F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        October 19, 2005
                             FOR THE TENTH CIRCUIT
                                                                          Clerk of Court

    LINDA SHAUB, and other persons
    similarly situated; VERA WALKER,

                Plaintiffs - Appellants,
                                                         No. 04-6349
    v.                                            (D.C. No. 03-CV-1281-HE)
                                                         (W.D. Okla.)
    NEWTON WALL COMPANY/UCAC,

                Defendant - Appellee,


          and

    JON RAINBOLT, individually and in
    his official capacity as supervisor,

                Defendant.


                             ORDER AND JUDGMENT           *




Before EBEL , HARTZ , and McCONNELL , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral


*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      This appeal challenges a district court’s jury instructions in an age-

discrimination case. Plaintiffs Linda Shaub and Vera Walker argue that the

district court erred in failing to instruct the jury on hostile work environment,

retaliation, and “pattern and practice” theories. They also challenge the denial of

their co-workers’ failed motion to intervene; but they have failed to explain how

that denial prejudiced them, so we need not address the issue. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

                                  I. B ACKGROUND

      Plaintiffs worked for appellee Newton Wall Company/UCAC, a business

that buys and resells salvaged merchandise, until they were fired by Newton’s

general manager, Jon Rainbolt. They sued under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634. They alleged that Rainbolt

fabricated misconduct and job-performance issues, “began harassing [Shaub] to

force her resignation” when she was a “crew chief,” made “several references”

that Plaintiffs were unable “to follow directions because of [their] age,”

demanded that they work at the Shawnee distribution center, “retaliated against . .

. Shaub” by giving her three misconduct notices and then firing her, and

“retaliated against . . . Walker by terminating her without giving any reason,” all


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as part of a “pattern and practice to replace [them] and other women over 40 with

younger women under 40.” Aplt. App. at 29-30 (second amended complaint).

      In the pretrial report and their proposed jury instructions, Plaintiffs asserted

hostile-work-environment and retaliation theories. Newton objected, arguing that

Plaintiffs had pleaded only wrongful termination, and that hostile work

environment could not be the basis of a viable claim under the ADEA. At the

September 27, 2004, pretrial conference, the district court agreed:

             There is also suggestion of a hostile work environment claim,
      which in my view is also not raised here. It wasn’t raised by the
      complaint. It’s not altogether clear that it’s even available in an age
      case. And in any event, I’m satisfied from the summary judgment
      briefs and supporting information that even if it was potentially
      available here, that there’s no factual basis for it simply because the
      nature of the allegations from the plaintiffs, even if true, don’t rise to
      the status of being severe or pervasive conduct as would support a
      hostile work environment claim.
             It also appears to me that retaliation is not involved here, at
      least as a separate claim. I don’t think the complaint raised it, and
      obviously some of the evidence that might be available in a
      retaliation claim would come in on . . . the issue that does remain
      with respect to the wrongful termination based on age claim. But as
      a separate theory, or separate claim, I do not view a retaliation claim
      as being present here.

Aplt. App. at 184.

      Also, in the pretrial report Plaintiffs asserted that “Rainbolt made

unfounded and unwarranted allegations of misconduct against [them] as part of

Rainbolt’s pattern and practice to replace [them] with . . . women under forty.”



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Aplt. App. at 101-02. But the district court did not permit this assertion to

expand their wrongful-termination claim:

             [T]o the extent that the plaintiffs are attempting to assert some
      alternate or additional theory of recovery, they don’t have one with
      the pattern or practice stuff. But it does seem to me that pattern or
      practice evidence may potentially be admissible as bearing on . . .
      whether or not the stated reasons given for the terminations were
      pretext.

Aplt. App. at 185.

      During the jury-instruction conference after the close of evidence, Plaintiffs

apparently objected to the district court’s proposed ADEA instruction. The

instruction tracked 29 U.S.C. § 623(a)(1)’s pronouncement that it is unlawful for

an employer “to discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” Aplt. App. at 169. Plaintiffs had

earlier submitted an ADEA instruction that incorporated not only subsection

(a)(1), but also subsection (a)(2), which states that it is unlawful for an employer

“to limit, segregate, or classify his employees in any way which would deprive or

tend to deprive any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such individual’s age.”

The limited transcript provided by Plaintiffs on appeal does not reveal, however,

any expression of concern about the court’s omission of subsection (a)(2).

Rather, the transcript indicates only that they wanted the court’s instruction to

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reflect that subsection (a)(1)’s “otherwise discriminate” language encompassed

their “position that [Shaub] was demoted and transferred as part of [Rainbolt’s]

actions that ended up in the termination.” Aplt. App. at 255. Newton opposed

modifying the court’s ADEA instruction to include demotion and transfer

theories, arguing that those theories had never been part of the case. The district

court agreed:

      [T]he language in the pretrial order, both in the description of the
      respective cases and preliminary statement and in the contentions of
      the plaintiff[s] both focus on the termination. And I don’t know that
      I see a basis in the pretrial order for extending the question here to
      something beyond termination.

Aplt. App. at 258.

      On September 29, 2004, the jury returned a verdict in Newton’s favor. The

district court entered judgment accordingly. Plaintiffs appealed.

                                   II. A NALYSIS

                          A. Hostile Work Environment

      Plaintiffs argue that the district court abused its discretion in rejecting their

hostile-work-environment jury instruction. Specifically, they challenge the

district court’s ruling during the pretrial conference that a claim for hostile work

environment was not within the lawsuit’s scope. We agree with the district court.

      Federal Rule of Civil Procedure 16(c)(1) authorizes a district court to “take

appropriate action” during the pretrial conference “with respect to . . . the


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formulation and simplification of the issues, including the elimination of

frivolous claims or defenses.” The pretrial order, which recites the action taken

at the conference, “measures the dimensions of the lawsuit,” Hullman v. Bd. of

Trustees of Pratt Cmty. Coll., 

, 668 (10th Cir. 1991) (internal

quotation marks omitted), and “control[s] the subsequent course of the action

unless modified by a subsequent order,” Fed. R. Civ. P. 16(e). In Wilson v.

Muckala, 

, 1215-16 (10th Cir. 2002), we stated that claims or

defenses not contained in the pleadings should normally not appear for the first

time in the pretrial order because “[s]uch a practice deprives one’s adversary of

fair notice, possibly discovery, and the opportunity for motion practice, and is

subject to abuse by those who employ a sporting theory of justice.”

Consequently, when a district court confronts such claims or defenses, it must

“consider whether to approve or deny what is obviously an attempt to amend the

pleadings at a rather late date.” 

      Plaintiffs’ age-discrimination claim does not mention “hostile work

environment.” Although the complaint alleged that Newton “allowed Rainbolt to

create an intimidating, hostile and offensive environment,” Aplt. App. at 34, that

allegation was contained in their state-law claim for negligent hiring and

retention, and was not incorporated into their age-discrimination claim. Their

“First Cause of Action” for “Age Discrimination” incorporated only the


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allegations “heretofore made,” Aplt. App. at 30, and did not incorporate

allegations subsequently made, such as those in the “Fifth Cause of Action” for

“Negligent Hiring and Retention,” Aplt. App. at 34.     Nor does their age-

discrimination claim include facts sufficient to give Newton notice that such a

theory was intended. See Fed. R. Civ. P. 8(a) (requiring that a claim for relief

contain “a short and plain statement . . . showing that the pleader is entitled to

relief”). There are no allegations suggesting that Plaintiffs worked in an

environment “permeated with discriminatory intimidation, ridicule, and insult” so

severe or pervasive that it altered their employment conditions and created an

abusive working environment, MacKenzie v. City & County of Denver, 

, 1280 (10th Cir. 2005). As noted by the Eleventh Circuit, “the liberal

construction accorded a pleading . . . does not require courts to fabricate a claim

that a plaintiff has not spelled out in his pleadings.” Maniccia v. Brown, 

, 1367 n.1 (11th Cir. 1999). We reject Plaintiffs’ contention that their

inclusion of a hostile-work environment claim in the pretrial report gave Newton

“sufficient notice,” Aplt. Opening Br. at 13. The pretrial report was filed two

months after the deadlines for discovery and motions to amend.      See Wilson , 303

F.3d at 1215-16 (discouraging the inclusion of claims for the first time in a

pretrial order because such a practice “deprives one’s adversary of fair notice,

possibly discovery, and the opportunity for motion practice”).


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      But we need not rest our decision on that ground alone. The district court

discerned no factual basis for a hostile-work-environment claim based on the

parties’ summary-judgment materials. As Plaintiffs have not included those

materials in the appellate record, we must accept the district court’s analysis as

correct, Scott v. Hern, 

, 912 (10th Cir. 2000) (“Where the record is

insufficient to permit review we must affirm.”). To the extent that Plaintiffs cite

evidence adduced at trial as supporting their hostile-work-environment jury

instruction, we make two observations. First, the district court’s ruling excluding

a hostile-work-environment theory from the case during the pretrial conference

was not, and obviously could not have been, based on evidence subsequently

offered at trial. Second, Plaintiffs do not cite any part of the record showing that

they objected during trial to the omission of their instruction or that an objection

would have been futile because the district court had already “made a definitive

ruling on the record rejecting” their instruction, Fed. R. Civ. P. 51(d)(1)(B).

                                   B. Retaliation

      Plaintiffs next contend that the district court abused its discretion in not

instructing the jury on their retaliation theory. Specifically, they challenge the

district court’s ruling that the theory was neither pleaded nor substantively sound.

Although we are not convinced that the district court made a dual ruling

concerning the retaliation theory, we accept their representation that during the


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pretrial conference the district “court ruled that [Plaintiffs] not only failed to raise

the claim of ‘retaliation’ in their pleadings, but found no factual basis for the

claim.” Aplt. Br. at 17.

      To establish a prima facie case of retaliation, a plaintiff must demonstrate

that she engaged in an activity protected by the ADEA, such as opposing or

complaining about age discrimination by the employer, and suffered an adverse

consequence due to her participation in that activity. 

(citing 29 U.S.C. § 623(d)). But to plead such a claim, a plaintiff need

only “give the defendant fair notice of what the plaintiff’s claim is and the

grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 

, 512

(2002) (internal quotation marks omitted).

      Plaintiffs point to a variety of allegations scattered throughout the initial

complaint, first amended complaint, and second amended complaint that mention

“retaliation.” We are concerned, however, only with the age-discrimination claim

contained in the second amended complaint. See Gilles v. United States, 

, 1389 (10th Cir. 1990) (amended pleading supersedes the pleading it

modifies). There, they alleged that “Rainbolt retaliated against . . . Shaub with

three (3) EMPLOYEE WARNING NOTICE’s alleging misconduct,” “Rainbolt

further retaliated and terminated . . . Shaub,” and “Rainbolt retaliated against . . .

Walker by terminating her without giving any reason.” Aplt. App. at 29-30.


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These allegations fall short of stating a proper retaliation claim because they fail

to allege protected conduct for which Plaintiffs suffered retaliation.

      In any event, even if the pleading was adequate, the evidence was not.

“[A] party is entitled to an instruction on his theory of the case if the instruction

is a correct statement of the law and if he has offered sufficient evidence for the

jury to find in his favor.” F.D.I.C. v. Schuchmann, 

, 1222 (10th

Cir. 2000) (internal quotation marks omitted). But “[i]t is error to give an

instruction on a theory which does not have sufficient evidence in the record to

support its submission to the jury.” Hinds v. General Motors Corp., 

, 1046 (10th Cir. 1993).

      Initially, we note that Plaintiffs point to no part of the record showing that

they objected at trial to the omission of their retaliation instruction. See 10th Cir.

R. 28.2(C)(3)(b) (brief must cite to the precise reference in the record where a

required objection was made to a refusal to give a jury instruction). Nor do they

suggest that their lack of objection should be excused as futile because of the

district court’s ruling excluding retaliation from the pretrial order. See Fed. R.

Civ. P. 51(d) (failure to object to a jury instruction’s omission results in

plain-error review “unless the [district] court made a definitive ruling on the

record rejecting the request[ed instruction]”). Nevertheless, we assume, without




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deciding, that the district court’s pretrial ruling excluding a retaliation claim

carried over into trial.

       Plaintiffs cite the following trial evidence as supporting their retaliation

theory: (1) Rainbolt transferred Shaub after she complained about (a) a male

supervisor “going in the back with [a] younger girl,” Aplt. App. at 206, (b) young

female employees “standing around talking” to that supervisor, while the older

female employees were working, 

young female employees violating

Newton’s dress code; and (2) Rainbolt terminated Walker after she complained

about young female employees violating the dress code and not working. But

Plaintiffs point to no evidence that they expressed a concern about disparate

treatment or otherwise engaged in protected opposition to discrimination. Rather,

their complaints concern Rainbolt’s failure to correct younger employees’ dress

code violations and poor work ethic. Plaintiffs distort Walker’s testimony when

they state that she was terminated after complaining about Rainbolt’s preferential

treatment of young female employees. Walker testified that she complained about

“some ladies wearing inappropriate clothing” and that Rainbolt told her and co-

worker Freda Lewis, “[Y]ou two are always starting something. . . . [I]f you

don’t quit it, . . . next time I’m going to fire you.” Aplt. App. at 252. Plaintiffs

also distort Lewis’s trial testimony when they state that Rainbolt threatened to fire

Lewis if she complained about Rainbolt’s promoting “young girls over the older


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ladies,” Aplt. Opening Br. at 18. Ms. Lewis simply testified that Rainbolt stated,

“[I]f you and [Walker] say any more about the dress code or complain I will fire

you,” Aplt. App. at 221, and that Rainbolt responded to her promotion inquiries

by stating, “I’ll make the [promotion] decision, the one that I think is the best,”

and “I’ll promote who I want to promote,”      

      Thus, Plaintiffs have not pointed to evidence that they suffered adverse

action in response to protected activity. Their retaliation theory was properly

withheld from the jury. See Petersen v. Utah Dep’t of Corr., 

,

1188-89 (10th Cir. 2002); Pope v. ESA Services, Inc., 

, 1010 (8th

Cir. 2005) (in Title VII retaliation case, employee’s comments about the absence

of black managers did not constitute protected activity because employee failed to

attribute the absence of managers to racial discrimination); Trammel v. Simmons

First Bank of Searcy, 

, 615 (8th Cir. 2003) (ADEA plaintiff’s letter-

writing campaign accusing employer of improper loan procedures was not

protected activity because the letters were not written to oppose age

discrimination); Freilich v. Upper Chesapeake Health, Inc., 

, 216-17

(4th Cir. 2002) (physician’s ADA retaliation claim failed because her opposition

to her employer’s treatment of dialysis patients was based on violations of state

medical malpractice law and not the ADA); Barber v. CSX Distribution Servs., 

, 701 (3d Cir. 1995) (employee’s ADEA retaliation claim failed because


                                            -12-
employee’s criticism of employer’s selection of a less qualified, younger applicant

for a job, without specifically complaining about age discrimination, did not

constitute protected conduct).

                             C. “Pattern & Practice”

      Plaintiffs argue that the district court erred in not instructing the jury on 29

U.S.C. § 623(a)(2), which makes it unlawful for an employer “to limit, segregate,

or classify his employees in any way which would deprive or tend to deprive any

individual of employment opportunities or otherwise adversely affect his status as

an employee, because of such individual’s age.” They argue that an instruction

based on the statute was necessary “because the court allowed statistical evidence

of [Newton’s] pattern and practice” of “discrimination against older women.”

Aplt. Opening Br. at 21. Newton counters that the district court properly limited

the pattern-and-practice theory to the termination issue under 29 U.S.C. §

623(a)(1).

      We need not delve too deeply into this issue, given that Plaintiffs’

objection at trial appears to have involved the language to be used when

instructing the jury on 29 U.S.C. § 623(a)(1), rather than § 623(a)(2). “When

considering a party’s challenge to jury instructions, our initial inquiry is whether

the party properly preserved that issue for appeal by objecting at the district court

level to the instruction on the same grounds raised on appeal.” Reed v. Landstar


                                         -13-
Ligon, Inc., 

, 452 (10th Cir. 2002) (internal quotation marks

omitted). The limited transcript of the jury trial conference offered by Plaintiffs

contains no “obvious, plain, or unmistakable” reference to subsection (a)(2), 

marks omitted); see also Fed. R. Civ. P. 51(c)(1) (“[a] party

who objects to an instruction or the failure to give an instruction must do so on

the record, stating distinctly the matter objected to and the grounds of the

objection”); 10th Cir. Rule 10.1(A) (“appellant must provide all portions of the

transcript necessary to give the court a complete and accurate record of the

proceedings related to the issues on appeal”); 10th Cir. Rule 10.3(B) (designation

of an inadequate record may preclude an issue’s consideration). Consequently,

we review for plain error the district court’s failure to instruct the jury on

subsection (a)(2). Fed. R. Civ. P. 51(d)(2).

      “We will reverse under the plain error standard only in exceptional

circumstances where the error was patently plainly erroneous and prejudicial.”

(internal quotation marks omitted). The “statistical

evidence” referred to by Plaintiffs consisted solely of a stipulation that in 2002

Rainbolt had fired ten workers over the age of 40 and ten under 40, and in 2003

had fired five workers over the age of 40 and nine under 40. Because Rainbolt

had fired more workers under 40 than older workers during the 2002-2003 time

period, the “statistics” are hardly probative of discrimination, at least in the


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absence of evidence showing how many older workers remained employed at

Newton. We therefore fail to understand Plaintiffs’ contention that the “statistical

evidence” justified an instruction under subsection (a)(2). The district court did

not plainly err in instructing the jury under only 29 U.S.C. § 623(a)(1).

                                 III. C ONCLUSION

      As the district court did not commit reversible error in declining to give

Plaintiffs’ requested instructions regarding hostile work environment, retaliation,

and “pattern and practice,” the judgment of the district court is AFFIRMED.

                                                 Entered for the Court


                                                 Harris L Hartz
                                                 Circuit Judge




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