                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALSJanuary 11, 2012
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                  Clerk of Court



    JUANITA DAVIS,

                Plaintiff-Appellant,
                                                        No. 11-6144
    v.                                          (D.C. No. 5:10-CV-00743-HE)
                                                        (W.D. Okla.)
    AKIN’S; CHAMBERLINS NATURAL
    FOODS,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



         Juanita Davis sued her former employer, Health Food Associates, Inc. d/b/a

Akin’s Natural Foods (“Akin’s”), under 42 U.S.C. § 1981 for discrimination on

the basis of race in terminating her employment. After a jury found against her,




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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 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.
the district court entered judgment for Akin’s. Proceeding pro se, Ms. Davis

appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 1

      Ms. Davis contends that the district court (1) failed to reiterate, just before

deliberations, its initial instruction to jurors that they had access to depositions

and exhibits; (2) admitted exhibits after the defense rested; (3) issued no findings

or conclusions in support of the jury’s verdict; and (4) improperly refused to

admit certain testimony. She also argues that there was insufficient evidence to

support the jury’s verdict. 2

      The first, second, and fourth issues are all reviewed for abuse of discretion.

See Johnson v. Unified Gov’t of Wyandotte Cnty./Kan. City, Kan., 371 F.3d 723,

730 (10th Cir. 2004) (jury instructions); Smith v. Rogers Galvanizing Co.,

148 F.3d 1196, 1197-98 (10th Cir. 1998) (reopening a case to accept additional

evidence); Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1079

(10th Cir. 2009) (exclusion of testimony). “Under the abuse of discretion


1
      Before presiding over the jury trial, the district court granted summary
judgment (1) to Chamberlins Natural Foods on all claims, and (2) to Akin’s on
Ms. Davis’s claims of race, sex, and religious discrimination under Title VII of
the Civil Rights Act of 1964, and of negligence and intentional infliction of
emotional distress under state law. Ms. Davis’s opening brief does not present
any arguments challenging the summary judgment on these claims.
2
      Akin’s and Chamberlins note that Ms. Davis listed additional arguments in
her docketing statement. Issues listed in docketing statements generally are
waived if they are not also argued in an opening brief. Pino v. Higgs, 75 F.3d
1461, 1463 (10th Cir. 1996). The arguments we list are the only issues that
Ms. Davis preserved for the court’s consideration.

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standard, the district court will be reversed only if it made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.”

Creative Consumer Concepts, Inc., 563 F.3d at 1079 (internal quotation marks

omitted). Having considered the parties’ arguments, we cannot conclude that the

district court abused its discretion with regard to any of these matters.

      Further, the jury, not the court, was the factfinder at this trial. Therefore,

the court was not required to issue findings of fact or conclusions of law. See

Fed. R. Civ. P. 52(a)(1) (directing courts to find the facts and make conclusions

of law “[i]n an action tried on the facts without a jury or with an advisory jury”

(emphasis added)).

      Finally, we address Ms. Davis’s argument about the sufficiency of the

evidence. She highlights the evidence in her favor. On appeal, however, we must

view the evidence in the light most favorable to the party who prevailed at trial.

Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 959 (10th Cir.

2002). In addition, “[t]he jury 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 evidence, and

reaching ultimate conclusions of fact.” Id. (internal quotation marks omitted). A

disagreement with the jury’s evaluation of the evidence is not grounds to overturn

the verdict.




                                          -3-
      Ms. Davis’s “Motion Re-Urging Court to Reverse Order Denying Trial

Transcript at Public Expense” is DENIED. The judgment of the district court is

AFFIRMED.


                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




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