Denise REKSTAD, Plaintiff-Appellant/Cross-Appellee, v. FIRST BANK SYSTEM, INC., a Delaware corporation; FBS Mortgage Corporation, formerly doing business as Colorado National Mortgage corporation, a Nevada corpоration; and First Bank System Long-Term Disability Plan, (Plan #509), Defendants-Appellees/Cross-Appellants.
Nos. 99-1188, 99-1190.
United States Court of Appeals, Tenth Circuit.
Jan. 29, 2001.
In each of the above incidents, when Delta was presented with a potentially harassing situation, it immediately investigated, took corrective action, and disciplined any offending emplоyees. Delta conducted itself as a reasonable employer. Wilson, 164 F.3d at 541 n. 4.
B. Vicarious Liability
Mr. Hollins’ alternative theory of liability is that Mr. Brothers acted with either the actual or apparent authority of Delta, making Delta vicariously liablе for his acts. We cannot properly evaluate this argument because Mr. Hollins offered no evidence whatsoever that would show Mr. Brothers was acting at the behest of Delta, with actual authority. He also offerеd no evidence that Mr. Brothers was a “management level employee” who could be said to be acting under the apparent authority of his employer. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1074 (10th Cir. 1998); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 674 (10th Cir.1998). Delta, conversely, provided evidence on the two issues it must prove in order to mount an affirmative defense to vicarious liability: “(a) that the employer exercised reasonable care to prevent and corrеct promptly any harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer...” Harrison, 158 F.3d at 1375 (quoting Faragher, 524 U.S. at 807, 118 S.Ct. 2275). Under these circumstances, Delta‘s responses were reasonable, and it may not be held liable for any racial harassment that may have occurred in the workplace.
We AFFIRM the judgment of the district court.
Carmen S. Danielson of Dietze and Davis, P.C., Boulder, CO, and Patricia Bellac of Boulder, CO, for Plaintiff-Appellant/Cross-Appellee.
Steven J. Merker (Nancy Smith Pearson and Stephen E. Abrams with him on the briefs) of Dorsey & Whitney LLP, Denver, CO, for Defendants-Appellees/Cross-Appellants.
Before EBEL, McKAY, and LUCERO, Circuit Judges.
McKAY, Circuit Judge.
Thereafter, Plaintiff sued FBS and others for violations of the
Plaintiff appeals the district court‘s grant of summary judgment to Defendants on her ADA claim, and Defendants cross-appeal the district court‘s grant of summary judgment to Plaintiff on her ERISA claim.
We must first address whether we have jurisdiction. Aside from a few well-settled exceptions, federal appellate courts have jurisdiction solely over appeals from “final decisions of the district courts of the United States.”
Accordingly, in order for us to exercise jurisdiction over either the ADA or
We have, however, previously concluded thаt a district court‘s grant of summary judgment to the plaintiff on an ERISA claim that left the question of damages unresolved was not a final appealable order. See Albright v. UNUM Life Ins. Co. of America, 59 F.3d 1089 (10th Cir.1995). The Albright panel‘s holding followed from the well-accepted rule that an order determining liability but leaving damages to be calculated is not final unless the correct amount of damages is self-evident and not likely to be the subject of future appeal. Seе id. at 1092-93. In the instant case, Plaintiff‘s eligibility for disability damages must still be addressed on remand. What‘s more, even assuming Plaintiff‘s entitlement to damages, the correct amount is far from obvious. In her complaint, Plaintiff prayed for “damages, including but not limited to, loss of benefits under the plan, interest, attorney‘s fees, costs, out of pocket expenses, and other damages to be determined at trial.” Aplt.App. I at 35 (Third Am. Compl. at 17). Given this open-ended request, we cannot say that the appropriate award, if any, is self-evident or that the process would not result in future appeals. Thus, under a straightforward application of Albright and the final judgment rule, the district court‘s decision in the casе at a hand cannot be considered final.
There is, however, one potentially important difference between Albright and the instant case: Albright did not involve a remand. The question thus becomes whether the mere act of remanding an issue to аn ERISA plan administrator confers finality on an otherwise nonfinal order. We think not in light of the current posture of this case before the district court. To see why, consider a district court order remanding a claim to an administrativе agency—perhaps the best analogue to an ERISA remand. In the administrative context, a remand order is “generally considered a nonfinal decision ... not subject to immediate review in the court of appeаls.” Baca-Prieto v. Guigni, 95 F.3d 1006, 1008 (10th Cir.1996). Employing a “practical finality” rule, we have nevertheless reviewed administrative remand orders where it was necessary “to ensure that the court of appeals was able to review an important legal quеstion which the remand made effectively unreviewable.” Id. at 1009 (quoting Travelstead v. Derwinski, 978 F.2d 1244, 1248 (Fed.Cir.1992)). This rule exists in the administrative agency context, if nowhere else, because agencies may be barred from seeking district court (and thus circuit court) review of their own administrative decisions. Consequently, if a district court remands an issue to an administrative agency and essentially instructs the agency to rule in favor of the plaintiff, the agency “may well be foreclosеd from again appealing the district court‘s determination at any later stage” of the proceeding. Id. at 1008 (quoting Bender v. Clark, 744 F.2d 1424, 1428 (10th Cir.1984)).
Transporting the practical finality rule to the ERISA context, we still cannot say that the district court‘s remand order was final. The remand to the plan administrator will not foreclose future appellate review of any important legal questions because, no matter the administrator‘s ultimate decision, the district court has expressly stаted that either party may obtain court review of the administrator‘s determination simply by filing a motion. In that event, we then could review the final decision of the district court regarding the administrator‘s determination along with any other issues that Defendants now ask us to address. If neither party seeks district court review of the
We note that our conclusion is in harmony with a majority of the circuit courts that have addressed the finality of ERISA remands. See Williamson v. UNUM Life Ins. Co. of Am., 160 F.3d 1247, 1250-52 (9th Cir.1998); Petralia v. AT&T Global Info. Solutions Co., 114 F.3d 352, 354 (1st Cir.1997); Shannоn v. Jack Eckerd Corp., 55 F.3d 561, 563 (11th Cir.1995) (per curiam). But see Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, 195 F.3d 975, 977-80 (7th Cir. 1999) (predicating its jurisdiction on the notions that ERISA remands should be treated like statutorily governed Social Security Administration remands and that administrativе remands in general are normally appealable); Snow v. Standard Ins. Co., 87 F.3d 327, 330 (9th Cir.1996) (concluding without analysis that an ERISA remand was a final order), overruled on other grounds by Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.1999) (en banc).
In conclusion, we stress that district court orders remanding an issue to an ERISA plan administrator are not per se nonfinal. The decision should be made on a case-by-case basis applying well-settled principles governing “final decisions.” In this case, those precepts convince us that the district сourt‘s ERISA remand is not a final order. Consequently, without a rule 54(b) certification we cannot review the ADA claim either.
The appeal is therefore DISMISSED.