The federal appeals court based in Denver has upheld a jury’s verdict finding Xcel Energy did not discriminate against a former worker on the basis of her race and sex by failing to promote her.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit reviewed a narrow aspect of the case: Whether it was wrong to allow the jury to consider the legal statute of limitations in deciding whether Anita Martin had proven her civil rights case.

Martin claimed on appeal that the directive to jurors made it impossible to know whether the jury had believed she was not the victim of discrimination or if she simply filed her lawsuit too late.

Martin originally filed suit in state court in 2019, but the Public Service Company of Colorado – better known as Xcel Energy – transferred it to federal court. Martin, who is Hispanic and Native American, had worked as a laborer and then as a fitter with Xcel since 1983. When a white man retired in 2012 as the lead fitter in the gas pressure control unit, Martin expressed interest in the job.

Instead, Xcel claimed there was no vacancy for a lead fitter, even while assigning her temporarily to take on lead responsibilities. Xcel never advertised a vacancy and Martin retired at the end of May 2017, which she indicated was in response to the company’s refusal to promote her.

In early 2018, Martin filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission, followed by her 2019 lawsuit claiming Xcel denied her promotion on the basis of her race and sex. 

U.S. District Court Senior Judge R. Brooke Jackson rejected Xcel’s arguments that it was entitled to prevail outright based on the facts of the case and the law. Jackson explained Martin had to prove to a jury that Xcel intentionally decided against posting a vacancy notice in order to deter Martin from applying in the hope she would quit. Xcel, on the other hand, needed to show there was actually no vacancy and the company was not manipulating the hiring system based on Martin’s race and sex.

When Xcel renewed its request, claiming Martin had filed her lawsuit outside the window outlined in law, Jackson again rebuffed the company.

“To begin with, the Court disagrees with defendant’s argument that plaintiff’s claim is time-barred,” he wrote on Sept. 15, 2021.

The trial began weeks later and the jury instructions asked jurors to decide whether Martin had proven Xcel denied her a promotion “within the statute of limitations period,” and that her race and sex were motivating factors. That meant Martin had to show discrimination after December 2015. The jury found she had not.

Xcel wrote on appeal that Martin’s lawyers did not object to the ultimate language of the jury instruction, and that it made sense to allow jurors to decide whether any alleged discrimination took place within the statute of limitations.

Martin countered that Jackson had already decided her claims fell within the legal window when he declined Xcel’s request to toss the case. Moreover, she explained her attorneys had previously raised concerns about the issue, but did not challenge the final wording of the jury instruction out of respect for Jackson.

“There was no doubt that it would have been futile to object again and again – it would have been nothing more than a mere formality and frankly disrespectful to this judge who had spent so much time and energy trying to help the parties reach a resolution of their dispute,” wrote attorney Anne T. Sulton.

The 10th Circuit’s panel sided with Xcel in finding the instruction appropriate. Judge Joel M. Carson III, in a July 28 order, explained the instruction simply told jurors to decide whether Martin suffered discrimination within the statute of limitations window that applied to her claims.

“Instruction 10 and the verdict form did not ask the jury to decide any timeliness issues,” he wrote.

The case is Martin v. Public Service Company of Colorado.