* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 4 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DEBORAH BELINDA JACKSON,

Plaintiff - Appellant,

v. UNITED STATES POSTAL SERVICE, POSTMASTER GENERAL, JOHN E. POTTER,

Defendant - Appellee. No. 01-3390 (D.C. No. 99-CV-2257-JWL) (D. Kansas) (162 F. Supp. 2d 1246)

ORDER AND JUDGMENT *

Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Deborah Belinda Jackson, appearing pro se , appeals from a jury verdict in favor of the defendant, the United State s Postal Service (USPS), on her complaint alleging violations of Title VII of the C ivil Rights Act of 1964. Plaintiff also appeals the district court’s grant o f partial summary judgment in favor of defendant. We affirm. The parties are familiar with the underlying facts, which are accurately and thoroughly set forth in the district court’s order granting partial summary judgment in favor of USPS. See Jackson v. United States Postal Serv. , 162 F. Supp. 2d 1246 (D. Kan. 2001). Thus, we will not restate them her e. We note only that the USPS terminated plaintiff and claimed it did so solely b ecause she had been convicted of shoplifting. Plaintiff alleged her termination was motivated by her race, gender, and the fact that she had recently filed a complain t with the Equal Employment Opportunity Office (EEO) of the USPS. Following a trial, the jury returned a verdict finding that plaintiff had not proven that her termination was motivated by race, gender or retaliation. Plaintiff makes the very general claim that the dis trict court erred in granting partial summary judgment to the USPS on he r sexual harassment, discriminatory failure-to-promote, and retaliatory failure-to-promote claims. She has not articulated any reason why she believes the summary judgment to have been in error, however. Plaintiff’s perfuncto ry claim of error fails to frame-3-

or develop any issue and is, therefore, insufficient to invoke appellate review. Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994). Moreove r, we have conducted a de novo review of the summary judgment proceedings and, fo r substantially the reasons set forth in the districtcourt’s well-analyzed order, agree that the grant of partial summary judgment in favor of USPS was correct. See Jackson , 162 F. Supp. 2d at 1252-62. Plaintiff also challenges the jury’s verdict in fav or of USPS on her discriminatory discharge and retaliatory discharge claims as not supported by the evidence. We review a jury verdict by determining whether the record, viewed in a light most favorable to the prevailing party, “co ntains substantial evidence to support the jury’s decision.” Knowlton v. Teltrust Phones, Inc. , 189 F.3d 1177, 1183 (10th Cir. 1999). “Because the jury ‘has the e xclusive function of appraising credibility, determining the weight to be given to the testimony, drawing inferences from the facts established, resolving co nflicts in the evidence, and reaching ultimate conclusions of fact,’ this standard of review is quite deferential to the jury’s verdict.” Id . at 1183-84 (quoting Kitchens v. Bryan County Nat’l Bank , 825 F.2d 248, 251 (10th Cir. 1987)). Because plaintiff failed to move for a new trial orfor judgment as a matter of law at the end of all the evidence, she has waiv ed appellate review of the sufficiency of the evidence. See Richards v. City of Topeka , 173 F.3d 1247, 1253-4-

n.4 (10th Cir. 1999). Even had the claim been prop erly preserved, however, we find the evidence sufficient to support the jury’s findings. Plaintiff sought to prove at trial that USPS’s claim that it terminatedher because of her shoplifting conviction was unworthy of belief because it did no t terminate a white male employee, James Butler, who plead nolo contendre to a charge of disorderly conduct. USPS presented evidence, however, that itconcluded it lacked sufficient proof of wrongdoing to terminate Mr. Butler because his nolo contendre plea could not be used against him as evidence of guilt of the conduct allegedly underlying his conviction. Thus, there was evidenc e from which a jury could conclude that the two employees were not similarly situated and that USPS’s termination of plaintiff was not motivated by racia l or gender discrimination or in retaliation for her EEO complaint. Plaintiff also complains another white female stole from USPS several times, resigned and was lat er reinstated. No evidence relating to this individual was presented to the ju ry, however. Plaintiff claims the district court erred in exclud ing the evidence of a fellow employee, Ms. Cruz. The district court excluded a portion of her proposed testimony as irrelevant. See Fed. R. Evid. 402. Ms. Cruz’s proffered testimony was that she filed a grievance and later was moved from an office job to a mail sorting job. Ms. Cruz had never filed any grievanc e or claim alleging that the change in her job was retaliatory or otherwise viol ated Title VII and plaintiff-5-

conceded she was not alleging that the change in Ms . Cruz’s job responsibilities was part of a pattern and practice of discriminatio n. Further, there was no allegation that this job change was adverse or impr oper, no indication when the job change occurred relative to Ms. Cruz’s grievanc e, and no indication of whether the action occurred in a similar time frame as plai ntiff’s allegations. The district court did not abuse its discretion in refusing to a dmit this evidence. Plaintiff makes several conclusory claims: that th e jury heard information it should not have; that the trial judge appeared to e xpress an opinion about the case; and that jury instruction number 18 was not proper. She gives no explanation of what evidence she believes was improper, what the trial judge said that she objects to, or what she thinks was improper about the jury instruction, which appears to be a correct statement of the law. These allegations are simply too vague to review. See Murrell , 43 F.3d at 1389 n.2. Moreover, plaintiff waived her right to claim error in the instruction because she failed to rais e any objection to this instruction at trial. See Wheeler v. John Deere Co. , 862 F.2d 1404, 1412 n.4 (10th Cir. 1988). The judgment of the United States District Court fo r the District of Kansas is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court
Wade Brorby Senior Circuit Judge