Unpublished
Opinion
UNITED STATES
COURT OF APPEALS
FOR THE TENTH
CIRCUIT
ROBERT SCHNEIDER,
Plaintiff - Appellee,
v.
CITY AND COUNTY OF DENVER,
a municipal corporation,
Defendant - Appellant.
No. 01-1199
2002 U.S. App. Lexis 17605
August 22, 2002, Filed
(D.C. No. 99-Z-504).
Rules
of the Tenth Circuit Court of Appeals may limit citation to unpublished
opinions. Please refer to the rules of the United States Court of Appeals for
this circuit.
Henry
and Holloway, Circuit Judges, and Van Bebber, District Judge. **
Robert
H. Henry
Robert Schneider, formerly a Denver Police Officer and member of the
Metro Special Weapons and Tactics Bureau (the "SWAT" bureau or
division), filed this action under 42 U.S.C. § 1983 against the City and County
of Denver (the "City"). In his complaint, Mr. Schneider alleged that
his transfer to the Denver Police Training Academy from the SWAT division was
in retaliation for his exercise of his First Amendment right to free
speech-namely, his testimony criticizing one of the Denver Police Department's
training programs. Mr. Schneider also alleged that he was constructively
discharged from the SWAT division.
A jury awarded Mr.
Schneider $75,000 in compensatory damages on his retaliatory transfer claim.
However, the jury found in favor of the City on Mr. Schneider's constructive
discharge claim. On appeal, the City challenges certain evidentiary rulings and
the damage award. The constructive discharge finding is not at issue.
We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We hold that, despite any erroneous evidentiary ruling, there was
sufficient evidence to support the jury's conclusion that Mr. Schneider
established his claim of retaliatory discharge in the exercise of his First
Amendment right of freedom of expression.
I. FACTUAL BACKGROUND
A. 1998 civil service hearing testimony
On March 12, 1998, Mr. Schneider testified in a civil service hearing
as an expert on firearms training. He gave testimony criticizing the Denver
Police Department's training in the area of decisional shooting. The hearing
centered around a Denver police officer who had been terminated from the
Department earlier that year for his involvement in a police shooting in 1988.
In 1985, the same officer had been involved in another incident that resulted
in his shooting and killing Leonard Zuchel during an investigation. See Zuchel
v. City and County of Denver, 997 F.2d 730 (10th Cir. 1993); Zuchel v. Spinharney,
890 F.2d 273 (10th Cir. 1989). The Zuchel family sought and won damages against
the City on a claim of deliberate indifference in training of its officers that
resulted in the unconstitutional use of excessive force.
The City attempted to exclude Mr. Schneider's testimony from the civil service hearing. Part of Mr. Schneider's testimony noted that as of March 1998, the Denver Police Department had done nothing to improve its decisional shooting training since the Zuchel incident and resulting court decisions. Mr. Schneider also testified that Mr. Spinharney had received no additional training after the Zuchel decision.
B. The events preceding Mr. Schneider's transfer
In 1997, the Department had purchased a
decisional shooting training system called the Range 2000, which was delivered
in January 1998. On March 20, 1998, Captain Ed Bingham wrote a memo to his
Division Chief, Heather Coogan, who commanded at the training academy. He noted
that the new system would be operational on April 1, 1998, and that it required
at least one additional person for its operation and implementation. Division
Chief Coogan requested Chief of Police David Michaud and the Division Chief of
Patrol Tim Cuthriell to transfer someone to the academy to run the new system.
As of April 1998, Mr. Schneider had been assigned to the Metro SWAT
division for eighteen continuous years. Apparently, Mr. Schneider had applied
for a transfer to the Academy approximately one year earlier. Chief Cuthriell
telephoned Mr. Schneider's supervisor, Captain Collier, to inform him of the
transfer. Captain Collier testified that he had no "inkling" before
April 1, 1998 that Mr. Schneider would be transferred. Aple's Supp. App.
at 22. On April 1, 1998, Mr. Schneider received notice from his shift
supervisor that he was being transferred to the Denver Police Academy,
effective April 6, 1998.
Captain Collier testified that the
customary practice leading up to a transfer would involve his input and
participation in any discussions before the transfer of a member of his
division. See id. at 22-23. He stated he was not consulted in the decision and
as a result believed the transfer was a "done deal." Id. at 25.
Captain Collier also discussed Mr. Schneider's performance evaluations. He
testified that Mr. Schneider received perfect scores for his interpersonal
skills, including his ability to effectively interact with department members
of various ranks and his responses to criticism.
Chief Cuthriell testified that before the
transfer he had spoken several times with Captain Collier regarding problems
Captain Collier was having with Mr. Schneider. Chief Cuthriell claimed that he
then inquired whether Captain Collier was willing to give up Mr. Schneider from
Metro SWAT because of the troubles he was having with Mr. Schneider. Captain
Collier disputed this claim. See id. at 73, 154. Chief Cuthriell also testified
that Captain Collier was responsible for transferring Mr. Schneider. Id. at 41.
Former Chief of Police David Michaud, who ultimately ordered Mr.
Schneider's transfer, provided yet a different explanation of events. Chief
Michaud denied any direct involvement, claiming it was a "low level"
transfer which he simply approved. Id. at 100. He also claimed that the
transfer was due to budget cuts mandated by City Council. Chief Michaud further
testified that he "never heard what he [Mr. Schneider] testified to,"
and denied receiving a phone call about Mr. Schneider's testimony. Id. at
70-71. Chief Michaud added that he knew Mr. Schneider believed the Denver
Police Department's training in decisional shooting was inadequate, and said
that "in a sense, I agreed with him." Id. at 71-72. Thus, Chief
Michaud appeared to deny being upset or angry with Mr. Schneider for testifying
against the City on this issue.
In contrast, Chief Coogan, from the Academy, testified that she was
present in Chief Michaud's office when he received a phone call about Mr.
Schneider's testimony in the civil service hearing. "He slammed the phone
down and cussed, [he] was angry; and he told the people in the room that
Bob Schneider had testified against us
at the . . . civil service hearing." Id. at 89. She testified Chief
Michaud was angry Mr. Schneider had testified.
C. Mr. Schneider's assignment to the police academy
Upon his arrival at the Denver Police Academy on Monday, April 6, 1998,
Mr. Schneider discovered that he was not expected by the Academy staff. Captain
Bingham (the Commander of the Training Academy) had not been advised of the
transfer before April 1, 1998. Thus, on starting his new position Mr. Schneider
had no office, desk, chair, telephone, or computer. In addition,
notwithstanding Chief Cuthriell's claim that Mr. Schneider was transferred to the
Academy to run the decisional shooting training system, Mr. Schneider was
advised by Captain Bingham that his duties would not include decisional
shooting training.
Mr. Schneider testified that his transfer to the Academy was
devastating to his family life. Captain Collier, Lt. Phelan, Sergeant
Michael Hughes, and Deputy Chief of Operations Walter Abrams also testified Mr.
Schneider was disappointed and unhappy with the transfer. See id. at 14, 91,
93, 98 and Aplt's App. ex. D at 329. Mr. Schneider testified that his
assignment at Metro SWAT had allowed him to be at home with his young children
during the day, allowing him to be actively involved in raising his two sons.
The only available shifts at the Academy were day shifts. Although Mr. Schneider
volunteered to work in a proposed decisional shooting training program at the
Academy, which would have allowed him to work nights again, the program was
never implemented.
Mr. Schneider also testified regarding the strain the transfer had
placed upon his marriage and his friendships. Mr. Schneider testified that he
had "bonded" with his fellow technicians in the Metro SWAT Bureau,
which he termed his "second family." Aple's Supp. app. at 134(A). Mr.
Schneider testified that he did not "fit in" at the Academy. Id.
Mr. Schneider discussed his transfer and
his treatment at the Academy with Sergeant Mike Hughes, a past staff member of
the Academy. Sgt. Hughes, a friend of Chief Cuthriell, went to Chief Cuthriell
to discuss the transfer and to see if Chief Cuthriell could intervene. Sgt.
Hughes also inquired as to the reason Mr. Schneider was transferred. Sgt.
Hughes testified that Chief Cuthriell indicated "that Bob was being
transferred because of his testimony." Id. at 43. Sgt. Hughes testified
that Chief Cuthriell did not indicate who had ordered the transfer.
D. May 22, 1998 meeting
Mr. Schneider admitted that he did not hide
his disappointment surrounding his transfer. He complained about his teaching
requirements and his hours, and he made it known that he desired to return to
the Metro SWAT Bureau. On May 22, 1998, Department supervisors met with Mr.
Schneider. Those present included Mr. Schneider, Chiefs Coogan and Cuthriell,
Captain Collier, and Lieutenant Jennifer Steck. Chief Coogan testified that the
gist of the meeting was to clear up Mr. Schneider's belief that he might go
back to Metro SWAT. Chief Coogan was under the impression that Metro SWAT had
requested that Mr. Schneider be transferred to the Academy. She testified that
at the meeting, however, Captain Collier denied ever wanting Mr. Schneider
transferred and that Captain Collier said he was ordered to transfer Mr.
Schneider and that anyone who suggested otherwise was a "liar." Id.
at 34; 91-92. Captain Collier's testimony corroborated that of Chief Coogan on
this point.
Chief Coogan also testified she was
prepared to let Mr. Schneider return to Metro SWAT and she asked Captain
Collier if he would take him back. Captain Collier responded negatively,
apparently because there was no spot available for Mr. Schneider. Chief
Cuthriell testified that he did not believe Captain Collier had been candid
during this meeting and that Captain Collier had apparently misled Chief
Coogan.
Chief Coogan testified that at this point
the meeting came to an immediate end. She testified that Mr. Schneider looked
"devastated," as though "it had just occurred to him that he had
been lied to and betrayed." Id. at 93. A few days later, Mr. Schneider
resigned his position.
E. Procedural posture
The jury awarded Mr. Schneider $75,000 in compensatory damages. On
appeal, the City contests (1) the admission of two verdict forms from other
actions against the City; (2) the exclusion of purported impeachment testimony
from Sergeant Hughes; and (3) the $75,000 compensatory damages award, which the
City maintains was a product of passion and prejudice and was excessive.
We agree that one verdict form should not have been admitted, but we
determine that, because this evidence did not unduly influence the jury's
verdict, the error was harmless. In addition, the district court did not abuse
its discretion when it excluded Sergeant Hughes' purported impeachment
testimony. Finally, we hold that the jury's award of compensatory damages is
supported by the evidence in the record and does not shock the judicial
conscience. Therefore, for the reasons set forth below, we affirm the judgment
of the district court.
II. DISCUSSION
We review a district court's determination
regarding admission of evidence for abuse of discretion. Boughton v. Cotter
Corp., 65 F.3d 823, 832 (10th Cir. 1995). We will not disturb the court's
ruling unless we have "a definite and firm conviction that the lower court
made a clear error of judgment or exceeded the bounds of permissible choice in
the circumstances." McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th
Cir. 1991) (internal quotation marks and citation omitted). If we find error in
the admission of evidence, "we will set aside a jury verdict only if the
error prejudicially affects a substantial right of a party." San Juan v.
IBP, Inc., 160 F.3d 1291, 1296 (10th Cir. 1998). Evidence admitted in error can
only be prejudicial "if it can be reasonably concluded that . . . without
such evidence, there would have been a contrary result." Hinds v. General
Motors Corp., 988 F.2d 1039, 1049 (10th Cir. 1993).
If the complaining party failed to make a
contemporaneous objection at trial, however, we review the admission of
evidence under a plain error standard. See Pandit v. Am. Honda Motor Co., Inc.,
82 F.3d 376, 379 (10th Cir. 1996); Fed. R. Evid. 103(d). The City maintains,
unhelpfully, that we should consider the admission of the verdict forms de
novo. The City admits that although we generally review a trial court's
evidentiary rulings for abuse of discretion, where the trial court failed to
set forth its reasons underlying the evidentiary ruling, we should review that
decision de novo. Under this theory, if the trial court did not balance the
probative value of the evidence against its
prejudicial effect pursuant to Federal Rule of Evidence 403, we should
consider the evidence's admissibility de novo.
We disagree with the City's
characterization of the trial court's evaluation of the verdict forms as
demonstrating "little or no legal analysis." Aplt's Br. at 9; see
also Aplt's App. ex. E, at 382-391, 424-427. Although the trial court did not
explicitly rule on the prejudicial impact of this evidence, it did so
implicitly by permitting the evidence under Rule 404(b). Moreover, the trial
court carefully considered the factual underpinnings of the verdict forms and
ultimately determined that they were admissible "over objection" and
"allowed full cross-examination" regarding these exhibits. Aplt's App.
Ex. E, at 427. In addition, there was ample colloquy regarding the exhibits.
See id. at 381-92, 423-27, 442-51. We thus reject the City's suggestion that we
conduct a de novo review of the admission of the verdict forms and review for
abuse of discretion.
A. Elements of retaliatory discharge claim
A claim under 42 U.S.C. § 1983 alleging retaliatory discharge by a
government official because of the plaintiff's constitutionally protected
speech requires proof of three elements. First, the plaintiff must prove that
his speech was constitutionally protected because it addressed a matter of
public concern. Second, the employee's interest, as a citizen, in his speech
must not be outweighed by the government employer's interest in the efficiency
of its office. Third, the protected speech must have been a substantial and
motivating factor in the adverse employment decision. See Mt. Healthy
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S.
Ct. 568 (1977); Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410,
416-17, 58 L. Ed. 2d 619, 99 S. Ct. 693 (1979).
1. Admissibility of the Verdict Forms
The first issue on appeal concerns the
third element: whether Mr. Schneider's testimony in the 1988 civil service
commission hearing was a substantial and motivating factor in the City's
decision to transfer him to the Denver Police Training Academy. The district
court's decision was complicated by action of both counsel in this case; both
appear to have had morphing attitudes as to their theories for admission or
non-admission of the verdict forms in question. Mr. Schneider's counsel first
presented two verdict forms from other civil rights cases filed against the
City for "impeachment purposes." He asked the trial court to take judicial
notice of the forms. Aple's Supp. App. at 6. Mr. Schneider's counsel argued
that the forms would be offered to controvert Chief Michaud's anticipated
testimony that the City did not have a policy of retaliating against its
employees. The court declined to rule at that time. During the trial but before
their admission, counsel asked that the verdict forms be considered for
"impeachment purposes and as direct evidence," Aplt's App. Ex. E, at
381, of the City's alleged policy of discriminating against employees for
exercise of their rights. Before deeming the forms admissible, the district
court considered the underlying facts and procedural posture of each action.
The City argues that because each form's
probative value was substantially outweighed by its prejudicial impact upon the
jury, its admission deprived the City of its right to a fair trial.
Specifically, the City raises two objections to the admission of each jury
verdict form. First the City maintains that each verdict form, which arguably indicated prior bad act(s) on the
part of the defendant in those actions, was inadmissible under Federal Rule of
Evidence 404(b), and could not be used to established a pattern of retaliatory
conduct. Next, the City challenges each form's relevance as impeachment
evidence under Federal Rule of Evidence 608(b).
a. Reed v. City and County of Denver, 96-B-38
The first verdict form, from Reed v. City
and County of Denver, 96-B-38, filed May 27, 1999, involved a § 1983 action
where the jury found that the plaintiff had established that her exercise of
her First Amendment right to freedom of speech was a motivating factor in the
City's decisions to remove her from her current position. Chief David Michaud
was the supervisor in Reed, as he is here. However, the Reed verdict form
indicates that the Reed jury also found that the City demonstrated it would
have removed Ms. Reed from her position even if she had not exercised her First
Amendment right to free speech. See Aplt's App. ex. A (verdict form from Reed
v. City and County of Denver (filed May 27, 1999)). Thus, the Reed form
indicated that Ms. Reed established by a preponderance of the evidence that the
exercise of her First Amendment rights was a motivating factor in her removal,
but the form also indicated that the jury found evidence in support of the
City's affirmative defense that the City would have transferred her in any
event.
Although the City did object to the
admissibility of the Reed form before and during trial, the record actually
shows that the City conceded that it revoked any objection to the Reed form.
See Aplt's App. ex. E at 427 ("I have no objection to the Reed verdict
form coming in as long as we can talk about the whole verdict form in
Reed."). At oral argument, counsel also admitted it acquiesced to the
admission of the Reed form because the form itself aided the defense: it
established that the City would have transferred the employee in question even
if she had not engaged in protected speech. The City has thus waived this argument
and we decline to review it. See Worden v. Tri-State Ins. Co., 347 F.2d 336,
341 (10th Cir. 1965) (noting that where one party "withdrew its
objections" to the introduction of certain evidence, "no error was in
fact committed"); United States v. Weiss, 930 F.2d 185, 199 (2d Cir. 1991)
(holding where counsel withdrew objection to the exclusion of documentary
evidence, counsel "waived his right to appeal this matter").
(b) Rowe v. City and County of Denver
(i) Rule 404(b)
The second verdict form, filed Oct. 6,
1998, arose from a Title VII action styled Rowe v. City and County of Denver.
In Rowe, the jury found that the City discriminated against Ms. Rowe through a
hostile work environment and intentional retaliation. See id. ex. B (verdict
form from Rowe v. City and County of Denver (filed Oct. 6, 1998)). Chief
Michaud testified he was not the supervisor responsible for the retaliation
against Ms. Rowe, and this testimony is unrefuted.
The City challenges the admission of the
Rowe verdict form under Fed. R. Evid. 404(b) n1, which generally excludes
evidence of other acts for the purpose of proving a person acted similarly on
other occasions. See San Juan v. IBP, 160 F.3d at 1297. However, "we have
modified this general rule somewhat in the context of employee discharge cases
requiring proof of discriminatory intent." Coletti v. Cudd Pressure
Control, 165 F.3d 767, 776 (10th Cir. 1999); see San Juan, 160 F.3d at 1297 (noting that "character evidence
is admissible in civil trials to show motive or intent"). For example, in
San Juan, we concluded the district court correctly applied Fed. R. Evid. 404
when it admitted testimony of other employees about their treatment by the
defendant employer because the evidence was relevant to the issue of the
employer's discriminatory intent to mistreat employees following their
work-related injuries. See id.; Spulak v. K Mart Corp., 894 F.2d 1150, 1156
(10th Cir. 1990) (holding, in an ADEA action, that the district court properly
admitted testimony of other employees as probative of the defendant's
discriminatory intent); Curtis v. Oklahoma City Pub. Schls. Bd. of Educ., 147
F.3d 1200, 1217 (10th Cir. 1998) (noting that "testimony of other
employees may be relevant in assessing an employer's retaliatory intent if the
testimony establishes a pattern of retaliatory behavior or tends to discredit
the employers assertion of legitimate motives").
In order for the court to find such
character testimony relevant, however, the plaintiff must show the
circumstances involving the other employees are such that their statements can
"logically or reasonably be tied to the decision to terminate [the
plaintiff]." Curtis, 147 F.3d at 1217 (internal quotation marks and
citations omitted); see Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156
(6th Cir. 1988) (holding the trial court committed reversible error by
admitting testimony of two former employees of defendant company because no
evidence tied the testimony to defendant's decision to terminate). A
"plaintiff can meet this requirement by showing that the same supervisors
were involved in prior discriminatory employment actions." Heno v. Sprint
United Management Co., 208 F.3d 847, 856 (10th Cir. 2000). Furthermore,
"the district court should carefully scrutinize the time frame in which
other alleged acts of discrimination occurred." Id.
Additionally, even though such evidence may
be relevant to show motive or intent, the trial court may still properly
disallow relevant evidence if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Fed. R. Evid. 403 (emphasis added)
The
City seeks to distinguish Rowe from Mr. Schneider's action on the grounds that
the former arose under Title VII. The City notes that, although the elements of
a Title VII and a § 1983 prima facie case may be similar (i.e., an adverse
employment action, a causal connection, and protected activity), these elements do not address the liability issue.
In a Title VII action, unlike in a § 1983 action, the factfinder may impute the
conduct of a supervisor to the employer. See 42 U.S.C. § 2000e-2 (noting that
Title VII applies specifically to "employers" and their
"agents"); McCue v. State of Kansas, Dep't of Human Resources, 165
F.3d 784, 788 (10th Cir. 1999) ( "As a result of this clear statutory
instruction, courts have long and consistently held that the scope of liability
in Title VII actions is defined by the law of agency."). In a § 1983
action against a municipality, there must be evidence that the final decision
or policy maker was responsible for the retaliation. See Butcher v. City of
McAlester, 956 F.2d 973, 977 n. 2 (10th Cir. 1992) ("In a § 1983
proceeding the municipality must itself be at fault, and it is not, under
respondent superior, responsible for the isolated torts of its
employees.").
We agree that Rowe involved different
issues. Chief Michaud offered unrefuted testimony that the person responsible
for the Title VII retaliation in the Rowe lawsuit was Sergeant J. O. Brown, not
Chief Michaud. Unlike the employees who complained in San Juan-where the acts
of the employer involved harassment and mistreatment of employees following
their injuries or claims for medical benefits-Mr. Schneider can demonstrate
little or no connection with the Rowe case. There is little time frame in the
record regarding the underlying actions other than the 1999 date of the verdict
forms and testimonial recollection. See Heno, 208 F.3d at 856 (urging trial
courts to carefully scrutinize the time frame of other alleged acts of
discrimination). In addition, we have found no authority allowing the admission
of a verdict form, standing alone, as direct or circumstantial evidence. Its
admission was error.
(ii). Rule 608(b)
The City also disputes the admission of the
Rowe verdict form under Fed. R. Evid. 608(b). Rule 608(b) governs the
admissibility of specific instances of conduct of a witness for purposes of
impeachment. It provides:
Specific
instances of the conduct of a witness, for the purpose of attacking or
supporting the witness' credibility, other than conviction of crime ..., may
not be proved by extrinsic evidence. They may, however, in the discretion of
the court, if probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness.
Fed.
R. Evid. 608(b).
Mr. Schneider's counsel argued that the
forms would controvert Chief Michaud's testimony that the City did not have a
policy of retaliating against its employees. In fact, the City offered
testimony from Chief Michaud affirming that the defendant City in the Rowe case
was found to have intentionally retaliated against Ms. Rowe. He testified he
was aware of this jury finding. Thus, the district court erred to the extent it
admitted the Rowe verdict form for impeachment of Chief Michaud's testimony. n2
2. Effect of evidentiary errors on the verdict
Having found error in the admission of the
Rowe verdict form, we must consider whether the error "prejudicially
affected a substantial right of a party" and unduly and substantially
affected the jury's verdict. n3 San Juan, 160 F.3d at 1296-97. The City has the
burden of making that showing.
Here we must also note our frustration with
the designation of the record by both parties in this case. See Fed. R. App. P.
10; 10th Cir. R. 10. The City, as appellant, is responsible for designating
those "'papers filed in the district court which are relevant to specific
arguments made in the briefs'" for inclusion in the appellate record. Green v. Johnson, 977 F.2d 1383, 1387 (10th
Cir. 1992) (quoting 10th Cir. R. 10.2.1). Furthermore, "'it is counsel's responsibility
to see that the record excerpts are sufficient for consideration and
determination of the issues on appeal and the court is under no obligation to
remedy any failure of counsel to fulfill that responsibility.'" Deines v.
Vermeer Mfg. Co., 969 F.2d 977, 979 (10th Cir. 1992) (quoting General Order,
10th Cir., Oct. 25, 1990, p. 5); see also
Adler v. Wal-Mart Stores, Inc.,144 F.3d 664, 672 (10th Cir. 1998)
(noting we "have a limited and neutral role in the adversarial process,
and are wary of becoming advocates who comb the record of previously available
evidence and make a party's case for it").
After combing through the scant record
nonetheless, we have found several items that would have been of great use to
the City in making its argument that the admission of the verdict form
substantially influenced the jury's verdict. Items that would have been helpful
for us to weigh the merits of this argument include an unabridged transcript of
Mr. Schneider's jury trial proceedings, including the complete closing
arguments, the jury instructions and the pretrial order. See Naimie v. Cytozyme
Lab., Inc, 174 F.3d 1104, 1113 (10th Cir. 1999) ("If the appellant intends
to urge on appeal that a finding or conclusion is unsupported by the evidence or
is contrary to the evidence, the appellant shall include in the record a
transcript of all evidence relevant to such finding or conclusion, and, if the
appellant fails to do so, the court is under no obligation to remedy any
failure of counsel to fulfill that responsibility") (quotations omitted).
We have opted to remedy counsel's failure nonetheless and requested that the
City supplement the record with the submission of the closing arguments and the
jury instructions. Having reviewed
these submissions, we are in a better-informed position to rule on the
merits of this case.
In support of its contention that the Rowe
verdict form affected the verdict, the City notes that, during closing
argument, Mr. Schneider's counsel referred to the Rowe action as evidence of a
previous act of retaliation. Our review of the record indicates that Mr.
Schneider's counsel referred to the verdicts in three paragraphs of the
twenty-plus page closing argument, and these paragraphs include references to
the Reed verdict form, which we are not considering on appeal. n4 The
Rowe verdict form was not the primary evidence on which Mr. Schneider's counsel
relied. Instead, counsel carefully reviewed the weight of the evidence.
Our review of the record satisfies us that there was sufficient
circumstantial evidence to temper the evidentiary errors and support the jury's
verdict that the City fired Mr. Schneider because of his exercise of his First
Amendment rights. Mr. Schneider was a long-time veteran of the Metro SWAT
Bureau who had applied at one point-and was denied-a position at the Academy.
While in Metro SWAT, he received stellar reviews and was thought to be among
the most, if not the most, qualified of the instructors in the division. The
jury heard evidence about the department's response, or lack thereof, to the
fourteen year old Zuchel case. There was evidence that Mr. Schneider's
testimony from the administrative hearing was far from well-received, and his
subsequent transfer, one that evaded the customary bureaucratic process, was
swift. Unrefuted testimony established
that his transfer, ostensibly to facilitate the decisional training instruction
program, apparently involved little involvement in the program. In sum, based
on the record before us, there was sufficient evidence before the jury to make
a decision for either party, depending upon its credibility determinations. We
therefore conclude that there was sufficient evidence before the jury to
determine that Mr. Schneider's criticism of the Department was a substantial
and motivating factor in the City's decision to transfer him irrespective of
the erroneous admission of the Rowe verdict form. We cannot say that any
evidentiary errors interfered with the jury's verdict. See San Juan, 160
F.3d at 1296-97.
B. Testimony from Sergeant Hughes
The City next challenges the exclusion of
certain testimony from Sergeant Hughes. During cross-examination, the City's
counsel asked Sgt. Hughes whether his friendship with Chief Cuthriell became
strained when the Chief led the Internal Affairs division of the police
department. Mr. Schneider's counsel objected to the question, first claiming
that the question was argumentative and irrelevant. After the judge excused the
jury, the City's counsel advised the trial court it asked the question to show
motive, bias, or prejudice for impeachment purposes. Mr. Schneider's counsel
countered that to allow a line of questioning regarding Sergeant Hughes
Internal Affairs record was unfair surprise.
The trial court asked if the City had
informed Mr. Schneider's counsel about this line of questioning. The City's
counsel responded it had not but maintained that no procedural or evidentiary
rule required her to do so. The trial judge stated that "[her] rule, which
[she] made very clear to all the attorneys, is that there were to be no
surprises in this case. Everything was to be made known to the other
side." Aplt's App. ex. D, at 341. She then sustained Mr. Schneider's
objection because of surprise, because it would entail a mini-trial of Sgt.
Hughes, and because the prejudicial effect of the evidence outweighed any
probative value.
The City maintains that because Fed. R.
Civ. P. 26 specifically excludes the disclosure of impeachment materials, the
withholding of such material is acceptable. See Fed. R. Civ. P. 26(a)(3)
("[A] party must provide . . . the following information regarding the
evidence it may present at trial other than solely for impeachment . . .
.") (emphasis added). Mr. Schneider responds that discovery proceeded on
the notion that all evidence would be shared between the parties.
We also note that the Advisory Committee
Notes on Rule 26 state that "disclosure of such evidence-as well as other
items relating to conduct of trial-may be required by local rule or a pretrial
order." See Advisory Committee Notes, 146 F.R.D. at 635 (emphasis added).
This significant comment is entitled to weight in consideration of the Rule.
See Schiavone v. Fortune, 477 U.S. 21, 31, 91 L. Ed. 2d 18, 106 S. Ct. 2379
(1986) ("Although the Advisory Committee's comments do not foreclose
judicial consideration of the Rule's validity and meaning, the construction
given by the Committee is 'of weight.'"); DeBiasio v. Illinois Central
Railroad, 52 F.3d 678, 685-86 (7th Cir. 1995) ("Rule 26(a)(3) of the
Federal Rules of Civil Procedure does not require pretrial disclosure of
evidence used 'solely for impeachment purposes.'").
We give wide discretion to the avoidance of
side issues and "minitrials" by
district courts. Here, the trial court had expressly noted that there
were to be "no surprises" in this case, and the City was well aware
of the trial court's intent. Aplt's App. ex. D, at 341 ("Everything was to
be made known to the other side."). In addition, the City's counsel gave
no reason that it could not have conveyed the information about the
investigation of Sgt. Hughes to Mr. Schneider's counsel before trial. The City
merely pointed out that Sgt. Hughes was not its witness.
Although the City's argument that Rule 26
does not require the disclosure of information to be used "solely for
impeachment" is correct, the district court's reasoning demonstrates that
it excluded the testimony in part because of "surprise," but also to
thwart a mini-trial and to avoid unfair prejudice under Rule 403. Aplt's App.
ex. D, at 343; see id. at 340. We therefore conclude that the district court
did not abuse its discretion in excluding the evidence.
C. Compensatory damage award
Finally, the City challenges the jury's award of award of $75,000 in
compensatory damages to Mr. Schneider for his emotional suffering. The City
maintains that the award is excessive, that it can only be a result of passion
or prejudice, and that the only evidence supporting the award was Mr.
Schneider's own testimony that he was "very upset." See Aplt's
App. ex. F, at 680.
Mr. Schneider counters that there is sufficient evidence in the record
of his emotional distress. "In reviewing the trial judge's determination
that the damages awarded by the jury were not so inadequate as to require a new
trial, we are to determine whether the trial judge has abused his
discretion." Black v. Hieb's Enters., Inc., 805 F.2d 360, 362 (10th
Cir. 1986). "When reviewing the district court's use of its discretion
regarding excessive verdict claims, we must determine whether the award was so
excessive . . . as to shock the judicial conscience and to raise an
irresistible inference that passion, prejudice, corruption or other improper
cause invaded the trial." Whiteley v. OKC Corp., 719 F.2d 1051, 1058 (10th
Cir. 1983) (internal quotation marks omitted).
We acknowledge that much of the testimony
regarding Mr. Schneider's suffering was his own, but this fact is not dispositive.
See Hampton v. Dillard's Department Stores, 247 F.3d 1091, 1115 (10th Cir.
2001) (upholding compensatory damage award of $56,000 where only testimony
regarding emotional suffering was that of plaintiff), cert. denied, 151 L. Ed.
2d 973, 122 S. Ct. 1071 (2002). Not only did Mr. Schneider testify, but the
jury also heard testimony from his colleagues regarding his emotional distress.
Lieutenant Phelan testified to Mr. Schneider's disappointment over his
transfer. See Aple's Supp. App. at 14. Captain Coogan noted Mr. Schneider's
apparent despair at the Academy and during the May 22, 1998 meeting. See id. at
91-93. Deputy Chief of Operation David Abrams testified that he thought Mr.
Schneider felt "hurt" and "betrayed" and "appeared
depressed." Id. at 98.
Unlike this court, the jury had the
opportunity to observe Mr. Schneider and the other witnesses and to credit or
discredit their testimony regarding Mr. Schneider's alleged mental anguish.
Under such circumstances, we cannot say the jury's decision to compensate Mr.
Schneider for his alleged mental anguish either shocks the judicial conscience
or raises an inference of passion or prejudice. Cf. Mason v. Oklahoma Tpk. Auth., 115 F.3d 1442, 1457 (10th Cir. 1997) (affirming jury's decision not to
compensate plaintiff where only testimony regarding emotional suffering was his
own, noting the jury's opportunity to observe plaintiff's testimony).
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court's judgment.
The district court abused its discretion when it admitted the Rowe verdict
form, but sufficient evidence remained for the jury to determine that the
City's transfer of Mr. Schneider was retaliatory and the error did not
substantially affect the verdict. In addition, the district court did not err
when it excluded the impeachment testimony regarding Sergeant Hughes on the
basis of unfair surprise to Mr. Schneider. Finally, the compensatory damage
award in the amount of $75,000 is not excessive and is supported by sufficient
evidence in the record.
Entered for the Court,
Robert H. Henry
Circuit Judge
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable G. Thomas Van Bebber, United States District Judge for the
District of Kansas, sitting by designation.
1. Rule 404(b) provides that:
evidence
of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
2. Curiously, Mr. Schneider's
counsel, in the alternative, suggests collateral estoppel and judicial notice
somehow foreclose the City from challenging the admission into evidence of the
verdict form. Counsel's understanding of these theories is incorrect, and his
briefing is inadequate for review by
this court.
3. Ideally, of course, the
district court should have instructed the jury about "limitations on the
use of [the verdict form.]" Smith v. Ingersoll-Rand, Co., 214 F.3d 1235,
1250 (10th Cir. 2000). "The burden in this situation, however, fell to
[the City] to request an appropriate limiting instruction." Id. The City
does not suggest that it asked for a limiting instruction regarding the verdict
form, and none was given.
4. In closing, Mr. Schneider's
counsel stated the following with reference to the verdict forms:
It's your job
as a jury to compensate Mr. Schneider for the emotional trauma that he suffered
as a result of his transfer and his loss of a career. You saw how well the city
listened to the verdict in Zuchel. You saw how well that the city listened to
the verdict in Miriam Reed's case when it was found to have retaliated against
her for her exercise of free speech.
Now, you
heard the city testify. You heard Chief Michaud tell you that Miriam Reed
didn't tell the truth. But I anticipate you will get an instruction from this
court that will tell you that Miriam Reed's speech could not have been
protected by the First Amendment if it was false speech, because false speech
is not protected speech.
So did
they listen to that verdict in Miriam Reed? Did they listen to verdict in Wilma
Rowe?
. . . .
The city
doesn't consider emotional distress that was caused to Bob Schneider by this
transfer, just like they didn't worry about the Miriam Reed verdict.
Aplt's
Supp. App. Ex. R, at 1052-53.