F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 27 1997 TENTH CIRCUIT PATRICK FISHER Clerk
PAMELA J. TORRE, individually and PAMELA J. TORRE, as natural guardian and next friend of TRISHA B. TORRE,
Plaintiffs-Appellants and Cross-Appellees,
v.
FEDERATED MUTUAL INSURANCE COMPANY, Federated Mutual Insurance Company Medical Plan #501 Nos. 95-3411 & 96-3010 Defendant-Appellee and Cross-Appellant, (D.C. No. 91-CV-4235) (D. Kan.) and
JOHN CUMMINGS, individually and as Medical Plan #501 Administrator; WILLIAM HAEGELE, individually and as Regional Manager, a/k/a Bill Haegele; THOMAS LAURITZEN, individually and as Federated Mutual Insurance Company District Manager, a/k/a Tom Lauritzen,
Defendants-Appellees.
ORDER AND JUDGMENT *
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. Michael B. Myers (Cheryl D. Myers with him on the briefs) of Myers & Myers, Topeka, Kansas, for Plaintiffs-Appellants and Cross-Appellees.
R. Scott Davies (Michael Thomas Miller with him on the briefs) of Briggs andMorgan, Minneapolis, Minnesota, for Defendants-Appellees and Cross- Appellant.
Before BRORBY, HOLLOWAY and EBEL, Circuit Judges.
Ms. Pamela Torre brought this action against Federated Mutual Insurance
Company ("Federated") alleging, inter alia, (1) breach of employment contract;
(2) sex discrimination and retaliatory acts in violation of Title VII of the Civil
Rights Act of 1964; and (3) violations of the Employee Retirement Income
Security Act of 1974. 1 The district court issued partial summary judgment against
Ms. Torre on all three claims. Torre v. Federated Mut. Ins. Co., 854 F. Supp.
790, 834 (D. Kan. 1994) (Torre I). The court then bifurcated the action for trial.
Id. The parties tried Ms. Torre's breach of contract claim to a jury, which
returned a $320,000 verdict for Ms. Torre on October 4, 1994. The parties then
1 Ms. Torre also alleged discrimination in violation of Minnesota law, intentional infliction of emotional distress, and tortious interference with prospective business advantage. Torre II, 897 F. Supp. at 1339. The district court entered summary judgment against Ms. Torre on those claims. See Torre I, 854 F. Supp. at 834. In the "Statement of the Issues" of her appellate brief, Ms. Torre claims this was error. However, because Ms. Torre presents no arguments within her brief in support of this contention, we decline to review this claim. Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (perfunctory complaints that fail to frame and develop an issue are insufficient to invoke appellate review).
-2- tried Ms. Torre's remaining Title VII and Employee Retirement Income Security
Act claims to the court, which found for Federated on August 4, 1995. Torre v.
Federated Mut. Ins. Co., 897 F. Supp. 1332, 1380 (D. Kan. 1995) (Torre II).
Ms. Torre now appeals the district court's entry of partial summary
judgment on her claims, and its final judgment against her on the remainder of her
Title VII and Employee Retirement Income Security Act claims. See Torre I, 854
F. Supp. at 834; Torre II, 897 F. Supp. at 1380. Ms. Torre also appeals the
district court's refusal to grant her interest on the jury award for the ten months
between the date of the jury verdict and when the district court entered its final
judgment on August 4, 1995. See Torre v. Federated Mut. Ins. Co., 906 F. Supp.
616 (D. Kan. 1995) (Torre V). Federated cross-appeals the district court's failure
to enter judgment as a matter of law in Federated's favor on Ms. Torre's breach of
contract claim. See Torre v. Federated Mut. Ins. Co., 897 F. Supp. 1327 (D. Kan.
1995) (Torre III). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 (1994).
The district court, in its ruling on Ms. Torre's Title VII and Employee
Retirement Income Security Act claims, engaged in a lengthy and thorough review
of the facts of this case. See Torre II, 897 F. Supp. at 1340-59 ¶¶ 1-130. Here,
we provide only a greatly abbreviated factual recital, stating only those facts that
-3- provide helpful background to our legal analysis. We refer readers seeking
further detail to the district court opinion.
Federated hired Ms. Torre on February 10, 1988, as a "Marketing
Representative," i.e., an insurance salesperson. Torre II, 897 F. Supp. at 1340
¶¶ 1,7. Ms. Torre's employment contract assigned her the right to market
Federated's insurance products throughout, inter alia, all of Shawnee County,
Kansas. Torre III, 897 F. Supp. at 1329. On April 14, 1988, Federated removed
from Ms. Torre's territory assignment that part of Shawnee County outside the
city limits of Topeka. Torre III, 897 F. Supp. at 1329. In her breach of contract
claim, Ms. Torre asserted Federated breached her employment contract by
removing that portion of Shawnee County from her territory assignment. Torre v.
Federated Mut. Ins. Co., 1994 WL 541773, at *1 (D. Kan. 1994) (Torre IV).
As a Federated employee, Ms. Torre received coverage under Federated's
Medical Plan #510, an "employee welfare benefit plan" within the scope of the
Employee Retirement Income Security Act. Torre II, 897 F. Supp. at 1340-41
¶¶ 2, 11. The plan has individual lifetime maximum coverage limits of
-4- $1,000,000 for medical benefits and $50,000 for mental/nervous benefits. 2 Id. at
1341 ¶ 11. Ms. Torre's daughter, Trisha Torre, was also covered under the plan.
Id. at 1341 ¶¶ 8, 11. Trisha suffered from congenital health problems that
resulted in, inter alia, behavioral, emotional and developmental language
problems. Torre I, 854 F. Supp. at 799. Since late 1989, Trisha has received a
great deal of health care for these problems. See Torre II, 897 F. Supp. at 1341-
51. Ms. Torre and Federated have engaged in a long-term dispute over the extent
and type of Trisha's benefits under Federated's medical plan. See id. This dispute
underlies Ms. Torre's Employee Retirement Income Security Act claims.
As a Marketing Representative, Ms. Torre initially worked under Steve
Rohr, a "District Marketing Manager," and his superior, Bill Haegele, a "Regional
Marketing Manager." Id. at 1340 ¶ 1, 1352 ¶ 84. In December 1989, Mr. Haegele
hired Thomas Lauritzen to replace Mr. Rohr. Id. at 1352 ¶ 84, 1355 n.29.
Beginning as early as March 1989, Mr. Rohr, Mr. Haegele, and, in December, Mr.
Lauritzen, discussed with Ms. Torre the possibility of her opening a joint office in
Topeka with Mr. Jeff Richardson, another Marketing Representative who also
2 The plan defines "mental illness" (falling under the mental/nervous coverage limits) as "a mental disorder or a functional nervous disorder and includes psychiatric or psychological treatment of any physical condition." Id. at 1341 n.3 (emphasis added.)
-5- represented Federated in Topeka. Id. at 1354 ¶ 98 & n.28. The decision to open
the office with Mr. Richardson ultimately was made by Ms. Torre in early 1990.
Id. at 1378 ¶ 81.
Ms. Torre's superiors thought highly of her ability and productivity, and
considered her a successful and promotable employee. Id. at 1352-53, 1356-57
¶¶ 84, 93, 113-14. In October of both 1988 and 1989 and March 1990, after
recommendations by Messrs. Rohr and Lauritzen, Mr. Haegele selected Ms. Torre
as the regional winner of the "Monthly Leadership Council Award." 3 Id. at 1353
¶ 92, 1355 ¶ 105. In April 1991, upon Mr. Lauritzen's recommendation, Mr.
Haegele selected Mr. Richardson for the award rather than Ms. Torre. Id. at 1357
¶ 115.
Ms. Torre also won a "Big Hitter" award in both 1990 and 1991. Id. at
1356-57 ¶¶ 110, 117-19. Federated instituted the Big Hitter award in 1990 to
award and recognize Marketing Representatives who meet certain sales
The Monthly Leadership Council Award is a program Federated designed 3
to recognize the efforts and achievements of Marketing Representatives. Id. at 1353 n.26. Each Regional Marketing Manager selects a winner from those Marketing Representatives recommended by the District Marketing Managers in the region. Id. Marketing Representatives cannot win the award more than once a year. Id.
-6- production goals. Id. at 1356 ¶ 109. The award was to be presented to the
recipients at the regional annual kickoff meetings, before peers, supervisors, and
upper-level management. Id. Although Mr. Haegele presented Ms. Torre with
her 1990 award at the 1990 kickoff meeting, in 1991 he did not publicly present
the award to Ms. Torre. Id. at 1356-57 ¶¶ 109-10, 117, 1375 ¶ 68. Mr. Haegele
testified he, mistakenly, did not publicly present the 1991 award to Ms. Torre out
of personal embarrassment that only one of his Marketing Representatives met the
necessary sales criteria. Id. at 1357 ¶¶ 117-18, 1375-76 ¶¶ 68-70.
From the commencement of her employment with Federated, Ms. Torre
sought to advance her career through promotion. 4 See id.at 1352 ¶ 82, 1353
¶¶ 91, 94, 1356 ¶¶ 112-13. In Federated's promotion system, persons considered
for promotion must undergo a formal career assessment as a prerequisite for
promotion. Id. at 1352 ¶ 86. Although Ms. Torre informed a number of her
superiors of her interest in promotion, through May 1991 Federated had not given
Ms. Torre a career assessment. See id. at 1352-53, 1356 ¶¶ 82, 91, 94, 112-13.
On May 23, 1991, Ms. Torre filed sex discrimination complaints with both the
Kansas Commission on Civil Rights and the Equal Employment Opportunity
4 She also inquired about being transfered to Atlanta, Georgia, or Phoenix, Arizona. Id. at 1355-56 ¶¶ 99, 112. Ms. Torre did not receive a transfer.
-7- Commission. Id. at 1357 ¶ 116. In response, Federated's corporate counsel,
Debra ReMine, sent a letter to the Kansas Commission on Civil Rights replying to
Ms. Torre's complaint. Id. at ¶ 120. In that letter Ms. ReMine stated Ms. Torre
remained "in line for a career assessment" and discussed why Federated had not
yet offered Ms. Torre one. Id. at 1357 ¶ 120. Ms. Torre never received a career
assessment, and was never promoted.
We begin our analysis by first addressing Ms. Torre's contention the district
court erred in entering partial summary judgment against her on her Title VII and
Employee Retirement Income Security Act claims. In her opening brief, Ms.
Torre fails to develop this argument, stating only that the controverted claims
"should have gone to trial because they involved disputed issues of material fact."
She does not elaborate on the alleged disputed issues of material fact. In her
reply brief Ms. Torre refers us to pleadings she filed with the district court "as
proper support" for her contention the district court's grant of partial summary
judgment was erroneous. Ms. Torre's cursory raising of this issue and her
reference to pleadings filed with the district court are insufficient to preserve the
issue for appellate review. See United States v. Kunzman, 54 F.3d 1522, 1534
(10th Cir. 1995) (appellant must present reasoned arguments addressing grounds
for appeal); Murrell, 43 F.3d at 1389 n.2 (perfunctory complaints that fail to
-8- frame and develop an issue are insufficient to invoke appellate review); Hunter v.
Allis-Chalmers Corp., 797 F.2d 1417, 1430 (7th Cir. 1986) (claims are not
"preserved by references to documents filed in the district court"). Accordingly,
we decline to address the merits of this claim.
We next consider Ms. Torre's assertion the district court erred in ruling
against her on her remaining Title VII and Employee Retirement Income Security
Act claims. Initially, we discuss her Employee Retirement Income Security Act
claims. Ms. Torre asserts both a claim for benefits under 29 U.S.C.
§ 1132(a)(1)(B) (1994) and a discrimination claim under 29 U.S.C. § 1140 (1994).
We then consider Ms. Torre's Title VII claims, which also are twofold: retaliation
and sex discrimination through disparate treatment.
Ms. Torre engages in a two-pronged attack on the district court's holding
regarding her claim for benefits under 29 U.S.C. § 1132(a)(1)(B). First, she
asserts the district court applied an incorrect legal standard in reviewing
Federated's benefit decisions. Second, she claims the court's ultimate finding
Federated did not violate § 1132 was erroneous.
We begin our analysis by briefly discussing both the standard of review
-9- applicable to the district court's review of Federated's benefit decisions and the
standard of review applicable to our own review of the district court's ultimate
conclusions. Because Federated's medical plan grants Federated, as the plan
administrator, discretion to determine eligibility for benefits under the plan, Torre
I, 854 F. Supp. at 813, Federated's benefits decisions must be upheld unless
arbitrary and capricious. Chambers v. Family Health Plan Corp., 100 F.3d 818,
825 & n.1 (10th Cir. 1996) (citing Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989)). A district court's holding that a plan administrator's
benefit decision was not arbitrary and capricious is a legal conclusion. Sandoval
v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380 (10th Cir. 1992). Accordingly,
"our review of the district court decision, although not the underlying
administrator's decision, is plenary." Id.; see also Chambers, 100 F.3d at 827
(review of a trial court's application of the arbitrary and capricious standard is de
novo). However, we give due deference to the district court's credibility
determinations. Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d
1482, 1492 (10th Cir. 1994).
Ms. Torre asserts the district court erred by failing to apply heightened
scrutiny to Federated's benefit decisions because Federated operated under a
conflict of interest. Ms. Torre is correct that a conflict of interest on the part of a
-10- plan administrator with discretionary authority "triggers a less deferential
standard of review." Chambers, 100 F.3d at 825. In Chambers we held courts
reviewing decisions of conflicted plan administrators should still apply an
arbitrary and capricious standard, but should "decrease the level of deference
given to the ... administrator's decision in proportion to the seriousness of the
conflict." Id. We found the arbitrary and capricious standard to be a flexible one,
and applied a "sliding scale" approach wherein any conflict of interest is simply
"weighed as a facto[r]" in reaching the ultimate determination of whether the
administrator's decision was arbitrary and capricious. Id. at 825 (quoting
Firestone, 489 U.S. at 115) Concomitantly, we rejected as unduly strict the
"presumptively void" test used by some circuits, wherein "a decision rendered by
a conflicted plan administrator is presumed to be arbitrary and capricious unless
the administrator can demonstrate that either (1) under de novo review, the result
reached was nevertheless 'right' or (2) the decision was not made to serve the
administrator's conflicting interest." Id. at 826; see also Brown v. Blue Cross &
Blue Shield, 898 F.2d 1556, 1566-67 (11th Cir. 1990) (detailing and applying that
test), cert. denied, 498 U.S. 1040 (1991). The rejected presumptively void test
thus shifts the burden of proving its decision was not arbitrary and capricious to
the conflicted plan administrator. See Chambers, 100 F.3d at 826 (quoting
Brown, 898 F.2d at 1566-67).
-11- In the instant case, the district court found "Federated's dual role as Plan ...
Administrator and issuing insurance company create[d] a strong conflict of
interest." Torre I, 854 F. Supp. at 815. Accordingly, contrary to Ms. Torre's
assertion, the district court clearly applied a heightened level of scrutiny in
determining whether Federated's benefit decisions were arbitrary and capricious.
See Torre II, 897 F. Supp. at 1361-66 ¶¶ 9-31. In fact, the court applied the
presumptively void test we rejected in Chambers, rather than the sliding scale
approach we espoused in that case. Chambers, 100 F.3d at 826.
We do not find the district court's use of the presumptively void test to be
reversible error because the district court's use of this test resulted in even less
deference to Federated's benefits decisions than would have resulted under a
sliding scale analysis. Instead of simply considering the conflict as a factor in
deciding whether Federated's decisions were arbitrary and capricious, the district
court placed the burden upon Federated to prove its decisions were not tainted by
self-interest. See Torre II, 897 F. Supp. at 1361-66 ¶¶ 9-31. The district court
carefully examined and considered the conflict of interest faced by Federated,
and, in holding Federated's benefit decisions were not arbitrary and capricious,
found the conflict to have had no impact on Federated's decisions. Id. at 1363-65
¶¶ 19, 25. Accordingly, because the district court carefully considered
-12- Federated's conflict of interest and applied a reduced deference arbitrary and
capricious form of review, we will not reverse the district court's benefit
decisions on standard of review grounds.
We now address Ms. Torre's substantive claim under 29 U.S.C. § 1132 to
recover health benefits allegedly due and owing under the terms of the plan. On
appeal, Ms. Torre objects to Federated's classification of some of Trisha's
expenses as mental/nervous, rather than medical. She also asserts Federated had a
duty to assist with the selection of a residential treatment facility. The district
court found the controverted expenses were for psychological treatment and,
therefore, Federated's allocation of those expenses to mental/nervous coverage
was not arbitrary or capricious under the terms of the plan. Torre II, 897 F. Supp.
at 1361-64 ¶¶ 11-20. The district court also found, after exhaustive review of the
terms of the plan, Ms. Torre had no right or entitlement to assistance from
Federated in placing Trisha in a residential treatment facility. Id. at 1365-66
¶¶ 26-31. After engaging in plenary review of the district court's decision, and, in
so doing, considering Federated's conflict of interest under the proper "sliding
scale" approach, we affirm the district court's conclusion for substantially the
reasons stated by that court. See id. at 1361-66 ¶¶ 10-20, 26-31.
-13- We next consider Ms. Torre's remaining Employee Retirement Income
Security Act claim: her assertion the district court erred in finding Federated did
not violate 29 U.S.C. § 1140, which "prohibits discrimination against
[beneficiaries] of any employee benefit plan for the purpose of interfering with
rights under such plan." Phelps v. Field Real Estate Co., 991 F.2d 645, 646 (10th
Cir. 1993). Ms. Torre asserts Federated discriminated against her for filing health
claims by (1) refusing to promote or transfer her and (2) through Mr. Lauritzen's
forcing her to open a Topeka office with Mr. Richardson. To prevail on her
claim, Ms. Torre had to prove Federated discriminated against her with the
specific intent to interfere with her employee benefit rights. See 29 U.S.C.
§ 1140; see also, e.g., Phelps, 991 F.2d at 649; Gavalik v. Continental Can Co.,
812 F.2d 834, 851 (3d Cir.), cert. denied, 484 U.S. 979 (1987). We review a
district court's finding of or against intentional discrimination for clear error.
Sorensen v. City of Aurora, 984 F.2d 349, 351 (10th Cir. 1993); see also
Zimmerman v. Sloss Equip. Inc., 72 F.3d 822, 824-26 (10th Cir. 1995) (district
court's § 1140 determination against plaintiff not clearly erroneous, and therefore
affirmed).
Initially, Ms. Torre argues the letter written by Ms. ReMine to the Kansas
Commission on Civil Rights constituted direct evidence of Federated's intent to
-14- discriminate. After review of the letter, however, we agree with the district
court's assessment: the letter is not direct evidence of discriminatory intent. See
Torre II, 897 F. Supp. at 1367 ¶ 35 & n.43. The letter simply "explains why Mrs.
Torre had not yet received a career assessment and indicates that she still 'is' in
line for an assessment." Id. at 1367 n.43.
Because the district court found Ms. Torre presented no direct evidence of
discrimination, in addressing her § 1140 claims the court engaged in the three-
step burden-shifting analysis set forth by the Supreme Court in Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981), and McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973). See, e.g., Humphreys v.
Bellaire Corp., 966 F.2d 1037, 1043 (6th Cir. 1992) ("When applying [§ 1140] ...
it is appropriate to employ a Burdine, burden-shifting approach if there is no
direct evidence of [discriminatory] motivation."). Under that analysis:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the [allegedly discriminatory action]." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Burdine, 450 U.S. at 252-53 (quoting McDonnell Douglas, 411 U.S. at 802, 804)
-15- (emphasis added). The Burdine analysis provides a "basic 'order of presentation
of proof'" to bring the controversy into focus and "assist in marshaling and
presenting relevant evidence" at trial. Elmore v. Capstan, Inc., 58 F.3d 525, 530
n.7 (10th Cir. 1995) (quoting Carey v. United States Postal Serv., 812 F.2d 621,
623 (10th Cir. 1987)); Sorensen, 984 F.2d at 352. The ultimate question to be
decided by the trier of fact remains whether the plaintiff proved she was the
victim of intentional discrimination. See Elmore, 58 F.3d at 530; Sorensen, 984
F.2d at 352.
On appeal we need not engage in the elaborate burden-shifting procedure
followed by the district court. Elmore, 58 F.3d at 530; Sorensen, 984 F.2d at 352.
Rather, once the case has been fully tried, we consider only the ultimate question
of whether the plaintiff proved the defendant intentionally discriminated against
her. Sorensen, 984 F.2d at 352. "The subsidiary steps in the McDonnell Douglas
proof scheme become irrelevant." Id. The district court found Mr. Lauritzen, Ms.
Torre's District Marketing Manager in December of 1989, could have had no
discriminatory intent when he encouraged Ms. Torre to open a joint office with
Mr. Richardson because at that time he was unaware of Ms. Torre's health benefit
claims. Torre II, 897 F. Supp. at 1367-68 ¶¶ 38-39. In regard to Ms. Torre's
claim premised on Federated's failure to promote or transfer her, the district court
-16- found Ms. Torre had failed to meet her initial burden of proving she was at least
as qualified as those persons promoted or transferred in her stead, and that
therefore her discrimination claim failed. Id. at 1369-70 ¶¶ 48-49. W e affirm the
holding of the district court on this issue for substantially the reasons stated by
that court in its final judgment. See id. at 1366-70 ¶¶ 32-49.
We now focus our attention on Ms. Torre's remaining Title VII claims,
beginning with her assertion the district court erred in holding Federated did not
intentionally discriminate against her on the basis of her sex. In addressing this
claim, the district court again followed the Burdine/McDonnell Douglas burden-
shifting approach discussed above, Torre II, 897 F. Supp. at 1370-76 ¶¶ 51-73,
and here too we need address only the ultimate question of whether Ms. Torre
proved Federated intentionally discriminated against her. See Sorensen, 984 F.2d
at 352. Because that question is a "pure question of fact," again our review is for
clear error. Pitre v. Western Elec. Co., 843 F.2d 1262, 1266 (10th Cir. 1988).
On appeal, Ms. Torre asserts Federated intentionally discriminated against
her on the basis of her sex by: (1) selecting Jeff Richardson for the April 1991
Leadership Council Award instead of her and (2) not recognizing her as a
recipient of the 1991 Big Hitter Award at the Central Region's annual kickoff
-17- meeting. She argues the district court made erroneous findings of fact, which led
to its ultimate erroneous conclusion Federated did not intentionally discriminate
against her on the basis of her sex. We have reviewed the record and, in light of
the district court's detailed findings of fact and resulting conclusions, find her
arguments unpersuasive. The district court found Mr. Haegele awarded Mr.
Richardson the Leadership Council Award to reward "a specific case of
outstanding service to a client," rather than to sexually discriminate against Ms.
Torre. Torre II, 897 F. Supp. at 1372-73, 1375 ¶¶ 59-60, 66. The court also
found Mr. Haegele's failure to publicly present Ms. Torre with the 1991 Big
Hitter Award resulted from his personal embarrassment rather than "illegal
discriminatory animus." Id. at 1372-76 ¶¶ 58-66, 73. We affirm the district
court's holding Federated did not intentionally sexually discriminate against Ms.
Torre for substantially the reasons stated by that court. See id. at 1371-76 ¶¶ 51-
73.
Ms. Torre also contends the district court erred in finding Federated did not
retaliate against her for informally complaining about alleged sexual
discrimination and formally filing charges with the Equal Employment
Opportunity Commission and the Kansas Commission on Civil Rights. See id. at
1376 ¶¶ 75, 78. Here too, the district court applied the three-step burden-shifting
-18- analysis, id. at 1376-80 ¶¶ 74-84, whereas we simply review for clear error its
ultimate finding Federated did not retaliate against Ms. Torre for protected
activity. Sorensen, 984 F.2d at 352; Purrington v. University of Utah, 996 F.2d
1025, 1031 (10th Cir. 1993).
On appeal, Ms. Torre posits five bases for her retaliation claim, claiming
Federated retaliated against her by (1) failing to promote or transfer her; (2)
forcing her to open a Topeka office; (3) providing her with unfavorable price
quotes; (4) failing to give her the Leadership Council Award in April 1991; and
(5) failing to publicly recognize her as a recipient of the 1991 Big Hitter Award at
the Central Region's annual kickoff meeting. 5 The district court found Ms. Torre
either failed to make even a prima facie case the controverted actions were
motivated by illegal retaliatory animus, or failed to show Federated's legitimate,
nondiscriminatory reasons for the controverted actions were pretextual. Torre II,
5 Ms. Torre also asserts "the district court erred by failing to deal with Torre's claim of retaliation with respect to her complaints of pervasive sexual bias." We note the district court did examine Ms. Torre's complaints of pervasive sexual bias, albeit in the context of its consideration of her sex discrimination claim rather than her retaliation claim. See Torre II, 897 F. Supp. at 1374-75 & n.49. At any rate, Ms. Torre utterly fails to explain how the alleged "pervasive sexual bias" was retaliatory. Given that failure, she fails to sufficiently present her claim for appellate review. See Murrell, 43 F.3d at 1389 n.2 (perfunctory complaints that fail to frame and develop an issue are insufficient to invoke appellate review).
-19- 897 F. Supp. at 1376-80 ¶¶ 74-84. After review of the record, we find ourselves
in agreement with the district court's analysis and disposition of these claims.
Accordingly, we again affirm the district court for substantially the reasons stated
in its final judgment. See id.
Lastly, Ms. Torre appeals the district court's failure to grant her
prejudgment interest on the $320,000 jury award for her breach of contract claim
for the ten-month period between the jury verdict on October 4, 1994 and the
district court's entry of judgment on August 4, 1995. We review the district
court's denial of Ms. Torre's Fed. R. Civ. P. 59(e) motion for prejudgment interest
for an abuse of discretion. Green Constr. Co. v. Kansas Power & Light Co., 1
F.3d 1005, 1010 (10th Cir. 1993); U.S. Indus. Inc. v. Touche Ross & Co., 854
F.2d 1223, 1255 n.43 (10th Cir. 1988).
Because the jury award was based on Ms. Torre's Kansas state law breach
of contract claim, the district court looked to Kansas law as the law of decision.
Torre V, 906 F. Supp. at 618. See Green Constr. Co., 1 F.3d at 1010 (applying
Kansas law regarding prejudgment interest); Touche Ross, 854 F.2d at 1255
("[S]tate law governs the award of prejudgment interest on state law claims that
are pendent to a federal claim."). Under Kansas law, courts grant prejudgment
-20- interest only on liquidated claims. See Kan. Stat. Ann. § 16-201 (1995); Green
Constr. Co., 1 F.3d at 1010. "'A claim becomes liquidated when both the amount
due and the date on which it is due are fixed and certain, or when the same
become definitely ascertainable by mathematical computation.'" Green Constr.
Co., 1 F.3d at 1010 (quoting Plains Resources, Inc. v. Gable, 682 P.2d 653, 657
(Kan. 1984)). In denying Ms. Torre's post-trial motion, the district court held the
amount due on Ms. Torre's breach of contract claim was not liquidated until the
court's entry of judgment on August 4, 1995, because until that time "the sum was
in dispute" and "[t]here was no fixed [due] date." Torre V, 906 F. Supp. at 618.
On appeal, Ms. Torre simply states "[t]o provide interest on [the jury]
verdict during the interim ten month period would serve to compensate Torre as
the injured party and equities do not preclude the award." Even if that is the case,
it remains true that under Kansas law the district court could not award Ms. Torre
prejudgment interest until her claim was liquidated. Green Constr. Co., 1 F.3d at
1010. Ms. Torre fails to argue the district court erred in finding her claim was
not liquidated until its final judgment on August 4, 1995. 6 Accordingly, we
6 In her reply brief, Ms. Torre states she "is well aware of the decisional law requiring a claim to be liquidated before interest can run." She then asserts the district court should not have delayed entering judgment on the jury verdict until after the bench trial. However, Ms. Torre waived this argument by failing to make it in her opening brief. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d
-21- presume that finding to be correct, see Hein v. TechAmerica Group, Inc., 17 F.3d
1278, 1279 (10th Cir. 1994) (appellate court accepts as undisputed district court
findings not expressly appealed), and therefore affirm the district court's refusal
to grant prejudgment interest on Ms. Torre's breach of contract claim. 7
979, 984 n.7 (10th Cir. 1994) (failure to raise an issue in the opening brief waives the issue). 7 Throughout the course of her brief Ms. Torre continually complains the district court failed to find "undisputed facts," or mischaracterized or otherwise erroneously described the facts. E.g., "Torre presented evidence that established an atmosphere of pervasive sexual bias"; "Torre's testimony that she received unreasonable price quotes on policies she quoted but did not sell was unopposed." She then sets forth what she alleges to be undisputed facts or the correct version of the facts. However, she consistently fails to provide cites to the record that support her factual claims of error. In such instances, Ms. Torre fails to carry her burden of proof. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995) (appellate court will not search the record to locate evidence supporting appellant's claims of error); Securities Exchange Commission v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992) (appellant claiming factual error by the district court must provide the appellate court essential references to the record to carry appellant's burden of proving error). Also, Ms. Torre makes additional allegations of error by the district court beyond those we consider in our opinion above. Usually, these charges consist of one or two sentences within Ms. Torre's discussion of another issue. Ms. Torre asserts the sufficiency of the evidence did not support the district court's findings, the court erred in allowing testimony by a particular witness, "the attorney client privilege should not have been applied by the court to the representations ReMine made to the Kansas Commission on Civil Rights," the district court erroneously substituted its business judgment for Federated's, and the court erred in refusing to allow Ms. Torre and a medical expert to testify regarding Ms. Torre's "emotional and physical damage of which Federated's failure to promote or transfer Torre was a major contributor." In each instance, Ms. Torre has failed to sufficiently present these claims for appellate review, and therefore we decline to address them. See Murrell, 43 F.3d at 1389 n.2; Phillips v. Calhoun, 956 F.2d 949, 953 (10th Cir. 1992) (a party must support its argument with legal authority).
-22- We now direct our attention to Federated's cross-appeal. Federated appeals
from the jury verdict on Ms. Torre's breach of contract claim and the district
court's denial of Federated's post-trial motion for judgment as a matter of law.
We review de novo the district court's denial of Federated's motion for judgment
as a matter of law, applying the same standard used by the district court. Haines
v. Fisher, 82 F.3d 1503, 1510 (10th Cir. 1996); Clark v. Brien, 59 F.3d 1082,
1086 (10th Cir. 1995), cert. denied, 116 S. Ct. 800 (1996). "It is appropriate for a
trial court to enter judgment as a matter of law '[i]f during a trial by jury a party
has been fully heard on an issue and there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that issue.'" Mitchell v. Maynard,
80 F.3d 1433, 1438 (10th Cir. 1996) (quoting Fed. R. Civ. P. 50(a)). "[T]he court
must view the evidence and indulge all inferences in favor of the party opposing
the motion and cannot weigh the evidence, consider the credibility of witnesses or
substitute its judgment for that of the jury." Lucas v. Dover Corp., 857 F.2d
1397, 1400 (10th Cir. 1988) (internal quotation marks omitted). "Under this
standard, we may find error in the denial of such a motion only if the evidence
points but one way and is susceptible to no reasonable inferences supporting the
party opposing the motion." Haines, 82 F.3d at 1510.
-23- As previously noted, in Ms. Torre's breach of contract claim, she asserted
Federated breached her employment contract by removing that portion of
Shawnee County outside the city limits of Topeka from her sales territory. Torre
IV, 1994 WL 541773, at *1. The jury agreed with Ms. Torre that Federated
breached her employment contract by decreasing her assigned sales territory, and
awarded her past and future damages of $320,000. Torre III, 897 F. Supp. at
1329.
Federated first argues "it was entitled to judgment as a matter of law
because ... Torre's employment agreement with Federated unambiguously gave
Federated the right to unilaterally assign her territory 'from time to time.'"
Federated asserts that because the contract was unambiguous in that regard, it was
the district court's responsibility to ascertain the parties' contractual rights, not the
jury's. See Carland v. Metropolitan Life Ins. Co., 935 F.2d 1114, 1120 (10th Cir.)
("Only when ambiguity exists on the face of a contract is a question of fact
presented."), cert. denied, 502 U.S. 1020 (1991). However, even if Federated is
correct, the right to unilaterally assign sales territory is not necessarily the same
as the right to unilaterally reduce assigned territory, which is what Federated did
in the instant case. In that regard, we find the contract ambiguous. See id.
(whether a contract is ambiguous is a matter of law). Because Ms. Torre's
-24- employment contract did not unambiguously give Federated the right to reduce
Ms. Torre's assigned territory, the district court did not err in refusing to grant
Federated judgment as a matter of law on this asserted ground.
In its motion for judgment as a matter of law, Federated also argued Ms.
Torre waived any right to contest, and was estopped from contesting, Federated's
modification of her territory assignment by failing to raise the issue for three and
a half years. See Torre III, 897 F. Supp. at 1329-30. The district court held
Federated failed to argue waiver or estoppel in its pre-verdict motion for
judgment as a matter of law, and therefore could not assert those theories in its
post-verdict motion. Torre III, 897 F. Supp. at 1330-31.
A party may move for judgment as a matter of law "at any time before
submission of the case to the jury." Fed. R. Civ. P. 50(a)(2). The motion "shall
specify the judgment sought and the law and the facts on which the moving party
is entitled to the judgment." Id. A party that moved for judgment as a matter of
law prior to the court's submission of the case to the jury, as Federated did, Torre
III, 897 F. Supp. at 1330, may reassert its motion within ten days after entry of
judgment. Fed. R. Civ. P. 50(b). "The post-verdict motion is actually a renewal
of the earlier motion made at the close of the evidence." Courtney v. Safelite
-25- Glass Corp., 811 F. Supp. 1466, 1470-71 (D. Kan. 1992). "A post-trial motion
for judgment can be granted only on grounds advanced in the pre-verdict motion."
Fed. R. Civ. P. 50 advisory comm. note, 1991 amend.; Anderson v. United
Telephone Co., 933 F.2d 1500, 1503 (10th Cir.), cert. denied, 502 U.S. 940
(1991).
Federated's pre-verdict motion for judgment was as follows:
At this point, I move for [judgment as a matter of law] and I will not make an elongated argument. I know the Court is aware of the record and has been here and has had all of our briefs. I would suggest to you you've had a chance now to see the contract and the issues before us. I don't believe there's ambiguity about what happened. I believe it was a mistake and I don't believe there's sufficient evidence to go to the jury on that matter. I also believe that even if that is not the case, there's no evidence here that there was a breach of the contract with respect to the territory assignment correction that was provided to the plaintiff on the 14th of April, 1988, and so I would ask the Court at this time for [judgment as a matter of law] on the case.
Although "we liberally construe [pre-verdict motions for judgment], and do
not require technical precision as long as the trial court is aware of the movant's
position," Aguinaga v. United Food & Commercial Workers Int'l Union, 993 F.2d
1463, 1470 (10th Cir. 1993), cert. denied, 510 U.S. 1072 (1994), Federated has
failed to satisfy even that standard. In its pre-verdict motion, Federated argues
sufficiency of the evidence, and perhaps mutual mistake in formation. Federated
-26- did not argue waiver or estoppel. Federated's general reference to the record and
the parties' briefs is insufficient to raise those claims. See Fed. R. Civ. P. 50
advisory comm. note, 1991 amend. ("The information required with the motion
may be supplied by explicit reference to materials and argument previously
supplied to the court." (Emphasis added.)). Our finding is further supported by
review of Ms. Torre's response to Federated's pre-verdict motion. She responds to
Federated's sufficiency of the evidence and mutual mistake arguments; she makes
no mention of waiver or estoppel. Because we find Federated did not adequately
present its waiver and estoppel claims in its pre-verdict motion, we affirm the
district court's dismissal of these arguments.
We AFFIRM the appealed holdings of the district court.
Entered for the Court
WADE BRORBY United States Circuit Judge
-27-