UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ KAREN BIRD, an individual, Plaintiff - Appellant,

v. WEST VALLEY CITY, a political subdivision of the St ate of Utah; KELLY DAVIS, in his official and individual capacities, Defendan t s - 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 20 01 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 actio n 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 bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. Itmay be cited, however, for its persuasive value consiste nt 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 Court2 about certain events that tran spired at the Shelte r. 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 pur suant to 28 U.S.C. § 1291, we affirm.
I The following facts were established at th e trial in this case. In 2001, Bird, a resident of Salt Lake County, Utah, gradua ted 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 po lice officer. In 2002, Davis promoted Bird to the pos ition of Shelter manager. At that time, Davis had no concerns about Bird or he r performance, and he perceived their relationship to be very good. Bird, for he r part, described Davi s’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 Oper ations 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 involve d in a serious car accident. Due to injuries sustained as a resu lt of the accident, Bird was on leave from work for several months. During that time, Davis direc tly managed the She lter’s operations and changed some of the existing procedures.3 The relationship between Bird and Da vis began to deteriorate after Bird returned to work. One component in th e 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, cons equently, generally discouraged employees from using it. Davis, in contrast, genera lly 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 expresse d general displeasure with his leadership of the Sh elter. Unbeknownst to Morris, Bird recorded all of her meetings with Morris, as we ll 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, Morri s 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 diffi culties 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 ha d 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 disciplin ary hearing for Bird. Davis asked for a few days to think about that option; after doing so, Da vis said he would lik e to wait. Bird, however, continued to complain to Morris a bout Davis. By the end of 2010, Morris talked to Davis about the possibility of te rminating Bird’s employment. Davis again told Morris that he did not want to do that. Davis did, however, document in writi ng his dissatisfaction with Bird’s performance. In December 2010, Davis ga ve Bird a written performance review in which he noted, in part, that Bird “h a[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 crit icism as well as sh e could,” and “had difficulty either understanding direction given or chooses not to follow the direction given” in areas such as “cleaning protoc ol, euthanasia policy, personnel evaluation, [and] volunteer program.” Id. at 713–14. Shortly ther eafter, Davis provided Bird with a Memorandum of Understanding that outlined the various ways in which he believed she was undermining his authority a nd resisting his desired direction for the Shelter. On October 13, 2011, an incident o ccurred at the Shelte r that resulted in negative publicity for the She lter. Bird and another employee or volunteer had just finished euthanizing a large dog and were moving the dog’s body to a dumpster when5 they heard sounds coming from inside th e dumpster. Bird and the other person opened a bag that was in the dumpster a nd discovered a cat that was alive and covered in vomit and feces. Bird and th e other person placed the cat in a kennel inside the Shelter. Bird le arned that the Shelter’s staff had attempted to euthanize the cat, after deeming it unadoptable, but had not realized that the pr ocess 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 pr oposal. Bird also advised Mo rris 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 of ficials, including Morris, began receiving inquir ies about the incident. On October 26, 2011, Davis conducted a meeting at the Sh elter with Bird, other Shelter employees, and volunteers. Prior to the m eeting, Bird had allegedly been attempting to persuade City management to transfor m the Shelter into a no-kill facility. During the meeting, Davis told Bi rd 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 Shelte r volunteer named Michel le Johnson, who was close with Bird, made a Facebook post th at said “West Valley [Shelter] is so overflowing right now they need help! Th e 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 C ity 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 me dia. Davis stated that he wanted to “investigate and eradi cate” this problem. Id. at 620. On November 1, 2011, Morris met w ith Bird and Johnson, the volunteer who made the Facebook post. During the first part of the meeting, Mo rris 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 th e 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 talk ed with the city manager and the assistant city manager about the situation. On November 2, 2011, Bird filed a written complaint ag ainst Davis with Shirlayne George, the City’s human resour ce manager. George met with Bird the following day to discuss the co mplaint. Bird stated that her relationship with Davis had deteriorated over the prev ious 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 thatit 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 had7 determined that Bird had not been placed in a hostile environmen t by Davis and that, instead, Davis was trying to help Bird. Ac cording to George, bo th Bird and Davis had gruff personalities and relatively poor communicati on skills, but she believed that Davis was attempting to work on hi s 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 mana ger, and George. During that meeting, Isaac asked Bird to resign. Bird told Isaac that she loved her job and woul d not resign. Isaac placed Bird on administrative leave pending the outc ome of the disciplinary proceedings. On November 14, 2011, George conducte d an investigation into all of the supervisory staff members employed at th e Shelter, including Bird and Davis. According to George, Bird r eceived the most co mplaints from employees during the investigation. Specifically, Shelter employ ees complained that Bird was “aggressive and demeaning to her staff,” was “hard to talk to because sh e [wa]s always so defensive,” and was “never happy,” whic h 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 Ge orge’s investigation, sent a letter to Bird on November 16, 2011, noting that “the Department ha[d] completed an investigation of various apparent failu res on [her] part to perform [her] responsibilities as the West Valley City Animal Shelter Manager.” Id. at 639. The letter further stated that, ba sed upon the investigation, it a ppeared that Bird had been8 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 w eek later, on November 29, 2011, Morris terminated Bird’s employm ent with the City. Morri s 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 so lely on Bird’s actions and reactions to her workplace environment. Ge orge 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 ina ppropriately disciplined employees in front of others. Lastly, George noted that almost everyone employed at the Shelter complained about Bird’s constant ne gative attitude, and that Bird was confrontational, defensive, and discourteous to Davis. Bird unsuccessfully appeal ed to the assistant city manager, and then to the Employee Appeals Board. After exhausting her administrative app eals, Bird filed a Charge of Discrimination with the E qual Employment Opportunity Commission (EEOC) alleging the City discriminated agains t 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 fe deral and state law in cluding, as relevant here, a claim under 42 U.S.C. § 1983 for vi olation of her First Amendment rights. More specifically, Bird allege d in that claim that the C ity and Davis had retaliated against her because they “believed that [s he] had raised with the media concerns about the effectiveness and cruelty of the ‘g as chamber’ the City uses to euthanize animals.” Id. at 31–32. The district court initially granted su mmary 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 pr oceeded to trial in March of 2018. At the conclusion of the eviden ce, the jury returned a verdic t in favor of defendants. Bird subsequently filed a motion for ne w trial. In that motion, Bird argued that defense counsel enga ged 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 thatMorris would not lie; and10 (3) falsely suggesting that Morris was th e subject of a new movie and that his character was being played by a famous acto r. The district court denied Bird’s motion for new trial. Bird filed a timely notice of appeal.
III Bird asserts two general issu es 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 wa s erroneous. For the reasons discussed below, we reje ct 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 res ponsible for her terminati on, and defense counsel’s purported misuse of that testimony during closing argum ents. According to Bird, “[t]he district court improperly allowed Defendants to present extensive evidence of the military experience of . . . Morris . . . .” Ap lt. Br. at 24. Bi rd concedes that “some background evidence is appropriate, ” but she argues that “the evidence was clearly being used in this case to ar ouse the jury’s passion and sympathy.” Id. She further argues that “[t]he court then impr operly allowed Defendants to rely on that evidence in closing arguments to vouch fo r . . . 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 paramo unt to that of all other witnesses.” Id. “Therefore,” she argues, “the unmitigated errors in allowing the11 introduction and use of the prejudicial evidence deprived [her] of a fa ir trial, and this Court should remand for a new trial.” Id. a) Standards of review We review for abuse of discretion a di strict 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 evid entiary rulings for abuse of discretion, considering the reco rd as a whole.” United States v. Cristerna-Gonzalez , 962 F.3d 1253, 1266 (10th Cir. 2020) (quotatio ns omitted). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probabl e 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 argu ments, because Bird objected to those arguments, “the district court’s decision to overrule [her] objection and permit the argument will not be disturbed abse nt a clear abuse of discretion.” Whittenburg v.12 Werner Enters. Inc. , 561 F.3d 1122, 1127 (10th Cir. 20 09). In applying that standard, “we are mindful that ‘[t]he trial judge is in th e best position to determine’ the prejudicial effect of improper argume nts, 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 ne ed 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 tr ial 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 appo rtionment of liability and the size of the damage award. Id. at 1131–33. “In general, these three factor s 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 e nough to undermine our faith that the jury’s verdic t was fairly obtained.” Id. b) Morris’s testimony about his background Bird presented Morris as a witnes s during her case-in-chief. On cross-examination, defense counsel began by asking Morris about his background. This included questions about his extensive military serv ice. This portion of the cross-examination proceeded as follows: Q. Let me go back and get a l ittle background on you, Mr. Morris. Did you have pos t 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 cartogr aphy and attended the University of Utah Master of Public Administration Program. Q. Cartography? A. Making maps. Q. Okay, I wasn't su re. 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 di d you serve in the Army? A. Until I was medically retired in 2000 -- I think it was 2004. Q. Okay. Did you do any speciali zed training in the U.S. Army? A. I did. I attended the John F. Kennedy School of Special Warfare at Fort Bragg North Caro lina to enlist in Special Forces. Q. Did you obtain a Speci al 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 we nt 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 w ould be deny free movement to Taliban forces and overthrow the count ry 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 governme nt were you trying to overthrow? A. The Taliban government who we re 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 s howed 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 a nd I tell them I didn’t get Osama Bin Laden, but I did spend th e 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 blinde d me and ended up going back and damaging my inner ear. So I’m a litt le bit off balance and blind in the right eye. Q. Now, who were you trying to in terdict 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 internati onal 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 wo unded during a fire fight where -- where we were after a guy that th e finance guy and I -- I was shooting my -- I carry the 203 grenade la uncher 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 shrapne l hit me -- hit me in the face. Q. (By [defense counsel]) You recei ved 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 m odest 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 r ecover from that grenade, taking that grenade fragme nt in the face? A. You know, the physical recovery is – was relatively short. You know, you're just missing an eye a nd 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 C ity when I’d gotten out of the Army. It would have been 1995. Q. Okay. But you still continue d 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 defe nse counsel engaged in misconduct by presenting irrelevant evid ence of Morris’s military background. The district court denied Bird’s motion an d 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 eviden ce. Such evidence helped the jury to get to know the witness and assess his credibility. No tably, Ms. Bird does not cite any cases to the contra ry, simply arguing without support that evidence concerning Mr. Morris’s military experience is irrelevant, and West Valley Defendants’ counse l should not have introduced it.16 Accordingly, the Court finds West Valley Defendants’ counsel did not improperly introduce evidence c oncerning 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 ar gues, defense counsel, “[i]n questioning . . . Morris, . . . went far be yond what could be considered reasonable background information.” Id. Bird argues that her counsel “objected at the point that Defendants’ counsel began as king about information that was clearly intended to garner sympathy for . . . Mo rris,” and specifically “obj ected to counsel’s question about how . . . Morris got wo unded in Afghanistan.” Id. Bird argues that the questions posed by defense c ounsel after her counsel’s obj ection was overruled were asked by defense counsel for the sole purpo se 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 re ceived awards for his service has no bearing on his reasons fo r terminating [her].” Id. We agree with Bird that certain of the questions posed by defense counsel to Morris appear to have been designed to bolst er Morris’s standing in the eyes of the jury, rather than to elicit information relevant to the issues in the cas e, or even to Morris’s background or credibility. In par ticular, the questions posed to Morris about his searches for Bin Laden and his associ ates, his appearance on 60 Minutes, and his participation in the Rose Bowl Parade, fall into this category. The answers to those17 questions were clearly irreleva nt to the issues that the ju ry 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 Bi rd and, although he met withBird several times at her request, he relied in large part on information provided by Bird’s dir ect 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 coopera tive with her employees, and was ultimately unable to work with Davis. Moreover, the evidence presente d at trial established that Bird was afforded three levels of appeals w ithin 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 ne w trial on the basis of the admission of this testimony. c) Defense counsel’s closing arguments Near the end of his closing argu ment, defense counsel touched on the credibility of witnesses and, in doing so, specifically di scussed the issue of Morris’s credibility: [Defense counsel]: Cr edibility 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 retaliati on motive, you have to18 find that Kelly Davis was lying, that Shirlayne George was lying, and that most importantly that Layne Mo rris is lying to you. Layne Morris is not a man who would lie. Look at his character. He ha s been a public servant. He has served this country and the citizen s 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 ma n of integrity. There is a movie out called 12 Strong. It’s about one group of th e 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 wa s 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 Hemswo rth 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 defe nd the Constitution? He knows by firsthand what it is to live and fightagainst a country , a leadership, a government, that doesn’t have thes e 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 C ourtroom about it. That is not what this case -- that is not why sh e was terminated. Aplt. App. at 1475–76. In her motion for new trial, Bird argue d that defense couns el acted improperly by “rel[ying] on Morris’ irrele vant military experiences in closing to suggest that Morris would not lie (and in doing so, impr operly vouched for Morris’ credibility),” and “falsely suggest[ing] that Morris was th e subject of a new movie, and that his character was being played by a famous actor.” Id. at 118. The district court analyzed defens e counsel’s arguments at length and ultimately rejected Bird’s moti on. In doing so, the district court agreed that certain19 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 c ourt concluded that a new tr ial 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 eviden ce” and “also gave c opies of the final instructions to the jurors , allowing them to follow al ong while [it] read the instructions, and to take th em into the jury room,” id. at 175; and (3) “the verdict itself indicate[d] that the ju ry did not find . . . Morris fu lly, if at all, credible,” id. at 176, and “Bird’s counsel had an opportunity to address—a nd did in fact address—the remarks that . . . Defendant s’ counsel made concerning . . . Morris’s credibility during her rebuttal argument,” id. at 178. In her appellate brief, Bi rd argues that all of the Whittenburg factors weigh in favor of a new trial. To be gin with, Bird argues that de fense 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 cros s-examination of Morris. Id. But that is both incorrect and conflates the evidence it self with defense counsel’s closing remarks. The evidence itself, although irre levant, was relatively shor t when compared to the overall length of Morris’s tes timony on cross-examination. As for defense counsel’s improper remarks during his closing argument, the district court found, and Bird does20 not dispute, that they “were very brief, la sting less than two minu tes during an almost hour-long closing argument.” Aplt. App. at 172. Thus, we agree with the district court that this factor “weighs agains t 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 argumen t is not evidence,” but she argues that “the court did not specifically addre ss the evidence or c onduct at issue.” Aplt. Br. at 36. Bird also argues that because the district court overruled her objections to defense counsel’s questioning of Morris regard ing his military history, the jury could have “reasonably believe[d] th at . . . the fact that . . . Morris was wounded in war was releva nt to their decision.” Id. These arguments, however, are not persuasive. As the dist rict court noted, it instructed the jury, both before and after the evidence was pr esented, that attorn ey arguments should not be considered as evidence. The longstanding presumption in fe deral court is “that juries follow the instructions given to them not withstanding what has been sa id 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 omitte d). 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 objec tion, in this case the remarks, as discussed a bove, 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, helped21 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, w ith respect to the third Whittenburg factor, that “it is important that the person whose credibility was improperly bolst ered and vouched for was the sole decision-maker from” the City a nd, “[a]s such, his cr edibility was of the utmost importance, and no one else’s could have been de terminative 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 cr edibility and integrity is paramount,” and “[t]his is what makes Defe ndants’ 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 ju ry specifically found on its special verdict form that Bird had proven by a preponderance of th e evidence that the City’s belief that she leaked information to the press regarding the failed euthan asia of the cat was a substantial or motivating factor in the decision to te rminate her employment. But the jury apparently believed other portions of Morri s’s testimony because it also found that the City had proven by a preponderance of th e evidence that it would have terminated Bird’s employment in the absence of any be lief that she leaked information to the press regarding the unsuccessful euthanasia of the cat. On this latter point, Morris testified that he had considered termina ting Bird’s employment for approximately a22 year, and the testimony of Davis and Geor ge bolstered Morris’s testimony on this point by confirming that there we re numerous issues that just ified 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 hi s motive,” and the jury did not allow argument to drive its factual de terminations concerning . . . Morris’s credibility.” Aplt. App. at 177. For these reasons, we conclude the di strict court did noterr 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 verdic t 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 “therefo re seeks a decision fro m this Court as to the correctness of th e verdict form.” Id. Because we have conc luded that Bird is not entitled to a new trial, we n eed 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 appe llate response brief.23 IV The judgment of the dist rict court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge