                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       August 20, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
TED ADAMS,

             Plaintiff–Appellant/
             Cross-Appellee,

v.                                                  Nos. 12-8057 & 12-8058
                                                 (D.C. No. 2:11-CV-00323-ABJ)
LARAMIE COUNTY SCHOOL                                      (D. Wyo.)
DISTRICT NUMBER ONE; BOARD OF
TRUSTEES OF LARAMIE COUNTY
SCHOOL DISTRICT NUMBER ONE,

             Defendants–Appellees/
             Cross-Appellants.


                            ORDER AND JUDGMENT*


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.


      Ted Adams sued his former employer, Laramie County School District No. 1

(“LCSD”) and its Board of Trustees, alleging they violated his due process rights and

breached his employment contract. A jury found in favor of defendants. Exercising


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.
App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction under 28 U.S.C. § 1291, we affirm and dismiss as moot the defendants’

cross-appeal.

                                           I

      We view the record in the light most favorable to defendants as the prevailing

parties. See Therrien v. Target Corp., 617 F.3d 1242, 1249 (10th Cir. 2010). In

2007, Adams was hired as LCSD’s superintendent. By 2009, several trustees were

concerned with his performance, particularly his ability to manage, evaluate, and

supervise staff; disseminate information on student achievement and attendance; and

develop a data warehouse. Throughout the fall of 2009, the board discussed these

concerns with Adams. By December of that year, several trustees had completed

performance evaluations indicating that Adams was operating below expected

competency levels in multiple areas of review. Adams appraised his own

performance and arrived at a similar conclusion.

      Adams’ employment contract permitted termination for cause, and at least two

of the trustees thought he “need[ed] to be gone.” These trustees expressed their

opinions at a closed board meeting on January 4, 2010, during which the board’s

chairperson presented a compilation of Adams’ performance evaluations. The

compilation included individual scores from each trustee, the average scores, and the

trustees’ written comments. Adams’ average scores were below competent in twenty

of fifty-seven areas. During the meeting, four of the seven trustees indicated they no




                                          -2-
longer supported him. Given these developments, the board decided to meet with

LCSD’s attorney, David Evans, at a closed executive session to be held on January 9.

      At the January 9 executive session, the trustees discussed their concerns with

Evans and decided they should notify Adams that they were considering terminating

his contract. The board met with Adams on January 11, and provided him a summary

of his performance evaluations and informed him that he had lost the support of the

majority of the board. After several trustees explained their concerns, Adams was

asked if he had any response. He did not request any further explanation. Evans then

offered suggestions as to how Adams might leave his position, including leaving

immediately or remaining until June 30, 2010. Adams was given until January 15 to

consider his options. He agreed to resign effective June 30, 2010.

      Adams subsequently initiated this suit, alleging under 42 U.S.C. § 1983 that

defendants terminated him without due process and breached his contract by firing

him a year before his contract expired. Defendants moved for summary judgment,

but the district court denied the motion. The case proceeded to trial, and a jury

returned a verdict in favor of defendants, finding they did not breach the contract

because they had cause to seek Adams’ resignation. The jury also found that Adams

had received due process because he was given notice, an adequate explanation why

defendants wanted him to leave, and a fair opportunity to respond.

      In appeal No. 12-8057, Adams challenges two jury instructions and an order

in limine, which he says contributed to the verdict against him. In appeal


                                          -3-
No. 12-8058, defendants cross-appeal the district court’s denial of summary

judgment, though they concede their appeal is moot if we affirm the jury’s verdict.

                                           II

       “We review a district court’s decision to give a particular jury instruction for

abuse of discretion, but we review de novo legal objections to the jury instructions.”

Ryan Dev. Co., L.C. v. Ind. Lumbermens Mut. Ins. Co., 711 F.3d 1165, 1171 (10th

Cir. 2013) (quotation omitted).

      Adams first contests Instruction No. 28, which delineated the elements of his

due process claim. He asserts that the instruction failed to inform the jury that he

was entitled to a “full-blown pre-termination hearing.” We reject this argument

because the district court properly concluded that Adams was not entitled to a such a

hearing.

      Due process requires “notice and an opportunity to respond.” Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). It is well established that a pre-

termination hearing “need not be elaborate.” Id. at 545. Although “the formality and

procedural requisites for the hearing can vary, depending upon the importance of the

interests involved and the nature of the subsequent proceedings . . . [i]n general,

something less than a full evidentiary hearing is sufficient prior to adverse

administrative action.” Id. (quotation and alteration omitted). A public employee “is

entitled to oral or written notice of the charges against him, an explanation of the

employer’s evidence, and an opportunity to present his side of the story.” Id. at 546.


                                           -4-
      Comporting with these principles, Instruction No. 28 told the jury to find in

favor of Adams if he proved that:

      [B]efore Plaintiff’s termination or forced resignation, Plaintiff was not
      given notice and an adequate explanation of Defendants’ reasons for
      wanting to terminate him; or, if Plaintiff was given . . . notice and an
      adequate explanation of Defendants’ reasons for wanting to terminate
      him, Plaintiff was not given sufficient opportunity to respond to
      Defendants’ charges against him[.]

      Adams argues he was entitled to a full-blown pre-termination hearing because

a post-termination hearing was not available, but he has waived this argument. He

never requested a post-termination hearing. And he did not allege in his complaint

that he was denied a post-termination hearing. He may not now predicate his

argument on the absence of a hearing that he never requested. See Sandoval v. City

of Boulder, 388 F.3d 1312, 1329 (10th Cir. 2004) (invoking waiver doctrine because

a post-termination hearing was not requested).1

      Adams also objects to Instruction No. 23, which provided the legal definition

of “cause” for termination.2 Adams’ contract contained a provision stating

“[n]othing in this Agreement shall be deemed to be a waiver or modification of either




      1
        Adams maintains that he “could not be aware of any post-termination
proceedings as there were none.” We fail to see how he could be prevented from
alleging that he was denied a post-termination hearing because one was not available
to him.
      2
        Adams’ opening brief also cites Instruction No. 22, but his argument is based
on the definition of “cause” as stated by Instruction No. 23.


                                          -5-
party’s right to terminate this Agreement for cause . . . .” Accordingly, the district

court instructed the jury that:

       “[C]ause” to terminate an employee, such as Plaintiff in this case,
       means that his employer must have had fair and honest reasons for
       terminating him or forcing him to resign. These reasons must not have
       been trivial, arbitrary or capricious, unrelated to the school district’s
       business needs or goals, or pretextual. The reasons must have been
       based on an appropriate review of the employee’s performance.

Adams contends this instruction incorrectly imports a good-faith standard into the

definition of “cause” that applies only to implied contracts. He says that because his

was an express contract, “cause” in this sense means his contract could be terminated

only if he “abandoned the contract, or refused or was unable to perform the duties of

the superintendent.”

       We disagree. The instruction tracks the definition of “cause” adopted by the

Wyoming Supreme Court in Life Care Centers of America, Inc. v. Dexter, 65 P.3d

385 (Wyo. 2003). In that case, “cause” was defined as “fair and honest reasons,

regulated by good faith on the part of the employer, that are not trivial, arbitrary or

capricious, unrelated to business needs or goals, or pretextual.” Id. at 392 (quotation

omitted). Dexter, which involved a contract implied from the terms of an employee

handbook, instructs that the good-faith standard applies “[i]n addition to . . . the

terms of the handbook in determining whether there was cause for termination.” Id.

       Adams distinguishes Dexter as involving an implied rather than an express

contract, but this distinction is immaterial. The Dexter opinion does not suggest the

good-faith standard is inapplicable to an express contract. The Wyoming Supreme

                                           -6-
Court has applied the good-faith standard when the parties assumed an implied

contract allowed the employee to be terminated only for cause. See Sheaffer v. State,

202 P.3d 1030, 1042-43 (Wyo. 2009). We also have applied Wyoming’s good-faith

standard when the express terms of an implied contract required cause for

termination. See Williams v. Solvay Chems. Inc., 385 F. App’x 820, 824 (10th Cir.

2010) (unpublished) (“Wyoming courts require the trier of fact to determine not only

whether the contract permitted termination for the cause the employer specified, but

also whether the reason given by the employer was applied in good faith.”); Miech v.

Sheridan Cnty., 109 F. App’x 280, 282 (10th Cir. 2004) (unpublished) (“The

Wyoming Supreme Court ‘ask[s] the trial court to apply the good faith standard for

review of employer firing.’” (quoting Dexter, 65 P.3d at 392)).

      We therefore reject Adams’ challenges to the district court’s jury instructions.

                                         III

      Adams also argues that the district court’s order in limine, which excluded

testimony of LCSD employees who were expected to testify favorably about his

performance, was in error. Before the district court, defendants argued this testimony

was irrelevant under Fed. R. Evid. 401 and that any probative value was outweighed

by the danger of confusing the issues under Fed. R. Evid. 403. The district court

agreed, reasoning that the proffered testimony was not significantly probative of

whether the board reasonably believed that Adams was remiss in his duties. Adams

insists the testimony was probative to show pretext.


                                         -7-
      We review a district court’s exclusion of evidence for an abuse of discretion.

Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 968 (10th Cir. 2001).

“Our deferential review applies both to a trial court’s threshold determination of

relevance under Rule 401 and to its conclusion under Rule 403 that relevant evidence

should nonetheless be excluded due to its tendency to cause jury confusion or unfair

prejudice.” Tanberg v. Sholtis, 401 F.3d 1151, 1162 (10th Cir. 2005).

      The district court correctly recognized that the dispositive inquiry is not

whether Adams was performing his job competently, but whether the board believed

in good faith that he was not. As the Dexter court explained:

      [T]he question to be resolved by the fact finder is not, “Did the
      employee in fact commit the act leading to dismissal?” Rather, it is,
      “Was the factual basis on which the employer concluded a
      dischargeable act had been committed reached honestly, after an
      appropriate investigation and for reasons that are not arbitrary or
      pretextual?”

65 P.3d at 392 (quotation omitted). While some employees may have thought Adams

was a good superintendent, the dispositive issue is whether the factual basis for

Adams’ forced resignation was determined by the board in good faith. And there is

evidence of the board’s dissatisfaction with Adams’ failure or refusal to manage and

evaluate staff, the level of information he disseminated on student achievement and

attendance, and his handling of a data warehouse. These concerns were reflected in

Adams’ evaluations, including his own, all of which indicate that the board sought

his resignation in good faith.



                                          -8-
      Adams was entitled to rebut the defendants’ showing of good faith with

evidence of pretext. See Dexter, 65 P.3d at 392. However, although Adams insists a

co-worker’s opinion of a plaintiff’s performance is probative of pretext, his authority

is inapposite. He relies on cases in the employment discrimination context, where

such evidence is offered to challenge the factual basis for an employer’s adverse

action. See, e.g., Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1174 (10th Cir.

2003) (holding that plaintiff was entitled to submit co-workers’ assessment of his

work to show employer’s stated factual basis for adverse action was pretext for

discrimination).

      For purposes of this breach of contract claim, whether Adams was competently

performing his job is not the relevant issue. See Dexter, 65 P.3d at 392. (“[T]he

question to be resolved . . . is not, ‘Did the employee in fact commit the act leading

to dismissal?’”). Rather, we are concerned with whether the board lacked a good-

faith basis for seeking Adams’ resignation. On this issue, probative evidence of

pretext would have indicated that the board dishonestly sought the resignation. And

in that regard, Adams submitted evidence of pretext, but the jury rejected his theory.

Adams sought to bolster his argument with additional evidence in the form of co-

worker testimony regarding his performance, but we cannot say the district court

abused its discretion in concluding the proposed evidence was not significantly

probative of the board’s basis for seeking his resignation and posed a risk of

misleading the jury.


                                          -9-
                                     IV

     The district court’s judgment in appeal No. 12-8057 is AFFIRMED. Appeal

No. 12-8058 is DISMISSED as moot.

                                               Entered for the Court


                                               Carlos F. Lucero
                                               Circuit Judge




                                    -10-
