                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 6, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    THOMAS S. MAYES,

                Plaintiff-Appellant,

    v.                                                  No. 07-1256
                                              (D.C. No. 03-cv-386-BNB-PAC)
    JOHN E. POTTER, U.S. Postal                          (D. Colo.)
    Service,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and ANDERSON, Circuit Judges.



         Mr. Thomas Mayes proceeds pro se and in forma pauperis in this court as

he did in the district court. He appeals from the district court’s entry of judgment

on a jury verdict in favor of Mr. John E. Potter, Postmaster of the United States

Postal Service (hereafter referred to as “defendant” or the “Postal Service”), on




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Mr. Mayes’s claim of disability discrimination under the Rehabilitation Act of

1973, 29 U.S.C. §§ 791, 794. We affirm.

                               I. Factual Background

      Mr. Mayes began working for the Postal Service in 1985, primarily as a

mail handler on the day shift at the General Mail Facility in Denver, Colorado.

At the time relevant to this case, he had a temporary position as an acting

supervisor in the Business Mail Entry Unit. On January 3, 2002, he met with his

supervisor, Ms. Mona Tebeau, who criticized his performance as a supervisor.

Mr. Mayes then took voluntary leave from January 5 to May 31, 2002, allegedly

due to stress he experienced as a result of the meeting with Ms. Tebeau. When

Mr. Mayes returned to work on May 31, his temporary supervisory position had

ended, and he was assigned to work repairing damaged mail on the overnight

shift. He eventually resigned on June 21, 2002, allegedly due to continued

harassment by Ms. Tebeau.

      While he was on leave, Mr. Mayes met with a counselor in the Postal

Service’s Equal Employment Opportunity (EEO) office and filed a complaint of

employment discrimination with the Postal Service. The complaint’s sole

allegation concerned the January 3 meeting with Ms. Tebeau. Mr. Mayes wrote:

“I was threatened, intimidated, belittled and treated with no dignity or respect. I

am the only black male, religiously active, disabled supervisor (acting) working

for Ms. Tebeau and the only one treated in this manner.” R., Vol. I, Doc. 49,

                                         -2-
Ex. 1 of Ex. A-3. The EEO dismissed the complaint on July 17, 2002, for failure

to state a claim, and the Equal Employment Opportunity Commission’s Office of

Federal Operations affirmed the dismissal.

                               II. Procedural History

      Mr. Mayes filed this lawsuit on March 5, 2003. The parties consented to

the jurisdiction of a magistrate judge, who construed Mr. Mayes’s amended

complaint as asserting four substantive claims: (1) discrimination based on sex

and disability (tarsal tunnel syndrome, carpal tunnel syndrome, and a rotator cuff

injury) arising from the January 3 “verbal assault,” R., Vol. I, Doc. 19,

unnumbered third page; (2) harassment via United States mail in the form of

threatening correspondence while Mr. Mayes was in treatment for depression and

anxiety allegedly caused by the January 3 meeting; (3) continued harassment via

(a) false statements to the United States Department of Labor to prevent worker

compensation payments to him and (b) reassignment to Ms. Tebeau, who then

changed his shift and continued her harassment; and (4) constructive discharge

because Mr. Mayes had resigned in order “to maintain [his] mental stability when

no action was taken and the harassment continued,” id., unnumbered fourth page.

      The parties filed a series of summary judgment motions. The district court

granted summary judgment to defendant on the first claim, concluding that to the

extent the claim concerned gender discrimination under Title VII, there was no

evidence of an adverse employment action resulting from the January 3 meeting.

                                         -3-
The court also construed the first claim as one of disability discrimination under

the Rehabilitation Act and denied summary judgment to both parties. As to the

second, third, and fourth claims, the district court concluded that it lacked subject

matter jurisdiction because Mr. Mayes had failed to exhaust his administrative

remedies; his single administrative claim concerned only the January 3 meeting,

not any of the later allegations of discrimination.

      Mr. Mayes filed a motion for reconsideration of the order granting

summary judgment to defendant on the second, third, and fourth claims, arguing

that he had exhausted his administrative remedies because the later instances of

discrimination and harassment were not separate and discrete acts but were

reasonably related to the alleged conduct complained of in his administrative

charge. The court treated the motion as one filed under Fed. R. Civ. P. 60(b) and

denied it on the ground that Mr. Mayes could have presented his argument at the

time he filed his summary-judgment response but failed to do so.

      The case proceeded to a jury trial solely on the Rehabilitation Act claim,

and the jury returned a verdict in favor of defendant. The court entered a

judgment on May 18, 2007, listing its earlier rulings on two of defendant’s

summary judgment motions separately from its recitation of the jury’s verdict,

which was quoted directly from the Verdict Form.




                                          -4-
                             III. Appellate Jurisdiction

      Mr. Mayes filed a timely notice of appeal on June 15, 2007, in which he

specified that he was appealing from the “Jury Verdict of ‘No’, Plaintiff did not

prove he was discriminated against because of his Disability.” R., Vol. II,

Doc. 103. In his appellate brief, he raised two issues, that the district court erred

by (1) denying his Rule 60(b) motion with respect to the grant of summary

judgment to the Postal Service on his false-statement claim (claim three) and his

constructive discharge claim (claim four), and (2) denying the jury’s request to

see a transcript of an audio recording of the January 3 meeting and refusing to

give a jury instruction, regarding transcripts generally, that Mr. Mayes allegedly

proposed.

      Defendant first maintains that because the timely notice of appeal identifies

only the jury’s verdict as the subject of the appeal, and because Mr. Mayes’s brief

was filed beyond the time permitted for filing a notice of appeal, this court lacks

jurisdiction to consider Mr. Mayes’s first claim of error concerning his

Rule 60(b) motion. We agree.

      “Although we liberally construe pro se pleadings” and other papers,

Mr. Mayes’s “pro se status does not relieve him of the obligation to comply with

procedural rules.” Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3

(10th Cir. 2002). Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure

requires a notice of appeal to “designate the judgment, order, or part thereof

                                          -5-
being appealed.” “Rule 3’s dictates are jurisdictional in nature, and their

satisfaction is a prerequisite to appellate review.” Smith v. Barry, 502 U.S. 244,

248 (1992). It is true that “a notice of appeal that names the final judgment is

sufficient to support review of all earlier orders that merge in the final judgment.”

Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1383 n.7 (10th Cir. 1994) (quotation

omitted). But in his notice of appeal, Mr. Mayes did not name the final

judgment. Instead, he designated only the jury’s verdict, which was a discrete

component of the final judgment, and he did not designate the court’s

interlocutory ruling on his Rule 60(b) motion. Thus, the notice of appeal does

not meet Rule 3(c)(1)(B)’s requirements as to the district court’s order denying

the Rule 60(b) motion.

      A formal notice of appeal, however, is not the only document that can

confer appellate jurisdiction; a document such as a motion to proceed on appeal

without prepayment of fees (IFP motion), see Fleming v. Evans, 481 F.3d 1249,

1253-54 (10th Cir. 2007), or an appellate brief, see Smith, 502 U.S. at 249, can

serve as the functional equivalent of a notice of appeal if it is “filed within the

time specified by Rule 4 [of the Federal Rules of Appellate Procedure and] gives

the notice required by Rule 3,” Smith, 502 U.S. at 248-49. Mr. Mayes filed both

an IFP motion and an opening brief, but his IFP motion identified only the

transcript-and-jury-instruction issue, and his brief was filed on August 24, 2007,

more than sixty days after the district court’s May 18 judgment and thus untimely

                                          -6-
if treated as a notice of appeal. See Fed. R. App. P. 4(a)(1)(B) (establishing

sixty-day deadline for filing of notice of appeal when an officer of the United

States is a party). Thus, neither document can serve as a notice of appeal from

the district court’s interlocutory order denying Mr. Mayes’s Rule 60(b) motion.

Our jurisdiction under 28 U.S.C. § 1291, therefore, extends only to Mr. Mayes’s

appeal from the district court’s entry of judgment on the jury’s verdict.

                                     IV. Merits

        As to the sole issue over which we have jurisdiction, Mr. Mayes argues

only that “[d]efendant presented no argument as to the authenticity of the

recording and therefore had no grounds for withholding the transcript of the

recording in that the transcript was not presented as evidence. Jury should have

been provided with the requested transcript along with the instruction[.]” Aplt.

Br. at 3. 1



1
        According to Mr. Mayes, he proposed the following jury instruction:

        You will be given a transcript to use as a guide to help you follow as
        you listen to the recording. The transcript is not evidence of what
        was actually said or who said it. It is up to you to decide whether
        the transcript correctly reflect[s] what was said and who said it. If
        you notice any difference between what you heard on the recordings
        and what you read in the transcript, you must rely on what you
        heard, not what you read. And if after careful listening, you cannot
        hear or understand certain parts of the recording, you must ignore the
        transcript as far as those parts are concerned.

Aplt. Br. at 3.
                                         -7-
      In response, defendant argues that the record is insufficient for our review

because there is no indication that a transcript of the audio recording ever existed

and no documentation of Mr. Mayes’s proposed jury instruction. We agree with

the latter point, 2 but the record contains what appears to be a transcript of the

recording attached to Mr. Mayes’s response to defendant’s first summary

judgment motion, see R., Vol. I, Doc. 34, seventh unlabeled attach. It is unclear

whether this transcript is authentic, accurate, or otherwise admissible under the

Federal Rules of Evidence. But as we explain, we need not resolve these matters.

      Whether to admit a transcript of a recorded conversation lies within the

sound discretion of the trial court. See United States v. Devous, 764 F.2d 1349,

1354 (10th Cir. 1985). It appears from the courtroom minutes that the district

court orally denied the jury’s request to see a transcript of the audio recording.

See R., Vol. II, Doc. 97 at 1. Thus, a trial transcript containing the district

court’s oral ruling is necessary for appellate review of the court’s discretionary

decision. In its order granting Mr. Mayes leave to proceed in forma pauperis

(IFP) on appeal, the district court specifically ordered the court reporter to

“prepare for inclusion in the record on appeal an original and one copy of the

reporter’s transcript of the record of proceedings, if ordered by plaintiff,” and that


2
      The record contains Defendant’s Objections to Plaintiff’s Proposed Jury
Instructions, R., Vol. II, Doc. 90, but not the proposed instructions, and our
review of the district court’s docket sheet shows no entry for Mr. Mayes’s
proposed instructions such that we might take judicial notice of them.

                                          -8-
the fee would be paid by the United States. R., Vol. II, Doc. 110 (emphasis

added); see also 28 U.S.C. § 753(f) (obligating United States to pay for transcript

furnished to appellant proceeding IFP on appeal). Mr. Mayes never ordered a

transcript, as is his duty as the appellant. See Fed. R. App. P. 10(b)(1); see also

10th Cir. R. 10.1(A)(1) (“The appellant must provide all portions of the transcript

necessary to give the court a complete and accurate record of the proceedings

related to the issues on appeal.”).

      “An appellant’s failure to provide a necessary transcript entails more than

mere noncompliance with some useful but nonessential procedural admonition; it

raises an effective barrier to informed, substantive appellate review.” Morrison

Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1238 (10th Cir. 1999)

(quotations omitted). Thus, we have held “on a number of occasions and in a

variety of settings that the lack of a required transcript leaves us with no

alternative but to affirm.” Id. (quotation omitted). Because Mr. Mayes failed to

provide the necessary trial transcript, we affirm the district court’s denial of the

jury’s request to see the transcript of the audio recording of the January 3

meeting due to an inadequate record.3 Consequently, whether or not the court


3
        Even if we could overlook Mr. Mayes’s procedural missteps regarding the
trial transcript, his substantive argument regarding the transcript of the audio
recording appears to focus on the fact that the defendant did not introduce a
transcript of that recording into evidence. Even if a proper transcript existed, he
has not suggested a reason why the court should have granted the jury’s request
                                                                        (continued...)

                                          -9-
erred in failing to give the jury instruction that Mr. Mayes allegedly proposed is

moot.

                                         V.

        The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




3
 (...continued)
to see that transcript. Accordingly, we conclude in the alternative that
Mr. Mayes’s argument is inadequate and therefore the issue is waived. See Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).
                                        -10-
