after signing a waiver of their recall rights,” 1 Aplt. App. at 529, and the Waive r form itself stated that Mr.- 12 -

Stewart “G[A]VE UP” his recall rights by signing. The evidence also demonstrated that Coors consistently applied its po licy to mean that recall rights were waived from the moment of signing the form. T aking this evidence in the light most favorable to the plaintiff, the waiver w as ambiguous and the district court did not err in denying the motion for judgmen t as a matter of law. The contract issue was properly submitted to the jury, which determined that Coors did not breach Policy R-9.

Failure to Promote Claim Finally, Mr. Stewart argues that the district courtimproperly granted summary judgment to Coors on his failure to promote claims. We review the grant of summary judgment de novo, examining the fa ctual record and any reasonable inferences therefrom in the light most f avorable to the non-moving party. See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). A review of the record before the district court refl ects uncontroverted evidence that management had a justifiable non-discriminatory reason for all of the promotions which Mr. Stewart failed to receive, i.e ., the decision was based on seniority and there were more senior employees; Mr. Stewart did not have the requisite welding certifications or attendance reco rd for the job; and a temporary moratorium on bidding for construction jobs kept Mr . Stewart – as well as all- 13 -

other employees – from a new position. Mr. Stewartfailed to produce any evidence from which a reasonable inference could be drawn that these nondiscriminatory reasons were pretextual. Therefore, summary judgment was appropriate.
AFFIRMED.