FILED
                                                        United States Court of Appeals
                                  PUBLISH                       Tenth Circuit

                UNITED STATES COURT OF APPEALS                March 16, 2015

                                                           Elisabeth A. Shumaker
                            TENTH CIRCUIT                      Clerk of Court



Equal Employment Opportunity
Commission,

            Plaintiff-Appellee,                   No. 14-1012
      v.

Beverage Distributors Company,
LLC,

            Defendant-Appellant.



             Appeal from the United States District Court
                     for the District of Colorado
                (D.C. No. 1:11-cv-02557-CMA-CBS)


Scott Forman, Littler Mendelson, P.C., Miami, Florida (Joshua B.
Kirkpatrick and Jennifer S. Harpole, Littler Mendelson, P.C., Denver,
Colorado, with him on the brief), for Appellant.

James Tucker, Equal Employment Opportunity Commission, Washington,
D.C. (P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting
Associate General Counsel, and Jennifer S. Goldstein, Acting Assistant
General Counsel, Equal Employment Opportunity Commission,
Washington, D.C., with him on the brief), for Appellee.


Before TYMKOVICH, HOLMES, and BACHARACH, Circuit Judges.


BACHARACH, Circuit Judge.
     This case involves a claim of employment discrimination. Mr.

Michael Sungaila, who is legally blind, worked for Beverage Distributors

Company. When his position was eliminated, Mr. Sungaila obtained a

higher-paying job in the company’s warehouse. But, Mr. Sungaila’s

employment was conditioned on passing a physical examination.

     Mr. Sungaila passed the physical. But, the examining doctor stated

that Mr. Sungaila would require workplace accommodations to mitigate the

risks from his impaired vision. Beverage Distributors concluded that it

could not reasonably accommodate Mr. Sungaila’s condition and rescinded

the offer of a job in the warehouse. Shortly thereafter, Mr. Sungaila found

a lower-paying position with another company.

     Mr. Sungaila filed a discrimination claim with the Equal Employment

Opportunity Commission, which then sued Beverage Distributors on Mr.

Sungaila’s behalf under the Americans with Disabilities Act.

     At trial, Beverage Distributors asserted two defenses.

     1.    Direct Threat. Beverage Distributors stated that Mr. Sungaila’s
           impaired vision would create a significant risk of harm to
           himself and others and no reasonable accommodations could
           reduce or eliminate that risk.

     2.    Failure to Mitigate Damages. Beverage Distributors added that
           if Mr. Sungaila were to prevail, the fact-finder should reduce
           the award because of a failure to mitigate damages.

     The jury found that Beverage Distributors was liable for

discrimination and that Mr. Sungaila was not a direct threat. But, the jury


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also found that Mr. Sungaila had failed to mitigate his damages. Based on

these findings, the jury awarded Mr. Sungaila a reduced back pay award

because of his failure to mitigate.

      The EEOC filed two post-trial motions. In the first motion, the EEOC

invoked Federal Rule of Civil Procedure 50(a) and argued that Beverage

Distributors had not proven as a matter of law that Mr. Sungaila failed to

mitigate his damages. The court agreed and reinstated the full damage

award. In the second motion, the EEOC sought a tax-penalty offset to

compensate Mr. Sungaila for the additional tax liability resulting from the

lump-sum award of back pay. The court granted that motion and awarded

the tax offset.

      Beverage Distributors appeals, arguing in part:

      1.    The direct-threat instruction constitutes reversible error; and

      2.    the district court abused its discretion in awarding the tax
            offset.

We reverse because the direct-threat jury instruction constituted error. But,

if the EEOC prevails upon retrial, Mr. Sungaila may be entitled to a tax

offset.

I.    Direct-Threat Instruction

      Beverage Distributors argues that the direct-threat instruction

constituted reversible error. We agree, concluding that the instruction

inaccurately conveyed the direct-threat standard.


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      A.    Standard of Review

      We first consider whether the direct-threat instruction is erroneous.

In doing so, we review the entire instruction de novo 1 to determine whether

it accurately states the governing law. Gardetto v. Mason, 

,

816 (10th Cir. 1996).

      B.    Direct-Threat Defense

      The direct-threat defense stems from the Americans with Disabilities

Act. Under the Act, an employer cannot discriminate on the basis of a

disability. See 42 U.S.C. § 12112(a). But, an employer may decide not to

hire disabled individuals if they pose a “direct threat to the health or

safety” of themselves or others. 29 C.F.R. § 1630.15(b)(2). A “direct

threat” involves “a significant risk of substantial harm to the health or

safety of the [person] or others that cannot be eliminated or reduced by

reasonable accommodation.” 29 C.F.R. § 1630.2(r).

      The existence of a direct threat is an affirmative defense to a

statutory claim of discrimination. McKenzie v. Benton, 

,

1353-54 (10th Cir. 2004). For this defense, Beverage Distributors had to

1
      The EEOC urges an abuse-of-discretion standard. We disagree. That
standard is appropriate only when we are reviewing a district court’s
decision to give (or not to give) a specific instruction. See Lederman v.
Frontier Fire Prot., Inc., 

, 1154 (10th Cir. 2012) (stating
that appellate courts “review a district court’s decision to give a particular
jury instruction for abuse of discretion”). Here, we are reviewing the legal
sufficiency of an instruction, which is a question we review de novo.
Townsend v. Lumbermens Mut. Cas. Co., 

, 1237 (10th Cir.
2002); Sherouse v. Ratchner, 

, 1059 (10th Cir. 2009).

                                       4
show that it reasonably determined that Mr. Sungaila had posed a direct

threat. See Jarvis v. Potter, 

, 1122 (10th Cir. 2007) (stating

that “the fact-finder does not independently assess whether it believes that

the employee posed a direct threat,” but “determine[s] [instead] whether

the employer’s decision was objectively reasonable”).

     In sum, Beverage Distributors could avoid liability by showing that it

reasonably determined:

     1.    Mr. Sungaila posed a significant risk of substantial harm to the
           health or safety of himself or others, and

     2.    that risk could not be eliminated or reduced by reasonable
           accommodation.

     C.    The Direct-Threat Instruction

     We consider these elements to determine whether the district court

correctly instructed the jury. Doing so, we conclude that the instruction did

not accurately convey the direct-threat standard.

     The direct-threat instruction contained two parts. The first part

explained what Beverage Distributors had to “prove” to establish the

defense:

          To establish this defense, Beverage Distributors must
     prove both of the following by a preponderance of the
     evidence:

     1.    Mr. Sungaila’s employment in a Night Warehouse
           position posed a significant risk of substantial harm to
           the health or safety of Mr. Sungaila and/or other
           employees; and


                                      5
     2.        Such a risk could not have been eliminated or reduced by
               reasonable accommodation.

Appellant’s App. at 78. The second part of the instruction elaborated

on the standard:

     The determination that a direct threat exists must have been
     based on a specific personal assessment of Mr. Sungaila’s
     ability to safely perform the essential functions of the job. This
     assessment of Mr. Sungaila’s ability must have been based on
     either a reasonable medical judgment that relied on medical
     knowledge [or best objective evidence] available at the time of
     assessment . . . . An employer’s subjective belief that a direct
     threat exists, even if maintained in good faith, is not sufficient
     unless it is objectively reasonable.

     . . . .

           In determining whether Beverage Distributors acted
     objectively reasonably when it determined that Mr. Sungaila
     was a direct threat, you must consider the following factors: (a)
     the duration of the risk; (b) the nature and severity of the
     potential harm; (c) the likelihood that the potential harm would
     occur; and (d) the imminence of the potential harm.

did not accurately convey the direct-threat standard.

     The first part of the instruction required Beverage Distributors to

prove more than what was legally necessary. According to the first part,

Beverage Distributors had to prove that Mr. Sungaila posed a direct threat.

That was not accurate under our case law. Beverage Distributors should

have avoided liability if it had reasonably believed the job would entail a

direct threat; proof of an actual threat should have been unnecessary. See

Jarvis v. Potter, 

, 1122 (10th Cir. 2007) (“[T]he fact-finder

does not independently assess whether it believes that the employee posed

                                       6
a direct threat.”). Thus, the instruction overstated Beverage Distributors’

burden. See Menne v. Celotex Corp., 

, 1470-71 (10th Cir.

1988) (concluding that jury instructions were erroneous because they

confused the burden of proof).

      The second part of the instruction did not cure the error. This part

stated that the jury was to consider the reasonableness of Beverage

Distributors’ belief regarding the existence of a direct threat. But, the jury

was never told why it was to consider the reasonableness of what Beverage

Distributors thought. Thus, the error was not cured by a reference in the

instruction to the reasonableness of the company’s subjective belief. 2

      In sum, the instruction was erroneous. The first part of the

instruction inaccurately stated that Beverage Distributors had to prove that

Mr. Sungaila posed a direct threat. And the second part of the instruction

did not cure the error by directing the jury, without explanation, to

consider the reasonableness of Beverage Distributors’ belief.




2
      The EEOC suggests that the instruction directed the jury to consider
Beverage Distributors’ subjective determination by referring to that
determination in the past tense. For instance, the instruction stated that
“[t]he determination that a direct threat exist[ed] must have been based on
a specific personal assessment of Mr. Sungaila’s ability to safely perform
the essential functions of the job.” Appellant’s App. at 78 (emphasis
added). We reject this argument. Even if the instruction had directed the
jury to consider Beverage Distributors’ determination, that determination
was about the “existence” of a direct threat, not the objective
reasonableness of the determination.

                                       7
      D.    Need for Reversal

      We must reverse if the jury might have relied on an erroneous jury

instruction. Level 3 Commc’n, LLC v. Liebert Corp., 

, 1158

(10th Cir. 2008). Thus, reversal is warranted even if it is “very unlikely”

that the jury relied on the erroneous standard. 

that the jury might have relied on the erroneous direct-

threat standard; thus, reversal is warranted. The inaccurate standard

appeared prominently in the instruction, and the verdict form directed the

jury to consider that erroneous standard. See Appellant’s App. at 91 (“Did

Defendant Beverage Distributors prove . . . both elements of its affirmative

defense that Mr. Sungaila’s employment in the Night Warehouse position

posed a direct threat to himself or other employees . . . ?” (emphasis

added)). Because the instruction and verdict form could have misled the

jury on the standard, we must reverse.

II.   Mitigation of Damages

      Beverage Distributors also argues that the district court erroneously

granted the EEOC’s Rule 50(a) motion, arguing that the evidence could

have allowed the jury to find a failure to mitigate damages. We need not

decide this issue. The sufficiency of the evidence entails a fact-intensive

inquiry, and the mitigation evidence may be different on remand. Thus, we




                                      8
decline to address the sufficiency of the mitigation evidence. 3 See Doering

ex rel. Barrett v. Copper Mountain, Inc., 

, 1216 (10th Cir.

2001) (declining to address the award of punitive damages when the Court

reversed the judgment based on error in the jury instructions).

III.   Tax Offset

       Beverage Distributors argues that the district court abused its

discretion in awarding Mr. Sungaila a tax penalty offset. 4 This issue is

affected by our reversal of the EEOC’s award. On remand, this issue might

or might not recur. But, unlike mitigation of damages, the tax offset issue

is primarily legal rather than factual. Thus, we will address the issue.

Doing so, we conclude that the district court did not err in awarding a tax

offset.




3
      The EEOC has suggested that we might lack jurisdiction over this
part of the appeal. Appellee’s Supp. Resp. Br. at 12 n.5 (Feb. 5, 2015).
Because we are declining to address the issue on other grounds, we need
not address the EEOC’s suggestion that we lack jurisdiction.
4
      Beverage Distributors also asserts that the offset award constituted
unlawful additur in violation of the Seventh Amendment. But, the company
did not raise this argument in district court. See Appellee’s Supp. App. at
7-8. Thus, this argument has been forfeited. See Cummings v. Norton, 

, 1190 (10th Cir. 2005). Though we can consider forfeited
arguments under the plain-error standard, Beverage Distributors has not
argued plain error. See Bishop v. Smith, 

, 1095 (10th Cir.
2014) (stating that we will not consider the possibility of plain error on a
forfeited theory when the claimant fails to argue for plain error), cert.
denied, __ U.S. __, 

(2014).

                                       9
      A.    Jurisdiction

      The EEOC argues that we lack jurisdiction because the notice of

appeal preceded the district court’s entry of judgment and computation of

the amount. See EEOC v. Wal-Mart Stores, Inc., 

, 1250 (10th

Cir. 1999) (discussing prematurity of an appeal involving a post-judgment

award of attorneys’ fees). But, we conclude that we have jurisdiction on

the tax offset issue.

      Even if the notice of appeal had been premature, Beverage

Distributors filed a post-judgment motion for a stay pending appeal. This

motion (1) specified that Beverage Distributors was taking the appeal, (2)

stated that the company was appealing the “monetary components” of the

district court’s amended order, which would necessarily include the tax

offset award, and (3) stated that the appeal was to our court. Def.’s Mot.

for Stay Pending Appeal at 1, EEOC v. Beverage Distributs. Co., LLC, No.

1:11-cv-02557-CBA-CBS (filed May 13, 2014), Doc. No. 137. Thus, the

motion for a stay served as the “functional equivalent” of a notice of

appeal under Federal Rule of Appellate Procedure 3. See Smith v. Barry,

, 248-49 (1992) (“If a document . . . gives the notice required

by Rule 3, it is effective as a notice of appeal.”). In these circumstances,

we have appellate jurisdiction.




                                      10
      B.    Merits

      Courts have broad discretion in prescribing remedies for victims of

discrimination. See Franks v. Bowman Transp. Co., 

, 763

(1976). One such remedy is a tax penalty offset, which compensates

victims for additional tax liabilities they would incur as a result of a lump-

sum payment. See Sears v. Atchison Topeka & Santa Fe Ry., Co., 

, 1456 (10th Cir. 1984) (awarding a tax offset for victims of

discrimination).

      The district court determined that Mr. Sungaila was entitled to a tax

penalty offset. Mr. Sungaila obtained a lump-sum damage award, which

would increase his tax liability. 5 Given this result, the court concluded that

an offset would compensate Mr. Sungaila for the added liability and

“restore [him] to the position he would have been but for his wrongful

separation from Beverage Distributors.” EEOC v. Beverage Distribs. Co.,

LLC, No. 11-cv-02557, 

, at *8 (D. Colo. Dec. 9, 2013).

      This award fell within the district court’s discretion. Mr. Sungaila

obtained a lump-sum damage award that would increase his tax liability.

And the court acted within its discretion in compensating Mr. Sungaila for

the added burden.




5
     The parties do not dispute that the lump-sum award would increase
Mr. Sungaila’s tax liability.

                                      11
      Beverage Distributors disagrees. In its view, Mr. Sungaila is not

entitled to the offset because his added tax burden would not be

“significant.” Appellant’s Opening Br. at 39. This argument is based on

Blim v. W. Elec. Co., 

(10th Cir. 1984). We are not

persuaded.

      In Blim, we concluded that a tax offset award was improper because

the plaintiffs would “suffer no significant tax 

.

The penalty would not have been “significant” because the plaintiffs could

eliminate “nearly all” of their additional tax liability by using the tax

code’s averaging provisions. 

is inapplicable here. Unlike the plaintiffs in Blim, Mr.

Sungaila cannot lighten his additional tax liability because Congress

repealed the averaging provisions in 1986. See Tax Reform Act of 1986,

Pub. L. No. 99-514, § 141(a), 100 Stat. 2117 (repealing 26 U.S.C. §§ 1302-

1305). Without other ways of reducing the added tax liability, Mr. Sungaila

would experience a tax disadvantage that the Blim plaintiffs were able to

avoid.

      Beverage Distributors also contends that Mr. Sungaila is not entitled

to an offset because his case is “typical.” Appellant’s Opening Br. at 39.

This contention is based on our opinion in Sears v. Atchison, Topeka &

Santa Fe Ry., Co., where we affirmed an offset award while suggesting that

such an award “may not be appropriate in a typical [discrimination] case.”

                                      12


, 1456 (10th Cir. 1984). But, we did not hold that tax offsets

were limited to atypical cases. In our view, the district court acted within

its discretion even if Mr. Sungaila’s situation might be considered

“typical.” See, e.g., EEOC v. N. Star Hospitality, Inc., __ F.3d __, No. 14-

1660, 

, at *5 (7th Cir. Jan. 29, 2015) (upholding an award

of a tax offset in an EEOC claim on behalf of a single plaintiff in order to

make the plaintiff “whole”).

      Accordingly, we conclude that the district court did not err in

awarding a tax offset.

IV.   Conclusion

      We conclude that (1) the direct-threat jury instruction constituted

reversible error, and (2) the district court did not err in awarding a tax

offset.




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