COLEMAN v. B-G MAINTENANCE MANAGEMENT INC., 108 F.3d 1199 (10th Cir. 1997)
STEPHANIE COLEMAN, Plaintiff-Appellee, v. B-G MAINTENANCE MANAGEMENT OF
COLORADO, INC., a corporation doing business in Colorado,
United States Court of Appeals, Tenth Circuit.
Filed March 10, 1997.
William C. Berger (Robert R. Miller with him on the brief),
Stettner, Miller & Cohn, P.C., Denver, Colorado, for
Elisa Julie Moran (John Mosby with her on the brief), Denver,
Colorado, for Plaintiff-Appellee.
Appeal from the United States District Court for the District of
(D.C. No. 94-Z-213).
Before SEYMOUR, Chief Judge, BRORBY and KELLY, Circuit Judges.
KELLY, Circuit Judge.
 Plaintiff Stephanie Coleman filed this action against Defendant
B-G Maintenance Management Inc. (B-G Maintenance), alleging that her
employment with B-G Maintenance was terminated because of her gender,
and her gender plus her marital status, in violation of Title VII,
42 U.S.C. Ã‚Â§Ã‚Â§ 2000e to 2000e-17. She also claimed that her
termination breached her employment contract.
The case was tried to a jury, which returned a verdict in favor
of Ms. Coleman on her gender-plus and contract claims, but
rejected her gender claim. B-G Maintenance filed a post-trial
motion for judgment as a matter of law or a new trial, which was
denied. This appeal followed. Our jurisdiction arises under
28 U.S.C. Ã‚Â§ 1291. We affirm in part and reverse in part.
 Ms. Coleman was employed by B-G Maintenance from 1983 until her
1992 termination. B-G Maintenance had a contract with the City and
County of Denver to clean Stapleton International Airport, and beginning
in 1986, Ms. Coleman supervised all B-G Maintenance personnel working
the second shift at Stapleton Ã¢â‚¬â€ approximately 55 to 60 employees. One of
the custodians working the second shift was Milton Newborn, Ms.
Coleman's common-law husband.
 At trial, B-G Maintenance presented evidence suggesting the
following sequence of events. In 1988, Scott Murray, who oversaw the
Stapleton operations of B-G Maintenance, began receiving complaints that
Mr. Newborn had been leaving during his shift. Fearing that the
complaints could result in the termination of the Stapleton contract,
Mr. Murray asked Ms. Coleman about Mr. Newborn, and she gave assurance
that Mr. Newborn was not leaving during his shift.
 The complaints about Mr. Newborn continued, however, prompting
Mr. Murray to issue Ms. Coleman a written warning regarding the issue.
Finally, B-G Management personnel testified that they observed Mr.
Newborn leaving the airport during his shift on two consecutive days in
1992. Mr. Murray thus concluded that Ms. Coleman's repeated assurances
about Mr. Newborn had been false, and terminated her employment.
 For her part, Ms. Coleman testified that Mr. Murray did not
discuss with her the complaints about Mr. Newborn until the day she was
terminated, and that she never received any kind of warning, written or
verbal. She also contended at trial that Mr. Newborn never left the
airport during his shift and that the person B-G Management eyewitnesses
had seen leaving the airport was not Mr. Newborn, but someone who looked
very much like him. In addition, she presented evidence that B-G
Maintenance had not discharged male supervisors whose subordinate
employees had left the airport during their shifts, and that none of Mr.
Newborn's other supervisors, male or female, had been terminated.
 On special interrogatories, the jury rejected Ms. Coleman's
claim that B-G Maintenance discriminated against her because of gender,
but returned a verdict in her favor on her claim that B-G Maintenance
discriminated against her because of her gender plus her marital
relationship. The jury also returned a verdict in Ms. Coleman's favor on
her contract claim.
 B-G Maintenance argues that (1) the district court erroneously
instructed the jury on the issue of Ms. Coleman's gender-plus claim
under Title VII, and (2) the error prejudiced B-G Maintenance in
defending against the breach of contract claim. We review jury
instructions de novo, and must view the instructions in their entirety,
deciding not whether the instruction was completely faultless, but
whether the jury was misled in any way. Gardetto v. Mason, 100 F.3d 803,
816 (10th Cir. 1996). Reversal is warranted when a deficient jury
instruction is prejudicial. Fitzgerald v. Mountain States Tel. & Tel.
Co., 68 F.3d 1257, 1262 (10th Cir. 1995). Thus, "[w]here a jury
instruction is legally erroneous, we must reverse if the jury might have
based its verdict on the erroneously given instruction." City of
Wichita, Kan. v. United States Gypsum Co., 72 F.3d 1491, 1495 (10th Cir.
 A. Instructions on the Gender-Plus Claim
 B-G Maintenance contends that the jury was erroneously
instructed[fn1] on Ms.
Coleman's gender-plus claim, because the instructions failed to
instruct that gender-plus claimants must establish that they were
treated differently from similarly situated members of the
opposite sex. We agree.
 In Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per
curiam), the plaintiff's claim of gender discrimination was based on the
fact that the employer refused to accept applications from women with
pre-school-age children, but did not enforce that policy against men.
The Supreme Court held that the "Court of Appeals . . . erred in reading
[Title VII] as permitting one hiring policy for women and another for
men Ã¢â‚¬â€ each having pre-school-age children." Id. at 544. The Court thus
created a cause of action for "gender-plus" discrimination; that is,
Title VII not only forbids discrimination against women in general, but
also discrimination against subclasses of women, such as women with
pre-school-age children. See, e.g., King v. Trans World Airlines,
738 F.2d 255 (8th Cir. 1984) (alleging gender-plus-child care
discrimination); Inda v. United Air Lines, 565 F.2d 554 (9th Cir. 1977)
(alleging gender-plus-marriage discrimination), cert. denied, 435 U.S. 1007
(1978); Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir.)
(same), cert. denied, 404 U.S. 991 (1971).
 To be actionable, however, gender-plus discrimination must be
premised on gender. As one scholar has artfully explained, Title VII
contemplates gender-plus claims because
when one proceeds to cancel out the common characteristics
of the two classes being compared ([e.g.,] married men and
married women), as one would do in solving an algebraic
equation, the cancelled-out element proves to be that of
married status, and sex remains the only operative factor
in the equation.
 Lex K. Larson, Employment Discrimination Section(s) 40.04, at
40-12 (2d ed. 1996) (emphasis added). Thus, although the protected class
need not include all women, the plaintiff must still prove that the
subclass of women was unfavorably treated as compared to the
corresponding subclass of men. See, e.g., Fisher v. Vassar College,
70 F.3d 1420, 1448 (2d Cir. 1995) (holding that plaintiff's
gender-plus-child-care claim was not adequately supported by the
evidence because she failed to compare the tenure experience of women
who took leaves of absence for child rearing with the tenure experience
of men who took similar leaves of absence); Bryant v. International Sch.
Servs., 675 F.2d 562, 575 (3d Cir. 1982) ("No evidence was before the
trial court to show that married males, in circumstances similar to [the
married female] appellants,
received better, or even different treatment."); Willingham v.
Macon Tel. Publ'g Co., 507 F.2d 1084, 1089 (5th Cir. 1975)
("The practical effect of interpreting Sec. 703 [of the Civil
Rights Act] to include [gender-plus] discrimination is to impose
an equal protection gloss upon the statute, i.e. similarly
situated individuals of either sex cannot be discriminated
against vis a vis members of their own sex unless the same
distinction is made with respect to those of the opposite sex.").
 Thus, despite Ms. Coleman's vigorous arguments to the contrary,
gender-plus plaintiffs can never be successful if there is no
corresponding subclass of members of the opposite gender. Such
plaintiffs cannot make the requisite showing that they were treated
differently from similarly situated members of the opposite gender. Ms.
Coleman suggests that Bryant indicates that gender-plus plaintiffs can
compare themselves to all persons outside the corresponding subclass.
Bryant does not support such a proposition; the court merely observed
that because the employer's policy applied to "all persons Ã¢â‚¬â€ male and
female, single and married," it was not discriminatory. 675 F.2d at 576.
Similarly, Ms. Coleman claims that Fisher supports her argument, because
it states that "[t]here is nothing to show how Vassar treated married
men or unmarried men." 70 F.3d at 1446. Read in its proper context,
however, that quote was merely an observation regarding the state of the
plaintiff's evidence; just two sentences later, the court held that
"[t]o establish that Vassar discriminated on the basis of sex plus
marital status, plaintiff must show that married men were treated
differently from married women." Id. (citing Bryant, 675 F.2d at 575).
 The district court instructed the jury that in order to recover
against B-G Maintenance, "[Plaintiff] has the burden of proving by a
preponderance of the evidence that the defendant's actions were
motivated by the Plaintiff's gender or gender along with her personal
relationship with Mr. Newborn." That instruction envisions a subclass of
women who had a personal relationship with Mr. Newborn (or, in other
words, Ms. Coleman) for which there is no corresponding subclass of
men Ã¢â‚¬â€ that is, men with a common-law marriage to Milton Newborn. Viewing
the jury instructions as a whole, we also note that the phrase
"Plaintiff's . . . gender along with her personal relationship with Mr.
Newborn," appears many times throughout the instructions. We conclude,
then, that the district court's jury instructions on Ms. Coleman's
gender-plus claim constituted reversible error.
 Even assuming, however, that taken as a whole the jury
understood the instructions to mean that Ms. Coleman must prove that her
termination was motivated by her gender plus her marital status, the
instructions were still erroneous. As discussed above, gender-plus
claims are ultimately based on gender discrimination. Ms. Coleman argues
that if the instructions are carefully reviewed, they do not address
comparative class at all. That is precisely our point. The district
court failed to instruct that Ms. Coleman must show that similarly
situated men were treated differently; thus the instructions allowed the
jury to award a verdict in Ms. Coleman's favor if marital status alone
were the reason for her termination. Title VII prohibits employers from
treating married women differently than married men, but it does not
protect marital status alone. Fisher, 70 F.3d at 1447; Willett v. Emory
& Henry College, 569 F.2d 212 (4th Cir. 1978) (affirming the district
court's decision that plaintiff's discrimination claim was based upon
marital status, and thus did not give rise to a cause of action for
gender discrimination under Title VII).
 The subtleties of language involved in gender-plus
discrimination make it a somewhat perplexing concept to a jury. We
appreciate the difficulty of explaining the concept to a jury in the
formalized context of jury instructions. Nevertheless, we are concerned
that the jury was not told of the significance of Ms. Coleman's
relationship with Mr. Newborn in the context of the claim advanced.
Because the jury, in all probability, based its verdict on the district
court's erroneously given instruction, we must reverse the jury's
verdict as to Ms. Coleman's gender-plus claim. See United States Gypsum
Co., 72 F.3d at 1495; Fed.R.Civ.P. 61 (stating harmless error
 A new trial is warranted when the district court's erroneous
instructions may have misled the jury. See, e.g., Gardetto,
100 F.3d at 818. However, B-G Maintenance also contends that it should have been
granted judgment as a matter of law under Fed.R.Civ.P. 50(b), because
Ms. Coleman failed to present sufficient evidence to establish a prima
facie case of gender-plus discrimination. We agree, and hold that even
if the jury instructions had been correct, Ms. Coleman failed to produce
evidence on which the jury could properly return a verdict in her favor
on the gender-plus claim.
 Our review of the denial of a motion for judgment as a matter of
law is de novo, and we construe the evidence and inferences in the light
most favorable to the nonmoving party. Furr v. Seagate Tech., 82 F.3d 980,
985 (10th Cir. 1996), cert. denied, 117 S.Ct. 684 (1997). We must
affirm the denial if there is evidence upon which the jury could
properly return a verdict in the nonmovant's favor. Harolds Stores v.
Dillard Dep't Stores, 82 F.3d 1533, 1546 (10th Cir.), cert. denied,
117 S.Ct. 297 (1996).
 In an indirect Title VII case, a plaintiff may prove a prima
facie case of discrimination before the defendant is obligated to
articulate some legitimate, nondiscriminatory reason for its treatment
of the employee. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). Where the case has been fully tried, however, the issue of
whether the plaintiff has proved a prima facie case drops out, and we
are thus left to consider whether Ms. Coleman proved her gender-plus
claim at trial by showing that B-G Maintenance treated her differently
than similarly situated men. Metz v. Merrill Lynch, Pierce, Fenner &
Smith, 39 F.3d 1482, 1491 (10th Cir. 1994). We find that she did not.
Ms. Coleman put forth evidence that male supervisors were not discharged
when their subordinate employees left work during their shifts. None of
those supervisors, however, had any kind of personal relationship,
marital or otherwise, with their subordinate employees. At most, that
evidence is probative only of Ms. Coleman's gender discrimination claim,
which the jury rejected. Our review of the record reveals that the jury
had no evidence on which it could have concluded that B-G Maintenance
treated Ms. Coleman differently from men who also were married to
subordinate employees. As a consequence, the jury's award of $250,000 in
emotional distress damages cannot stand. The court instructed the jury
that it could award emotional distress damages on Ms. Coleman's gender
claims, but did not so instruct on the contract claims.
 B. Jury Instructions on the Contract Claim
 Having determined that the jury instructions on the gender-plus
claim were erroneous, we must now determine whether the error prejudiced
B-G Maintenance's defense of the contract claim. At trial, Ms. Coleman
argued that B-G Maintenance breached both an express contract to
terminate only for good cause, and an implied contract to terminate Ms.
Coleman pursuant to the procedures found in the company's employee
manual. The court instructed that contract liability could be premised
upon either theory, and the jury returned a verdict in Ms. Coleman's
favor on both, awarding $85,000 in back pay.
 B-G Maintenance contends that since the incorrect jury
instructions led the jury to conclude that B-G Maintenance had violated
Title VII by terminating Ms. Coleman, the jury must have concluded that
Ms. Coleman could not have been terminated for good cause. But for a
single paragraph in its reply brief, however, B-G Maintenance failed to
complain about the jury instruction or evidence dealing with implied
contract and progressive discipline. Thus, even if the gender-plus
instructions did taint the good cause instructions, the contract award
may still stand based on implied contract. It is not sufficient to
merely mention an issue in a reply brief. Issues not raised in the
opening brief are deemed abandoned or waived. Bowdry v. United Airlines,
58 F.3d 1483, 1490 (10th Cir. 1995) (refusing to address issue raised
only in plaintiffs' reply brief). Whether B-G Maintenance had good cause
to fire Ms. Coleman is irrelevant to her implied contract claim,
an independent basis for the award of contract damages. For
example, B-G Maintenance could have had good cause to fire Ms.
Coleman, and still have breached its implied contract by failing
to discharge Ms. Coleman according to its rules of progressive
discipline. The jury concluded in a special verdict form that B-G
Maintenance breached both its express contract and its implied
contract Ã¢â‚¬â€ a conclusion we find supported by the record. Since
the harm caused Ms. Coleman was the same under either breach Ã¢â‚¬â€
the loss of her job and the attendant income and benefits Ã¢â‚¬â€ the
damages remain the same. We thus hold that the jury's verdict on
Ms. Coleman's contract claim may stand, regardless of whether the
instructions on termination for good cause had been tainted. See
Williams v. United States Elevator Corp., 920 F.2d 1019, 1024
(D.C. Cir. 1990) (holding that erroneous instructions on damages
could not have influenced jury's negligence verdict, since the
district court had employed a verdict form requiring special
verdicts on the separate questions of negligence and damages);
Jordan v. Campbell-Taggart, Inc., 1990 WL 51819, at *4 (4th Cir.
Apr. 17, 1990) (holding that state-law claim need not be retried
by reason of taint from erroneous submission of federal claim;
district court's use of special verdict form permitted court to
affirm judgment on state law claim).
 AFFIRMED in part and REVERSED in part.
[fn1] The pertinent instruction read as follows:
In order for Plaintiff, Ms. Stephanie Coleman, to establish
her discrimination claim against B-G Maintenance Management
of Colorado, Inc., she has the burden of proving by a
preponderance of the evidence that the defendant's actions
were motivated by the Plaintiff's gender or gender along with
her personal relationship with Mr. Newborn.
In order for the Plaintiff, Ms. Stephanie Coleman, to recover
on her discrimination claim against Defendant B-G Maintenance
Management of Colorado, Inc., the plaintiff must prove that
the defendant intentionally discriminated against plaintiff,
that is, plaintiff's gender or her gender along with her
personal relationship must be proven to have been a motivating
factor in defendant's decision to terminate plaintiff.
The mere fact that Ms. Coleman is a woman and had a personal
relationship with Mr. Newborn at the time she was terminated
is not sufficient, in and of itself, to establish her claim
under the law.
In showing that Plaintiff's gender or gender along with her
personal relationship were motivating factors, plaintiff is
not required to prove that her gender or gender and personal
relationship were the sole motivations or even the primary
motivation for the defendant's decisions. The Plaintiff need
only prove that her gender or her gender and personal
relationship played a part in the defendant's decision even
though other factors may also have motivated the Defendant.
Ms. Coleman must show that Defendant, B-G Maintenance of
Colorado, Inc., intentionally discriminated against her
because of her gender or because of her gender along with
her personal relationship. Ms. Coleman, however, is not
required to produce direct evidence of intentional
discrimination. Intentional discrimination may be inferred
from the existence of other facts. If you find by a
preponderance of the evidence that plaintiff's gender or
her gender along with her personal relationship was a
motivating factor in the defendant's employment decision
to terminate the Plaintiff, you should find in favor of
If you find by a preponderance of the evidence that Defendant,
B-G Maintenance Management of Colorado, Inc., would have made
the same employment decision to terminate Ms. Coleman even if
the unlawful motive was not present, you should find in favor
Aplt. App. at 934-35.