Tenth Circuit Embraces Dietz: District Courts May Resubmit Inconsistent Special Verdicts to the Jury; Irreconcilable Punitive-Damages Award Requires a New Trial

Introduction

In Culp v. Remington of Montrose Golf Club, No. 24-1022 (10th Cir. Mar. 31, 2025) (published), the Tenth Circuit addressed three significant issues arising from a workplace-harassment suit tried to a jury:

• It affirmed summary judgment against one plaintiff’s retaliation claim for lack of a materially adverse action, clarifying when inadequate investigations and scheduling decisions do (and do not) qualify under Title VII and the Colorado Anti-Discrimination Act (CADA).
• It vacated a jury’s inconsistent special verdict that denied liability on Title VII/CADA claims but awarded punitive damages, holding the verdict irreconcilable and requiring a new trial.
• Most consequentially, it realigned Tenth Circuit procedure with Supreme Court precedent by recognizing the district courts’ authority to resubmit inconsistent special verdicts to the jury—even after discharge in appropriate circumstances—based on Dietz v. Bouldin. This effectively displaces earlier circuit precedent that had been read to forbid such resubmission under Rule 49(a).

The decision also resolves several evidentiary challenges on preservation grounds, offering practical guidance to litigants on how to protect issues for appeal when rulings in limine are conditional or when objections require context.

Summary of the Opinion

• Parties and context: Plaintiffs Stacie Culp and Stephanie Peters, servers at Remington’s restaurant in Montrose, Colorado, alleged workplace sexual harassment by bartender/assistant floor manager Jason DeSalvo, and retaliation after they complained. Remington conducted an abbreviated internal investigation, suspended and demoted DeSalvo, and placed him on probation.
• Ms. Peters’s retaliation claim (summary judgment affirmed): The court held that (1) an allegedly “half-hearted” investigation is not a materially adverse action absent demonstrable harm, and (2) scheduling Peters on shifts that overlapped with DeSalvo was not materially adverse in the circumstances, given staffing realities and the employer’s reasonable disciplinary response.
• Ms. Culp’s verdict inconsistency (new trial required): The jury answered “no” on Culp’s Title VII/CADA harassment and retaliation claims, yet answered “yes” on punitive damages and awarded $125,000. Because Title VII punitive damages require a predicate violation, the answers “destroy[ed] each other.” Rejecting a “surplusage” approach, the Tenth Circuit ordered a new trial on Culp’s Title VII/CADA claims (leaving undisturbed the defense verdict on her negligent supervision claim).
• Procedural recalibration on special verdicts: The court recognized that its earlier decisions (e.g., Bonin and Johnson) had been undermined by Dietz v. Bouldin. Trial courts now have inherent authority to resubmit inconsistent special verdicts for reconsideration, and parties who fail to seek resubmission will, going forward, forfeit the issue on appeal absent clear prejudicial error.
• Evidentiary rulings (not preserved): Three evidentiary issues—(1) Peters’s later work as an exotic dancer, (2) cross-examination of a Remington employee about Culp’s prior Applebee’s employment issues, and (3) testimony about Culp’s conversations “of a sexual nature”—were rejected on preservation grounds, with the court emphasizing the need to satisfy conditional in limine rulings, to move to strike when appropriate, and to articulate specific Rule 403/404(b) grounds contemporaneously.

Analysis

Precedents Cited and How They Shaped the Decision

• Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006): Defines “materially adverse” action in retaliation as conduct that might dissuade a reasonable worker from making or supporting a charge.
• Daniels v. United Parcel Serv., Inc., 701 F.3d 620 (10th Cir. 2012), abrogated on other grounds by Muldrow v. City of St. Louis, 601 U.S. 346 (2024): A failure to investigate, absent demonstrable harm, is not materially adverse. The Tenth Circuit followed this rule, aligning with the Second Circuit’s Fincher decision.
• Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712 (2d Cir. 2010): No retaliation claim lies from non-investigation alone absent harm. This parallel rationale supported affirmance against Peters.
• Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998): Emphasize the pragmatic structure of Title VII, which permits reasonable employer responses and discourages imposing maximal sanctions as first resort. The court invoked this pragmatic lens in rejecting Peters’s theory that overlapping shifts were materially adverse per se.
• University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013): Cited for Title VII’s structural concerns and to avoid unduly raising compliance costs absent discriminatory/retaliatory intent—used to caution against converting every scheduling difficulty into a materially adverse action.
• Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108 (1963): Courts must strive to harmonize jury answers where reasonably possible and avoid invading the jury’s province. The Tenth Circuit used this as a touchstone but concluded harmony was impossible here.
• Tenth Circuit irreconcilable-verdict cases: Cheney v. Moler, 285 F.2d 116 (1960) (liability with zero damages in the face of obvious injury), Bonin v. Tour West, Inc., 896 F.2d 1260 (1990) (finding both no negligence and some negligence), Danner v. International Medical Marketing, Inc., 944 F.2d 791 (1991) (mutually exclusive factual predicates), and Heno v. Sprint/United Management Co., 208 F.3d 847 (2000). These authorities framed the court’s insistence that truly contradictory findings require a new trial.
• Freeman v. Chicago Park District, 189 F.3d 613 (7th Cir. 1999): Distinguishable. There, “harassment” could be non-Title VII harassment. Here, the punitive-damages interrogatory explicitly required a Title VII violation; thus, the “harassment but not Title VII harassment” reconciliation was unavailable.
• Dietz v. Bouldin, 579 U.S. 40 (2016): The keystone for the procedural shift. Dietz recognizes inherent judicial power to recall a jury and to correct errors in verdicts, even after discharge in appropriate circumstances. The Tenth Circuit relied on Dietz and Rule 51(b)(3) to permit resubmission of special verdicts going forward.
• Rules 49(a) and 51(b)(3), Fed. R. Civ. P.: Earlier Tenth Circuit cases had read Rule 49(a) as lacking resubmission authority for special verdicts. Dietz and Rule 51(b)(3)’s broad instruction authority, however, now permit resubmission (and even recall) consistent with inherent powers, displacing that older reading.
• Luce v. United States, 469 U.S. 38 (1984) and progeny: Applied to civil evidentiary rulings to hold that conditional in limine rulings are not reviewable where the condition is not satisfied and the evidence is never admitted; otherwise harm is speculative.
• Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) and Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986): Used to explain the subjective “unwelcome” component of a hostile environment claim and to show why testimony about an employee’s own sexualized workplace conversations may be relevant for purposes other than forbidden propensity (e.g., whether the employee subjectively perceived certain conduct as abusive).

Legal Reasoning

1) Retaliation: What is “materially adverse” here?

The court considered two alleged adverse actions in Peters’s retaliation claim and rejected both.

• Inadequate investigation: Following Daniels and Fincher, a failure to investigate (or an investigation alleged to be “half-hearted”) is not materially adverse unless it causes “demonstrable harm.” Peters identified dismissiveness but no concrete detrimental change in her position conditioned by the investigation. This is insufficient as a matter of law.
• Scheduling overlapping shifts with the harasser: Context controlled. DeSalvo regularly worked evenings and Peters almost always worked evenings; avoiding overlap would have meant materially reducing DeSalvo’s hours (or firing him) as a first-step sanction, contrary to Title VII’s pragmatic scheme (Faragher/Ellerth/Nassar). Remington had already imposed significant discipline (suspension, demotion, probation), reasonably assuming compliance going forward. Peters did not request a schedule change. On those facts, continuing standard scheduling—without more—would not dissuade a reasonable employee from reporting discrimination and thus was not materially adverse.

2) Inconsistent special verdict: Why a new trial was required

The jury answered “no” on both liability questions (Title VII/CADA harassment and retaliation) but answered “yes” on a punitive-damages interrogatory that, by its own terms and by statute (42 U.S.C. § 1981a(b)(1)), required a predicate Title VII violation. Those answers are logically incompatible.

• Reconciliation attempt rejected: Unlike Freeman, where “harassment” might be non-Title VII harassment, the punitive-damages interrogatory here explicitly required Title VII liability (and the instructions and form repeatedly tethered the standards to Title VII/CADA). There was no plausible theory under which the jury awarded punitive damages without a Title VII violation.
• “Surplusage” theory rejected: The court declined to ignore the punitive-damages answers as superfluous—even if the form told jurors not to reach them—because doing so would effectively choose between conflicting factual findings (contrary to the Seventh Amendment’s allocation of factfinding to the jury and Tenth Circuit precedent such as Danner, Bonin, and Heno). The opinion also noted real features of the verdict form that could have misled jurors (conflicting skip instructions and the structure of damages prompts), underscoring the likelihood of confusion rather than willful disobedience.
• Remedy: The inconsistent findings “destroy[ed] each other.” A new trial was required on Culp’s Title VII/CADA harassment and retaliation claims. The negligent-supervision verdict was unaffected and stands.

3) Procedural sea-change: Resubmission authority under Dietz and preservation going forward

Historically, Tenth Circuit law was understood to preclude resubmission of special verdicts to the jury under Rule 49(a), which in turn excused parties from objecting pre-discharge to preserve the inconsistency issue. This opinion realigns the circuit with Dietz:

• Dietz’s inherent power: District courts possess inherent authority, consistent with Rule 51(b)(3), to instruct a jury “at any time before discharge,” and, in appropriate circumstances, to rescind a discharge order and recall the jury to cure legally impossible or inconsistent verdicts.
• Effect on prior Tenth Circuit practice: To the extent earlier circuit decisions suggested resubmission was unavailable for special verdicts, they are undermined by Dietz. Resubmission is now permissible. As a result, the incentives change in real time at trial.
• Preservation rule (prospective): Parties must alert the trial court to inconsistencies as they arise and request resubmission or recall. Failure to do so will result in forfeiture on appeal absent clear prejudicial error. The court exercised discretion to excuse lack of preservation here (because the old regime made an objection futile) but warned counsel not to count on such indulgence in the future.

4) Evidentiary rulings: Preservation principles applied

• Peters’s later employment as an exotic dancer: The court endorsed Luce’s logic that conditional in limine rulings are not reviewable when the triggering condition is not met. Because Peters withdrew her claim for post-employment emotional distress damages, the evidence never came in. Harm is speculative; the issue is unpreserved.
• Recalde cross and Applebee’s testimony (Rule 403): A terse “403” objection, without a contemporaneous proffer of anticipated prejudice and without a motion to strike after the answer, failed to preserve the issue. The court emphasized the trial judge’s express invitation to “ask to approach” to articulate grounds beyond non-speaking objections.
• Anderson testimony about sexualized conversations (Rules 403/404(b)): Again, the absence of specifics or a motion to strike precluded meaningful Rule 403 balancing. And Rule 404(b) did not plainly apply because the evidence had a permissible non-character purpose—rebutting the subjective/unwelcome element of a hostile-environment claim (Harris/Meritor). Without specificity, the objections were forfeited; plain error was not argued and thus was waived.

Impact

A. Procedural impact in the Tenth Circuit

• New power, new duty: District courts may resubmit inconsistent special verdicts—indeed, even recalled juries in proper circumstances—to avoid unnecessary retrials and to honor the jury’s role by letting jurors clarify their own findings. This can dramatically reduce wasteful do-overs.
• Preservation expectations rise: Litigation teams must promptly scrutinize verdict forms at announcement, raise inconsistencies immediately, and explicitly request resubmission or recall. Silence will likely forfeit the point going forward.
• Verdict form design matters: The opinion highlights how layout and skip-instruction conflicts can mislead jurors. Courts should tighten gating instructions and sequencing to reduce avoidable confusion (e.g., reiterate “Answer Q5 only if you answered Yes to Q1 or Q3” directly adjacent to the Q5 answer line; avoid contradictory skip directives).

B. Substantive employment-law impact

• Retaliation claims premised on investigation quality: Absent concrete harm, a “half-hearted” or even nonexistent investigation will not itself be a materially adverse action for retaliation. Complainants must show tangible negative consequences flowing from the investigative response.
• Scheduling with an accused harasser: Not categorically adverse. Context—including business realities, prior discipline imposed, and whether the employee requested a schedule change—matters. A reasonable disciplinary response short of termination or draconian hour cuts will not be transformed into retaliation merely because it does not fully segregate shifts.
• Title VII punitive damages: The case reaffirms that punitive damages under § 1981a(b)(1) require an underlying violation proved; a stand-alone punitive award is legally untenable.

C. Evidentiary practice

• Conditional in limine rulings: To preserve appellate review, the party must satisfy the condition (or at least make a record at trial showing how the evidence would have come in) and renew objections with specificity.
• Rule 403/404(b) objections: One-word objections rarely suffice. Counsel should ask to approach, proffer anticipated testimony, articulate probative value vs. unfair prejudice, and move to strike if testimony unfolds prejudicially. Without a developed record, appellate courts will not speculate.

Complex Concepts Simplified

• Special verdict vs. general verdict with interrogatories (Rule 49):
  • Special verdict: The jury answers specific questions on factual issues. The court then enters judgment based on those findings.
  • General verdict with interrogatories: The jury returns an overall verdict (e.g., “for Plaintiff”) plus answers to additional written questions. Rule 49(b) expressly authorizes resubmission where answers and verdict conflict.
  • Key update: Even when using special verdicts, courts can now resubmit inconsistent answers to the jury under Dietz and Rule 51(b)(3), notwithstanding older circuit decisions to the contrary.
• Materially adverse action (retaliation): An action that might dissuade a reasonable worker from complaining about discrimination. Petty slights and minor annoyances are not enough. Plaintiffs must show context-specific, significant deterrent impact.
• Punitive damages under Title VII: Available only if the employer engaged in discriminatory practices “with malice or reckless indifference” to federally protected rights—and only if there is an underlying Title VII violation.
• Preservation of evidentiary objections (Rule 103): To preserve, object timely and specifically, and move to strike if the prejudicial content becomes clear only after the answer. Conditional in limine rulings are not reviewable unless the condition is met and the evidence is actually admitted.
• Subjective/unwelcome element in hostile environment claims: It is not enough that conduct could be viewed as offensive; the plaintiff must subjectively perceive it as unwelcome/abusive. Evidence of the plaintiff’s own sexualized workplace conversations may be relevant (not necessarily propensity) to that subjective element.

Key Takeaways and Practice Pointers

• On receiving a verdict:
  • Examine special verdict forms immediately for logical conflicts.
  • Ask the court on the spot to resubmit the form with clarifying instructions. Cite Dietz and Rule 51(b)(3).
  • If the jury has been discharged, consider asking the court to rescind discharge and recall the jury if the circumstances satisfy Dietz’s safeguards.
• Designing verdict forms:
  • Put gating instructions immediately before the question and again adjacent to the answer lines.
  • Avoid skip-direction conflicts between questions.
  • Separate liability and punitive phases clearly and condition punitives on a confirmed liability finding.
• Retaliation claims:
  • To treat investigation-related conduct as materially adverse, marshal evidence of concrete harms (e.g., documented negative treatment, discipline, lost opportunities) that reasonably deter complaints.
  • Context governs scheduling claims: document limitations and responsive measures (discipline, warnings, probation) to demonstrate a reasonable employer response.
• Evidence preservation:
  • When the court disallows “speaking objections,” ask to approach to state grounds; make a proffer if relevance or prejudice is not obvious.
  • For conditional rulings, meet the condition (or create a record) and renew the objection; otherwise the issue is not reviewable.
  • Move to strike promptly if prejudicial content emerges in an answer.

Conclusion

Culp reorients Tenth Circuit trial practice in two critical ways. First, it cements the Supreme Court’s Dietz framework within the circuit: district courts may resubmit inconsistent special verdicts (and, where appropriate, recall discharged juries) to cure errors before they calcify into judgments and retrials. Going forward, parties must raise inconsistencies immediately and request resubmission, or else forfeit the issue on appeal absent clear prejudicial error.

Second, in the employment-law arena, the court underscores that not every imperfect employer response to harassment allegations supports a retaliation claim. Without demonstrable harm, inadequacies in an internal investigation do not qualify as materially adverse. And routine scheduling that reflects business realities, coupled with reasonable discipline of the harasser, will not ordinarily deter a reasonable employee from complaining.

On the merits, Culp’s punitive-damages award could not stand alongside the jury’s no-liability findings; those answers were irreconcilable, requiring a new trial on her Title VII/CADA claims. By contrast, Peters’s retaliation claim and Culp’s negligent-supervision claim remain resolved in Remington’s favor.

In sum, Culp meaningfully advances procedural doctrine in the Tenth Circuit while reinforcing pragmatic boundaries around retaliation liability. It offers concrete guidance to trial courts and litigants alike: build cleaner verdict forms, preserve issues in real time, and use Dietz’s resubmission tools to honor the jury’s role and conserve judicial resources.