Resubmitting Inconsistent Special Verdicts and New Preservation Duties in the Tenth Circuit

Culp v. Remington of Montrose Golf Club, LLC (10th Cir. Mar. 31, 2025)

Introduction

In this published decision, the Tenth Circuit addresses three core issues arising from a workplace harassment and retaliation suit brought by two restaurant servers, Stacie Culp and Stephanie Peters, against their employer, Remington of Montrose Golf Club, LLC:

• Whether Ms. Peters’s Title VII and Colorado Anti-Discrimination Act (CADA) retaliation claims survived summary judgment;
• How to resolve a jury’s inconsistent special verdict that denied liability under Title VII yet awarded punitive damages to Ms. Culp; and
• Whether certain evidentiary objections under Federal Rules of Evidence 403 and 404(b) were preserved for appellate review.

The opinion is most notable for a doctrinal shift in Tenth Circuit practice on special verdicts under Federal Rule of Civil Procedure 49(a): invoking the Supreme Court’s decision in Dietz v. Bouldin, the court recognizes a district court’s inherent power to resubmit inconsistent special verdicts to the jury for further deliberations—even after discharge in narrow circumstances—and signals a new preservation expectation that parties must raise inconsistency and request resubmission before discharge or risk forfeiture. This recalibrates decades of circuit practice that had treated such resubmission as unauthorized and had not required contemporaneous objections.

Summary of the Opinion

• Peters’s retaliation claims (Title VII and CADA): affirmed on summary judgment. The court holds that an allegedly “half-hearted” internal investigation is not a materially adverse action absent demonstrable harm (citing Daniels v. UPS and Fincher v. DTCC), and that in this case scheduling Ms. Peters with the disciplined harasser was not materially adverse given operational constraints and the employer’s reasonable corrective measures (suspension, demotion, probation).
• Culp’s inconsistent special verdicts: vacated and remanded for a new trial on Title VII/CADA harassment and retaliation claims. The jury found no Title VII violation yet awarded punitive damages premised on a Title VII violation. The Tenth Circuit deems the verdict irreconcilable and rejects the “surplusage” approach to disregard the punitive award. Seventh Amendment concerns prevent courts from choosing between conflicting jury findings.
• New procedural rule for special verdicts: district courts may resubmit inconsistent special verdicts to the jury. Relying on Dietz v. Bouldin and Rule 51(b)(3), the court departs from prior Tenth Circuit precedent (Bonin and Johnson) that forbade resubmission. Going forward, parties should flag inconsistency before discharge and request resubmission, or they risk forfeiture; appellate relief will require clear, prejudicial error.
• Evidentiary issues: not preserved; no review. The court declines to reach three evidentiary challenges (including later employment as an exotic dancer, and Rule 403/404(b) testimony about sexually themed conversations) because objections were either conditional and unripe (Luce v. United States) or insufficiently specific and not renewed by motion to strike, and no plain error was argued on appeal.
• Disposition: Affirmed as to Ms. Peters’s claims and Ms. Culp’s negligent supervision claim; vacated and remanded for a new trial on Ms. Culp’s Title VII/CADA harassment and retaliation claims.

Background

Remington operated a restaurant and golf club in Montrose, Colorado. Plaintiffs Culp and Peters, both servers, alleged sexual harassment by bartender/assistant floor manager Jason DeSalvo. Initially reluctant to report, Culp’s complaint reached management after she sought reemployment with her former employer. Remington’s management conducted a narrow, two-question interview of ten female servers. Some responses referenced sexualized comments and inappropriate touching.

Remington disciplined DeSalvo with a five-day suspension without pay, demotion, and a 30-day probation that warned any “valid documented complaints” could trigger further action. Plaintiffs then alleged retaliation. Culp claimed reduced hours and resigned; Peters alleged she was scheduled with DeSalvo after his return, and that he refused her drink orders, cursed, and shoved her; she left mid-shift and did not return.

The district court granted summary judgment against Peters’s retaliation claim but otherwise sent the remaining claims to trial. The jury rejected all claims, yet the special verdict form paradoxically found no Title VII violation while awarding Culp $125,000 in punitive damages premised on a Title VII violation. The district court set aside the punitive award as surplusage and entered judgment for Remington. Both plaintiffs appealed.

Detailed Analysis

Precedents and Authorities Addressed

Retaliation and “materially adverse” actions

• Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006): The antiretaliation provision reaches materially adverse actions that would dissuade a reasonable employee from making a charge of discrimination. Not limited to terms and conditions of employment.
• Daniels v. United Parcel Serv., Inc., 701 F.3d 620 (10th Cir. 2012), abrogated on other grounds by Muldrow v. City of St. Louis (2024): A failure to investigate an internal complaint is not materially adverse without demonstrable harm, following the Second Circuit’s Fincher v. Depository Trust & Clearing Corp.
• Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (both 1998): Emphasize pragmatic Title VII administration that encourages reasonable employer preventive and corrective efforts, and employee use of those measures.
• University of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013): Resists rules that unduly raise employers’ costs absent discriminatory or retaliatory intent.
• Lindsay v. Denver Public Schools, 88 F.4th 1323 (10th Cir. 2023): CADA retaliation follows Title VII standards; the court analyzes the claims together.

Inconsistent special verdicts and the Seventh Amendment

• Cheney v. Moler, 285 F.2d 116 (10th Cir. 1960): Irreconcilable verdicts (liability with no damages despite clear injury) require a new trial; courts must avoid invading the jury’s fact-finding function.
• Bonin v. Tour West, Inc., 896 F.2d 1260 (10th Cir. 1990): Contradictory findings (no negligence, yet allocation of fault) cannot be reconciled; previously read Rule 49(a) as lacking authority to resubmit to the jury and did not require contemporaneous objection.
• Danner v. International Medical Marketing, Inc., 944 F.2d 791 (10th Cir. 1991): Conflicting verdicts (both sides prevail under mutually exclusive theories) require a new trial; courts cannot presume which verdict preceded the other.
• Johnson v. ABLT Trucking Co., Inc., 412 F.3d 1138 (10th Cir. 2005): Affirms reconciliation only where a plausible theory supports compatibility; otherwise, substituting a court’s view for the jury’s is impermissible.
• Heno v. Sprint/United Mgmt. Co., 208 F.3d 847 (10th Cir. 2000), Oja v. Howmedica, Inc., 111 F.3d 782 (10th Cir. 1997): Reinforce that facially incompatible special findings “destroy each other” and require a new trial to preserve the Seventh Amendment jury role.
• Freeman v. Chicago Park District, 189 F.3d 613 (7th Cir. 1999): Distinguished; a damages award for harassment can be reconciled with a no-Title VII finding if the harassment was not on a protected basis. Not applicable where the punitive award itself required a Title VII violation under the instructions and statute.

Authority to resubmit special verdicts; preservation going forward

• Dietz v. Bouldin, 579 U.S. 40 (2016): The Supreme Court recognizes a district court’s inherent power to rescind discharge and recall a jury to correct a legally impossible verdict, provided the response is reasonable and not contrary to a rule or statute. Rule 51(b)(3) permits instruction “at any time before the jury is discharged,” and the Court found no bar to rescinding discharge in appropriate circumstances. The Tenth Circuit relies on Dietz to acknowledge district courts’ power to resubmit inconsistent special verdicts for clarification or further deliberations.
• Fed. R. Civ. P. 49(a) and 49(b): Historically distinguished special verdicts (49(a)) and general verdicts with interrogatories (49(b)); prior Tenth Circuit practice read 49(a) as lacking resubmission authority. The court now harmonizes 49(a) practice with Dietz and Rule 51(b)(3).
• Seventh Amendment: Courts cannot “coin” a verdict by choosing among conflicting factual findings; the proper remedy for irreconcilable special verdicts is a new trial unless the jury can be recalled for correction consistent with Dietz.

Evidentiary preservation and conditional rulings

• Luce v. United States, 469 U.S. 38 (1984): Conditional in limine rulings (e.g., impeachment if defendant testifies) are not reviewable unless the condition occurs and the evidence is admitted; otherwise harm is speculative.
• Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) (en banc) and progeny: Extend Luce’s logic to Rule 403/404 contexts; conditional rulings require the condition to be satisfied at trial to preserve an appellate challenge.
• Fed. R. Evid. 103(a): Preservation requires a timely, specific objection or a motion to strike; the 2000 Advisory Committee Note underscores that Luce and its progeny remain undisturbed.
• Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993): In hostile work environment cases, the “unwelcome” and subjective perception elements make some context evidence of sexualized speech/dress potentially relevant; objection specificity matters.

Legal Reasoning

1) Retaliation: what counts as “materially adverse”

The court applied Burlington Northern’s “materially adverse” standard, asking whether the employer’s actions would dissuade a reasonable worker from making or supporting a charge of discrimination. It rejected two theories:

• Inadequate investigation: Under Daniels and Fincher, failure to investigate (or a “half-hearted” investigation) does not constitute a materially adverse action absent demonstrable harm. Dismissiveness or inconvenience alone does not suffice; the opinion treats such conduct as, at most, “petty slights” or “minor annoyances.”
• Scheduling with the harasser: Context was decisive. DeSalvo’s schedule frequently overlapped with Ms. Peters’s evening shifts. The employer had already imposed significant discipline (suspension, demotion, probation). In this operational setting, requiring absolute separation would effectively mandate termination or drastic hour reductions—a remedy the Supreme Court’s pragmatic Title VII jurisprudence does not compel. The court noted that intentional scheduling with a harasser could be materially adverse in other circumstances; here, however, overlap was functionally unavoidable, and Peters did not request a schedule change.

Because neither action was materially adverse, summary judgment was appropriate.

2) Inconsistent special verdicts: irreconcilable and not “surplusage”

The jury found no Title VII harassment or retaliation yet awarded punitive damages expressly conditioned on a Title VII violation. By statute (42 U.S.C. § 1981a(b)(1)) and by the verdict form’s instructions, punitive damages required a finding of a Title VII violation with malice or reckless indifference. The court held:

• Freeman is distinguishable: There, general harassment damages could be reconciled with no Title VII liability by positing unprotected harassment. Here, punitive damages were tethered to a Title VII violation by both the form and the instructions; no alternative legal basis existed.
• “Surplusage” approach rejected: The district court relied on out-of-circuit cases to disregard the punitive award as superfluous because the jury ignored skip instructions. The Tenth Circuit declined to ignore an inconsistent answer, especially given plausible confusion created by the form’s structure (e.g., skip logic prompting a jump to Question 5; an instruction that damages may be awarded “only once,” formatting that parallelized punitive damages with substantive claims, and the “Total Damages (not including punitive)” page that jurors may never have reached). Under Bonin and Danner, courts cannot choose among conflicting special findings; the Seventh Amendment forbids a court-crafted synthesis that the jury never made.
• Remedy: new trial on Culp’s Title VII/CADA claims: Because the punitive finding and the liability findings “destroy each other,” a new trial is required on those claims. The negligent supervision verdict was unaffected and stands.

3) The new procedural rule: resubmission of special verdicts and preservation

Historically, the Tenth Circuit read Rule 49(a) to preclude sending inconsistent special verdicts back to the jury and did not require parties to object before discharge (Bonin; Johnson). Invoking Dietz v. Bouldin, the court now recognizes:

• District courts have inherent authority to resubmit inconsistent special verdicts to the jury for clarification or further deliberations, consistent with Rule 51(b)(3) and without contradicting any rule or statute.
• Post-discharge recall may be permissible in narrow, appropriate circumstances (as in Dietz), if juror integrity can be assured and the corrective instruction mirrors what could have been given pre-discharge.
• Preservation going forward: Parties who fail to raise inconsistency and request resubmission before discharge will forfeit the issue on appeal. Appellate reversal will require a showing of clear, prejudicial error.
• Transitional equity: Because prior circuit law suggested resubmission was unavailable, the court excused the lack of preservation in this case. But it warns counsel not to rely on such leniency in future cases.

4) Evidentiary rulings: preservation failures

• Later employment as an exotic dancer (Peters): The ruling was conditional—if Peters pursued post-employment emotional distress, the employer could respond with evidence bearing on those damages (including a contract acknowledging tolerance of sexualized environments). Peters withdrew those damages, the evidence was never admitted, and harm is speculative under Luce and its extensions. No appellate review.
• Applebee’s testimony (Recalde) and sexualized conversations (Anderson) about Culp: Rule 403/404(b) objections were not sufficiently specific or timely, and counsel did not move to strike after the answers. In the hostile-environment context, conversations “of a sexual nature” can be relevant to the subjective/unwelcome components (Meritor; Harris). Without specific grounds or a motion to strike, the objections were unpreserved; no plain-error argument was made on appeal.

Practical Impact

A. Civil trial practice in the Tenth Circuit

• Resubmission now available: District judges can and should resubmit inconsistent special verdicts for clarification rather than attempt judicial reconciliation or risk a retrial.
• Preservation requirement revived: Counsel must promptly identify inconsistency and request resubmission before discharge; failure to do so will typically forfeit the issue and raise the reversal threshold to clear, prejudicial error.
• Verdict form design matters: The court’s analysis spotlights avoidable confusion:
  • Use unambiguous skip logic and avoid contradictory directives adjacent to each other.
  • Segregate punitive-damages questions clearly as contingent on liability findings; visually differentiate remedies from claims.
  • Summarize interrelationships on a final “roadmap” page that jurors will necessarily read regardless of earlier answers.
• Seventh Amendment guardrails: Courts should resist treating inconsistent answers as surplusage; if the jury can’t be recalled, a new trial is the appropriate remedy.

B. Employment litigation under Title VII/CADA

• Retaliation: “materially adverse” remains a meaningful threshold. An employer’s failure to investigate, or a perceivedly “dismissive” investigation, is not materially adverse without demonstrable harm. Routine scheduling in constrained environments, combined with reasonable corrective measures, may not be materially adverse. The analysis is fact-specific; intentional, avoidable pairing with a known harasser could be materially adverse in other contexts.
• Employer response matters: Swift, substantial discipline (suspension, demotion, probation) can weigh against a retaliation inference and supports a finding that a reasonable employee would not be deterred from reporting.
• Evidentiary framing: In hostile-work-environment cases, evidence about the plaintiff’s own sexualized speech or behavior in the workplace can be relevant to the “unwelcome” and subjective-perception elements (subject to Rule 403 safeguards). Preservation requires specific, timely objections and, where necessary, motions to strike.

Complex Concepts Simplified

• Special verdict vs. general verdict with interrogatories:
  • Special verdict (Rule 49(a)): The jury answers specific written questions on each issue of fact; the court enters judgment on those findings.
  • General verdict with interrogatories (Rule 49(b)): The jury returns a general verdict (e.g., for plaintiff/defendant) and answers written questions; the rule expressly authorizes resubmission for inconsistencies.
  • After Culp, the Tenth Circuit recognizes that, even under Rule 49(a), district courts can resubmit inconsistent special verdicts using inherent power (per Dietz) and Rule 51(b)(3).
• “Materially adverse” in retaliation: An employer’s action that would likely dissuade a reasonable worker from complaining. It is broader than changes to “terms and conditions,” but excludes trivial harms, petty slights, or mere inconvenience.
• “Surplusage” in verdicts: An approach some courts use to ignore improper or unnecessary jury answers. The Tenth Circuit rejects using surplusage to resolve fundamental inconsistencies in special verdicts.
• Preservation of evidentiary objections: To preserve an issue for appeal, objections must be timely and specific; if harmful testimony is given, counsel should move to strike. Conditional in limine rulings generally are not reviewable unless the condition occurs and the evidence is admitted (Luce).
• Subjective perception/unwelcome conduct in harassment: A hostile environment claim requires that the plaintiff actually perceive the conduct as unwelcome and abusive; contextual evidence of the plaintiff’s workplace statements or conduct can be probative of that subjective element (within Rule 403 limits).

Practical Guidance

For trial judges

• Upon detecting inconsistent special verdict answers, instruct the jury and resubmit the verdict for clarification; where necessary and appropriate, consider recalling the jury consistent with Dietz.
• Vet verdict forms for clear skip logic and consistent cross-references; highlight punitive damages as contingent upon established liability.
• Create a protocol for sidebar/bench conferences to allow counsel to make specific objections without “speaking objections” in front of the jury.

For trial counsel

• Preserve special-verdict inconsistencies by timely objection and requesting resubmission before the jury is discharged.
• When objecting under Rules 403/404(b), explain the anticipated testimony’s specific prejudice or impermissible propensity use; if necessary, request a sidebar and, if the testimony comes in, move to strike.
• In retaliation claims, develop the factual record to show concrete, demonstrable harms flowing from alleged retaliatory acts; contextualize scheduling decisions and employer remedial actions.

Conclusion

Culp v. Remington of Montrose Golf Club does three important things. First, it reaffirms a pragmatic yet protective approach to Title VII retaliation: not every imperfect investigation or operational scheduling choice will qualify as materially adverse absent demonstrable harm and in light of reasonable remedial steps. Second, it fortifies the Seventh Amendment’s protection of jury fact-finding by refusing to resolve irreconcilable special verdicts through judicial fiat or “surplusage,” requiring a new trial where answers “destroy each other.” Third—and most significantly for civil procedure—the Tenth Circuit aligns Rule 49(a) practice with Dietz v. Bouldin, recognizing district courts’ inherent authority to resubmit inconsistent special verdicts for clarification and reshaping preservation: parties must now raise inconsistencies and request resubmission before discharge or risk forfeiture.

The decision promises fewer unnecessary retrials and fairer verdicts that reflect the jury’s true determinations, provided that judges promptly use resubmission tools and counsel diligently preserve issues. At the same time, employment practitioners should heed the opinion’s careful application of Burlington Northern’s “materially adverse” standard, as well as its evidentiary preservation reminders in the sensitive context of sexual harassment litigation.