UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

TED ADAMS, Plaintiff

– Appellant/ Cross
- Appellee,

v. LARAMIE COUNTY SCHOOL DISTRICT NUMBER ONE; BOARD OF TRUSTEES OF LARAMIE COUNTY SCHOOL DISTRICT NUMBER ONE, Defendants

– Appellees/ Cross
- Appellants. Nos. 12-8057 & 12-8058 (D.C. No. 2:11-CV-00323-ABJ) (D. Wyo.)

ORDER AND JUDGMENT *

Before LUCERO , ANDERSON , and BALDOCK , Circuit Judges.
Ted Adams sued his former employer, Laramie County School District No. 1 (“LCSD”) and its Board of Tr ustees, alleging they violated his due process rights and breached his employment contract . A jury found in favor of defendants. Exercising

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive valu e consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 20, 2013
Elisabeth A. Shumaker Clerk of Court-2- jurisdiction under 28 U.S.C. § 1291, we af firm and dismiss as moot the defendants’ cross-appeal.
I We view the record in the light most favorable to defendant s as the prevailing parties. See Therrien v. Target Corp., 617 F.3d 1242, 1249 (10th Cir. 2010). In 2007, Adams was hired as LCSD ’s superintendent. By 20 09, several trustees were concerned with his performance, particular ly his ability to manage, evaluate, and supervise staff; disseminate information on student achi evement and attendance; and develop a data warehouse. Throughout th e fall of 2009, the board discussed these concerns with Adams. By December of that year, several truste es had completed performance evaluations indicating that Adams was operating below expected competency levels in mu ltiple areas of review. Adams appraised his own performance and arrived at a similar conclusion. Adams’ employment contract permitted termination fo r cause, and at least two of the trustees thought he “need[ed] to be gone.” Thes e trustees expressed their opinions at a closed board meeting on Ja nuary 4, 2010, duri ng which the board’s chairperson presented a compilation of Adams’ performance evaluations. The compilation included individual scores from e ach trustee, the aver age scores, and the trustees’ written comments. Adams’ averag e scores were below competent in twenty of fifty-seven areas. During the meeting, four of the seve n trustees indicated they no-3- longer supported him. Given these develo pments, the board decided to meet with LCSD’s attorney, David Evans, at a closed executive session to be held on January 9. At the January 9 executive session, the tr ustees discussed their concerns with Evans and decided they should notify Adams that they were considering terminating his contract. The board met with Adams on January 11, and pr ovided him a summary of his performance evaluations and informed him that he had lost the support of the majority of the board. After several trus tees explained their concerns, Adams was asked if he had any response. He did not request any furthe r explanation. Evans then offered suggestions as to how Adams mi ght leave his position, including leaving immediately or remaining until June 30, 20 10. Adams was given until January 15 to consider his options. He agreed to resign effective June 30, 2010. Adams subsequently initiated this suit , alleging under 42 U. S.C. § 1983 that defendants terminated him without due pr ocess and breached hi s contract by firing him a year before his cont ract expired. Defendants moved for summary judgment, but the district court denied the motion. The case proceed ed to trial, and a jury returned a verdict in favor of defendants, finding they did not breach the contract because they had cause to s eek Adams’ resignation. The jury also found that Adams had received due process because he was gi ven notice, an adequate explanation why defendants wanted him to leave, and a fair opportunity to respond. In appeal No. 12-8057, Adams challenges two jury instructions and an order in limine, which he says contributed to the verdict against him. In appeal-4- No. 12-8058, defendants cross-appeal th e district court’s denial of summary judgment, though they concede thei r appeal is moot if we affirm the jury’s verdict.
II “We review a district court’s decision to give a particular jury instruction for abuse of discretion, but we re view de novo legal objections to the jury instructions.” Ryan Dev. Co., L.C. v. Ind. Lumbermens Mut. Ins. Co., 711 F.3d 1165, 1171 (10th Cir. 2013) (quotation omitted). Adams first contests Instruction No. 28, which delineated the elements of his due process claim. He asserts that the inst ruction failed to info rm the jury that he was entitled to a “full-blown pre-termina tion hearing.” We reject this argument because the district court properly conclude d that Adams was not entitled to a such a hearing. Due process requires “noti ce and an opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (19 85). It is well es tablished that a pretermination hearing “need not be elaborate.” Id. at 545. Although “the formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the natu re of the subsequent proceed ings . . . [i]n general, something less than a full evidentiary hearing is su fficient prior to adverse administrative action.” Id. (quotation and alteration omit ted). A public employee “is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an oppo rtunity to present his side of the story.” Id. at 546.-5- Comporting with these principles, Instru ction No. 28 told the jury to find in favor of Adams if he proved that: [B]efore Plaintiff’s term ination or forced resigna tion, Plaintiff was not given notice and an adequate explan ation of Defendant s’ reasons for wanting to terminate him; or, if Plaintiff was gi ven . . . notice and an adequate explanation of Defendants’ reasons for wanting to terminate him, Plaintiff was not given su fficient opportunity to respond to Defendants’ charges against him[.] Adams argues he was entitled to a full-b lown pre-termination hearing because a post-termination hearing was not available, but he has wa ived this argument. He never requested a post-termination hearing. And he did not allege in his complaint that he was denied a post-termination h earing. He may not now predicate his argument on the absence of a hearing that he never requested. See Sandoval v. City of Boulder, 388 F.3d 1312, 13 29 (10th Cir. 2004) (invoking waiver doctrine because a post-termination hear ing was not requested). 1 Adams also objects to Instruction No. 23, which provided the legal definition of “cause” for termination. 2 Adams’ contract contained a provision stating “[n]othing in this Agreement shall be deemed to be a waiver or modification of either

1 Adams maintains that he “could not be aware of any post-termination proceedings as there were none .” We fail to see how he could be prevented from alleging that he was denied a post-terminat ion hearing because one was not available to him.
2 Adams’ opening brief also cites Instruction No. 22, bu t his argument is based on the definition of “cause” as stated by Instruction No. 23.-6- party’s right to terminate this Agreement for cause . . . .” Accordingly, the district court instructed the jury that: “[C]ause” to terminate an employee, such as Plaintiff in this case, means that his employer must have had fair and honest reasons for terminating him or forcing him to re sign. These reasons must not have been trivial, arbitrary or capricious , unrelated to the school district’s business needs or goals, or pretextu al. The reasons must have been based on an appropriate review of the employee’s performance. Adams contends this instruc tion incorrectly imports a go od-faith standard into the definition of “cause” that applie s only to implied contracts. He says that because his was an express contract, “cause ” in this sense means his c ontract could be terminated only if he “abandoned the contract, or refu sed or was unable to perform the duties of the superintendent.” We disagree. The instruction tracks the definition of “cause” adopted by the Wyoming Supreme Court in Life Care Center s of America, Inc. v. Dexter, 65 P.3d 385 (Wyo. 2003). In that case, “cause” was defined as “fair and honest reasons, regulated by good faith on the part of the empl oyer, that are not tr ivial, arbitrary or capricious, unrelated to business needs or goa ls, or pretextual.” Id. at 392 (quotation omitted). Dexter, which invol ved a contract implied from the terms of an employee handbook, instructs that th e good-faith standard applies “[i]n addition to . . . the terms of the handbook in dete rmining whether there was caus e for termination.” Id. Adams distinguishes Dexter as involvi ng an implied rather than an express contract, but this distinction is immateri al. The Dexter opinion does not suggest the good-faith standard is inapp licable to an express cont ract. The Wyoming Supreme-7- Court has applied the good-faith standard when the parties assumed an implied contract allowed the employee to be terminat ed only for cause. S ee Sheaffer v. State, 202 P.3d 1030, 1042-43 (Wyo. 2009). We also have applied Wyoming’s good-faith standard when the express terms of an implied contract required cause for termination. See Williams v. Solvay Ch ems. Inc., 385 F. App’x 820, 824 (10th Cir. 2010) (unpublished) (“Wyoming courts require the trier of fact to determine not only whether the contract permitted terminati on for the cause the em ployer specified, but also whether the reason given by the employe r was applied in good faith.”); Miech v. Sheridan Cnty., 109 F. App’x 280, 282 (1 0th Cir. 2004) (unpublished) (“The Wyoming Supreme Court ‘ask[s] the trial c ourt to apply the good faith standard for review of employer firing.’” (quo ting Dexter, 65 P.3d at 392)). We therefore reject Adams’ challenges to the district court’s jury instructions.
III Adams also argues that the district c ourt’s order in limine, which excluded testimony of LCSD employees who were expected to testify favorably about his performance, was in erro r. Before the district court, defendants argued this testimony was irrelevant under Fed. R. Evid. 401 an d that any probative value was outweighed by the danger of confusing the issues under Fed. R. Evid. 403. The district court agreed, reasoning that the proffered test imony was not significantly probative of whether the board reasonably believed that Adams was remiss in his duties. Adams insists the testimony was pr obative to show pretext.-8- We review a district court’ s exclusion of evidence for an abuse of discretion. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 96 5, 968 (10th Cir. 2001). “Our deferential review applies both to a trial court’s threshol d determination of relevance under Rule 401 and to its conclusion under Rule 403 that relevant evidence should nonetheless be excluded due to its tendency to cause jury confusion or unfair prejudice.” Tanberg v. Sholtis, 401 F.3d 1151, 1162 (10t h Cir. 2005). The district court correctly recognized that the dispositive inquiry is not whether Adams was performing his job comp etently, but whether the board believed in good faith that he was not. As the Dexter court explained: [T]he question to be resolved by the fact finder is not, “Did the employee in fact commit the act leading to dismis sal?” Rather, it is, “Was the factual basis on wh ich the employer concluded a dischargeable act had been commit ted reached honestly, after an appropriate investigation and for re asons that are not arbitrary or pretextual?” 65 P.3d at 392 (quotation omitted). While some employees may have thought Adams was a good superintendent, the dispositive issue is whether th e factual basis for Adams’ forced resignation was determined by the board in good faith. And there is evidence of the board’s dissa tisfaction with Adams’ failure or refusal to manage and evaluate staff, the level of information he disseminate d on student achievement and attendance, and his handling of a data warehouse. These c oncerns were reflected in Adams’ evaluations, including his own, all of which indicate that the board sought his resignation in good faith.-9- Adams was entitled to rebut the defe ndants’ showing of good faith with evidence of pretext. See Dexter, 65 P.3d at 392. However, although Adams insists a co-worker’s opinion of a plaintiff’s performan ce is probative of pr etext, his authority is inapposite. He relies on cases in the employment di scrimination context, where such evidence is offered to challenge the factual basi s for an employer’s adverse action. See, e.g., Abuan v. Level 3 Comm c’ns, Inc., 353 F.3d 11 58, 1174 (10th Cir. 2003) (holding that plaintiff was entitled to submit co-workers’ assessment of his work to show employer’s stated factua l basis for adverse action was pretext for discrimination). For purposes of this breach of contract claim, whether Ad ams was competently performing his job is not the relevant issue. See Dexter, 65 P.3d at 392

. (“[T]he question to be resolved . . . is not, ‘Did the employee in fact co mmit the act leading to dismissal?’”). Rather, we are concerned with whet her the board lacked a goodfaith basis for seekin g Adams’ resignation. On this issue, probative evidence of pretext would have indicated that the board dishonestly sought the resignation. And in that regard, Adams submitte d evidence of pretext, but th e jury rejected his theory. Adams sought to bolster his argument with additional evidence in the form of coworker testimony regarding his performance , but we cannot say the district court abused its discretion in concluding the proposed ev idence was not significantly probative of the board’s basis for seeki ng his resignation and posed a risk of misleading the jury.-10- IV The district court’s judgmen t in appeal No. 12-8057 is AFFIRMED . Appeal No. 12-8058 is DISMISSED as moot. Entered for the Court

Carlos F. Lucero Circuit Judge