FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 20, 2009
                 UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 LAURA SCHMIDT,

          Plaintiff-Appellant/Cross-
          Appellee,
                                                   Nos. 07-3347 & 07-3354
 v.                                                      (D. Kansas)
                                                    2:06-CV-02260-JWL
 MEDICALODGES, INC.,

          Defendant-Appellee/Cross-
          Appellant.


                          ORDER AND JUDGMENT *

Before TACHA, SEYMOUR and HOLMES, Circuit Judges.


      Laura Schmidt brought an action against her former employer,

Medicalodges, Inc. (“Medicalodges”), for hostile work environment sexual

harassment in violation of Title VII of the Civil Rights Act, 42 U.S.C. §

2000e-2(a)(1). She appeals the district court’s denial of her motion for a new

trial after the jury found that Medicalodges was not liable for the harassment Ms.


      *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with F ED . R. A PP . P. 32.1 and 10 TH
C IR . R. 32.1.
Schmidt suffered at the hands of its employee, Shawn Garbin, because it proved

the affirmative defense recognized in Burlington Indus., Inc. v. Ellerth, 

, 765 (1998), and Faragher v. City of Boca Raton, 

, 807 (1998).

Medicalodges appeals the district court’s denial of its request for an award of

statutory attorney fees. We affirm.

      Ms. Schmidt was a nurse at the Kansas City facility of Medicalodges

providing care to elderly patients. 1 During her employment, Shawn Garbin, the

Director of Nursing, was Ms. Schmidt’s immediate supervisor. Julie Melvin, the

facility’s administrator, was Garbin’s immediate supervisor and answered to

Cindy Frakes, a regional manager. In 2005, Garbin was immediately suspended

after Medicalodges received a report that he had sexually harassed an employee,

Angela Mitchell. Garbin was terminated after Ms. Frakes and Ms. Melvin

investigated Ms. Mitchell’s complaint and received evidence of additional

complaints of sexual harassment against Mr. Garbin.

      Ms. Schmidt did not complain of sexual harassment during her employment

with Medicalodges. In her letter of resignation, she referred to her health and

need to cut back from her many jobs. Ms. Schmidt asserted a claim against

Medicalodges before the Equal Employment Opportunity Commission and the

district court after she learned that a former Medicalodges employee was pursuing

      1
       The undisputed facts are from the district court’s opinion denying in part
and granting in part Medicalodges’ motion for summary judgment. See Schmidt
v. Medicalodges, Inc., 

, 1304 (D. Kan. 2007).

                                         -2-
an harassment claim. The jury found in favor of Medicalodges.

      Ms. Schmidt bases her request for a new trial on two arguments. First, she

contends the district court erred in admitting testimony that one of her witnesses

lied on her employment application when she denied being convicted of a felony.

Ms. Schmidt argues that the testimony about a 1993 conviction for drug

possession should have been excluded under Federal Rules of Evidence 609 and

403. Second, she asserts that there was insufficient evidence to support the jury’s

finding that Medicalodges proved the Faragher/Ellerth affirmative defense.

      Motions for a new trial are “not regarded with favor and should only be

granted with great caution” in the sound discretion of the trial court. United

States v. Kelley, 

, 586 (10th Cir. 1991); Hinds v. Gen. Motors Corp.,

, 1046 (10th Cir. 1993). In reviewing for an abuse of discretion,

we view “all the evidence in the light most favorable to the prevailing party.”

Escue v. N. OK Coll., 

, 1156-57 (10th Cir. 2006). “[T]he party

seeking to set aside a jury verdict must demonstrate trial errors which constitute

prejudicial error or that the verdict is not based on substantial evidence.” White

v. Conoco, Inc., 

, 1443 (10th Cir. 1983).

      As to Ms. Schmidt’s first argument, one of the critical issues before the

jury was evaluation of the credibility of two of Ms. Schmidt’s witnesses, Dorothy

Joyner and Tonette Ealy. Ms. Joyner and Ms. Ealy both testified they had left

notes under Ms. Melvin’s office door explaining that Mr. Garbin had sexually

                                         -3-
harassed them. Ms. Melvin testified that she never received such notes.

Medicalodges’ counsel attempted to impeach Ms. Ealy, after she testified on

cross-examination that she was a truthful person, by offering into evidence the

employment application Ms. Ealy had submitted to Medicalodges in 2002. Ms.

Schmidt’s counsel objected, asserting that the conviction was too remote and that

the employment application was not listed or produced in advance.

Medicalodges’ counsel countered “that he wished to impeach Ms. Ealy’s

credibility with evidence that she was not truthful in her application when she

denied having been convicted of a crime, when in fact she had been convicted of

a drug offense in 1993.” 

. The district court

sustained Ms. Schmidt’s objection, excluding the application and any

documentary evidence of the conviction. But the court allowed Medicalodges’

counsel to “ask Ms. Ealy whether she had made the particular representation in

her application and whether she had in fact been convicted [of a crime], using the

documents only to refresh her recollection if necessary.” 2 

Ms. Ealy admitted her misrepresentation regarding her conviction, the district

court gave the jury a limiting instruction advising that the purpose of the question

was solely so they could evaluate whether the witness had made inconsistent

statements. 

      2
         Ms. Ealy later admitted that she had made a similar representation to her
current employer.

                                         -4-
      The record does not indicate any objection to the questioning of Ms. Ealy

about her lie on the employment application or about the conviction. “[A] party

that has forfeited a right by failing to make a proper objection may obtain relief

for plain error.” United States v. Carrasco-Salazar, 

, 1272 (10th

Cir. 2007). “Plain error is that which is obvious, or which seriously affects the

fairness or integrity of the trial.” United States v. Deters, 

, 1258

(10th Cir. 1999) (citation and quotation marks omitted).

      Ms. Schmidt contends Medicalodges violated Rule 609’s advance notice

and balancing requirements and that somehow cures her counsel’s failure to

object. Rule 609 addresses situations where a counsel attempts to impeach a

witness by direct evidence of a criminal conviction. See F ED . R. E VID . 609. Ms.

Schmidt’s argument ignores the important fact that the district court only allowed

Medicalodges to impeach Ms. Ealy, a non-party-witness, by evidence of her

untruthfulness on an employment application under Rule 608(b). See 

(citing United States v. Norton, 

, 243-44 (1st

Cir. 1994)). Rule 608(b) provides:

      Specific instances of the conduct of a witness, for the purpose of
      attacking or supporting the witness’ credibility, other than conviction
      of crime as provided in Rule 609, may not be proved by extrinsic
      evidence. They may, however, in the discretion of the court, if
      probative of truthfulness or untruthfulness, be inquired into on
      cross-examination of the witness (1) concerning the witness’
      character for truthfulness or untruthfulness, or (2) concerning the
      character for truthfulness or untruthfulness of another witness as to
      which character the witness being cross-examined has testified.

                                         -5-
F ED . R. E VID . 608(b). Because Medicalodges’ counsel impeached Ms. Ealy with

evidence of her untruthfulness, not by evidence of a crime, the district court

correctly concluded that the applicable rule was 608, not 609. See United States

v. Redditt, 

, 602 (7th Cir. 2004) (Redditt’s failure to identify her

conviction on her employment application was relevant to her character for

truthfulness, thus, the district court properly permitted questioning about those

statements).

      Ms. Schmidt is correct that Rule 608(b) is subject to the exclusion of

evidence whose “probative value is substantially outweighed by the danger of

prejudice.” F ED . R. E VID . 403; see also United States v. Olivo, 

,

1470 (10th Cir. 1996). Our review of the record, however, persuades us that “the

district court conducted the required balancing but simply failed to make explicit

findings in the record [at trial]. . . . [E]xplicit findings are not an absolute

requirement the nonperformance of which mandates reversal.” United States v.

Howell, 

, 1270 (10th Cir. 2002) (citation and quotation marks

omitted). Here, the court sufficiently explained in its written opinion how it

conducted the required balancing and the basis for its exercise of discretion under

Rule 608(b).

      In this case, Ms. Ealy’s credibility became a material issue, as her
      testimony was directly refuted by Mr. Garbin and Ms. Melvin.
      Evidence that Ms. Ealy lied on her employment application was
      probative of her truthfulness. See United States v. Girdner, 

, 260-61 (10th Cir. 1985) (under Rule 608(b), a party may

                                           -6-
      cross-examine a witness about previous falsehoods as probative of
      truthfulness); . . . Davidson Pipe Co. v. Laventhol and Horwath, 

, 462-63 (S.D.N.Y. 1988) (employment applications carry
      an obligation for truthfulness, such that falsehoods thereon may be
      probative of a lack of credibility under Rule 608(b)); see also United
      States v. Drake, 

, 867 (10th Cir. 1991) (rejecting
      argument for exclusion under Rule 608(b); questions upon
      cross-examination do not constitute extrinsic evidence under that
      rule, even if they refer to records not in evidence).

.

      In light of the limiting instructions to the jury, we conclude that the district

court’s exercise of its discretion to allow testimony probative of untruthfulness

did not amount to plain error where the truthfulness of the non-party-witness

played a material role. See Pinkham v. Me. Cent. R.R. Co., 

, 878-79

(1st Cir. 1989) (where witness lied on employment application concerning prior

convictions, evidence was relevant to witness’ credibility, and the court’s limiting

instruction lessened any prejudicial impact under Rule 403).

      Ms. Schmidt also contends the jury verdict based on the Faragher/Ellerth

defense was against the overwhelming weight of the evidence. Under

Faragher/Ellerth, an employer may be vicariously liable for a hostile work

environment unless it can prove by a preponderance of the evidence: “(1) it

exercised reasonable care to prevent and correct promptly any sexually harassing

behavior, and (2) the plaintiff unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or to avoid harm

otherwise.” Pinkerton v. Colo. Dept. of Transp., 

, 1058-59 (10th

                                          -7-
Cir. 2009) (citing 

; 

) (internal

quotation marks omitted).

      As to the first prong of the Faragher/Ellerth defense, the record reflects the

jury was presented sharply conflicting evidence addressing whether Medicalodges

had a sufficient anti-harassment policy and training, ignored prior complaints,

failed to discipline Mr. Garbin for alleged previous sexual assaults, or whether its

policy prohibited retaliation for complaining. For instance, the jury was

presented with evidence that Medicalodges had an extensive policy prohibiting

harassment, provided booklets containing the policy to all employees, trained its

employees, “required reporting of harassment, provided numerous avenues for

complaints, provided for prompt and confidential investigation of complaints,

provided for immediate suspension of an alleged harasser, and prohibited

retaliation for complaints.” 

. The parties also

presented contradictory evidence regarding whether other individuals had

submitted reports of sexual harassment by Garbin to Medicalodges. 3 The jury

also heard that Medicalodges terminated Garbin soon after it received a complaint

of sexual harassment.

      As to the second prong of the defense, there was conflicting evidence

      3
       Although Schmidt contends notice of a prior complaint by Angela
Mitchell to her supervisor about sexual harassment by Mr. Garbin must be
imputed to defendant, the supervisor testified he did not pass along that complaint
after Ms. Mitchell urged him not to do so “because the incident would probably
blow over.” 

.

                                         -8-
regarding whether Ms. Schmidt unreasonably failed to take advantage of the

corrective opportunities provided by Medicalodges. Ms. Schmidt contends she

did not report Garbin’s behavior because she feared retaliation, and that any

complaint would have been futile. To refute Ms. Schmidt’s allegation,

Medicalodges provided the jury with relevant sections of its policy prohibiting

retaliation based on reports of harassment. In addition, Ms. Schmidt admitted she

reported Garbin’s alleged excessive use of profanity to Ms. Melvin without fear

of retaliation. “Jury findings on sharply conflicting evidence are conclusively

binding on appeal inasmuch as jurors are charged with the exclusive duty of

assessing the credibility of witnesses and determining the weight to be given to

their testimony.” 

. “Thus, even if we do not necessarily

agree with the jury’s verdict, it must be upheld unless it is clearly, decidedly or

overwhelmingly against the weight of the evidence.” 

(internal citations and quotation marks omitted). The jury verdict in

this case is not decidedly against the weight of the evidence.

      In its cross-appeal, Medicalodges asserts the district court erred when it

refused to award it attorneys fees and expenses under 42 U.S.C. § 2000e-5(k).

Section 2000e-5(k) provides that the district court, in its discretion, may award

the prevailing party in a Title VII action reasonable attorney fees. See 42 U.S.C.

§ 2000e-5(k). But the Supreme Court has made clear that a Title VII defendant

is not entitled to an award of fees unless the court finds that the plaintiff’s “claim

                                          -9-
was frivolous, unreasonable, or groundless, or that the plaintiff continued to

litigate after it clearly became so.” Christiansburg Garment Co. v. EEOC, 

, 422 (1978); see also EEOC v. PVNF, LLC, 

, 807 (10th Cir.

2007) (same). Medicalodges does not assert that Ms. Schmidt’s claim was

“frivolous, unreasonable, or groundless,” or that she “continued to litigate after it

clearly became so.” 

Medicalodges’ invitation to ignore clear

Supreme Court precedent supporting the denial of attorney’s fees in these

circumstances.

      We AFFIRM.

                                                ENTERED FOR THE COURT



                                                Stephanie K. Seymour
                                                Circuit Judge




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