                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS August 29, 2008

                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court


    TRANSITO TRUJILLO,

                Plaintiff-Appellant,

    v.                                                  No. 07-2210
                                            (D.C. Nos. CIV-02-1146-JB-LFG and
    BOARD OF EDUCATION OF THE                      CIV-03-1185-JB-LFG)
    ALBUQUERQUE PUBLIC                                   (D. N.M.)
    SCHOOLS; JOSEPH VIGIL and
    SUSIE PECK, Albuquerque Public
    Schools Superintendents, individually
    and in their official capacities;
    ANTHONY GRIEGO, Principal,
    Valley High School, individually and
    in his official capacity; BRUCE
    SMITH, Valley High School Assistant
    Principal, individually and in his
    official capacity; RONALD
    WILLIAMS, Director of Certified
    Staffing, Albuquerque Public Schools,
    individually and in his official
    capacity; MARK MAYERSTEIN,
    Valley High School employee,
    individually and in his official
    capacity,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
                                                                       (continued...)
Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



      Transito Trujillo was unsuccessful in his employment-related lawsuit

against the defendants. The district court dismissed some claims and granted

summary judgment to defendants on others, including a 42 U.S.C. § 1983 claim of

violations of Trujillo’s First Amendment right to free speech. A jury decided

against Trujillo on his remaining claim of retaliation in violation of Title VII of

the Civil Rights Act of 1964. Trujillo appeals. We have jurisdiction under

28 U.S.C. § 1291, and we AFFIRM.

                                  I. Background

      This court previously heard an interlocutory appeal in Trujillo’s case. See

Trujillo v. Board of Educ. of Albuquerque Pub. Schs., 212 F. App’x 760 (10th Cir.

2007). We there described the factual background to this action:

             Trujillo began working as an Aerospace Instructor (ASI) in the
      Air Force Junior Reserve Officer Training Corps program
      (AFJROTC) at Valley High School in Albuquerque, New Mexico, in
      1991. The Board of Education for the Albuquerque Public Schools
      (the APS Board) hired [Lt. Col. Mark] Mayerstein in the spring of
      2001 to replace Trujillo’s supervisor in the position of Senior ASI.
      Trujillo’s wife, Major Lourdes Trujillo, had applied for the job as
      well and, after APS hired Mayerstein, she filed a complaint with the


*
 (...continued)
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -2-
         Equal Employment Opportunity Commission (EEOC) claiming
         national origin and sex discrimination. Trujillo and Mayerstein
         began working together in October 2001. The relationship started
         well, but it began to deteriorate in December 2001. By the spring of
         2002, both parties had been placed on administrative leave pending
         an investigation into their cross-allegations of misconduct.

Id. at 763. Ultimately the Air Force decertified both Trujillo and Mayerstein as

AFJROTC instructors, and their employment was terminated by the Albuquerque

Public Schools (APS). “Trujillo, through counsel, filed suit in September 2002

against Mayerstein and the other named defendants, bringing claims under

42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981,

and other grounds.” Id.

         In the interlocutory appeal, which concerned the district court’s denial of

Mayerstein’s motion for summary judgment on Trujillo’s First Amendment claim,

this court remanded for further consideration under the rationale of the Supreme

Court’s intervening decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). 1 See

id. at 764-65. On remand, the district court concluded that Trujillo’s speech was

required as part of his job and granted summary judgment to defendants,

including Mayerstein, under Garcetti. In a separate order, the district court also

denied Trujillo’s motion to amend his complaint to add a new First Amendment

claim.

1
       In Garcetti, the Supreme Court held that “when public employees make
statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” 547 U.S. at 421.

                                           -3-
      Ultimately, all but one of Trujillo’s claims were dismissed or were decided

on summary judgment. Trujillo proceeded pro se to trial on his claim that APS

retaliated against him for pursuing activities protected under Title VII. The jury

found in favor of APS, and the district court denied Trujillo’s motions for a new

trial and to alter or amend the judgment. Trujillo, still proceeding pro se, appeals.

                                     II. Analysis

                             A. Motion for a New Trial

      Trujillo first argues that the district court erred in denying his motion for a

new trial, given the weight of the evidence and allegedly damaging admissions

and testimony by certain defendants. We review the district court’s decision for

an abuse of discretion, viewing the evidence in the light most favorable to

Trujillo. See Escue v. N. Okla. College, 450 F.3d 1146, 1156 (10th Cir. 2006).

It is “[t]he jury [that] has the exclusive function of appraising credibility,

determining the weight to be given to the testimony, drawing inferences from the

facts established, resolving conflicts in the evidence, and reaching ultimate

conclusions of fact.” United Phosphorus, Ltd. v. Midland Fumigant, Inc.,

205 F.3d 1219, 1226 (10th Cir. 2000) (quotation omitted). “[U]nder the Seventh

Amendment, the court may not substitute its judgment of the facts for that of the

jury; it may only grant a new trial if it concludes that the jury’s verdict was so

against the weight of the evidence as to be unsupportable.” Skinner v. Total

Petroleum, Inc., 859 F.2d 1439, 1443 (10th Cir. 1988). “Thus, even if we do not

                                          -4-
necessarily agree with the jury’s verdict, it must be upheld unless it is clearly,

decidedly or overwhelmingly against the weight of the evidence.” Escue,

450 F.3d at 1157 (quotation omitted).

      Having reviewed all the portions of the trial transcript that were submitted

as part of the record on appeal, we do not believe that the jury’s verdict can be

characterized as “clearly, decidedly or overwhelmingly against the weight of the

evidence.” Ample evidence supports the jury’s verdict. The testimony and

allegedly damaging admissions that Trujillo highlights in his appellate brief do

not alter our conclusion that denying the motion was not an abuse of discretion. 2

                                B. Jury Instructions

      Trujillo challenges certain jury instructions that were given and also argues

that the district court erroneously refused to give his requested instructions.

                            1. Jury Instructions Given

      First, Trujillo contends that jury instructions 10 through 16 were incorrect

and inadequate. He did not object at trial, however, so our review is under the

plain-error standard. See Greene v. Safeway Stores, Inc., 210 F.3d 1237, 1245

(10th Cir. 2000). “Under that standard, we will affirm unless the instructions were


2
       To the extent that Trujillo complains that the district court did not give a
limiting instruction in connection with certain testimony, we note that he did not
object to the testimony at trial or request a limiting instruction. Thus, our review
is for plain error. See Greene v. Safeway Stores, Inc., 210 F.3d 1237, 1245
(10th Cir. 2000). We do not find any error, much less plain error, in not giving a
limiting instruction with regard to the challenged testimony.

                                          -5-
patently, plainly erroneous and prejudicial.” Id. (quotation omitted). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (en banc) (quotation omitted).

                                     Definitions

      Trujillo argues that instructions 10, 11, and 12 did not define key terms.

He contends that instructions 10 and 11 should have made it clear that the actions

of “APS” (Albuquerque Public Schools) or “the employer” included the actions of

APS’s agents; that instruction 10 should have defined “causal connection,” and

that instruction 12 should have defined “vicariously liable.”

      The gist of Trujillo’s agency argument was communicated to the jury via

Instruction 12, which concerned an employer’s liability for the actions of

supervisory employees. Thus, the failure to include an agency instruction did not

seriously affect the fairness of the trial. As for the “causal connection” and

“vicariously liable” arguments, “[a] significant line of cases holds that it is not

error–plain or otherwise–to fail to define a statutory term or phrase that carries its

natural meaning.” United States v. Robinson, 435 F.3d 1244, 1249 (10th Cir.

2006). While theories of causation and vicarious liability can become quite

complicated, as those terms were used in instructions 10 and 12, they were not so

out of the ordinary that the failure to define them constituted plain error.

                                          -6-
                                 Lack of Specificity

      Trujillo also argues that instructions 10 and 13 did not specify that his oral

or informal objections could constitute protected activity under Title VII; that

instruction 14 did not note that certain activity could be considered pretext; and

that instruction 16 did not identify certain damages awardable to him under the

standard of Hillig v. Rumsfeld, 381 F.3d 1028 (10th Cir. 2004).

      None of these arguments identify errors in the instructions that were given.

The instructions were non-specific; this is not a situation in which they included

some activities or categories of damages while excluding the activities and

categories about which Trujillo complains. Further, to the extent that Trujillo

believes the jury needed guidance in making connections between his evidence

and the applicable legal standards, in his closing argument he was free to present

any reasonable inferences supported by the evidence. We find no plain error.

                        Lack of Reference to Case Standards

      Instruction 15 stated, “[a]n action is a materially adverse action if the

action might have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” R. Doc. 442 at 16. Trujillo contends that the

instruction should have incorporated the exact language of Burlington Northern

and Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006), in which the Supreme

Court stated an action is materially adverse if it “well might have dissuaded a

reasonable worker” (quotation omitted, emphasis supplied). If the omission of

                                         -7-
“well” in this context even constitutes error, it does not constitute plain error. It

affected no substantial rights and did not seriously affect the fairness of the trial.

                    2. Refusal of Requested Jury Instructions

      Trujillo also appeals the district court’s refusal to give his requested jury

instructions. Under Fed. R. Civ. P. 51, a party must timely object to a failure to

give a jury instruction. This court has stated, “to comply with Rule 51 a party

must both proffer an instruction and make a timely objection to the refusal to give

a requested instruction. A party does not satisfy the requirements for Rule 51 by

merely submitting to the court a proposed instruction that differs from the

instruction ultimately given to the jury.” Abuan v. Level 3 Communications, Inc.,

353 F.3d 1158, 1172 (10th Cir. 2003) (citation and quotation omitted). Trujillo

did not object to the district court’s refusal of his proposed instructions.

Consequently, as with the jury instructions that were given, we review the district

court’s decision only for plain error. 3 See Giron v. Corr. Corp. of Am., 191 F.3d

1281, 1289 (10th Cir. 1999).

3
       Trujillo complains that he did not have time to review the final proposed
jury instructions and indicates that he considered his general objections to APS’s
proposed instructions and his own proposed instructions to be “sufficient
objections.” Aplt. Br. at 26. But we are not inclined to apply a different standard
of review. “[T]his court has repeatedly insisted that pro se parties follow the
same rules of procedure that govern other litigants.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (alteration and quotation
omitted). It was Trujillo’s burden to review the instructions, and it appears that
he had several opportunities to make objections. See R. Doc. 479 at 2-3 (“The
Court held hearings during breaks and at the end of each day, and specifically
asked for each parties’ objections to and comments on the jury instructions.”).

                                           -8-
      “The trial judge is given substantial latitude in tailoring the instructions so

long as they fairly and adequately cover the issues presented. A party has no

vested interest in any particular form of instructions.” Richards v. Att’ys’ Title

Guar. Fund, Inc., 866 F.2d 1570, 1573 (10th Cir. 1989) (citations omitted). The

court adopted portions of some of Trujillo’s requested instructions and gave

instructions substantially similar to others. Trujillo complains that his proposed

instructions “provided for inclusion of the alleged retaliatory activity to guide the

jury, as well as guidance on causal connection, elements which the court

eliminated from its final jury instruction.” Aplt. Br. at 26. Trujillo’s proposed

instruction discussing the alleged retaliatory activity, however, was prolix.

Further, as discussed above, the failure to define “causal connection” was not

plain error. The instructions that the district court gave adequately addressed the

issues. Accordingly, we find no plain error in the district court’s rejection of

Trujillo’s proposed instructions.

                            C. First Amendment Claim

      Trujillo also raises a First Amendment issue. In the interlocutory appeal,

this court remanded for further consideration of Trujillo's First Amendment

claims. See Trujillo, 212 F. App’x at 764-65. On remand, the district court

focused on four instances of allegedly protected speech, including Trujillo’s

complaints about Mayerstein’s mistreatment of students. The district court did

not consider a claim that Trujillo reported Mayerstein’s discriminatory treatment

                                          -9-
of Hispanic students (a separate issue from the mistreatment allegations); rather,

it held that this claim was untimely asserted and denied Trujillo’s motion to

amend his complaint to include it. The court also denied Trujillo’s motion to

reconsider its decision and his motion to alter or amend its judgment regarding

this issue. On appeal, Trujillo does not challenge the grant of summary judgment

to the defendants regarding the four instances of speech that the district court

analyzed, but instead argues that the court erred in failing to consider the claim

regarding the discriminatory treatment of Hispanic students.

      This court reviews the denial of leave to amend a complaint for abuse of

discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). The district court

reviewed the applicable standards under both Fed. R. Civ. P. 15(a) and

Fed. R. Civ. P. 16(b) and cited numerous reasons for not allowing Trujillo to add

this retaliation claim. These reasons included the length of time the case had

been pending (five years); the length of time since the deadline for pre-trial

motions (more than three years since an original deadline and more than sixteen

months since an extended deadline imposed once Trujillo’s two cases were

consolidated); the short time remaining before trial (less than two months); that

the proposed amended complaint’s new facts attempted to skirt the court’s prior

summary judgment rulings on Trujillo’s First Amendment claims; and that the

claims were time-barred and futile. These are all proper grounds for refusing to

allow an amendment. See Foman, 371 U.S. at 182 (stating that undue delay,

                                         -10-
undue prejudice to the opposing party, and futility are proper grounds for denying

an amendment); Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir.

2006) (“Courts will properly deny a motion to amend when it appears that the

plaintiff is using Rule 15 to make the complaint a moving target, to salvage a lost

case by untimely suggestion of new theories of recovery, to present theories

seriatim in an effort to avoid dismissal, or to knowingly delay raising an issue

until the eve of trial.”) (quotations, alterations, and citations omitted); Hayes v.

Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001) (“We have often found

untimeliness alone a sufficient reason to deny leave to amend.”) (quotation and

alteration omitted).

      Trujillo argues that he impliedly amended his complaint to include this

claim by discussing the issue in various briefs, without objection by the

defendants. He also contends that defendants “did not object to Trujillo’s trial

testimony on his student race discrimination reports . . . . Therefore the

court should have reconsidered in order to conform to the evidence” under

Fed. R. Civ. P. 15(b). Aplt. Reply Br. at 6. In either of these circumstances,

however, implied amendment would be inappropriate because it is not clear that

the argument or evidence was intended to assert a new claim, rather than

supporting the existing claims. See Green Country Food Market, Inc. v. Bottling

Group, LLC, 371 F.3d 1275, 1280 (10th Cir. 2004).




                                          -11-
       For these reasons, the district court’s denial of leave to amend was not an

abuse of discretion, and the district court did not err in refusing to reconsider its

decision. 4

                              D. Denial of Bench Trial

       Finally, Trujillo contends that the district court erred in denying his

motions for a bench trial. The court denied his motions because the claim at issue

was triable by jury, defendants had not consented to the withdrawal of Trujillo’s

jury demand, and defendants desired a jury trial.

       The district court did not err. Trujillo made a jury demand in

his complaint, and defendants were entitled to rely on that demand. See

Fed. R. Civ. P. 38(b) (2007) (providing that a jury demand included in a pleading

is effective); Fed. R. Civ. P. 38(c) (2007) (providing that a general jury demand

is construed to cover all issues triable to a jury); Fed. R. Civ. P. 39(a) (2007)

(“When trial by jury has been demanded as provided in Rule 38, the action

shall be designated upon the docket as a jury action.”). As the district court

held, Trujillo had no right to withdraw the jury demand unilaterally. See

Fed. R. Civ. P. 38(d) (2007) (“A demand for trial by jury made as herein provided

may not be withdrawn without the consent of the parties.”); Fed. R. Civ. P.



4
      Because this claim was not part of the case before the district court, we
need not discuss Trujillo’s argument that Garcetti did not overrule Givhan v.
Western Line Consolidated School District, 439 U.S. 410 (1979).

                                          -12-
39(a)(1) (2007) (providing that, once a jury trial has been demanded, trial must be

by jury on all jury-triable issues unless all parties stipulate to a nonjury trial).

                                    III. Conclusion

      The district court’s judgment is AFFIRMED.


                                                       Entered for the Court



                                                       Timothy M. Tymkovich
                                                       Circuit Judge




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