                                                                        FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          AUG 22 2002
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 ROBERT SCHNEIDER,

             Plaintiff - Appellee,
                                                        No. 01-1199
 v.                                                 (D.C. No. 99-Z-504)
                                                       (D. Colorado)
 CITY AND COUNTY OF DENVER, a
 municipal corporation,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before HENRY and HOLLOWAY, Circuit Judges, and VAN BEBBER, District
Judge. **




      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



      *
        This order and judgment is not binding precedent, except under the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.
(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

                                          -2-
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

                                           -3-
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

                                         -4-
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 “[i]n 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.


                                            -5-
      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


                                         -6-
“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

“[t]hat 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


                                          -7-
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.




                                         -8-
      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).


                                            -9-
      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 “allow[ed] full cross-

examination” regarding these exhibits. Aplt’s App. Ex. E, at 427. In addition,




                                          -10-
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 (1977); Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 416-17

(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


                                         -11-
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


                                           -12-
      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


                                         -13-
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., 34 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) 1, which generally excludes evidence of other acts for the purpose of



      1
        Rule 404(b) provides that:
      [e]vidence 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.

                                        -14-
proving a person acted similarly on other occasions. See San Juan v. IBP, 160 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 “[t]estimony 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


                                         -15-
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 “[p]laintiff 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


                                          -16-
“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) (“[I]n 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.


                                          -17-
                          (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. 2

             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 affect[ed] a substantial right of a party”



      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.

                                         -18-
and unduly and substantially affected the jury’s verdict. 3 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”).




      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.

                                         -19-
      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 Labs., 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


                                         -20-
include references to the Reed verdict form, which we are not considering on

appeal. 4 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



      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.

                                        -21-
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

                                           -22-
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.




                                          -23-
      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

(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


                                          -24-
“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).




                                         -25-
      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, 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).


                                         -26-
                                 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




                                          -27-
