* This order and judgment is not binding precedent, e xcept under the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

### DEC 18 2003 

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

PATSY COTTMAN,

Plaintiff-Appellant,

v. AURORA PUBLIC SCHOOLS; DAVID HARTENBACH; HAROLD BEEBE; KAREN YABLONSKI-TOLL; VERN MARTIN; SHARI WILKINS; JAMES STAMPER; HELEN PRYOR,

Defendants-Appellees. No. 03-1065 (D.C. No. 99-D-1699 (MJW))

(D. Colo.)

ORDER AND JUDGMENT *

Before O’BRIEN and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination-2-

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. Plaintiff seeks review of the district court’s judg ment, following a jury verdict in favor of defendants, on plaintiff’s clai m of retaliation in connection with her employment and subsequent termination withthe Aurora Public Schools. She also seeks review of the district court’s subse quent denial of her motion for new trial.

Background Plaintiff, an African American, began her teaching career as an elementary school teacher with the Aurora Public Schools (APS) . In 1994 she was selected for a position as an assistant principal at Vaughn Elementary School and worked in that capacity through the 1994-1995 school year. By the fall of 1995 serious conflicts had arisen between plaintiff and her prin cipal, Lisa Spreitzer, a Caucasian female. In January of 1996, largely be cause of the staff’s concern with the leadership at Vaughn, Spreitzer was demote d from her position as principal and plaintiff was laterally transferred t o Crawford Elementary School. In July of 1996, Crawford’s male principal, Vern Martin, rated plaintiff’s performance as satisfactory. In August some Crawfo rd staff members complained about plaintiff’s behavior. This resulted in plaintiff’s placement first on an “action plan” and subsequently on an “improvement p lan” to address her-3-

deficiencies and improve her performance. In Decem ber of 1996 Martin rated her performance as rarely meeting or not meeting standards in five performance areas. He placed her on a “remediation plan,” which plaint iff helped develop and signed in February of 1997. She did not complete the plan , however, because she went on medical leave in March, citing job stress. Plaintiff remained on medical leave approximately s eventeen months. Working with plaintiff’s psychiatrist and attorney, APS in 1998 offered, and plaintiff accepted, an assistant principal position at Side Creek Elementary School. The principal at Side Creek during the 199 8-1999 school year was Helen Pryor, an African American female. APS admin istrators felt Pryor had the experience to assist plaintiff’s remediation; plaintiff contended she was placed with Pryor as a set up for failure. Because of plaintiff’s mental and physical conditio n, she sought accommodation by the removal of the remediation pla n, which plaintiff’s psychiatrist thought would be too stressful for her . Plaintiff refused to sign the Side Creek remediation plan (which had been modifie d to meet the needs of that school), but nonetheless performed under it. Plaintiff and Pryor were at odds the balance of the school year over plaintiff’s perform ance, and in May of 1999, Pryor evaluated plaintiff’s performance as deficient and recommended she not be retained as an assistant principal. This recommend ation was ultimately accepted,-4-

and plaintiff was demoted to the position of classr oom teacher and placed on paid administrative leave for the balance of the 1998-19 99 contract year. After plaintiff was assigned to teach fourth grade at Kenton Elementary School in August of 1999, she failed to report to w ork. She protested her demotion to a teaching position and was advised to either report to work by August 25 or resign; otherwise she faced terminatio n proceedings based on insubordination. Plaintiff refused to do either an d was ultimately terminated by the Board of Education, following a due process hearing before an administrative law judge.

Discrimination Charges In October of 1997, while still on medical leave fr om her assistant principal position at Crawford, petitioner filed a charge of discrimination with the EEOC based on disability and retaliation. She claimed t hat she was qualified to return to her previous position as an assistant principal andwas able to perform the essential functions of her job “and other jobs, with or without reasonable accommodation,” but that APS refused to return her to her position. Vol. I, Doc. 123, Ex. J. In June of 1998, she amended her charge to include race and color discrimination, alleging that “[w]hite employ ees now perform the job responsibilities I previously performed.” Id. at Ex. K. In June of 1999, the EEOC dismissed her charge and issued a right-to-sue letter. Plaintiff filed her-5-

first district court complaint in August, alleging that APS and the individual defendants violated her rights under the American w ith Disabilities Act; 42 U.S.C. § 12101-12213; that defendants subjected her to a hostile work environment; and that she was discriminated againston the basis of race and for retaliation against her in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e-2 (Title VII). Vol. I, Doc. 1 at 3-8. Following a hearing, the district court granted sum mary judgment to defendants on plaintiff’s disability claim, conclud ing she was not a qualified individual with a disability as defined by Sutton v. United Air Lines, Inc. , 527 U.S. 471 (1999). The court also granted summary judgment on her hostile environment claim, concluding plaintiff failed to m eet the requirements of O’Shea v. Yellow Technology Services, Inc. , 185 F.3d 1093, 1097 (10th Cir. 1999) (requiring showing that workplace is permeated withdiscriminatory intimidation, ridicule and insult sufficiently severe or pervasiv e to alter conditions of plaintiff’s employment). In a subsequent order the court furth er granted summary judgment in favor of defendants on the retaliation claim bas ed on events occurring before March of 1997. The court reaffirmed its previous f inding that plaintiff had failed to present any evidence of a hostile work environme nt and so could not rely on that theory to support a claim of adverse action in connection with her transfer to Side Creek. In a later order, the court granted su mmary judgment to the-6-

individual defendants, except defendant Pryor, on p laintiff’s § 1981 claims. Vol. IV, Doc. 194. At this point the defendants re maining in the action were APS and Helen Pryor and the claims against each defendant involved only retaliation. Following a five-day trial, the jury returned a ver dict in favor of defendants on plaintiff’s claims of retaliation in violation o f § 1981, and in favor of APS on her ADA and Title VII claims. The court entered ju dgment accordingly, dismissing plaintiff’s complaint and action with prejudice. Id. , Doc. 268. Plaintiff timely moved for a new trial, claiming sh e had had inadequate time at trial to present her case. She further con tended that the jury’s brief deliberation (less than an hour) indicated the juryhad not adequately deliberated the matter and that the jury’s failure to accept ce rtain testimony indicated a failure to follow the law as instructed. Id. , Doc. 270. Plaintiff also complained of the court’s denial of her motions to reopen discovery, but did not indicate what she might have presented had further discovery been granted. Defendants objected the post-judgment motions because at no time during trial had plaintiff requested more than five days for trial, nor had her counsel indicated he was hindered in his presentation by lack of discovery. Id. , Doc. 274. Because plaintiff’s attorney had also moved to withdraw as counsel, plaintiff fi led a separate pro se motion to set aside the jury’s verdict.-7-

The district court held a hearing on these motions, declining to consider plaintiff’s pro se motion to set aside the jury ver dict on the grounds that the motion was untimely filed and because she was repre sented by counsel when the motion was filed. Id. , Doc. 285 at 1. As to the motion for new trial, t he court found that none of the actions complained of were i nconsistent with substantial justice, id. at 2 (citing Fed. R. Civ. P. 61), and that plainti ff had failed to object to discovery rulings or time constraints at trial. Id. Finally, the court alternatively determined that plaintiff had failed to show the ju ry’s verdict was so contrary to the weight of the evidence as to be unsupportable. Id. The court denied the motions and granted plaintiff’s counsel’s motion to withdraw. Id. at 3. In her notice of appeal, plaintiff, proceeding pro se, seeks review only of the judgment entered on the jury’s verdict followin g trial and of the court’s denial of her post-judgment motions. Id. , Doc. 286. Our review is therefore limited to these two issues.

Discussion Plaintiff has chosen not to present her arguments i n the traditional format prescribed by the Local Rules of the Tenth Circuit, opting instead to utilize the format available to pro-se litigants. As a consequ ence, however, she has interspersed commentary, factual statements, and pu rported legal arguments throughout the brief. Her citations to the record are by document number only,-8-

see 10th Cir. R. 28.1(B) (requesting use of specific p age numbers), and are often accompanied by the suggestion that transcripts are necessary for the court to understand the complete picture. Many of her state ments are made with no assignment of error whatever; others she characteri zes as possibly incorrect decisions or simply issues for this court to decide . Finally, plaintiff states that this court can vindicate her “by calling a Grand Ju ry investigation into the Aurora Public Schools.” Aplt. Opening Br. at 23. For plaintiff’s benefit we note the following. Fir st, the notice of appeal in this case specifies for this court’s review only th e judgment on the jury’s verdict and the denial of her post-judgment motion. Vol. I V, Doc. 286. Hence, any arguments that may relate to proceedings prior to the trial are not properly raised, and we will not consider them. See Foote v. Spiegel , 118 F.3d 1416, 1422 (10th Cir. 1997) (noting court’s lack of jurisdicti on to review issues contained in parts of orders not identified in notice of appeal); see also Fed. R. App. P. 3(c)(1)(B) (stating notice of appeal must “designat e the judgment, order, or part thereof being appealed”). Next, we note that plaintiff has not furnished a tr ial transcript as is her duty under the rules. See 10th Cir. R. 10.1(A)(1) (noting appellant’s duty t o “provide all portions of the transcript necessary to give th e court a complete and accurate record of the proceedings related to the issues on appeal”). If a district court’s-9-

findings and conclusions are made orally, the appel lant must supply a record containing “a copy of the transcript pages reproduc ing those findings and conclusions.” 10th Cir. R. 10.3(C)(3). In additio n, a copy of the relevant transcript pages is to be attached to appellant’s b rief when the judicial pronouncement is oral. See 10th Cir. R. 28.2(A)(2). Lack of the required transcript leaves the court no alternative but to affirm the district court. Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co. , 175 F.3d 1221, 1238 (10th Cir. 1999). “[F]ailure to file the required transcript involves more than noncompliance with some useful but nonessential procedural admonition of primarily administrative focus. It raises an effective barrier to informed, substantive appellate review.” McGinnis v. Gustafson , 978 F.2d 1199, 1201 (10th Cir. 1992). Moreover, “[i]t is the obligation of the party seeking review to provi de a record adequate to inform this [c]ourt’s review.” Payton v. United States Dep’t of Agric. , 337 F.3d 1163, 1169 (10th Cir. 2003). For these same reasons we are unable to undertake any review of plaintiff’s claim that the jury did not p roperly follow its instructions. With regard to plaintiff’s complaints about her att orneys, and in particular trial counsel’s performance, this is not the propersubject of an appeal. There is no constitutional right to counsel in a civil case, and therefore an argument generally alleging ineffective assistance of such c ounsel does not compel reversal. See Beaudry v. Corr. Corp. of Am. , 331 F.3d 1164, 1169 (10th Cir.) (“Counsel’s-10-

performance, however deficient, would not . . . for m the basis for reversal of the trial court.”), petition for cert. filed (U.S. Oct. 18, 2003) (No. 03-7129). Plaintiff also complains that she was denied access to certain documents that were the subject of a protective order entered by the assigned magistrate judge. Vol. I, Doc. 117. The documents were appar ently inadvertently furnished to plaintiff’s counsel as part of discovery and wer e protected under the attorney-client privilege. We agree with defendant s that plaintiff has waived this argument by her failure to appeal the magistrate ju dge’s ruling within the ten-day requirement of Fed. R. Civ. P. 72(a). See Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996). Plaintiff does not fall within t he exception to the court’s “firm waiver rule” because she was not pro se at the time of the magistrate’s order, nor has she shown that the ends of justice dictate deviation from our rule. See id. Finally, we review the district court’s denial of p laintiff’s motion for a new trial for abuse of discretion. Minshall v. McGraw Hill Broad. Co. , 323 F.3d 1273, 1283 (10th Cir. 2003). The bases for the motion we re the lack of adequate time at trial for plaintiff to present her case and the failure of the jury to accept the testimony of a particular witness as evidence of re taliation. Vol. IV, Doc. 270. The district court carefully considered her arguments and determined she had not objected at trial to any time constraints nor “show n that the fundamental fairness of the trial was affected by the proceedings.” Id. , Doc. 285 at 2. On appeal-11-

plaintiff has failed to cite any legal authority in support of her arguments. We hold that the district court did not abuse its d iscretion in denying the motion for new trial. We have further considered plaintif f’s other remarks, requests, and arguments and find them to be without merit. The judgment of the district court is AFFIRMED. Pl aintiff’s motion requesting this court to govern the interactions be tween her and defendants’ counsel is denied as moot.

Entered for the Court

Terrence L. O’Brien Circuit Judge