United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2671

___________________________

Bonnie Kelly

lllllllllllllllllllll Plaintiff - Appellant

v.

Omaha Housing Authority, also known as Housing Authority of the City of

Omaha; Stanley Timm, Executive Director, in his individual and official capacity;

Does 1-50

lllllllllllllllllllll Defendants - Appellees

------------------------------

Bonnie Kelly

lllllllllllllllllllll Plaintiff - Appellant

v.

Housing Authority of the City of Omaha; Stanley Timm, Executive Director, in his

individual and official capacity; Does 1-50

lllllllllllllllllllll Defendants - Appellees

____________

 Appeal from United States District Court 

for the District of Nebraska - Omaha

____________

 Submitted: May 15, 2013

 Filed: July 22, 2013

____________
Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

____________

SHEPHERD, Circuit Judge.

This case concerns whether an appellant’s appeal must be dismissed for failure

to order the necessary portions of a trial transcript.

After Bonnie Kelly was fired from the Omaha Housing Authority, she brought

discrimination lawsuits against the organization and its executive director

(collectively, “OHA”). The district court1

 consolidated the two lawsuits. Kelly’s case

proceeded to a jury trial on (1) race and sex discrimination claims and (2) a First

Amendment retaliation claim. At the close of Kelly’s evidence, OHA moved for

judgment as a matter of law (“JAML”) on all claims under Rule 50 of the Federal

Rules of Civil Procedure. The district court denied the motion on Kelly’s race and sex

claims. The district court took OHA’s Rule 50 motion on the First Amendment

retaliation claim under advisement. After all evidence was presented, OHA renewed

its Rule 50 motion, and the district court granted JAML on Kelly’s First Amendment

retaliation claim. The jury found in favor of OHA, rejecting Kelly’s sex- and racebased claims. Kelly then filed a post-trial motion seeking a new trial and

reconsideration of the JAML. The district court denied her motion. Kelly now

appeals only the district court’s grant of JAML on her retaliation claim.

OHA filed a motion to dismiss this appeal based upon Rule 10(b) of the Federal

Rules of Appellate Procedure, asserting that Kelly ordered an insufficient portion of

the trial transcript and that as a result we cannot properly review the district court’s

grant of JAML. We issued an order stating that we would consider OHA’s motion to

dismiss with the case itself.

1

The Honorable Joseph F. Bataillon, United State District Judge for the District

of Nebraska. 

-2-
Pursuant to the Federal Rules of Appellate Procedure, it is the appellant’s duty

to order the trial transcript. Fed. R. App. P. 10(b). “The transcript, or part of it, is

necessary where the appellant intends to urge on appeal that a finding or conclusion

by the trial court is unsupported by the evidence or is contrary to the evidence.” 

Billings v. Chi. Rock Island & Pac. R.R. Co., 570 F.2d 235, 237 n.6 (8th Cir. 1978)

(per curiam); see also Fed. R. App. P. 10(b)(2). “It is important, if not essential, to the

reviewing court that an appellant bring before this court all parts of the proceedings

below necessary for a determination of the validity of any claimed error.” Schmid v.

United Bhd. of Carpenters, 827 F.2d 384, 386 (8th Cir. 1987) (per curiam) (internal

citation and quotation marks omitted); see also Sylla-Sawdon v. Uniroyal Goodrich

Tire Co., 47 F.3d 277, 281 (8th Cir. 1995) (“[T]he lack of a transcript precludes us

from conducting any meaningful review of these issues.”).

Kelly originally only ordered the portion of the trial transcript that contained

her testimony and later filed a certificate with the district court that no additional

transcript would be ordered. (Certificate of No Tr. Order, ECF 161.) Thus, the

remaining portions of the transcript were not transcribed and are not available on the

Case Management/Electronic Case Files System. But according to the district court’s

docket, Kelly presented four additional witnesses. (Witness List, ECF No. 132.) She

contends that her testimony alone is sufficient for us to review the district court’s

grant of JAML. 

We review de novo an order granting JAML, considering “all of the evidence

in the record.” Tatum v. City of Berkeley, 408 F.3d 543, 549 (8th Cir. 2005). For

Kelly to sustain her First Amendment retaliation claim, she must demonstrate that she

suffered an adverse employment action that was causally connected to her protected

speech. See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 985-86 (8th Cir. 2011). 

Reviewing whether an adverse employment action occurred, a court must distinguish

“petty slights or minor annoyances,” see Clegg v. Ark. Dep’t of Corr., 496 F.3d 922,

929 (8th Cir. 2007) (internal quotation marks omitted), from “a material change” in

-3-
the conditions or terms of employment, see Duffy v. McPhillips, 276 F.3d 988, 992

(8th Cir. 2002) (internal quotation marks omitted). 

Although Kelly’s testimony was important and relevant, it is only a small

portion of the testimony and evidence presented during her four-day trial. Without

the remaining relevant portions of the trial transcript, we cannot meaningfully review

the district court’s findings, engage in the intense factual inquiry required to analyze

Kelly’s retaliation claim, see Clegg 496 F.3d at 929; Duffy, 276 F.3d at 992, review

the record de novo, see Tatum, 408 F.3d at 549, or consider “all of the evidence in the

record,” see id. Therefore, because we cannot properly review the issues in this case

based on the record Kelly provided, we do not address the merits of Kelly’s First

Amendment retaliation claim. See Schmid, 827 F.2d at 386.

Accordingly, we grant OHA’s motion to dismiss Kelly’s appeal.

______________________________

-4-