FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

June 1, 2005 

PATRICK FISHER 

Clerk 

CLAUDIA CROY, 

Plaintiff-Appellant, 

v. 

COBE LABORATORIES, INC. and 

COBE CARDIOVASCULAR, INC., 

Defendants-Appellees. 

No. 04-1282 

District of Colorado 

(D.C. No. 00-D-1976 (MJW)) 

ORDER AND JUDGMENT* 

Before HENRY, MURPHY, and McCONNELL, Circuit Judges. 

Plaintiff Claudia Croy successfully sued her employer, Cobe Laboratories, 

Inc. ("Cobe''), for breach of a contract to give her a promotion. The jury awarded 

Ms. Croy $88,798.00 in damages, including both front and back pay. Ms. Croy 

now appeals the district court's refusal to grant her specific performance-in the 

form of a promotion in title and duties-as well. We conclude that damages 

* This order and judgment is not binding precedent, except under the 

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

generally disfavors the citation of orders and judgments; nevertheless, an order 

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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provided Ms. Croy an adequate remedy at law and therefore AFFIRM the district 

court's denial of specific performance. 

I. 

Ms. Croy brought several claims against Cobe, including gender 

discrimination under Title VII, disability discrimination under the Americans with 

Disabilities Act, and breach of contract under Colorado law. The district court 

granted Cobe summary judgment on all claims; in a prior appeal, we reversed the 

grant of summary judgment on the breach of contract claim. See Croy v. Cabe 

Laboratories, Inc., 345 F .3d 1199 (10th Cir. 2003 ). 

The contract claim then proceeded to trial. Ms. Croy alleged that Cobe had 

breached a contract to promote her. On the first day of trial, and before the court 

empaneled the jury, Ms. Croy informed the court that, in addition to damages for 

back pay and emotional harm, she intended to seek specific performance of the 

contract. Cobe then moved to strike Ms. Cray's jury demand on the ground that 

she was seeking primarily an equitable remedy. After hearing argument on the 

issue, the district court ruled that Ms. Croy had to elect a remedy: either she could 

try the case to a jury and seek back pay, non-economic damages, and front pay, or 

she could try the case to the judge and seek back pay, non-economic damages, and 

specific performance. But, according to the court, front pay and specific 

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performance were inconsistent remedies; therefore, the election of remedies 

doctrine required Ms. Croy to choose between them. 

Ms. Croy elected to try the case to a jury. At the close of trial, the court 

instructed the jury that if it found a breach of contract, it should award damages 

for both front and back pay. The jury found that Cobe had breached the contract, 

and it awarded Ms. Croy $88,798.00 in economic damages. The verdict form did 

not indicate what portion of damages constituted back pay and what portion 

constituted front pay, although it did disclose that the jury found the breach was 

not "willful and wanton" and declined to award non-economic damages. 

Ms. Croy then filed a post-trial motion asking the district court to order 

specific performance. In her motion, she clarified that her request for specific 

performance was not a request for a pay raise, because that had already been 

awarded in the form of front pay; instead, she sought merely a "promotion in title 

and duties" because she was still working for Cobe at her old position. The 

district court denied her motion on the grounds that (I) damages provided Ms. 

Croy with an adequate remedy at law, (2) specific performance was not an 

appropriate remedy for breach of an employment contract, and (3) an award of 

both damages and specific performance would result in a double recovery. This 

appeal followed. 

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II. 

We review the district court's denial of specific performance for abuse of 

discretion. See Koch v. Koch, 903 F.2d 1333, 1335 (10th Cir. 1990). 

Specific performance is an equitable remedy, and in Colorado, as in other 

jurisdictions, "equity will not act if there is a plain, speedy, adequate remedy at 

law." Szaloczi v. John R. Behrmann Revocable Trust, 90 P.3d 835, 842 (Colo. 

2004 ). Whether to grant an equitable remedy when damages are inadequate 

'·depends on the circumstances of a particular case." Subryan v. Regents of the 

University of Colorado, 789 P.2d 472,474 (Colo. App. 1989). Relevant 

considerations may include: (I) whether money damages can be calculated with a 

reasonable degree of certainty; (2) whether money damages can be collected once 

awarded; (3) whether the contract involves a unique subject matter; or (4) whether 

full relief would require multiple suits for damages. See 12-63 Corbin on 

Contracts § 1142 (2005). 

Ms. Croy offers no argument for why damages are an inadequate legal 

remedy in this case, and none appears from the record. At trial, she testified that 

the promised promotion included a pay increase of a definite amount (3%) and 

that she intended to continue working for a definite period of time ( until age 65). 

This was enough for the jury to calculate damages with a reasonable degree of 

certainty. Cf Tri-State Generation and Transmission Ass'n, Inc. v. Shoshone 

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River Power, Inc., 874 F.2d 1346, 1362 (10th Cir. 1989) (denial of injunctive 

relief was not an abuse of discretion where damages were reasonably calculable 

based on the evidence presented at trial). Furthermore, as the district court 

pointed out, a decree of specific performance is generally a disfavored remedy for 

breach of an employment contract because it places the court in the difficult 

position of monitoring an ongoing and often sour relationship. See Williston on 

Contracts§ 67:102 (4th ed. 2004). 

The district court also concluded that specific performance was an improper 

remedy because, when combined with the jury's award of front pay, it would 

provide Ms. Croy with a double recovery. Ms. Croy counters that her request for 

specific performance does not include the pay raise that went with her promised 

promotion, but only a promotion in title and duties, and that therefore she is not 

seeking a double recovery. As a theoretical matter, it is indeed possible to 

separate the promised pay increase from the promised promotion in title and 

duties, awarding damages for the former and specific performance for the latter. 

However, the district court, in rejecting specific performance on the ground that it 

would give Ms. Croy a double recovery, must have concluded that the award of 

damages already compensated Ms. Croy for the lost promotion in title and duties. 

This was not an abuse of discretion. Ms. Croy testified at trial that the promised 

promotion included a pay increase of 3 % until the expected date of her retirement. 

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At oral argument (and in its post-trial motion for remittitur), Cobe argued that this 

pay increase would support a damages award of no more than $45,034.41 (a 3% 

annual wage increase ($95 5.18), compounded with 4% yearly merit increases, 

until Ms. Croy's expected retirement in 2025), a little more than half of the actual 

award of $88,798.00. Aplt. App. 711. Rather than dispute these calculations, Ms. 

Croy argued that the jury could have fashioned a different pay increase based on 

other evidence presented at trial, such as the salaries of other employees at the 

company. Aplt. App. 637-38. Although the district court ultimately rejected 

Cobe's motion for remittitur, the substantial discrepancy between the pay raise 

claimed by Ms. Croy and the jury's ultimate verdict supports the conclusion that 

the jury compensated Ms. Croy not only for the forgone pay raise but also for the 

lost promotion in title and duties. Thus, the district court drew the reasonable 

inference that an award of specific performance on top of damages would provide 

Ms. Croy with a double recovery. The district court therefore did not abuse its 

discretion in denying specific performance. 1 

1 Ms. Croy also challenges the district court's application of the election of 

remedies doctrine, on the basis of which the district court required her to choose 

between front pay and specific performance before empaneling the jury. 

According to Ms. Croy, front pay and specific performance are not inconsistent 

remedies because both rest on an affirmation of the contract. See, e.g., 12-66 

Corbin on Contracts § 1222 (2005). We need not decide whether the district 

court erred on this issue, however, because any error it might have committed was 

harmless. See Fed. R. Civ. P. 61 ("The court ... must disregard any error or 

(continued ... ) 

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III. 

The judgment of the district court is AFFIRMED. 

1

( ••• continued) 

Entered for the Court, 

Michael W. McConnell 

Circuit Judge 

defect in the proceeding which does not affect the substantial rights of the 

parties."). Ms. Croy ultimately received a jury trial, at which the jury determined 

the issues of breach of contract and damages. After trial, on her motion to amend 

the judgment, Ms. Croy also received the district court's consideration of her 

request for specific performance. This procedure is functionally identical to that 

she would have received had the district court never required her to elect a 

remedy at all. Therefore any error in applying the election of remedies doctrine 

was harmless. 

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