218 F.3d 1190 (10th Cir. 2000)
LYNDELL MITCHELL,  Plaintiff-Appellant and Cross-Appellee,v.THE CITY OF MOORE, OKLAHOMA, a  Municipal Corporation; MIKE DREA, BRUCE  STORM, and GARY TIPPS, all individually, Defendants-Appellees and Cross-Appellants.
Nos. 98-6446, 99-6101, 99-6121, 99-6177
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 11, 2000

Appeal from the United States District Court  for the Western District of Oklahoma (D.C. No. 97-CV-1193-C )[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
David J. Batton (Michael H. Thompson, Oklahoma City, Oklahoma, with him on  the briefs), Norman, Oklahoma, for Plaintiff-Appellant and Cross-Appellee.
Ted N. Pool (Sherry Blankenship, and Susan K. Noland of Pool, Blankenship &  Vincent with him on the briefs) of Pool, Blankenship & Vincent, Oklahoma City,  Oklahoma, for Defendants-Appellees and Cross-Appellants.
Before TACHA, BALDOCK and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.


1
Captain Lyndell Mitchell, a police officer with the Moore, Oklahoma  police department, sued the City of Moore and three city officials individually,  claiming several adverse employment actions, including paid suspensions and the  denial of a promotion, created various federal and state causes of action.  The  district court granted the defendants summary judgment in toto.  While this suit  was still pending before the district court, Captain Mitchell's employment was  terminated, at which time Captain Mitchell's union forced the City to arbitrate  Captain Mitchell's removal.  The City eventually sought to enjoin the arbitration  hearing, arguing the summary judgment order was res judicata as to the issues in  arbitration.  The district court refused to grant the injunction.  The district court  also denied the City's request for attorney fees and granted its full request for  costs in the underlying suit.  The current case is actually four appeals, with  Captain Mitchell appealing the grant of summary judgment and the award of  costs, the City appealing the denial of the injunction, and all the defendants  appealing the denial of attorney fees.  We exercise jurisdiction pursuant to 28  U.S.C. § 1291 and affirm.

I.  BACKGROUND

2
Captain Mitchell began his career as a police officer with the City of  Moore in 1974.  He attained the rank of Captain in 1991.  In December, 1994, his  superiors appointed Captain Mitchell Administrative Assistant, which qualified  him as the second ranking officer in the police department.  During his tenure as  a police officer, Captain Mitchell was an active member of the Fraternal Order of  Police (Union), the exclusive bargaining agent for the police officers employed  by the City of Moore.


3
The current dispute began in June 1995, when Chief of Police Bruce Storm  (first individual defendant) gave Captain Mitchell a relatively negative  performance evaluation.  Chief Storm listed several negatives on the evaluation,  including concerns a private business venture had become Captain Mitchell's  main focus, concerns about Captain Mitchell's ability to work with others, and a  lack of initiative on a particular project.  In addition, Chief Storm made some  remarks that Captain Mitchell perceived as anti-union, and conceivably formed  the background for his claims that future disciplinary actions were based on anti-union animus  and thus violated his First Amendment rights:


4
Captain Mitchell has frequently expressed interest in assuming a  more responsible position within the Police Department.  However,  rather than acquiring an attitude which would be more in line with  an Officer in an Executive position, he has maintained the attitude of  a Union member being much more concerned about taking advantage of his benefits, etc.  At some point Captain Mitchell must make a  decision whether he truly wants to go up and therefore remove  himself from the umbrella of security of the F.O.P., or to continue  under the protection of the Union.  In any event, Captain Mitchell  would be well served to do less complaining and to perform as a  Police Executive.


5
On June 29, 1995, Chief Storm relieved Captain Mitchell of his duties as  second-in-command.  On the same day, Chief Storm promoted Gary Tipps  (second individual defendant) from Sergeant to the newly created rank of Major,  and Major Tipps assumed the duties previously performed by Captain Mitchell. Major Tipps resigned his position as Union president in order to accept the  promotion.  Chief Storm stated in his deposition he chose Major Tipps in part as  a way of strengthening his relationship with the Union.


6
Apparently, Chief Storm's concern about his relationship with the Union  was well-founded.  Prior to Major Tipps' promotion, the Union had decided to  hold a no-confidence vote on Chief Storm.  When then-President Tipps  mentioned the vote to the City Manager, who is responsible for hiring and firing  the Chief of Police and other city employees, the City Manager informed  President Tipps such a vote would have no impact on his decision to retain Chief  Storm and the publicity surrounding the vote would damage the police  department's chances of obtaining new facilities in an upcoming bond or sales  tax election.  President Tipps and other Union leaders decided to postpone the  no-confidence vote until after the bond election.  In his deposition testimony,  Captain Mitchell pointed to these events as the seed of a conspiracy between  Chief Storm, Major Tipps, and the City Manager to promote Tipps in order to  prevent the no-confidence vote, and eventually deprive Captain Mitchell of  various rights.


7
Later in 1995, Chief Storm confidentially hired an undercover police  officer to investigate a local gambling and drug operation.  Captain Mitchell  received an inquiry on Friday, October 6, 1995, from a neighboring police  department concerning the undercover officer's identification card, which had  turned up in the neighboring jurisdiction.  Captain Mitchell was not aware of the  undercover operation, so he contacted Chief Storm to find out if the department  had indeed hired an undercover officer.  Chief Storm instructed his secretary to  tell Captain Mitchell not to worry about the matter.  However, gossip among the  regular officers concerning the "mystery officer" became rampant, and Chief  Storm and Major Tipps began to suspect Captain Mitchell of helping fuel the  fire.  The following Monday, based on concern that the undercover operation had  been compromised and that Captain Mitchell criticized his superiors for not  informing him about the operations, Chief Storm and Major Tipps charged  Captain Mitchell with insubordination and breach of confidence and placed him  on administrative leave with pay pending an investigation.  In addition, they  ordered Captain Mitchell not to work at his family's business during regular  department business hours while he remained on suspension.  Captain Mitchell  admittedly ignored this order.


8
Captain Mitchell claims the paid suspension lasted approximately thirty  days.  At the end of the suspension, Chief Storm recommended to the City  Manager Captain Mitchell be suspended without pay for five days, to be served  through the loss of five accrued vacation days.  This punishment was ultimately  rescinded, and the vacation days were restored.  After Captain Mitchell returned  to work, Major Tipps placed him in a series of what Captain Mitchell described  as demeaning positions for his rank and education.  In response, Captain Mitchell  filed his first Notice of Tort Claim with the City, which objected to the  suspension and subsequent assignments, claiming $100,000 in damages.


9
In July 1996, Sergeant Tipps (he had since been demoted back to Sergeant  from Major) overheard a police dispatcher request an officer to escort Captain  Mitchell's wife to her car after her restaurant closed.  Sergeant Tipps informed  dispatch that pursuant to his understanding of a new policy, on-duty officers were  no longer to take such calls.  When Captain Mitchell learned of this incident, he  made a copy of the dispatch tape and provided it to his wife, who then gave the  tape to a city councilman.  Chief Storm again placed Captain Mitchell on paid  administrative leave pending the investigation of this incident.  Chief Storm  recommended Captain Mitchell be terminated; however, the City entered into a  settlement agreement with Captain Mitchell placing him on six months  disciplinary probation instead.  During this same time-frame, the Union held a  vote of no-confidence on Chief Storm.  Chief Storm's attorney responded to the  charges put forth by the Union in support of the vote by reading a letter to city  council members, which stated in relevant part:


10
It is regrettable that Capt. Lyndell Mitchell is ostensibly  among the leaders of the FOP who have organized the vote of no  confidence ....  Although Chief Storm fully recognizes that Capt.  Mitchell is entitled to his opinions and viewpoints, it makes it  particularly difficult for Chief Storm to operate the department  efficiently when the person on whom he must rely most heavily is  one of his primary protagonists.


11
Chief Storm ultimately left his position as Chief of Police.  Captain  Mitchell applied for the position, as he had done once before when Chief Storm  was chosen.  City Manager Mike Drea (third individual defendant) appointed an  officer Captain Mitchell considered less qualified than himself, passing over  Captain Mitchell once again.  On August 8, 1997, after instigating the current  litigation in July, Captain Mitchell filed his second Notice of Tort Claim with the  City, pointing to the tape incident and the promotion pass-over as harassing  activity and demanding more than $10,000 in damages.  The current lawsuit  followed in close proximity.


12
In his Second Amended Complaint, Captain Mitchell stated seven causes of  action:  a § 19831 claim against the City; a § 1983 and § 19852 claim against the  individual defendants; a cause of action claiming the City and the individual  defendants violated Captain Mitchell's constitutional right to privacy; and four  state claims, including a claim sounding in negligence and a claim of tortious  breach of contract as to the City, and claims of intentional infliction of emotional  distress and defamation directed at the individual defendants.  In a sixteen-page  order, the district court determined Captain Mitchell failed to provide the  necessary evidentiary support to survive a motion for summary judgment, and  granted the defendants' summary judgment motions in toto.  This timely appeal  followed, and constitutes Case Number 98-6446.


13
Based on representations made in the lawsuit and tort claims, Captain  Mitchell was eventually terminated.  Rather than pursue his termination in the  current suit, Captain Mitchell decided instead to participate in the grievance  procedure provided for under the Collective Bargaining Agreement between the  City and the Union.  The lawsuit and the arbitration process developed  concurrently.  For instance, the City filed its summary judgment motion May 1,  1998, eight days before the Federal Mediation and Conciliation Service notified  the arbitration panel of their selection.  The district court issued its Order  granting summary judgment October 9, 1998.  The arbitration hearing was  originally scheduled for August 1998; however, due to a series of postponements,  the hearing occurred in July 1999.  The arbitration panel issued its decision  February 28, 2000, just eight days prior to oral arguments in the current case.


14
After receiving a favorable ruling on its summary judgment motion, the  City moved for injunctive and declaratory relief, arguing the issue involved in the  arbitration   Captain Mitchell's termination   was inexorably intertwined with  the judgment entered by the district court.  The City sought to enjoin the  arbitration hearing and a declaration the district court decision was res judicata as to the arbitration.  The district court denied the motion, stating there were  issues at stake in the arbitration not addressed in its earlier order, and the Union,  while involved in the arbitration, was not itself a party to the litigation.  The City  appeals what is now Case Number 99-6121.


15
Finally, after the district court granted the City's summary judgment  motion, the City moved for costs pursuant to 28 U.S.C. § 1920 and Fed. R. Civ.  P. 54(d)(1), and attorney fees pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P.  54. The district court awarded the City its costs, and Captain Mitchell now  appeals that award in Case Number 99-6177.  Conversely, the district court  denied the motion for attorney fees, a decision the City appeals in Case Number  99-6101.  In the interest of judicial economy, a doctrine completely ignored to  this point in the case, we will consolidate these four appeals in this opinion and  affirm the district court in all respects.

II.  STANDARDS OF REVIEW

16
We review the  summary judgment aspects of this case de novo and apply  the same legal standard as the district court.  See Simms v. Oklahoma, ex rel.,  Dep't of Mental Health & Substance Abuse Services, 165 F.3d 1321, 1326 (10th  Cir.), cert. denied, 120 S. Ct. 53 (1999).  Summary judgment is proper if the  movant shows "there is no genuine issue as to any material fact and that the  moving party is entitled to a judgment as a matter of law."  Fed. R. Civ. P. 56(c). "When applying this standard, we view the evidence and draw reasonable  inferences therefrom in the light most favorable to the nonmoving party."  Simms,  165 F.3d at 1326.


17
The movant bears the initial burden of making a prima facie  demonstration of the absence of a genuine issue of material fact and  entitlement to judgment as a matter of law.  In so doing, a movant  that will not bear the burden of persuasion at trial need not negate  the nonmovant's claim.  Such a movant may make its prima facie  demonstration simply by pointing out to the court a lack of evidence  for the nonmovant on an essential element of the nonmovant's claim.


18
If the movant carries this initial burden, the nonmovant that  would bear the burden of persuasion at trial may not simply rest  upon its pleadings; the burden shifts to the nonmovant to go beyond  the pleadings and set forth specific facts that would be admissible in  evidence in the event of trial from which a rational trier of fact could  find for the nonmovant.  To accomplish this, the facts must be  identified by reference to affidavits, deposition transcripts, or  specific exhibits incorporated therein.  Thus, although our review is  de novo, we conduct that review from the perspective of the district  court at the time it made its ruling, ordinarily limiting our review to  the materials adequately brought to the attention of the district court  by the parties.


19
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (quotation  marks and citations omitted).  After determining no genuine issue of material fact  exists, we then must examine whether the district court correctly applied the  substantive law.  See Simms, 165 F.3d at 1326.


20
We review the denial of a permanent injunction for an abuse of discretion. See Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1555 (10th  Cir.), cert. denied, 519 U.S. 928 (1996).  "Under this standard, we accept the  district court's factual findings unless they are clearly erroneous and review  application of legal principles de novo."  Id.  We review the district court's  decisions to deny attorney fees under 42 U.S.C. § 1988 and award costs under 28  U.S.C. § 1920 for abuse of discretion.  See Phelps v. Hamilton, 120 F.3d  1126,  1129 (10th Cir. 1997) (attorney fees); Callicrate v. Farmland Indus., Inc., 139  F.3d 1336, 1339 (10th Cir. 1998) (costs).

III.  DISCUSSION

21
A.  The District Court's Grant of Summary Judgment:  Case No. 98-6446

1.  The Federal Claims

22
Section 1983 and § 1985 claims share a common element:  a plaintiff must  show some deprivation of a federally protected right in order to be successful. See Murray v. City of Sapulpa, 45 F.3d 1417, 1423 (10th Cir. 1995); Houston  v.  Reich, 932 F.2d 883, 890 (10th Cir. 1991).  Captain Mitchell claimed the  deprivation in this case came through violations of his due process rights, his free  speech and free association rights, his right to privacy, and his right to equal  protection.  The district court determined Captain Mitchell failed to present  sufficient evidence to survive summary judgment and found there was no  deprivation of a federally protected right.  We agree and turn to each claimed  deprivation in turn.


23
a.  Denial of Due Process


24
[P]rocedural due process ensures that a state will not deprive a  person of life, liberty or property unless fair procedures are used in  making that decision;  substantive due process, on the other hand,  guarantees that the state will not deprive a person of those rights for  an arbitrary reason regardless of how fair the procedures are that are  used in making the decision.


25
Archuleta v. Colorado Dep't of Institutions, Div. of Youth Services, 936 F.2d  483, 490 (10th Cir. 1991) (quoted in Hennigh v. City of Shawnee, 155 F.3d 1249,  1253 (10th Cir. 1998)).  Therefore, in order to succeed on his due process claim,  Captain Mitchell needed to establish he had a protected property or liberty  interest in the promotion he was denied, or in continued employment as Captain  without the stigma of a paid suspension.  See Hennigh, 155 F.3d at 1253.


26
The City took a slightly broader view of the potential interest, but still  argued in its summary judgment motion Captain Mitchell could not have a  property or liberty interest in any aspect of his employment because Oklahoma is  an "at-will" state and no statute or contract altered that traditional relationship. By highlighting the absence of evidence supporting Captain Mitchell's case, the  City properly met its burden   as the movant for summary judgment   of  demonstrating the lack of a genuine issue of material fact.  See Celotex Corp. v.  Catrett, 477 U.S. 317, 323, 325 (1986).  After the City pointed out this  deficiency in Captain Mitchell's prima facie case, as nonmovant for summary  judgment his burden was to identify specific facts, through affidavits,  depositions, or exhibits, from which a rational trier of fact could find in his  favor.  See Adler, 144 F.3d at 671.  While Captain Mitchell corrects the error  somewhat on appeal, his response to the Defendants' motions for summary  judgment was entirely inadequate.  As the district court pointed out, Captain  Mitchell's response was limited to conclusory statements and was void of cites to  the specific portions of the Collective Bargaining Agreement, City Charter,  Police Rules and Regulations, or City Personnel and Procedure Manual that  might have supported his theory that a contract existed creating a property or  liberty interest in his position.  The district court was not obligated to comb the  record in order to make Captain Mitchell's arguments for him.


27
In the Adler case, we stated "[t]he district court has discretion to go  beyond the referenced portions of these materials, but is not required to do so.  If  the rule were otherwise, the workload of the district courts would be  insurmountable and summary judgment would rarely be granted."  Id. at 672  (citations omitted).  The current case illustrates that point well.  The argument  section of Captain Mitchell's response is fourteen pages long, four of which are  devoted solely to the due process argument, and is accompanied by an appendix  of over a thousand pages.  Rather than argue on appeal that his response  adequately set forth specific facts demonstrating a genuine issue of material fact,  Captain Mitchell argues the district court should have given him a chance to  correct any inadequacies.  This argument is as specious as his response to the  summary judgment motion.  No matter how often they are made to feel the part,  our brothers and sisters on the district court bench should not be cast in the role  of stage director of the litigation drama   forced to prod the actors through  rehearsals until the proper performance is achieved.  To do so would not only  consume an inordinate amount of time, but would result in courts abandoning  their neutrality and becoming advocates in the adversarial process.  We will not  sanction such a transformation.


28
Captain Mitchell failed to meet his burden of presenting specific facts, by  reference to specific exhibits in the record, to overcome the motion for summary  judgment.  "[W]here the burden to present such specific facts ... was not  adequately met below, we will not reverse a district court for failing to uncover  them itself."  Adler at 672.


29
b.  First Amendment Claims


30
Captain Mitchell next claims his paid suspensions and inability to obtain  promotions were a direct result of actions he took or statements he made as a  Union member, in violation of his First Amendment rights to free speech and free  association.  However, Captain Mitchell's response to the summary judgment  motions on this issue suffers from the same deficiencies as his due process  claims.


31
We employ a two-part test when evaluating public employees' claims of  retaliation for exercising their First Amendment rights:


32
First, one must determine whether the plaintiff's statements can be  fairly characterized as constituting speech on a matter of public  concern.  Second, courts must determine whether the interests of the  [employee], as a citizen, in commenting upon matters of public  concern outweigh the interest of the State, as an employer, in  promoting the efficiency of the public services it performs through  its employees.


33
David v. City and County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996)  (quotation marks and citations omitted), cert. denied, 522 U.S. 858 (1997).  In its  summary judgment motion, the City focused on the threshold question and argued  the speech involved in this case was not a matter of public concern, but instead  related solely to issues of internal personnel disputes.  Captain Mitchell's  response ignored this point, failing to specifically mention even one instance of  speech engaged in by Captain Mitchell that might have led to retaliation.  Captain  Mitchell focused instead on his right to associate with the Union.  However, the  extent of Captain Mitchell's argument on this point is limited to the following  conclusory statement:  "Plaintiff engaged in union activity.  As a direct orcircumstantial result, Plaintiff was publicly humiliated at a council meeting; false  charges leveled upon him; denied promotional opportunities; and ultimately  terminated."  This response is woefully inadequate to survive a summary  judgment motion, especially when Captain Mitchell claims he was passed over  for promotions because of his association with the Union, but acknowledges both  individuals who were hired in his place were past presidents of the Union.


34
c.  Remaining Claims


35
Finally, Captain Mitchell hoped to find a violation of his federally  protected rights within either the right to privacy or the right to equal protection. We fail to see what might be accomplished by meticulously pointing out the same  inadequacies in Captain Mitchell's response in these areas as we have noted in  the due process and First Amendment claims.  Suffice it to say the City  characterized Captain Mitchell's privacy argument as a claim of a "constitutional  right to moonlight or to work a second job while suspended with pay," and  Captain Mitchell failed to cite to any evidence in the record, or relevant case law,  to counter that characterization.  Nor did Captain Mitchell even so much as direct  the district court to any evidence in the record showing he was actually prevented  from working at his family business or penalized in any way for doing so. Finally, Captain Mitchell failed to cite to any evidence in the record tending to  show he was treated differently than officers "similarly situated" as required for  an equal protection claim.  See Tonkovich v. Kansas Bd. of Regents, 159 F.3d  504, 532 (10th Cir. 1998).  Captain Mitchell's conclusory allegation to the effect  that he believed he was the best-qualified candidate for a job and was passed  over only because he was a Union member is simply not enough to survive  summary judgment.


36
Captain Mitchell's response to the defendants' summary judgment motions  failed to meet his burden to set forth specific evidence demonstrating a genuine  issue of material fact.  As such, he failed to show the deprivation of a  fundamental right, and the district court properly granted defendants summary  judgment on the federal claims.

2.  The State Claims

37
a.  Individual Defendants


38
Captain Mitchell also raised two tort claims against the individual  defendants, the first for intentional infliction of emotional distress, and the  second for defamation.  Captain Mitchell conceded in his summary judgment  response that if the individual city and police department officials were acting  within the scope of their employment when they took the actions of which  Captain Mitchell complained, Oklahoma law shields them from tort liability.3 In  their motions for summary judgment the individual defendants claimed Captain  Mitchell failed to present any evidence their activities occurred outside the scope  of their employment.  Captain Mitchell's only response was to argue this is an  issue of fact usually sent to the jury.  Again, Captain Mitchell misunderstands the  role of summary judgment.  The whole point of summary judgment is to decide  issues of law when there are no material facts in dispute that need to be decided  by the trier of fact.  After the individual defendants showed the evidence  presented pointed exclusively to a finding they were acting within the scope of  their employment in making the hiring and discipline decisions complained of  here, Captain Mitchell was obligated to come forward in his response and refer  the district court to specific evidence that could at least make an inference to the  contrary.  Captain Mitchell failed to meet that obligation.  The district court  correctly determined the individual defendants were immune from the state tort  law claims.


39
b.  The City


40
Finally, Captain Mitchell sued the City under theories of negligent hiring,  training and retention, and tortious breach of contract.  Captain Mitchell argues  the district court erred by granting the City summary judgment on these claims. We cursorily dispose of these arguments based on our analysis above.  First,  Captain Mitchell cannot support a claim for negligent hiring and retention  without some showing the individuals hired and retained participated in wrongful  conduct.  Captain Mitchell failed to do so.  In addition, as stated during the  discussion of the §a1983 claim, Captain Mitchell did not steer the district court to  the specific portions of the appropriate documents supposedly creating the  implied contract right and therefore cannot survive summary judgment on the  tortious breach of contract claim.


41
B.  Motion Seeking Injunctive and Declaratory Relief:  Case No. 99-6121


42
After the initiation of the underlying suit in this case, Captain Mitchell was  terminated December 16, 1997 because the City determined statements he made  in his lawsuit and tort claims constituted insubordination.  Captain Mitchell  elected to pursue his reinstatement and back pay through the grievance procedure  provided for under the Collective Bargaining Agreement between the Union and  the City.  While the Union demanded arbitration in January, 1998, the City  waited a full year, until after it was successful on its summary judgment motion  in the underlying suit, to ask the district court to enjoin the arbitration  proceeding.4 The district court denied the City's motion, finding the judgment in  the underlying case was not res judicata as to the issues involved in arbitration. We agree.


43
All the parties involved seemed to assume the underlying lawsuit involved  distinct and separate events from Captain Mitchell's termination.  In his response  to the summary judgment motion, Captain Mitchell stated he was pursuing "his  reinstatement and claim for back wages through the arbitration process, any  remaining claims are addressed below and a part of this lawsuit."  The City, in its  reply to Captain Mitchell's response on summary judgment states:


44
Plaintiff is now attempting to insert his termination into this cause  even though he states he is not seeking reinstatement or back wages  ....  Plaintiff cannot have it both ways.  The termination hearing is  pending before an arbitrator as provided in the [Collective  Bargaining Agreement].  He must elect a forum and stick to it, and  Defendants are entitled to notice as to the issues of the case. Plaintiff did not request to amend his complaint to include  termination in the instant case and anything involving termination  should be denied.


45
On appeal, the City argues Captain Mitchell's pleadings, motions, and other  documents submitted to the district court were "replete" with references to his  termination.


46
While we agree Captain Mitchell referred to his termination in several  documents, it was clearly done as an attempt to create sympathy for his plight,  and not done to insert new issues into the litigation.  For instance, in his response  to the summary judgment motion, Captain Mitchell states:  "Although Plaintiff's  claims for reinstatement or back wages arenot before the Court as an element of  damages, his termination is properly before this Court as it relates to the entire  process that Plaintiff endured."5 More importantly for our purposes on review,  the district court found its order in the underlying suit was void of consideration  of the issues presented for arbitration, and the Union had an interest in the  arbitration not addressable by the order.  Our review is necessarily based on these  findings and not the representations of the parties.


47
In our Circuit, "[c]laim preclusion6 requires:  (1) a judgment on the merits  in the earlier action; (2) identity of the parties or their privies in both suits; and  (3) identity of the cause of action in both suits."  Yapp, 186 F.3d at 1226.  Put  another way, the doctrine of claim preclusion prevents "the parties or their  privies from relitigating issues that were or could have been raised in" an earlier  action.  Clark v. Haas Group, Inc., 953 F.2d 1235, 1238 (10th Cir.), cert.  denied,  506 U.S. 832 (1992).  In this case, we focus on the second and third inquiries,  which we examine in reverse order.


48
We employ the transactional approach of the Restatement (Second) of  Judgments to determine whether the constitutional claims raised in the lawsuit  shared an identity with the termination claims raised in the arbitration.  Yapp, 186  F.3d at 1227.  Under this test, we preclude claims "arising out of the same  'transaction, or series of connected transactions' as a previous suit."  Id. (quoting  Restatement (Second) of Judgments § 24 (1982)).


49
What constitutes the same transaction or series of transactions is "to  be determined pragmatically, giving weight to such considerations as  whether the facts are related in time, space, origin, or motivation,  whether they form a convenient trial unit, and whether their  treatment as a unit conforms to the parties' expectations or business  understanding or usage."


50
Id. (quoting Restatement (Second) of Judgments § 24 (1982)).


51
Our case law seems to stand for the proposition that all claims arising from  the same employment relationship constitute the same transaction or series of  transactions for claim preclusion purposes.  See Id. at 1228; Clark, 953  F.2d at  1239.  However, in Yapp and Clark the facts giving rise to the second  lawsuit    termination in both cases   were in existence at the time the first suit was filed. See Yapp, 186 F.3d at 1225-26; Clark, 953 F.2d at 1236.  That is not the  case  here, where Captain Mitchell was terminated after his first suit was filed.7 While  we have yet to decide the issue, we agree with those courts holding the doctrine  of claim preclusion does not necessarily bar plaintiffs from litigating claims  based on conduct that occurred after the initial complaint was filed.  See Johnson  v. Board of County Comm'rs of Johnson County, Kansas, No. 99-2289-JWL,  1999 WL 1423072, at *3-4 (D. Kan. Dec. 9, 1999) ("Because a plaintiff has no  obligation to expand his or her suit in order to add a claim that he or she could  not have asserted at the time the suit was commenced, several circuits have held  that res judicata does not bar a second lawsuit to the extent that suit is based on  acts occurring after the first suit was filed.") (citing Computer Associates Int'l,  Inc. v. Altai, Inc., 126 F.3d 365, 369-70 (2d Cir. 1997), cert. denied, 523 U.S.  1106 (1998); Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992); Spiegel v. Continental Illinois Nat'l Bank, 790 F.2d 638, 646 (7th Cir.), cert.  denied, 479 U.S. 987 (1986); Los Angeles Branch NAACP v. Los Angeles Unified  School Dist., 750 F.2d 731, 739 (9th Cir. 1984), cert. denied, 474 U.S. 919  (1985)).


52
Regardless of the outcome of the third inquiry, however, we affirm the  district court because the second prong   identity of parties   is not met.  On  appeal, the City argues Captain Mitchell and the Union are obviously in privity  with each other and therefore the district court erred in not precluding the  arbitration proceeding.  However, we have previously held "the interests of the  union and the individual employee are not always coextensive."  Ryan v. City of  Shawnee, 13 F.3d 345, 347 (10th Cir. 1993).  See also Alexander v. Gardner-Denver  Co., 415 U.S. 36, 58 n.19 (1974).  In Ryan, we determined an arbitration  of an employee's grievance did not preclude a subsequent civil rights action, in  part "because the union usually has exclusive control over presentation of the  grievance, [and therefore] the employee's opportunity to be compensated for a  constitutional deprivation might be lost merely because it was not in the union's  interest to press his claim vigorously."  Ryan, 13 F.3d at 347 (quotation marks  and citation omitted).  We think the same can be said of a union's interests in a  subsequent arbitration when the employee first pursues a civil rights action. Therefore, the district court did not err by determining claim preclusion was not  appropriate in this instance and did not abuse its discretion in denying the  injunctive and declaratory relief sought.

C.  Attorney Fees:  Case No. 99-6101

53
After the district court granted the defendants' motions for summary  judgment, the defendants jointly moved for the award of attorney fees pursuant to  42 U.S.C. § 1988.  While a prevailing plaintiff ordinarily is entitled to attorney  fees, see Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), a prevailing defendant  in a civil rights action may recover attorney fees only "if the suit 'was vexatious,  frivolous, or brought to harass or embarrass the defendant.'"  Utah Women's  Clinic, Inc. v. Leavitt, 136 F.3d 707, 709 (10th Cir. 1998) (per curiam) (quoting Hensley, 461 U.S. at 429 n.2).  This is a difficult standard to meet, to the point  that rarely will a case be sufficiently frivolous to justify imposing attorney fees  on the plaintiff.  See Clajon Production Corp. v. Petera, 70 F.3d 1566, 1581  (10th Cir. 1995).  The dismissal of claims at the summary judgment stage does  not automatically meet this stringent standard.  See Jane L. v. Bangerter, 61 F.3d  1505, 1513 (10th Cir. 1995).


54
The district court specifically avoided finding Captain Mitchell brought the  lawsuit for an improper purpose.  The district court noted "[t]he Order only  resolved that no legal remedy [was] available to [Captain Mitchell] under the  facts as supported by the evidence."  As noted earlier, the district court  determined Captain Mitchell's response to the summary judgment motion was  inadequate, but that is an entirely different finding than branding the suit itself  frivolous.  We see nothing in this record that requires a holding the district court  abused its discretion in denying attorney fees, and we affirm.

D.  Costs:  Case No. 99-6177

55
Finally, the defendants filed a joint motion for a bill of costs, with a brief  in support.  The defendants requested a total of $10,264.13 for deposition costs. After a hearing, the court clerk reduced the requested deposition costs to  $7,371.53 and taxed the total costs in the amount of $8,492.03.  Both sides filed  objections to the award with the district court.  The defendants claimed the clerk  improperly reduced the deposition costs by $2,148.70 for depositions not used or  cited in the parties' motions for summary judgment and confined their objections  to that portion of the clerk's reduction.  Captain Mitchell objected to any award  of costs in this case.  The district court denied Captain Mitchell's motion to  disallow costs and restored the $2,148.70 in deposition costs as requested by the  defendants.  Captain Mitchell now appeals, arguing the award of costs was  inappropriate in this case and attacking specific award amounts.  We affirm.


56
Federal Rule of Civil Procedure 54 makes the award of costs presumptive:  "costs other than attorneys' fees shall be allowed as of course to the prevailing  party unless the court otherwise directs."  Fed. R. Civ. P. 54(d)(1).  The general  costs statute, 28 U.S.C. § 1920, permits recovery of deposition costs "necessarily  obtained for use in the case."  28 U.S.C. § 1920(2), (4).  "We have stated that  this definition authorizes recovery of costs with respect to all depositions  reasonably necessary to the litigation of the case."  Furr v. AT&T Technologies,  Inc., 824 F.2d 1537, 1550 (10th Cir. 1987) (quotation marks and citation  omitted).


57
Captain Mitchell attacks the award of costs from a plethora of angles, most  of them confused and all of them unavailing.  First, Captain Mitchell argues  imposing costs in this case is simply unfair.  He states the presumption in favor  of costs should be relaxed when the prevailing party is the defendant in a civil  rights case, just as it is tougher for a defendant to receive attorney fees under  §a1988.  See Sec. III. C., supra.  However, Captain  Mitchell fails to cite any  authority in support of this argument.  The Fourth Circuit recently rejected a  similar argument and allowed costs against a losing plaintiff in a Title VII case. See Cherry v. Champion Int'l Corp., 186 F.3d 442, 448 (4th Cir. 1999).  We find  the Fourth Circuit's reasoning persuasive, and uphold the traditional presumption  in favor of awarding costs, regardless of whether the prevailing party is a  defendant in a civil rights case.


58
Captain Mitchell next argues the costs of the depositions of the individual  defendants in this case were unnecessary for trial.  Captain Mitchell makes this  argument because while he requested the depositions of Chief Storm, Mr. Drea  and Mr. Tipps, he decided not to have the depositions transcribed, to save on his  own costs.  Captain Mitchell now objects to the defendants collecting the costs  they incurred in paying for the transcription of their own depositions.  This  argument borders on the absurd.  Captain Mitchell requested and took these  depositions.  He felt they were necessary enough to the litigation to include them  in his appendix to his response to the summary judgment motion in the  underlying case.  If the depositions of the three named individual defendants in  the case are not necessary to the litigation, we fail to see how any deposition  would qualify as a recoverable cost.  Captain Mitchell's decision to avoid  transcribing the depositions of the main figures in his own lawsuit should not  prevent the defendants from collecting those costs when they chose a different  route.  Cf. Callicrate, 139 F.3d at 1341 (defendants awarded costs of copying  plaintiff-requested depositions of defendants' employees or representatives).


59
Last, Captain Mitchell argues depositions not used in defendants' summary  judgment motions were improperly taxed as costs, and depositions taken prior to  the grant of summary judgment but paid for after the court's order should be  disallowed.  We have previously rejected both arguments.  We measure whether  an incurred cost was reasonably necessary under § 1920 "in light of the facts  known to the parties at the time the expenses were incurred."  Id. at 1340.  The  expenses in this case were incurred when the depositions were taken and  transcripts ordered, not when the reporter mailed a bill forservices.  As for the  unused transcripts, it would be "inequitable to essentially penalize a party who  happens to prevail on a dispositive motion by not awarding costs associated with  that portion of discovery which had no bearing on the dispositive motion, but  which appeared otherwise necessary at the time it was taken for proper  preparation of the case."  Id.  In its order on this issue, the district court stated  the depositions were reasonably necessary for trial because when the summary  judgment motion was granted, the discovery period in the case had passed, trial  was imminent, and sworn testimony is used for various reasons at trial.  We see  no evidence of an abuse of discretion on behalf of the district court.


60
Having carefully considered the various arguments made by the parties  involved in these four appeals, we AFFIRM the district court in all  respects.



Notes:


1
 42 U.S.C. § 1983, which states:
Every person who, under color of any statute, ordinance, regulation,  custom, or usage, of any State or Territory or the District of  Columbia, subjects, or causes to be subjected, any citizen of the  United States or other person within the jurisdiction thereof to the  deprivation of any rights, privileges, or immunities secured by the  Constitution and laws, shall be liable to the party injured in an action  at law, suit in equity, or other proper proceeding for redress ....


2
 42 U.S.C. § 1985, which is titled  "conspiracy to interfere with civil  rights," and states in relevant part:
[I]n any case of conspiracy set forth in this section, if one or more  persons engaged therein do, or cause to be done, any act in  furtherance of the object of such conspiracy, whereby another is  injured in his person or property, or deprived of having and  exercising any right or privilege of a citizen of the United States, the  party so injured or deprived may have an action for the recovery of  damages occasioned by such injury or deprivation, against any one  or more of the conspirators.


3
 See Okla. Stat. Ann. tit 51,  § 153, which states in relevant part:
The state or a political subdivision shall be liable for loss resulting  from its torts or the torts of its employees acting within the scope of  their employment ....  The liability of the state or political  subdivision under this act shall be exclusive and in place of all other  liability of the state, a political subdivision or employee at common  law or otherwise.


4
 The arbitration panel issued its decision,  ruling against the City and  reinstating Captain Mitchell, on February 28, 2000, eight days prior to oral  argument in this case.  The City subsequently appealed the arbitration decision to  the state district court.  The state district court has issued a stay of the arbitration  award pending our decision in this case and further proceedings in the state  courts.  While arguably the City's request for injunction is moot now that the  arbitration panel has issued its decision, we reach the merits of this appeal  because the City also sought declaratory judgment.


5
 We note there is no evidence the district  court was in any way impacted  by such "sympathy" arguments.  A motion in limine would have been the  appropriate mechanism to prevent presentation of such arguments to the jury had  the case proceeded to trial.


6
 "Although the parties use the term 'res  judicata,' for purposes of clarity,  this court employs the term 'claim preclusion' instead."  Yapp v. Excel Corp.,  186 F.3d 1222, 1226 n.1 (10th Cir. 1999).


7
 While Captain Mitchell filed a Second  Amended Complaint December  17, 1997, one day after he was officially terminated, we have no way of  determining whether the complaint was amended to include termination issues  because the defendants did not include Captain Mitchell's initial complaint in  their appendix.


