                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 JUN 7 2001
                                    TENTH CIRCUIT
                             ______________________________                 PATRICK FISHER
                                                                                     Clerk


 GLORY MCKINNEY DUNLAP
 aka GLORY DUNLAP,

           Plaintiff-Appellant                                No. 99-6412
                                                           (W.D. Oklahoma)
           v.                                          (D.C. No. CIV-98-1006-T)

 CITY OF OKLAHOMA CITY,
 a municipal corporation,

           Defendant-Appellee.

                             ______________________________

                                ORDER AND JUDGMENT*
                             ______________________________

Before BRISCOE, MURPHY, Circuit Judges, and CROW,** District Judge.
                   ______________________________

       The plaintiff, Ms. McKinney Dunlap, appeals from several of the district court’s

pretrial, trial, and post-trial orders. These consist of the summary judgment order limiting

her claims against the defendant City of Oklahoma City to race discrimination in


       *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 Sam A. Crow, District Judge, United States District Court
for the District of Kansas, sitting by designation.
employment under 42 U.S.C. § 1981, the decision to exclude certain witnesses and

exhibits from trial, and the finding that the plaintiff could not proceed in forma pauperis

on this appeal. We affirm.

                                           I.

       The underlying facts of this case are largely uncontroverted. Plaintiff is an

African-American who worked for the City of Oklahoma City, Oklahoma for

approximately 17 years before she was selected for a reduction in force (“RIF”). When

she was terminated from the City’s personnel department effective July 1, 1995, she

brought suit, alleging six causes of action: employment discrimination based upon race

pursuant to 42 U.S.C. § 1981 and Title VII; Title VII retaliation for filing an EEOC

claim; 42 U.S.C. § 1983 equal protection claim; and pendent state claims for breach of

express and implied contract. Plaintiff was thereafter recalled for employment with the

City, returned to work for the City on July 12, 1996, and remained employed with the City

at the time of oral argument.

       The district court granted summary judgment to the City on all claims but

plaintiff’s § 1981 claim of intentional race discrimination in selecting her for the RIF,

which claim was tried to a jury. In a motion in limine, the district court precluded the

plaintiff from using witnesses Lurie Dixon and Sharon Wright-Simmons at trial because

their proposed testimony was irrelevant to the claims remaining. At trial, the court

precluded the plaintiff from introducing two documents into evidence because they were


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not listed in the Final Pretrial Order, and plaintiff did not seek to add them until after trial

had commenced. After trial, the district court denied plaintiff’s application to appeal in

forma pauperis based upon its findings that plaintiff had sufficient funds with which to

pursue an appeal and that the appeal was not taken in good faith. These rulings give rise

to plaintiff’s appeal.

                                            II.

Did the district court abuse its discretion in excluding two witnesses proffered by the

plaintiff?

       Plaintiff objects to the exclusion of testimony of two City employees, Lurie Dixon

and Sharon Wright-Simmons, both African-American women. The court first ruled in

response to a motion in limine that the two witnesses would not be permitted to testify.

At that point, the plaintiff stated that the two would testify only to the City’s racial

discrimination against people other than the plaintiff, or a pattern of such, by the City.

The court found such testimony irrelevant to plaintiff’s sole remaining claim of

intentional race discrimination because that claim did not encompass a claim of racially

hostile work environment or a pattern of intentional racial discrimination against other

employees. The court further found that even if the testimony had some probative value,

it was outweighed by the risk of confusion and prejudice under Fed. R. Evid. 403.

       On a motion for reconsideration of that ruling, the plaintiff stated, for the first

time, that these two witnesses had direct knowledge of the reduction in force and its


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application to this plaintiff. The court then ruled that plaintiff’s prior characterization of

the witnesses’ testimony was “markedly different” than the proffer, and that to permit

them to testify on this subject matter which had not been pursued by the City in discovery

would be prejudicial.

       The court reaffirmed and incorporated the latter ruling at trial. The proffer stated

that both witnesses had direct knowledge of the reduction in force which led to plaintiff’s

termination and would testify that an employee other than the plaintiff was initially

targeted for termination in the RIF. Specifically, Lurie Dixon would have testified that

she was the only revenue analyst in the City’s budget department at the time of plaintiff’s

layoff, that a discussion occurred about Linda Griffin, an employee alleged to have less

tenure with the City, replacing the plaintiff, and that another position, the Rebecca Allen

position, was supposed to have been deleted instead of plaintiff’s. Sharon Wright-

Simmons would have testified that she worked in the personnel department at the relevant

time period, that she found a piece of paper on the floor showing that Rebecca Allen’s

position was designated for deletion in the RIF, and that she read the document and gave

it to her supervisor.

       The proffered testimony of the two witnesses about the RIF and its application to

the plaintiff may have had some probative value on the issue of the City's intent to

discriminate against the plaintiff. However, the decision to exclude evidence under Rule

403 is within the sound discretion of the trial court, and will not be reversed by this court


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absent a clear abuse of discretion. Getter v. Wal-Mart Stores, 66 F.3d 1119, 1124 (10th

Cir. 1995), cert. denied, 516 U.S. 1146 (1996). Under this standard, this court will not

disturb the district court's decision absent 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." Boughton v. Cotter Corp., 65 F.3d 823, 832 (10th Cir. 1995) (quoting

McEwen v. City of Norman, 926 F.2d 1539, 1553 (10th Cir. 1991)). Rule 403 balancing

is a task best left to the trial judge. Agristor Leasing v. Meuli, 865 F.2d 1150, 1152 (10th

Cir. 1988).

       It appears from the record that the district court's primary reason for excluding the

testimony of these two witnesses was not because of the prejudicial effect of such

testimony under Rule 403, but because the nature of their proposed testimony had

changed to such an extent that permitting them to testify would cause unfair surprise to

the City. This court reviews a trial court's determination to exclude evidence due to

unfair surprise for an abuse of discretion. Moss v. Feldmeyer, 979 F.2d 1454, 1458-59

(10th Cir. 1992). One clear purpose of the federal discovery rules is to facilitate fact

finding and prevent unfair surprise. See Fed. R. Civ. P. 26 and Advisory Comm. Notes;

Hickman v. Taylor, 329 U.S. 495, 507 (1947). The imposition of sanctions for abuse of

discovery under Federal Rule of Civil Procedure 37 is a matter within the discretion of

the trial court. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,

642 (1976); Brennan v. Sine, 495 F.2d 875, 877 (10th Cir. 1974).


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       No abuse of discretion has been shown in the district court’s decision not to permit

these witnesses to testify at trial. Changing one’s testimony from the City’s alleged

pattern of racial discrimination against persons other than the plaintiff to specific

incidents in the challenged RIF impacting the plaintiff is substantial. The court thus finds

no reason to dispute the district court’s conclusion that the proposed testimony had

changed to such an extent that permitting the two witnesses to testify would constitute

unfair surprise to the City. The record does not suggest that the City had any opportunity

to cure the surprise that such a change during trial would produce. Accordingly, the

district court’s decision is affirmed.



Did the district court abuse its discretion in excluding two exhibits not listed in the

pretrial order?

       Plaintiff next objects to the district court’s exclusion of two exhibits, Exhibits 25

and 26, identified as notes written by witness Kayla Davis. Ms. Davis was the Personnel

Operations Manager for the City during the RIF in question. These notes allegedly show

problems encountered by the City in applying the RIF policy, and outline 21 RIF

Procedures and Preparations which plaintiff alleges would have aided in clarifying the

RIF. Although Ms. Davis testified at trial and was cross-examined by plaintiff’s counsel,

plaintiff’s counsel made no reference to either of these exhibits at that time, and did not

offer them into evidence until the following day when Ms. Davis was no longer testifying.


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        Neither of these exhibits was listed in the pretrial order. Admittedly, plaintiff did

not obtain these exhibits from the City until after the pretrial order was filed, but plaintiff

made no motion to revise the pretrial order until in the midst of trial, which motion the

court denied as untimely. In contrast, the district court granted the City’s motion, filed

just prior to trial, to add newly discovered documents to the pretrial order. The district

court’s granting of the City’s motion demonstrates that had plaintiff’s counsel similarly

moved prior to trial to add the two exhibits to the pretrial order, the court would not have

denied her motion as untimely.

       Plaintiff contends that because the documents were no surprise to the City, who

had provided them to the plaintiff, and because the documents were discovered at a date

so close to trial,1 the court’s decision not to admit them as evidence constitutes an abuse

of discretion.

       The rule applicable to this issue is well established. A pretrial order controls the

later course of a trial unless modified. See Fed. R. Civ. P. 16(e).

       The decision to allow or prohibit testimony of witnesses not described or listed in
       the pretrial order rests with the sound discretion of the trial judge and will not be
       disturbed absent an abuse of discretion. (Citations omitted.) The order entered
       following a final pretrial conference shall be modified only to prevent manifest
       injustice. Fed. R. Civ. P. Rule 16(e).

Moss, 979 F.2d at 1458- 59. Where a party fails to show any circumstances other than its


       1
                Plaintiff admits having received the documents on August 26, 1999.
(Plaintiff's brief, at p. 10). The trial did not begin until October 12, 1999. (City's brief, at
p. 9).

                                              -7-
own neglect to warrant relief from a pretrial order, no reason for reversal exists. Durant

v. Independent School District No. 16 of Leflore County, State of Oklahoma, 990 F.2d

560 (10th Cir. 1993).

       Here, it is uncontested that the exhibits were not listed in the pretrial order, and

that the plaintiff's counsel had them in his possession for approximately six weeks before

trial but did not move to amend the pretrial order at any time prior to trial. No reason for

this inaction was stated at trial, or has been offered on appeal. Given the fact that the

district court permitted the City, upon its timely motion, to add newly discovered

documents to the pretrial order, it does not appear that a similar motion by the plaintiff

would have been futile. Under these circumstances, the district court's decision to

exclude the two exhibits fulfills the purposes for which a pretrial order is entered, and

neither constitutes clear error nor approaches an abuse of discretion.



Did the district court err in not tipping the scales against the City and in favor of the

plaintiff when weighing the prejudicial effect of the evidence against its probative value?

       Plaintiff next asserts that when conducting the balancing test required by Fed. R.

Evid. 403, the court should have given less weight to the prejudicial effect of the evidence

because the only entity who would suffer such prejudice is a City, rather than an

individual. Otherwise stated, the plaintiff believes that a municipality should be treated

differently than a natural person in determining the prejudicial impact of the admission of


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evidence under Rule 403.

       Plaintiff cites no authority for this proposition. Instead, plaintiff relies upon

inherent differences between a natural person and an artificial person, an analogy to

financial hardships suffered by a City and those suffered by an individual, and the

undisputed fact that the evidence excluded was not gruesome or otherwise likely to

invoke passion, prejudice, or an emotional reaction.

       Although research has revealed no case directly addressing this novel argument,

this court has reviewed application of Rule 403 in cases involving municipalities without

indicating that any different test or balancing criteria should apply when a party is not a

natural person. See e.g., Stump v. Gates, 211 F.3d 527 (10th Cir. 2000) (reversing trial

court, finding evidence should have been excluded pursuant to Rule 403 of the Federal

Rules of Evidence because its probative value was substantially outweighed by the danger

of unfair prejudice to the City, and would mislead and confuse the jury).

       No reason has been shown to apply the 403 balancing test any differently when a

party is a municipality. Municipalities have the right to a fair trial, as do individuals, and

the rules of evidence are routinely applied even-handedly to both natural and artificial

persons who appear in court.




Did the district court properly grant summary judgment on plaintiff's claim of an equal


                                              -9-
protection violation?

       The district court granted summary judgment to the City on five of plaintiff's six

claims, leaving for trial solely her intentional race discrimination claim pursuant to 42

U.S.C. § 1981. On appeal, plaintiff challenges only the court’s grant of summary

judgment on her claim that the City violated the equal protection clause of the 14th

Amendment, brought pursuant to 42 U.S.C. § 1983. The Tenth Circuit reviews de novo

the granting of a summary judgment, and in so doing, uses the same legal standards as

used by the trial court pursuant to Fed. R. Civ. Pro. 56. Williams v. Rice, 983 F.2d 177

(10th Cir. 1993).

       Plaintiff fails to show this court any evidence or disputed fact which she believes

should have precluded summary judgment on her § 1983 claim. Instead, plaintiff

contends solely that the court's refusal to admit at trial the two witnesses and two exhibits

addressed above constitutes an equal protection violation. Plaintiff alleges: "Equal

protection requires at least that the State act sensibly and in good faith... Here there was

no other evidence to prove the facts of said excluded evidence...Thus, Plaintiff/Appellant

was restricted in proving her equal protection claim." (Plaintiff's brief at p.22).

       The court's exclusion of evidence from trial was made long after its decision on

City's summary judgment motion, and was totally unrelated to its decision to grant the

City judgment on plaintiff's § 1983 claim. The court's summary judgment on plaintiff's §

1983 claim was based upon the following findings: that plaintiff had the burden to prove


                                             -10-
that the municipality maintained a policy, practice, or custom which caused an equal

protection violation; that the policy appearing in Personal Services Bulletin 95-1, which

prescribes the basis for selection of employees to be laid off in a RIF as performance, and

not seniority, was properly applied to the plaintiff; and that plaintiff offered no evidence

to support her contention that the policy had been applied to her in an intentionally

discriminatory manner.

       Plaintiff contends on appeal that the excluded witnesses and exhibits would have

provided sufficient evidence to support her contention that the policy was applied to her

in an intentionally discriminatory manner, and that the district court's decision on

summary judgment would thus have been different had it considered such evidence. The

fact remains, nonetheless, that the plaintiff did not submit the exhibits or witness

testimony in its response to the City's summary judgment motion, and that the later

exclusion of the two witnesses and two exhibits from evidence was not an abuse of

discretion. Accordingly, no reason exists to reverse the district court's decision granting

summary judgment on plaintiff's § 1983 claim.



Did the district court abuse its discretion in finding that plaintiff could not proceed in

forma pauperis on appeal?

       The final issue raised by plaintiff is whether the district court abused its discretion

in ruling that the plaintiff could not proceed in forma pauperis on appeal. Plaintiff alleges


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that she cannot pay for the costs of this appeal and still be able to provide herself and her

three dependents with the necessities of life.

       The record reflects, however, that the plaintiff has already paid the filing fee,

mooting the issue. But even if this court were to reach the merits of this issue, plaintiff

would not prevail. The district court found, based upon plaintiff's affidavit, that she is

employed with the City, earns a monthly salary of $2,634.01, owns a home and a car, and

has sufficient funds with which to pay the $105.00 filing fee. Plaintiff does not dispute

any of these facts, which provide ample support for the conclusion reached by the district

court. No reason for reversal exists.

       AFFIRMED.



                                                    Entered for the Court


                                                    Sam A. Crow
                                                    United States District Judge




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