UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KAREN BIRD, an individual, 

 Plaintiff - Appellant, 

v. 

WEST VALLEY CITY, a political 

subdivision of the State of Utah; KELLY 

DAVIS, in his official and individual 

capacities, 

 Defendants - Appellees. 

No. 19-4050 

(D.C. No. 2:12-CV-00903-EJF) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, BRISCOE and CARSON, Circuit Judges. 

_________________________________ 

 Plaintiff Karen Bird was employed from 2001 to 2011 at the West Valley City 

Animal Shelter (the Shelter). In late 2011, West Valley City (the City) terminated 

her employment. Bird then filed this action asserting both federal and state claims. 

Bird claimed, in pertinent part, that the City and her immediate supervisor, defendant 

Kelly Davis, violated 42 U.S.C. § 1983 by terminating her in violation of her First 

Amendment rights because they believed that she leaked information to the public 

* This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 14, 2020

Christopher M. Wolpert 

Clerk of Court
2 

about certain events that transpired at the Shelter. The case proceeded to trial, where 

a jury found in favor of defendants. Bird now appeals, arguing that the district court 

erred in denying her motion for new trial, and in employing certain language in the 

verdict form. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. 

I 

 The following facts were established at the trial in this case. In 2001, Bird, a 

resident of Salt Lake County, Utah, graduated from a veterinary technician program 

at a local community college. Shortly thereafter, in August 2001, Bird began 

working at the Shelter. Bird’s supervisor at the time of her hire was Davis, who was 

a retired City police officer. 

 In 2002, Davis promoted Bird to the position of Shelter manager. At that time, 

Davis had no concerns about Bird or her performance, and he perceived their 

relationship to be very good. Bird, for her part, described Davis’s management style 

as “gruff.” Aplt. App. at 589. 

 In 2007, Davis was promoted to the position of Director of Operations of 

Animal Services. As Director of Operations of Animal Services, Davis began 

reporting to Layne Morris, the Director of the City’s Community Preservation 

Department. 

 In the spring of 2009, Bird was involved in a serious car accident. Due to 

injuries sustained as a result of the accident, Bird was on leave from work for several 

months. During that time, Davis directly managed the Shelter’s operations and 

changed some of the existing procedures. 
3 

 The relationship between Bird and Davis began to deteriorate after Bird 

returned to work. One component in the deterioration of the relationship was a 

disagreement regarding the use of the Shelter’s gas chamber. Bird disfavored that 

method of euthanasia and, by her own admission, directed employees not to use the 

gas chamber for animals that were old, young, or sick. Bird also preferred that the 

gas chamber not be used at all and, consequently, generally discouraged employees 

from using it. Davis, in contrast, generally favored the use of the gas chamber for 

euthanasia. 

 From the time of her return to the Shelter in 2009 through late 2010, Bird 

regularly met with Morris and complained about Davis. According to Morris, Bird 

complained that Davis did not like her or her ideas, and expressed general displeasure 

with his leadership of the Shelter. Unbeknownst to Morris, Bird recorded all of her 

meetings with Morris, as well as meetings that she had with Davis and other City 

employees. 

 As Bird’s visits to Morris’s office became more frequent and the relationship 

between Bird and Davis deteriorated, Morris talked with Davis and encouraged him 

to try and make Bird feel more a part of the Shelter management team. According to 

Morris, Davis made genuine efforts to do so, but Bird did not make equivalent efforts 

to better her relationship with Davis. 

 In June of 2010, Davis met with Morris and informed him that he was 

experiencing communication difficulties with Bird. Davis also informed Morris that 

he believed that Bird was actively trying to undermine his authority at the Shelter. 
4 

Davis noted that, due to these issues, he had met with Bird and attempted to clarify 

their respective roles at the Shelter. 

 At some point in 2010, Morris met with Davis and said that he thought they 

needed to conduct a disciplinary hearing for Bird. Davis asked for a few days to 

think about that option; after doing so, Davis said he would like to wait. Bird, 

however, continued to complain to Morris about Davis. By the end of 2010, Morris 

talked to Davis about the possibility of terminating Bird’s employment. Davis again 

told Morris that he did not want to do that. 

 Davis did, however, document in writing his dissatisfaction with Bird’s 

performance. In December 2010, Davis gave Bird a written performance review in 

which he noted, in part, that Bird “ha[d] difficulty accepting [his] role and 

responsibility as director.” Id. at 713. Davis further noted in his review that Bird 

“tend[ed] to not accept feedback or criticism as well as she could,” and “had 

difficulty either understanding direction given or chooses not to follow the direction 

given” in areas such as “cleaning protocol, euthanasia policy, personnel evaluation, 

[and] volunteer program.” Id. at 713–14. Shortly thereafter, Davis provided Bird 

with a Memorandum of Understanding that outlined the various ways in which he 

believed she was undermining his authority and resisting his desired direction for the 

Shelter. 

 On October 13, 2011, an incident occurred at the Shelter that resulted in 

negative publicity for the Shelter. Bird and another employee or volunteer had just 

finished euthanizing a large dog and were moving the dog’s body to a dumpster when 
5 

they heard sounds coming from inside the dumpster. Bird and the other person 

opened a bag that was in the dumpster and discovered a cat that was alive and 

covered in vomit and feces. Bird and the other person placed the cat in a kennel 

inside the Shelter. Bird learned that the Shelter’s staff had attempted to euthanize the 

cat, after deeming it unadoptable, but had not realized that the process failed. Bird 

then talked with Morris and asked if she could take the cat to a rescue organization 

because the Shelter did not have any money to pay for a veterinarian to examine the 

cat. Morris agreed to this proposal. Bird also advised Morris that she would have to 

tell the rescue organization what happened to the cat and that the rescue organization 

would likely make this information public. Morris purportedly said, “okay, we’ll be 

alright.” Id. at 607. After Bird took the cat to a local rescue organization, news 

stories began to appear about the incident, and various City officials, including 

Morris, began receiving inquiries about the incident. 

 On October 26, 2011, Davis conducted a meeting at the Shelter with Bird, 

other Shelter employees, and volunteers. Prior to the meeting, Bird had allegedly 

been attempting to persuade City management to transform the Shelter into a no-kill 

facility. During the meeting, Davis told Bird that if she was unwilling to prepare a 

list of the animals currently in the Shelter that needed to be euthanized, he would do 

so. Shortly after the meeting, a Shelter volunteer named Michelle Johnson, who was 

close with Bird, made a Facebook post that said “West Valley [Shelter] is so 

overflowing right now they need help! The big man said bring the numbers down. 

Bring down the numbers now. He wants them DEAD today!” Id. at 535. 
6 

 On October 31, 2011, Davis and Morris met with Bird. Morris discussed the 

negative emails and phone calls that the City was receiving regarding the Shelter. 

Davis said that he believed that someone at the Shelter, either an employee or a 

volunteer, was providing information to the media. Davis stated that he wanted to 

“investigate and eradicate” this problem. Id. at 620. 

 On November 1, 2011, Morris met with Bird and Johnson, the volunteer who 

made the Facebook post. During the first part of the meeting, Morris stated that the 

Shelter was being placed in a bad light and that could ultimately result in him 

deciding not to allow volunteers to work at the Shelter. Morris then excused Johnson 

from the meeting and met privately with Bird. Morris informed Bird that he did not 

think that Bird and Davis could work together and that there would be some changes. 

Morris also stated that he had already talked with the city manager and the assistant 

city manager about the situation. 

 On November 2, 2011, Bird filed a written complaint against Davis with 

Shirlayne George, the City’s human resource manager. George met with Bird the 

following day to discuss the complaint. Bird stated that her relationship with Davis 

had deteriorated over the previous few weeks and that she could not bear to look at 

Davis. Bird also gave George an audio recording of an encounter between Bird and 

Davis that, according to Bird, demonstrated Davis bullying Bird. Both George and 

Morris listened to the audio recording, and both concluded that it did not support 

Bird’s allegations, and instead demonstrated Davis’s patience and attempts to work 

with Bird. On November 9, 2011, George sent Bird an email stating that she had 
7 

determined that Bird had not been placed in a hostile environment by Davis and that, 

instead, Davis was trying to help Bird. According to George, both Bird and Davis 

had gruff personalities and relatively poor communication skills, but she believed 

that Davis was attempting to work on his deficiencies, whereas Bird was not. 

 On November 9, 2011, Morris met with Bird and informed her that he had 

initiated disciplinary proceedings against her. The following day, Bird met with Paul 

Isaac, the assistant city manager, and George. During that meeting, Isaac asked Bird 

to resign. Bird told Isaac that she loved her job and would not resign. Isaac placed 

Bird on administrative leave pending the outcome of the disciplinary proceedings. 

 On November 14, 2011, George conducted an investigation into all of the 

supervisory staff members employed at the Shelter, including Bird and Davis. 

According to George, Bird received the most complaints from employees during the 

investigation. Specifically, Shelter employees complained that Bird was “aggressive 

and demeaning to her staff,” was “hard to talk to because she [wa]s always so 

defensive,” and was “never happy,” which brought “the whole staff down.” Id. at 

1061. George concluded that the issues with Bird were severe to the point that she 

was not sure that they could be fixed. 

 Morris, after reviewing the results of George’s investigation, sent a letter to 

Bird on November 16, 2011, noting that “the Department ha[d] completed an 

investigation of various apparent failures on [her] part to perform [her] 

responsibilities as the West Valley City Animal Shelter Manager.” Id. at 639. The 

letter further stated that, based upon the investigation, it appeared that Bird had been 
8 

consistently insubordinate to Davis by arguing with him about various issues in front 

of the Shelter staff. 

 On November 22, 2011, Morris held a hearing on the allegations contained in 

his letter of November 16, 2011. One week later, on November 29, 2011, Morris 

terminated Bird’s employment with the City. Morris informed Bird of the 

termination both by letter and voicemail. 

 Bird appealed her termination to George, the human resources director. On or 

about December 15, 2011, George sent Bird a letter denying Bird’s appeal. George 

concluded in her letter that the termination was based solely on Bird’s actions and 

reactions to her workplace environment. George noted that almost every employee at 

the Shelter stated that Bird failed to be courteous both to Davis and her employees. 

George also concluded that Bird had inappropriately disciplined employees in front 

of others. Lastly, George noted that almost everyone employed at the Shelter 

complained about Bird’s constant negative attitude, and that Bird was 

confrontational, defensive, and discourteous to Davis. 

 Bird unsuccessfully appealed to the assistant city manager, and then to the 

Employee Appeals Board. After exhausting her administrative appeals, Bird filed a 

Charge of Discrimination with the Equal Employment Opportunity Commission 

(EEOC) alleging the City discriminated against her on the basis of sex. On June 27, 

2012, the EEOC issued Bird a notice of right to sue. 
9 

II 

 On September 24, 2012, Bird initiated these proceedings by filing a complaint 

in the United States District Court for the District of Utah against the City and Davis. 

Bird asserted a variety of claims under federal and state law including, as relevant 

here, a claim under 42 U.S.C. § 1983 for violation of her First Amendment rights. 

More specifically, Bird alleged in that claim that the City and Davis had retaliated 

against her because they “believed that [she] had raised with the media concerns 

about the effectiveness and cruelty of the ‘gas chamber’ the City uses to euthanize 

animals.” Id. at 31–32. 

 The district court initially granted summary judgment in favor of the City and 

Davis on all of Bird’s claims. Bird appealed to this court. We affirmed the district 

court’s grant of summary judgment on all of Bird’s claims, except for her § 1983 

First Amendment retaliation claim. As to that claim, we reversed the district court’s 

grant of summary judgment and remanded the claim to the district court for further 

proceedings. Bird v. West Valley City, 832 F.3d 1188, 1193, 1213 (10th Cir. 2016) 

(Bird I). 

 The First Amendment retaliation claim proceeded to trial in March of 2018. 

At the conclusion of the evidence, the jury returned a verdict in favor of defendants. 

 Bird subsequently filed a motion for new trial. In that motion, Bird argued 

that defense counsel engaged in misconduct at trial that included, in part: 

(1) questioning Morris about the details of his military experience; (2) relying on 

Morris’s military experiences in closing to suggest that Morris would not lie; and 
10 

(3) falsely suggesting that Morris was the subject of a new movie and that his 

character was being played by a famous actor. The district court denied Bird’s 

motion for new trial. 

 Bird filed a timely notice of appeal. 

III 

 Bird asserts two general issues in her appeal. First, she argues that the district 

court erred in denying her motion for new trial. Second, Bird argues that the 

language used by the district court in the verdict form was erroneous. For the reasons 

discussed below, we reject both of these issues. 

The denial of Bird’s motion for new trial 

 Bird’s motion for new trial focused on a small portion of the testimony of 

Morris, the individual responsible for her termination, and defense counsel’s 

purported misuse of that testimony during closing arguments. According to Bird, 

“[t]he district court improperly allowed Defendants to present extensive evidence of 

the military experience of . . . Morris . . . .” Aplt. Br. at 24. Bird concedes that 

“some background evidence is appropriate,” but she argues that “the evidence was 

clearly being used in this case to arouse the jury’s passion and sympathy.” Id. She 

further argues that “[t]he court then improperly allowed Defendants to rely on that 

evidence in closing arguments to vouch for . . . Morris’s integrity and bolster his 

credibility.” Id. Bird argues that “[b]ecause . . . Morris was the sole decision-maker 

in this case, his credibility and motivations were paramount to that of all other 

witnesses.” Id. “Therefore,” she argues, “the unmitigated errors in allowing the 
11 

introduction and use of the prejudicial evidence deprived [her] of a fair trial, and this 

Court should remand for a new trial.” Id. 

a) Standards of review

 We review for abuse of discretion a district court’s ruling on a motion for new 

trial. Harte v. Bd. of Commrs. of Johnson Cnty., 940 F.3d 498, 519 (10th Cir. 2019). “A 

district court abuses its discretion if it made a clear error of judgment or exceeded the 

bounds of permissible choice in the circumstances.” Burke v. Regalado, 935 F.3d 960, 

1026 (10th Cir. 2019). “A new trial cannot be granted unless the error was prejudicial 

and affects the party’s substantial rights.” Henning v. Union Pac. R.R. Co., 530 F.3d 

1206, 1217 (10th Cir. 2008). 

 We also “review a district court’s evidentiary rulings for abuse of discretion, 

considering the record as a whole.” United States v. Cristerna-Gonzalez, 962 F.3d 1253, 

1266 (10th Cir. 2020) (quotations omitted). “Evidence is relevant if: (a) it has any 

tendency to make a fact more or less probable than it would be without the evidence; and 

(b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. “But even 

relevant evidence should be excluded under Federal Rule of Evidence 403 ‘if its 

probative value is substantially outweighed by the danger of . . . unfair prejudice, 

confusing the issues, [or] misleading the jury.’” Cristerna-Gonzalez, 962 F.3d at 1266 

(quoting Fed. R. Evid. 403). 

 As for defense counsel’s closing arguments, because Bird objected to those 

arguments, “the district court’s decision to overrule [her] objection and permit the 

argument will not be disturbed absent a clear abuse of discretion.” Whittenburg v. 
12 

Werner Enters. Inc., 561 F.3d 1122, 1127 (10th Cir. 2009). In applying that standard, 

“we are mindful that ‘[t]he trial judge is in the best position to determine’ the prejudicial 

effect of improper arguments, and thus whether a new trial is warranted.” Id. (quoting 

Ketchum v. Nall, 425 F.2d 242, 244 (10th Cir. 1970)). That said, “the district judge’s 

considerable discretion in assessing the need for a new trial or other remedy is not 

boundless,” and this court’s “job . . . is to police the outer boundaries of permissible 

argument.” Id. 

 In Whittenburg, we identified “three separate factors, long used to mark the 

boundaries between when a new trial is and is not required.” Id. at 1131. These three 

factors include: (1) the extent of the improper remarks; (2) whether the district court took 

curative action; and (3) the apportionment of liability and the size of the damage award. 

Id. at 1131–33. “In general, these three factors require courts to compare the propriety of 

the challenged remarks against the weight of the evidence adduced at trial.” Burke, 935 

F.3d at 1026. “[T]he inappropriate remarks must be substantial enough to undermine our 

faith that the jury’s verdict was fairly obtained.” Id. 

b) Morris’s testimony about his background 

Bird presented Morris as a witness during her case-in-chief. On 

cross-examination, defense counsel began by asking Morris about his background. 

This included questions about his extensive military service. This portion of the 

cross-examination proceeded as follows: 

Q. Let me go back and get a little background on you, Mr. 

Morris. Did you have post high school education? 

A. I do. 
13 

Q. And what degrees did you obtain? Where did you obtain 

them? 

A. I -- I went to -- I attended -- I graduated from Brigham Young 

University with a degree in cartography and attended the University of 

Utah Master of Public Administration Program. 

Q. Cartography? 

A. Making maps. 

Q. Okay, I wasn't sure. When did you get your degree at BYU? 

A. When? 

Q. Yeah. 

A. I was on the 11 year program to get my degree and so I 

graduated in ‘89, if I remember right. 

Q. All right. Did you serve in the military? 

A. I did. 

Q. Tell me about that? 

A. I enlisted in 1983. 

Q. Enlisted where? 

A. In the United States Army. 

Q. Okay. And how long did you serve in the Army? 

A. Until I was medically retired in 2000 -- I think it was 2004. 

Q. Okay. Did you do any specialized training in the U.S. Army? 

A. I did. I attended the John F. Kennedy School of Special 

Warfare at Fort Bragg North Carolina to enlist in Special Forces. 

Q. Did you obtain a Special Forces designation? 

A. I did. I graduated from that program and got my Green Beret. 

Q. You’re a Green Beret? 

A. Yes, sir. 

Q. How long does it take to get that? 

A. It’s a couple of years. You go through the school of misery 

and hard knocks type of thing. 

Q. What kind of training do you have? 

A. Been to Special Forces School, advanced demolition 

explosives school, scuba school, airborne school, close core combat, all 

different types of training that you go through to get that designation. 

Q. Did you ever deploy overseas? 

A. Went -- I was activated and went to Afghanistan in November 

of 2001. 

Q. November of 2001? 

A. Right. 

Q. So that was what, two months after 9-11? 

A. It was. 

Q. What did you do in Afghanistan? 
14 

A. You know the military term would be deny free movement to 

Taliban forces and overthrow the country essentially. We were leading 

an insurgency with local Afghans who were disaffected with the 

government and then we tracked down high value targets that we were 

assigned to interdict. 

Q. All right. So what government were you trying to overthrow? 

A. The Taliban government who were running Afghanistan at that 

time. 

Q. Were you engaged in searches for Osama Bin Laden or others? 

A. I was. 

Q. Tell me about that? 

A. You know, one of the -- one of the targets was Osama Bin 

Laden’s wife. And she had had -- one of his wives had a -- had rented a 

home in Kabul and so we -- we showed up at that home to see if 

possibly she was there, maybe he was there. And he – he wasn’t there, 

she wasn’t there, she had already fled so we ended up spending the 

night at that -- at that location. So people ask me all the time if I got -- 

why I didn’t get Osama Bin Laden and I tell them I didn’t get Osama 

Bin Laden, but I did spend the night at his wife’s house. 

Q. You said you were medically discharged? 

A. Right. 

Q. What caused that? 

A. During one particular fire fight I took a grenade shrapnel 

through my right eye which blinded me and ended up going back and 

damaging my inner ear. So I’m a little bit off balance and blind in the 

right eye. 

Q. Now, who were you trying to interdict on that -- in that fire 

fight? 

A. We were after Bin Laden’s finance guy who was a man from 

Canada who was running an international charity which was just a cover 

for fundraising for al-Qaeda. 

Q. And how was it that you got wounded, what were you doing? 

[Bird’s counsel]: Objection, Your Honor, as to relevance of this 

testimony. 

THE COURT: I’ll give you some latitude. 

[Defense counsel]: Sure. Thank you, Your Honor. 

THE WITNESS: I was -- I was wounded during a fire fight where 

-- where we were after a guy that the finance guy and I -- I was shooting 

my -- I carry the 203 grenade launcher and I popped up to shoot a 

couple of guys with it who had thrown a grenade at me and the grenade 

went off and that’s when the shrapnel hit me -- hit me in the face. 

Q. (By [defense counsel]) You received decorations in that -- for 

that fire fight, did you not? 
15 

A. I did. 

Q. What decorations did you receive? 

A. Purple Heart and a Bronze Star. 

Q. A Bronze Star. You’re being modest a Bronze Star with Valor, 

correct? 

A. Yes. 

Q. You also received the Medal of Honor from the State of Utah, 

did you not? 

A. I did. I had forgotten that’s what it was called but yeah. 

Q. Been on 60 Minutes? 

A. Yes. 

Q. An honorary guest at the Rose Bowl Parade? 

A. Yes, rode on a float. 

Q. How long did it take you to recover from that grenade, taking 

that grenade fragment in the face? 

A. You know, the physical recovery is – was relatively short. You 

know, you're just missing an eye and eventually your other eye after I 

don’t know a year your other eye is pretty well strong enough to take 

over the looking duties. Um, you know, mentally it is a little tougher to 

kind of acclimate to the new normal, I guess. 

Q. All right. When did you go to work for West Valley City? 

A. I started with West Valley City when I’d gotten out of the 

Army. It would have been 1995. 

Q. Okay. But you still continued reserve apparently because you 

got reactivated a few years later, right? 

A. Right. I was actually back at Fort Bragg when 9-11 happened. 

Aplt. App. at 1187–93. 

 In her motion for new trial, Bird argued, in part, that defense counsel engaged 

in misconduct by presenting irrelevant evidence of Morris’s military background. 

The district court denied Bird’s motion and specifically rejected her argument that 

evidence of Morris’s military background was irrelevant: 

Mr. Morris’s testimony concerning his military experience was relevant 

and admissible as background evidence. Such evidence helped the jury 

to get to know the witness and assess his credibility. Notably, Ms. Bird 

does not cite any cases to the contrary, simply arguing without support 

that evidence concerning Mr. Morris’s military experience is irrelevant, 

and West Valley Defendants’ counsel should not have introduced it. 
16 

Accordingly, the Court finds West Valley Defendants’ counsel did not 

improperly introduce evidence concerning Mr. Morris’s military 

background. 

Id. at 164. 

 In her appeal, Bird concedes “that some such evidence might be acceptable 

background evidence.” Aplt. Br. at 28. But, she argues, defense counsel, “[i]n 

questioning . . . Morris, . . . went far beyond what could be considered reasonable 

background information.” Id. Bird argues that her counsel “objected at the point that 

Defendants’ counsel began asking about information that was clearly intended to 

garner sympathy for . . . Morris,” and specifically “objected to counsel’s question 

about how . . . Morris got wounded in Afghanistan.” Id. Bird argues that the 

questions posed by defense counsel after her counsel’s objection was overruled were 

asked by defense counsel for the sole purpose of “convey[ing] to the jury . . . 

Morris’s war hero status.” Id. at 29. Bird in turn argues that “[t]he fact that . . . 

Morris was wounded in Afghanistan or received awards for his service has no 

bearing on his reasons for terminating [her].” Id. 

 We agree with Bird that certain of the questions posed by defense counsel to 

Morris appear to have been designed to bolster Morris’s standing in the eyes of the 

jury, rather than to elicit information relevant to the issues in the case, or even to 

Morris’s background or credibility. In particular, the questions posed to Morris about 

his searches for Bin Laden and his associates, his appearance on 60 Minutes, and his 

participation in the Rose Bowl Parade, fall into this category. The answers to those 
17 

questions were clearly irrelevant to the issues that the jury was being asked to decide, 

and they in turn had nothing to do with Morris’s credibility. 

 That said, we are not persuaded that the admission of this testimony from Morris 

was prejudicial to Bird or otherwise affected her substantial rights. To be sure, Morris 

was the person who decided to terminate Bird’s employment with the City. But Morris 

did not directly supervise Bird and, although he met with Bird several times at her 

request, he relied in large part on information provided by Bird’s direct supervisor, Davis, 

and the City’s human resource director, George. Both Davis and George testified at 

length during the trial, and both offered information that amply supported Morris’s 

conclusions that Bird was insubordinate, failed to perform some duties that Davis asked 

her to perform, was not courteous or cooperative with her employees, and was ultimately 

unable to work with Davis. Moreover, the evidence presented at trial established that 

Bird was afforded three levels of appeals within the City’s system, and that Morris’s 

conclusions were affirmed at all three levels. Thus, we conclude that the district court 

did not abuse its discretion in denying Morris’s motion for new trial on the basis of the 

admission of this testimony. 

c) Defense counsel’s closing arguments 

 Near the end of his closing argument, defense counsel touched on the 

credibility of witnesses and, in doing so, specifically discussed the issue of Morris’s 

credibility: 

 [Defense counsel]: Credibility of witnesses. For you to find that 

the City acting through the final decision-maker who was Layne Morris 

terminated her because of a free speech retaliation motive, you have to 
18 

find that Kelly Davis was lying, that Shirlayne George was lying, and 

that most importantly that Layne Morris is lying to you. Layne Morris is 

not a man who would lie. Look at his character. He has been a public 

servant. He has served this country and the citizens of West Valley City 

his entire life. You don’t become a First Class Sergeant in the Green 

Berets unless you are a leader and a man of integrity. There is a movie 

out called 12 Strong. It’s about one group of the first special forces 

responders that was sent to Afghanistan right after 9-11. 

 [Bird’s counsel]: Your Honor, I’m going to object to improper 

vouching about the – 

 THE COURT: You may proceed. 

 [Defense counsel]: Thank you, Your Honor. Kelly Davis – I’m 

sorry, I got off here. Layne Morris was one of the first responders in the 

Green Berets to go out there as a special forces man to go to 

Afghanistan. Now, he is not as tall, doesn’t have as much hair, and he 

is not as handsome as Chris Hemsworth who stars in that movie, but 

Layne Morris is the real deal. Did you see how emotional he got when I 

asked him about his oath to defend the Constitution? He knows by 

firsthand what it is to live and fight against a country, a leadership, a 

government, that doesn’t have these constitutional rights. The Taliban. 

And he put his life on the line doing that. But now you’re asked to find 

that he would violate Karen Bird’s Constitutional rights and he would 

lie in a United States Courtroom about it. That is not what this case -- 

that is not why she was terminated. 

Aplt. App. at 1475–76. 

 In her motion for new trial, Bird argued that defense counsel acted improperly 

by “rel[ying] on Morris’ irrelevant military experiences in closing to suggest that 

Morris would not lie (and in doing so, improperly vouched for Morris’ credibility),” 

and “falsely suggest[ing] that Morris was the subject of a new movie, and that his 

character was being played by a famous actor.” Id. at 118. 

 The district court analyzed defense counsel’s arguments at length and 

ultimately rejected Bird’s motion. In doing so, the district court agreed that certain 
19 

of the arguments made by defense counsel were improper and, in some instances, 

constituted improper vouching or bolstering. But, after considering the three 

Whittenburg factors, the district court concluded that a new trial was not required. In 

particular, the district court noted that: (1) the improper remarks by defense counsel 

“were very brief, lasting less than two minutes during an almost hour-long closing 

argument,” id. at 172; (2) it “instructed jurors both before and after trial that 

arguments of counsel [we]re not evidence” and “also gave copies of the final 

instructions to the jurors, allowing them to follow along while [it] read the 

instructions, and to take them into the jury room,” id. at 175; and (3) “the verdict 

itself indicate[d] that the jury did not find . . . Morris fully, if at all, credible,” id. at 

176, and “Bird’s counsel had an opportunity to address—and did in fact address—the 

remarks that . . . Defendants’ counsel made concerning . . . Morris’s credibility 

during her rebuttal argument,” id. at 178. 

 In her appellate brief, Bird argues that all of the Whittenburg factors weigh in 

favor of a new trial. To begin with, Bird argues that defense counsel’s remarks were 

not minor aberrations nor were they made in passing. Aplt. Br. at 35. In support of 

this argument, she argues that the “improper evidence . . . was introduced at length” 

during defense counsel’s cross-examination of Morris. Id. But that is both incorrect 

and conflates the evidence itself with defense counsel’s closing remarks. The 

evidence itself, although irrelevant, was relatively short when compared to the 

overall length of Morris’s testimony on cross-examination. As for defense counsel’s 

improper remarks during his closing argument, the district court found, and Bird does 
20 

not dispute, that they “were very brief, lasting less than two minutes during an almost 

hour-long closing argument.” Aplt. App. at 172. Thus, we agree with the district 

court that this factor “weighs against the extreme remedy of a new trial.” Id. at 174. 

 As for the second Whittenburg factor, Bird concedes that the district court 

specifically instructed the jury that “attorney argument is not evidence,” but she 

argues that “the court did not specifically address the evidence or conduct at issue.” 

Aplt. Br. at 36. Bird also argues that because the district court overruled her 

objections to defense counsel’s questioning of Morris regarding his military history, 

the jury could have “reasonably believe[d] that . . . the fact that . . . Morris was 

wounded in war was relevant to their decision.” Id. These arguments, however, are 

not persuasive. As the district court noted, it instructed the jury, both before and 

after the evidence was presented, that attorney arguments should not be considered as 

evidence. The longstanding presumption in federal court is “that juries follow the 

instructions given to them notwithstanding what has been said in court,” and there is 

nothing unique about the case at hand that would suggest the jury did not do so. 

Burke, 935 F.3d at 1033 (quotations omitted). Although we indicated in Whittenburg

that more specific instructions might be necessary if the offending remarks are 

extensive and the district court overruled a contemporaneous objection, in this case 

the remarks, as discussed above, were a very small part of defense counsel’s closing 

arguments. 561 F.3d at 1132. Thus, we agree with the district court that its general 

instructions, combined with the brevity of the arguably improper remarks, helped 
21 

mitigate any prejudicial effect those comments may have had. As a result, this factor 

weighs against the grant of a new trial. 

 Lastly, Bird argues, with respect to the third Whittenburg factor, that “it is 

important that the person whose credibility was improperly bolstered and vouched for 

was the sole decision-maker from” the City and, “[a]s such, his credibility was of the 

utmost importance, and no one else’s could have been determinative of the City’s 

liability.” Aplt. Br. at 38. Bird further argues that “[o]nly . . . Morris can say for 

sure” why he terminated her, “so his credibility and integrity is paramount,” and 

“[t]his is what makes Defendants’ improper evidence and arguments to bolster his 

credibility so damaging.” Id. at 38–39. 

 As the district court noted, however, the jury chose not to believe all of 

Morris’s testimony. Although Morris denied at trial that the leaking of information 

to the press about the failed euthanasia of the cat played any role in his decision to 

terminate Bird, the jury specifically found on its special verdict form that Bird had 

proven by a preponderance of the evidence that the City’s belief that she leaked 

information to the press regarding the failed euthanasia of the cat was a substantial or 

motivating factor in the decision to terminate her employment. But the jury 

apparently believed other portions of Morris’s testimony because it also found that 

the City had proven by a preponderance of the evidence that it would have terminated 

Bird’s employment in the absence of any belief that she leaked information to the 

press regarding the unsuccessful euthanasia of the cat. On this latter point, Morris 

testified that he had considered terminating Bird’s employment for approximately a 
22 

year, and the testimony of Davis and George bolstered Morris’s testimony on this 

point by confirming that there were numerous issues that justified Bird’s termination. 

Thus, we agree with the district court’s conclusion that “any arguably improper 

attempts to bolster or vouch for [Morris’s] credibility did not work, as the jury 

expressly disagreed with . . . Morris’s statements about his motive,” and the jury did 

not allow argument to drive its factual determinations concerning . . . Morris’s 

credibility.” Aplt. App. at 177. 

 For these reasons, we conclude the district court did not err in denying 

Morris’s motion for new trial. 

Verdict form 

 In her second issue on appeal, Bird argues that the language used by the 

district court in the verdict form was erroneous because it asked the jury, in part, 

whether Davis ordered “a mass execution at the [Shelter] in October 2011.” Id. at 

111. Notably, Bird concedes that this alleged error does not warrant a new trial. 

Aplt. Br. at 44. Instead, she states that “she wishes to avoid the same error if this 

Court orders a new trial,” and she “therefore seeks a decision from this Court as to 

the correctness of the verdict form.” Id. Because we have concluded that Bird is not 

entitled to a new trial, we need not address the merits of Bird’s arguments regarding 

the verdict form.1

1

 We likewise find it unnecessary to address the three issues raised by 

defendants in their appellate response brief. 
23 

IV 

 The judgment of the district court is AFFIRMED. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge