                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      July 18, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 LAURA SAURINI,

               Plaintiff - Appellant,                   No. 04-1477
          v.                                            D. Colorado
 A D A MS C OU N TY SC HO O L                   (D.C. No. 02-Z-953 (BNB))
 DISTRICT NO. 12, also known as
 Adams Twelve Five Star Schools;
 R ICK K ELLO G G ; JA CO B M URPHY;
 LIN D A CU RR Y; M A RK H IN SON,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before KELLY, SE YM OU R, and HA RTZ, Circuit Judges.


      Laura Saurini appeals from an adverse judgment following a jury trial on

her claim that her former employer, Adams County School District No. 12 (the

School District), and M ark Hinson, Assistant Superintendent of Human

Resources, retaliated against her for exercising her First Amendment right to free

speech. She argues that the district court committed reversible error in



      *
       This order and judgment is not binding precedent, except under the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.
instructing the jury, barring her from presenting a claim at trial, and making

evidentiary rulings. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    B ACKGR OU N D

      Laura Saurini was hired in 1998 as a nontenured school counselor at Huron

M iddle School (Huron), part of the School District. W hile employed at Huron,

she had numerous clashes w ith other school personnel, some of which related to

the reporting of what she considered child abuse. In addition, she claims that she

objected to school policy restricting her authority to report such abuse.

      On April 24, 2000, near the end of M s. Saurini’s second year at the school,

Huron Principal Linda Curry and Assistant Principal Jacob M urphy recommended

to M r. H inson that M s. Saurini’s contract not be renewed for the next school year.

Principal Curry stated that the counseling department at Huron was dysfunctional

and needed to be changed, and M s. Saurini was simply not qualified for the job.

      The next day M s. Saurini received a certified letter from M r. Hinson stating

that she was being recommended for nonrenewal. The letter explained that the

School District believed it could find “a candidate for employment who possesses

stronger skills and/or qualifications.” Aplt. App. at 2408.

      M s. Saurini attended a School Board meeting on M ay 16, 2000, to

challenge M r. Hinson’s recommendation. Given the opportunity to address the

Board, she began reading a prepared letter about “serious child safety issues at

Huron,” but when she began to discuss the relation of these issues to her being

                                         -2-
nonrenewed, the Board instructed her not to discuss her employment issues in

public session. Aplt. Br. at 28. Soon thereafter, at the Board’s executive session,

she was allowed to read her letter in full. She also provided each Board member

with a copy of the letter along with letters of support from parents and teachers.

After she left, the Board voted to adopt in full M r. Hinson’s list of employees to

be nonrenewed, thereby terminating M s. Saurini’s employment.

      M s. Saurini filed suit on M ay 15, 2002, in the United States D istrict Court

for the District of Colorado against the School District, M r. Hinson, and several

others, alleging claims for retaliation for exercising her First A mendment rights,

violations of the Equal Protection and Due Process Clauses of the Fourteenth

Amendment, wrongful discharge in violation of public policy, violation of

Colorado’s Child Protection Act of 1987, breach of contract, and intentional

interference with her contract with the School District. In pretrial rulings the

district court disposed of all the claims except her First Amendment retaliation

claims under 42 U.S.C. § 1983 against the School District and M r. Hinson, which

were tried from October 4 to 14, 2004. The jury returned a verdict for the

defendants. M s. Saurini timely appealed. The only issues on appeal relate to the

tried claims. The facts relevant to each issue will be summarized in the

discussion of the issue.




                                         -3-
II.   D ISC USSIO N

      A.     E lements of R etaliation Claim

      M s. Saurini contends that the School District retaliated against her because

of her reports of child abuse and her complaints about a team-approval policy that

allegedly restricted her authority to report abuse. W hether the defendants

violated M s. Saurini’s rights under the First Amendment is determined under the

four-prong test articulated by the Supreme Court in Pickering v. Board of

Education of Township High School District, 391 U.S. 563 (1968). As we stated

in Orr v. City of Albuquerque, 417 F.3d 1144, 1154 (10th Cir. 2005):

      The first three steps of the Pickering test are (1) whether the speech
      touches on a matter of public concern, (2) whether the employee’s
      interest in commenting on matters of public concern outweighs the
      interest of the state in promoting the efficiency of the public service
      it performs through its employees, and (3) whether the protected
      speech was a substantial or motivating factor behind the adverse
      employment decision. If these three factors are met, (4) the burden
      shifts to the employer to establish that it would have reached the
      same decision in the absence of the protected conduct.

(internal quotation marks omitted). The first two prongs are to be decided by the

court as a matter of law ; the last two prongs are questions of fact for the jury to

decide. See McFall v. Bednar, 407 F.3d 1081, 1088 (10th Cir. 2005). (The recent

Supreme Court decision in Garcetti v. Ceballos, 129 S. Ct. 1951 (2006), added a

gloss on Pickering for employees speaking in their official capacities. But we

need not consider what, if any, effect that decision would have, because it could

only help the defendants.)

                                          -4-
      B.     Instructions

             1.     Standard of Review

      M s. Saurini raises four challenges to the jury instructions. None of the

challenges was properly preserved below. “A party who objects to an instruction

or the failure to give an instruction must do so on the record, stating distinctly the

matter objected to and the grounds of the objection.” Fed. R. Civ. P. 51(c)(1).

Specifically with respect to a claim of improper failure to give an instruction, “a

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

to give a requested instruction.” Abuan v. Level 3 Commc’ns, Inc., 353 F.3d

1158, 1172 (10th Cir. 2003). “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.” Id. (internal quotation marks

omitted).

      In this case M s. Saurini did submit two proposed instructions that she

claims should have been accepted by the district court, but she did not object on

the record to the court’s refusal to give the instructions. Nor did she raise

adequate objections on the record below with respect to her other two challenges

to the instructions. She contends that her objections are not on the record because

“the district court dismissed the court reporter during the three-hour jury

instruction conference[].” Aplt. Br. at 51. But the district court gave counsel the

opportunity to state their objections for the record after the instruction

                                          -5-
conference. M s. Saurini’s counsel simply failed to take advantage of the

opportunity.

      Because M s. Saurini did not preserve below her claims of error, on appeal

she must establish plain error: that is, “(1) an error, (2) that is plain, which

means clear or obvious under current law, and (3) that affects substantial rights.”

Abuan, 353 F.3d at 1173 (internal quotation marks omitted). Even then, “[w]e

may only reverse in an exceptional circumstance, where the error w as patently

erroneous and prejudicial and where fundamental injustice w ould otherwise

occur.” Id.; see Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1408

(10th Cir. 1991) (“[T]he plain error exception [is] limited to errors which

seriously affect the fairness, integrity or public reputation of judicial proceedings.

The ‘miscarriage of justice’ must be patently plainly erroneous and prejudicial.”

(internal quotation marks, ellipsis, citations, and footnote omitted)). W e now

address in turn each challenge to the instructions.

               2.   Delegation by Board

      M s. Saurini’s first challenge to the jury instructions is that the district court

should have given the jury her proposed instruction (which she proffered twice)

that the School District is liable under § 1983 “if the Board delegated its decision-

making authority to a retaliatory administrator.” Aplt. Br. at 50. Her proposed

instruction read:




                                           -6-
             A claim of retaliation in violation of the First Amendment may
      be shown if (a) the School Board retains its decision-making
      authority but exercises it with deliberate indifference to Plaintiff’s
      constitutional rights, or (b) the School Board delegates its decision-
      making authority to an Administrator who retaliates against Plaintiff
      in violation of her constitutional rights.

            Pursuant to Colorado law, delegation of the School Board’s
      decision-making authority regarding nonrenew al of probationary
      employees is not allowed. However, the School Board must be in
      compliance w ith this law .

            The School Board is not in compliance of Colorado law if
      through a custom or usage it creates or gives decision-making
      authority regarding nonrenewal of school employees to an
      Administrator and then rubber-stamps the Administrator’s decisions
      concerning the nonrenewal list.

Aplt. App. at 2598 (emphasis added).

      M s. Saurini’s challenge concerns alternative “(b)” in the first paragraph.

She alleges that the Board had a custom of delegating to M r. Hinson the

responsibility of choosing which personnel should be nonrenewed and then voting

to approve his choices without serious debate. She argues that this custom

effectively delegated the authority to renew or not renew to M r. Hinson and

“resulted in ‘assembly-line rubber-stamping’ of Hinson’s recommendations,

thereby creating a direct causal link between the School Board and the alleged

constitutional deprivation.” A plt. Br. at 53. The jury, she concludes, “should

have been instructed in this causal link and had the opportunity to determine the

facts of this issue.” Aplt. Br. at 53-54.




                                            -7-
      M s. Saurini’s argument is contrary to circuit precedent. In Jantz v. M uci,

976 F.2d 623 (10th Cir. 1992), we held that the school board did not delegate

authority to a subordinate, and therefore had no liability under § 1983 for the

subordinate’s alleged discrimination, when state law invested the school board

with “final authority” to review hiring decisions made by a subordinate officer,

unless the subordinate’s decision was based on a policy statement expressly

approved by the board. Id. at 631 (internal quotation marks omitted). The

plaintiff in Jantz made a “rubber-stamping” argument similar to M s. Saurini’s;

although there was no express policy that guided the subordinate’s hiring

decisions, the plaintiff argued that the board delegated its hiring authority to the

subordinate by “custom or usage” because its “ultimate hiring decisions rarely

conflict[ed] with the decision of the [subordinate].” Id. (internal quotation marks

and brackets omitted). W e disagreed, holding that “[s]imply going along with

discretionary decisions made by one’s subordinates” is not a delegation of

policymaking authority, as long as the school board retained the authority to

review hiring decisions. Id. (internal quotation marks omitted).

      The defendants in this case argue that Jantz controls because Colorado law ,

like the Kansas law applied in Jantz, prevents boards of education from

delegating hiring and firing decisions. See Big Sandy Sch. Dist. No. 100-J v.

Carroll, 433 P.2d 325, 328 (Colo. 1967), overruled on other grounds by

Normandy Estates M etro. Recreation Dist. v. Normandy Estates, Ltd., 553 P.2d

                                          -8-
386 (Colo. 1976) (en banc). M s. Saurini does not respond to this argument

(indeed, the second paragraph of her proposed instruction states that such a

delegation of authority is not allowed under Colorado law), and we agree that

Jantz controls. There was no error in failing to instruct the jury that the School

District could be liable on the theory that it delegated its authority to M r. H inson.

M oreover, because the jury rendered a verdict in favor of M r. Hinson, the School

District could not be liable under a delegation theory in any event.

             3.     Deliberate Indifference

      For her second challenge to the instructions, M s. Saurini argues that the

district court should have given the following instruction to the jury regarding

“deliberate indifference”:

            “Deliberate indifference” to the rights of others is the
      conscious or reckless disregard of the consequences of one's acts or
      omissions.

             To demonstrate that the School District acted with deliberate
      indifference to Plaintiff's First Amendment rights, she must show
      that (a) the School District was aware of Plaintiff's belief that her
      non-renewal was in retaliation for her protected speech, and (b) the
      School District consciously or deliberately chose to disregard the risk
      of harm to Plaintiff's constitutional rights. The School D istrict's
      conscious or deliberate choice to disregard the risk of harm to
      Plaintiff's constitutional rights may be shown by the School D istrict's
      failure to properly investigate Plaintiff's claim of retaliation for
      exercising her First Amendment right to free speech.

            The law dictates that School Boards are chargeable with the
      knowledge that employees may not be dismissed in retaliation for
      lawful exercise of First Amendment rights.



                                           -9-
Aplt. App. at 2600 (emphasis added). The instruction that the district court gave

was identical to what was requested except for the omission of the last sentence

of the second paragraph. That omission was proper. The requirement of

deliberate indifference is not necessarily satisfied by a “failure to properly

investigate,” which encompasses negligence. See Despain v. Uphoff, 264 F.3d

965, 972 (10th Cir. 2001) (deliberate indifference “entails something more than

mere negligence” (internal quotation marks omitted)); Green v. Branson, 108 F.3d

1296, 1302 (10th Cir. 1997) (“Liability of a supervisor under § 1983 must be

predicated on the supervisor’s deliberate indifference, rather than mere

negligence.”). The district court did not plainly err in rejecting M s. Saurini’s

proffered instruction.

             4.       G ood Faith

      Third, M s. Saurini challenges the district court’s Instruction No. 15. The

instruction stated:

             In this case, Plaintiff contends her contract was not renewed
      because of child abuse reports she made that were protected by the
      First Amendment. The child abuse reports made by M s. Saurini do
      constitute statements protected by the First Amendment to the United
      States Constitution if they were made in good faith and were based
      on reasonable suspicion.

Aplt. App. at 2579. M s. Saurini argues that abuse reporting is, “as a matter of

law, speech protected by the First Amendment” and that the jury could have

“erroneously determined that the speech w as not protected by the First



                                         -10-
Amendment.” Aplt. Br. at 41. As we understand her briefs, she is not

challenging the relevance of good faith and reasonable suspicion to the First

Amendment inquiry, but only that those issues are for the judge to decide.

      W e recognize that M s. Saurini objected on the record to this instruction.

But we still must apply plain-error review because she did not clearly raise on the

record below the issue she now raises on appeal. Her only objection on the

record to this instruction, which had been tendered by the defendants as

No. 33.DM , was as follow s:

      [M S. SAURINI’S COUNSEL]:                W e would like to object to
                                               33.DM and specifically the last
                                               sentence to that and also to 3.D
                                               for the record.

      THE COURT:                               Can I just inquire, I don’t have
                                               it in front of me. W as 33.D
                                               what the refused— did you give
                                               me a refused on that or is that
                                               just an objection?

      [M S. SA URINI’S COUNSEL]:               W e are objecting to that
                                               [instruction] in the sense that
                                               it’s in good faith and based on
                                               reasonable suspicion part of
                                               that.

      THE COURT:                               Okay.

      [M S. SA URINI'S COUNSEL]:               In the sense that it involves the
                                               Pickering balancing test.

      THE COURT:                               Anything else?

      [M S. SAURINI'S COUNSEL]:                That’s it.

                                        -11-
Aplt. App. at 2259. This objection is incoherent and hence inadequate. Perhaps

after being present at the instruction conference the district court and both parties

understood precisely what M s. Saurini was objecting to, but we must decide this

case on the record, and we cannot conclude that this obscure objection would alert

anyone to the alleged problem in the instruction to be given. Fed. R. Civ. P.

51(c)(1) requires an objecting party to “stat[e] distinctly the matter objected to

and the grounds of the objection”; the objection failed this standard.

      W e will assume that M s. Saurini is correct that the issues of good faith and

reasonable suspicion should have been decided by the judge, although the

defendants make an interesting argument that these are “subsidiary fact issues”

that should be decided by a jury. Aplee. Br. at 33. But under plain-error review

she must also establish that the error w as “prejudicial” and that reversal is

required to avoid a “fundamental injustice.” Abuan, 353 F.3d at 1173. Thus,

M s. Saurini must show that the district court would likely have resolved the

issues of good faith and reasonable suspicion differently than the jury. Nothing

in the record suggests that would have happened. Because the claim of prejudice

is speculative, we reject it.

             5.     Team-Approval

      M s. Saurini’s final challenge to the instructions is that the district court

failed to instruct the jury that her objections to the school’s alleged “team

approval” policy were “categorically protected” speech. Aplt. Br. at 41. As w ith

                                         -12-
her other challenges, she did not preserve the issue below, so we review for plain

error.

         W e deny relief on this ground because M s. Saurini has failed to show that

the absence of the desired instructions created a “fundamental injustice.” Abuan,

353 F.3d at 1173. W hether her opposition to the reporting policy was protected

speech was simply not an issue at trial. Although the district court’s instructions

make several references to protected speech, they make no reference to the

Pickering factors or even ask the jurors to determine whether her “speech

touch[ed] on a matter of public concern,” Orr, 417 F.3d at 1154 (internal

quotation marks omitted), or to w eigh M s. Saurini’s free-speech interest against

the School District’s needs as an employer. Rather, the instructions implicitly

suggest that all her speech at issue was protected speech, with the exception we

have already addressed of child-abuse reports made in bad faith or without

reasonable suspicion. For example, Instruction No. 2 described the defendants’

defenses as follow s:

                Defendants deny that Plaintiff’s supervisor, Linda Curry,
         retaliated against Plaintiff by recommending her nonrenewal based
         on her filing of child abuse reports. Defendant Adams County
         School District No. 12 also denies that the Board of Education
         nonrenewed Plaintiff’s employment based on any retaliatory motive
         related to Plaintiff’s filing of child abuse reports or acted with
         deliberate indifference to Plaintiff’s First A mendment rights w hen it
         nonrenewed Plaintiff’s employment.

                Defendant M ark Hinson denies that he retaliated against
         Plaintiff for her filing of child abuse reports or knew of or

                                           -13-
      acquiesced in any retaliation against Plaintiff based on her filing of
      child abuse reports. Defendants state that Plaintiff was nonrenewed
      because M s. Curry wanted a better counselor and because the school
      district had to place a non-probationary counselor. Defendants
      affirmatively state that Plaintiff would have been nonrenewed
      regardless of any child abuse reports made by her or statements made
      by her about child abuse reporting procedures.

Aplt. App. at 2566. There is no suggestion that her complaints about reporting

procedures were not protected speech. M oreover, the only statements in the

defendants’ closing argument implying that speech was not protected were

references to a child-abuse report that the defendants claimed to have been

deliberately false and to M s. Saurini’s actions in reporting that one student had

kissed another without consent.

      In short, there is no reason to believe that the jury rendered a verdict

against M s. Saurini on the ground that her objections to reporting procedures

were not protected by the First Amendment.

      C.     Posttermination R etaliation

      M s. Saurini argues that the district court erred by excluding her testimony

regarding “post non-renewal retaliation” by the defendants. The defendants

objected to such testimony because it was irrelevant to what they asserted to be

the only claim at issue in the case— whether her contract was nonrenewed in

retaliation for her protected speech. The district court sustained the defendants’

objection, stating that it didn’t “want surprises,” Aplt. App. at 1434, and ruling




                                         -14-
that the posttermination claim “really hasn’t been raised . . . sufficiently,” id. at

1470.

        W e review for an abuse of discretion a district court’s decision whether to

permit an amendment to the pleadings under Fed. R. Civ. P. 15(b). See Green

Country Food M kt., Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1280 (10th Cir.

2004). Plaintiffs are not permitted “to wait until the last minute to ascertain and

refine the theories on which they intend to build their case.” Id. at 1279. “This

practice, if tolerated, would . . . unfairly surprise defendants, requiring the court

to grant further time for discovery or continuances.” Id. (internal quotation marks

omitted).

        At trial M s. Saurini argued that the defendants were on notice of a

posttermination retaliation claim because of (1) the claims in the second amended

complaint and the pretrial order; (2) an answer in M s. Saurini’s deposition, and

(3) an affidavit by M s. Saurini that was attached to her response to the

defendants’ motion for summary judgment. In our view , the notice was minimal,

if not nonexistent.

        M s. Saurini’s second amended complaint contains no mention of retaliation

that occurred after the School District nonrenewed her contract. Paragraph 25 of

the general allegations of the second amended complaint states only that the

School District “did not renew Plaintiff’s employment contract in retaliation for

her disclosure of harassment, discrimination, and illegal practices regarding

                                          -15-
apparent child abuse occurring at Huron M iddle School.” A plt. App. at 50. In

her First Amendment claim, Paragraph 49 states, “Plaintiff’s exercise of her

protected rights was a substantial factor in H inson and [the School District’s]

decision to reprimand Plaintiff and terminate her employment.” Id. at 53.

       The pretrial order speaks only generally of retaliation, reciting no specifics.

It states:

              All the Defendants retaliated against M s. Saurini for exercising
       her freedom of speech rights regarding the reporting of abuse of a
       child(s), in violation of 42 U.S.C. § 1983 and the First Amendment.
       Further, all the Defendants violated M s. Saurini’s procedural and
       substantive rights guaranteed under the Due Process Clause of the
       Fourteenth Amendment.

Id. at 212. It listed 17 witnesses for M s. Saruini; the summaries of their expected

testimony make no mention of posttermination retaliation.

       Somewhat more helpful to M s. Saurini is one of her replies during her

deposition:

       Q:     Now, after you were nonrenewed, you applied for some other
              positions in the school district, correct?

       A:     Correct.

       Q:     And you’re alleging that you were denied those positions out
              of retaliation?

       A:     Yes, I believe so.

Id. at 540. W hen defense counsel pursued this answer, however, she provided no

evidence of First Amendment retaliation, certainly none attributable to the School



                                          -16-
District or M r. Hinson. She mentioned that she was not offered a job at W estlake

M iddle School because of negative comments made about her personality, but she

could not identify who made such comments. She also claimed that Lynn Albi, a

School District employee, had made false statements about her in a letter, but she

could only speculate that M r. Albi would have done so because she had “talk[ed]

to the union” and “go[ne] to the Board of Education.” Id. at 541. Her deposition

testimony would give the defendants’ attorney no reason to think a

posttermination retaliation claim would be raised against them.

      As for M s. Saurini’s affidavit, it stated merely, “Linda Curry’s poor

references have prevented me from getting several jobs available in Adams

County School District No. 12 and in a middle school in Brighton.” Id. at 209.

Like her deposition responses, this statement does not allege that the “poor

references” were meant as retaliation for protected speech, nor does it implicate

either of the defendants w ho went to trial.

      In addition to M s. Saurini’s failure to show that she provided notice of a

posttermination claim, she also failed to show the district court that she had any

relevant evidence to produce at trial. W hen she sought to be allowed to testify

about posttermination retaliation, the following exchange occurred:

      THE COU RT:                               W hat are you going to show?
                                                Tell me.

      [M S. SAURINI’S COUNSEL]:                 Judge, this is a First
                                                Amendment retaliation case.

                                         -17-
      THE COURT:                                 I know what it is. Tell me
                                                 what you are going to show.

      [M S. SAURINI’S COUNSEL]:                  W hat I am going to show is
                                                 that she applied for jobs. She
                                                 applied— she has been applying
                                                 for three or four years and still
                                                 can’t get a position back in her
                                                 chosen career. Something is
                                                 going on. We are not really
                                                 sure what.

Id. at 1432-33 (emphasis added). The district court did not abuse its discretion in

ruling that a claim of posttermination retaliation had not been raised before trial

and that the issue could not be addressed at trial.

      D.     Evidentiary Issues

      M s. Saurini challenges three evidentiary rulings of the district court. Our

review of such rulings is for an abuse of discretion. See Seeley v. Chase, 443

F.3d 1290, 1293 (10th Cir. 2006).

             1.     Audiotape

      M s. Saurini argues that the district court erred by allowing the defendants

to play an audiotape of the M ay 16, 2000, School Board meeting after denying her

request to admit the tape. She had sought to introduce the 15-minute tape during

her direct testimony as evidence of her dismissive treatment by the Board. The

defendants objected to the admission of the tape as irrelevant and repetitive.




                                          -18-
After listening to the tape, the district court sustained the objection, ruling that it

was “repetitious and cumulative.” Aplt. App. at 1267.

      M s. Saurini then testified that the School Board had treated her rudely,

saying, “I wish you could hear the sarcasm in their voices,” id. at 1418, and “I

cannot express probably enough how rude they were,” id. at 1419. She also stated

that the Board had rudely cut off both her and her supporters while speaking.

After this testimony, the defendants changed their position and offered to play the

tape to refute her testimony that the Board had treated her rudely during the

M ay 16 meeting. M s. Saurini objected, saying that if the tape “was cumulative in

our case, it’s certainly . . . cumulative in [the] defense case.” Id. at 1563. The

district court overruled the objection, saying that “in all fairness it needs to be

heard by the jury.” Id. at 1564.

      The district court’s ruling was sensible. W e see no abuse of discretion.

             2.     Legal M emoranda

      M s. Saurini argues that she should have been allowed to introduce copies of

legal memoranda and newsletters prepared by the School District relating to a

school counselor’s duty to report child abuse. The documents, she says, were

relevant “to show the basis for her reasonable suspicion and decision to report

child abuse.” Aplt. Br. at 60. Her theory is that the documents are relevant

because her fellow counselors relied on them when they advised her to report

suspected abuse.

                                           -19-
      The defendants objected to their admission at trial, arguing that the

documents were irrelevant because (1) they were “just a collection of various

documents that have been distributed by the school district over the course of

many years,” Aplt. App. at 1076, (2) they predated M s. Saurini’s employment and

there was no showing that she had ever seen them, and (3) there was “no fact at

issue in the case regarding what [a fellow counselor] knew or where he got the

information from. This doesn’t tend to show one w ay or the other w hether Laura

Saurini was retaliated against for reporting child abuse,” id. at 1081. The district

court excluded the evidence. W e see no error in this ruling. Any relevance was

minimal.

             3.     Leading Questions

      M s. Saurini argues that on 12 separate occasions the district court erred by

permitting defense counsel to ask witnesses leading questions. Fed. R. Evid. 611

discourages the use of leading questions on direct examination, but it does not

forbid them. Permitting them is within the trial court’s discretion. See United

States v. Olivo, 69 F.3d 1057, 1065 (10th Cir. 1995) (“Rule 611(c) governs

leading questions; it vests broad discretion in the trial judge.”); see also 4 Jack B.

W einstein & M argaret A. Berger, Weinstein’s Federal Evidence § 611.06[2][b]

(2d ed. 2006) (“Leading questions on direct examination will more quickly get the

witness over preliminary matters. Often, leading questions are asked on

preliminary and collateral matters to expedite the trial.”). Having reviewed each

                                         -20-
instance in the record identified by M s. Saurini, we are satisfied that the district

court did not abuse its discretion in allow ing the questions.

             4.     Cum ulative Error

       Finally, M s. Saurini urges that we consider the cumulative effect of the

district court’s erroneous evidentiary rulings. “A cumulative-error analysis

merely aggregates all the errors that individually have been found to be harmless,

and therefore not reversible, and it analyzes whether their cumulative effect on

the outcome of the trial is such that collectively they can no longer be determined

to be harmless.” M cCue v. Kansas Dep’t of Hum an Res., 165 F.3d 784, 791 (10th

Cir. 1999). Having found no error in any of those rulings, we must conclude that

there was no cumulative error.

III.   C ON CLU SIO N

       W e AFFIRM the judgment of the district court.

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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