* This order and judgment is not binding precedent, except under the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.

** The Honorable G. Thomas Van Bebber, United States District Judge for the District of Kansas, sitting by designation. 

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

### AUG 22 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT SCHNEIDER,

Plaintiff - Appellee,

v. No. 01-1199 (D.C. No. 99-Z-504) (D. Colorado) CITY AND COUNTY OF DENVER, a municipal corporation,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before HENRYand HOLLOWAY , Circuit Judges, andVAN BEBBER , District Judge. **

Robert Schneider, formerly a Denver Police Officer and member of the Metro Special Weapons and Tactics Bureau (the “SWAT ” bureau or division), filed this action under 42 U.S.C. § 1983 against th e City and County of Denver-2-

(the “City”). In his complaint, Mr. Schneider alle ged that his transfer to the Denver Police Training Academy from the SWAT divisi on was in retaliation for his exercise of his First Amendment right to free s peech–namely, his testimony criticizing one of the Denver Police Department’s t raining programs. Mr. Schneider also alleged that he was constructively d ischarged from the SWAT division. A jury awarded Mr. Schneider $75,000 in compensatory damages on his retaliatory transfer claim. However, the jury foun d in favor of the City on Mr. Schneider’s constructive discharge claim. On appea l, the City challenges certain evidentiary rulings and the damage award. The cons tructive discharge finding is not at issue. We have jurisdiction pursuant to 28 U.S.C. § 1291. We hold that, despite any erroneous evidentiary ruling, there was suffici ent evidence to support the jury’s conclusion that Mr. Schneider established hi s claim of retaliatory discharge in the exercise of his First Amendment right of fre edom of expression.

I. FACTUAL BACKGROUND A. 1998 civil service hearing testimony On March 12, 1998, Mr. Schneider testified in a civ il service hearing as an expert on firearms training. He gave testimony cri ticizing the Denver Police Department’s training in the area of decisional sho oting. The hearing centered-3-

around a Denver police officer who had been terminated from the Department earlier that year for his involvement in a police s hooting in 1988. In 1985, the same officer had been involved in another incident that resulted in his shooting and killing Leonard Zuchel during an investigation. See Zuchel v. City and County of Denver , 997 F.2d 730 (10th Cir. 1993); Zuchel v. Spinharn ey , 890 F.2d 273 (10th Cir. 1989). The Zuchel family sought and won damages against the City on a claim of deliberate indifference in training o f its officers that resulted in the unconstitutional use of excessive force. The City attempted to exclude Mr. Schneider’s testi mony from the civil service hearing. Part of Mr. Schneider’s testimonynoted that as of March 1998, the Denver Police Department had done nothing to improve its decisional shooting training since the Zuchel incident and resulting court decisions. Mr. Schne ider also testified that Mr. Spinharney had received no additional training after the Zuchel decision. B. The events preceding Mr. Schneider’s transfer In 1997, the Department had purchased a decisional shooting training system called the Range 2000, which was delivered i n January 1998. On March 20, 1998, Captain Ed Bingham wrote a memo to his Di vision Chief, Heather Coogan, who commanded at the training academy. He noted that the new system would be operational on April 1, 1998, and that it required at least one additional person for its operation and implementation. Divis ion Chief Coogan requested-4-

Chief of Police David Michaud and the Division Chie f of Patrol Tim Cuthriell to transfer someone to the academy to run the new syst em. As of April 1998, Mr. Schneider had been assigned t o the Metro SWAT division for eighteen continuous years. Apparently , Mr. Schneider had applied for a transfer to the Academy approximately one year ea rlier. Chief Cuthriell telephoned Mr. Schneider’s supervisor, Captain Coll ier, to inform him of the transfer. Captain Collier testified that he had no “inkling” before April 1, 1998 that Mr. Schneider would be transferred. Aple’s Supp. App. at 22. On April 1, 1998, Mr. Schneider received notice from his shift supervisor that he was being transferred to the Denver Police Academy, effective April 6, 1998. Captain Collier testified that the customary practi ce leading up to a transfer would involve his input and participation in any di scussions before the transfer of a member of his division. See id. at 22-23. He stated he was not consulted in the decision and as a result believed the transfer was a “done deal.” Id. at 25. Captain Collier also discussed Mr. Schneider’s performance evaluations. He testified that Mr. Schneider received perfect scores for his interpersonal skills, including his ability to effectively interact with department mem bers of various ranks and his responses to criticism. Chief Cuthriell testified that before the transfer he had spoken several times with Captain Collier regarding problems Captain Col lier was having with Mr. Schneider. Chief Cuthriell claimed that he then in quired whether Captain Collier-5-

was willing to give up Mr. Schneider from Metro SWA T because of the troubles he was having with Mr. Schneider. Captain Collier disputed this claim. See id. at 73, 154. Chief Cuthriell also testified that Capta in Collier was responsible for transferring Mr. Schneider. Id. at 41. Former Chief of Police David Michaud, who ultimatel y ordered Mr. Schneider’s transfer, provided yet a different expl anation of events. Chief Michaud denied any direct involvement, claiming it was a “low level” transfer which he simply approved. Id. at 100. He also claimed that the transfer was due to budget cuts mandated by City Council. Chief Mic haud further testified that he “never heard what he [Mr. Schneider] testified to,” and denied receiving a phone call about Mr. Schneider’s testimony. Id. at 70-71. Chief Michaud added that he knew Mr. Schneider believed the Denver Police Department’s training in decisional shooting was inadequate, and said that “ [i]n a sense, I agreed with him.” Id. at 71-72. Thus, Chief Michaud appeared to deny be ing upset or angry with Mr. Schneider for testifying against the City on this issue. In contrast, Chief Coogan, from the Academy, testif ied that she was present in Chief Michaud’s office when he received a phone call about Mr. Schneider’s testimony in the civil service hearing. “He slamme d the phone down and cussed, [he] was angry; and he told the people in the room that Bob Schneider had testified against us at the . . . civil service hea ring.” Id. at 89. She testified Chief Michaud was angry Mr. Schneider had testified.-6-

C. Mr. Schneider’s assignment to the police academy Upon his arrival at the Denver Police Academy on Mo nday, April 6, 1998, Mr. Schneider discovered that he was not expected b y the Academy staff. Captain Bingham (the Commander of the Training Academy) had not been advised of the transfer before April 1, 1998. Thus, on starting h is new position Mr. Schneider had no office, desk, chair, telephone, or computer. In addition, notwithstanding Chief Cuthriell’s claim that Mr. Schneider was tran sferred to the Academy to run the decisional shooting training system, Mr. Schnei der was advised by Captain Bingham that his duties would not include decisiona l shooting training. Mr Schneider testified that his transfer to the Aca demy was devastating to his family life. Captain Collier, Lt. Phelan, Serg eant Michael Hughes, and Deputy Chief of Operations Walter Abrams also testified Mr . Schneider was disappointed and unhappy with the transfer. See id. at 14, 91, 93, 98 and Aplt’s App. ex. D at 329. Mr. Schneider testified that his assignment at Metro SWAT had allowed him to be at home with his young children during the day, allowing him to be actively involved in raising his two sons. The only availab le shifts at the Academy were day shifts. Although Mr. Schneider volunteered to work in a proposed decisional shooting training program at the Academy, which wou ld have allowed him to work nights again, the program was never implemented. Mr. Schneider also testified regarding the strain t he transfer had placed upon his marriage and his friendships. Mr. Schneid er testified that he had-7-

“bonded” with his fellow technicians in the Metro S WAT Bureau, which he termed his “second family.” Aple’s Supp. app. at 1 34(A). Mr. Schneider testified that he did not “fit in” at the Academy. Id. Mr. Schneider discussed his transfer and his treatm ent at the Academy with Sergeant Mike Hughes, a past staff member of the Ac ademy. Sgt. Hughes, a friend of Chief Cuthriell, went to Chief Cuthriell to discuss the transfer and to see if Chief Cuthriell could intervene. Sgt. Hughes al so inquired as to the reason Mr. Schneider was transferred. Sgt. Hughes testified that Chief Cuthriell indicated “[t]hat Bob was being transferred because of his te stimony.” Id. at 43. Sgt. Hughes testified that Chief Cuthriell did not indic ate who had ordered the transfer. D. May 22, 1998 meeting Mr. Schneider admitted that he did not hide his dis appointment surrounding his transfer. He complained about his teaching req uirements and his hours, and he made it known that he desired to return to the Metr o SWAT Bureau. On May 22, 1998, Department supervisors met with Mr Schneider. Those present included Mr. Schneider, Chiefs Coogan and Cuthriell, Captain Col lier, and Lieutenant Jennifer Steck. Chief Coogan testified that the gist of the meeting was to clear up Mr. Schneider’s belief that he might go back to Metro S WAT. Chief Coogan was under the impression that Metro SWAT had requested that Mr. Schneider be transferred to the Academy. She testified that at the meeting, however, Captain Collier denied ever wanting Mr. Schneider transferr ed and that Captain Collier-8-

said he was ordered to transfer Mr. Schneider and that anyone who suggested otherwise was a “liar.” Id. at 34; 91-92. Captain Collier’s testimony corrobo rated that of Chief Coogan on this point. Chief Coogan also testified she was prepared to letMr. Schneider return to Metro SWAT and she asked Captain Collier if he woul d take him back. Captain Collier responded negatively, apparently because th ere was no spot available for Mr. Schneider. Chief Cuthriell testified that he d id not believe Captain Collier had been candid during this meeting and that Captai n Collier had apparently misled Chief Coogan. Chief Coogan testified that at this point the meeti ng came to an immediate end. She testified that Mr. Schneider looked “deva stated,” as though “it had just occurred to him that he had been lied to and betray ed.” Id. at 93. A few days later, Mr. Schneider resigned his position.

E. Procedural posture The jury awarded Mr. Schneider $75,000 in compensat ory damages. On appeal, the City contests (1) the admission of two verdict forms from other actions against the City; (2) the exclusion of purported impeachment testimony from Sergeant Hughes; and (3) the $75,000 compensatory d amages award, which the City maintains was a product of passion and prejudi ce and was excessive.-9-

We agree that one verdict form should not have been admitted, but we determine that, because this evidence did not undul y influence the jury’s verdict, the error was harmless. In addition, the district court did not abuse its discretion when it excluded Sergeant Hughes’ purported impeach ment testimony. Finally, we hold that the jury’s award of compensatory damag es is supported by the evidence in the record and does not shock the judic ial conscience. Therefore, for the reasons set forth below, we affirm the judgmentof the district court.

II. DISCUSSION We review a district court’s determination regardin g admission of evidence for abuse of discretion. Boughton v. Cotter Corp. , 65 F.3d 823, 832 (10th Cir.1995). We will not disturb the court’s ruling unless we have “a definite and firm conviction that the lower court made a clear e rror of judgment or exceeded the bounds of permissible choice in the circumstanc es.” McEwen v. City of
Norman , 926 F.2d 1539, 1553-54 (10th Cir. 1991) (internal quotation marks and citation omitted). If we find error in the admissi on of evidence, “we will set aside a jury verdict only if the error prejudicially affe cts a substantial right of a party.” San Juan v. IBP, Inc. , 160 F.3d 1291, 1296 (10th Cir. 1998). Evidence admitted in error can only be prejudicial “if it can be reas onably concluded that . . . without such evidence, there would have been a contrary res ult.” Hinds v. General Motors Corp. , 988 F.2d 1039, 1049 (10th Cir. 1993).-10-

If the complaining party failed to make a contempor aneous objection at trial, however, we review the admission of evidence under a plain error standard.
See Pandit v. Am. Honda Motor Co., Inc. , 82 F.3d 376, 379 (10th Cir. 1996); Fed. R. Evid. 103(d). The City maintains, unhelpfully, t hat we should consider the admission of the verdict forms de novo. The City a dmits that although we generally review a trial court’s evidentiary ruling s for abuse of discretion, where the trial court failed to set forth its reasons und erlying the evidentiary ruling, we should review that decision de novo. Under this th eory, if the trial court did not balance the probative value of the evidence againstits prejudicial effect pursuant to Federal Rule of Evidence 403, we should considerthe evidence’s admissibility de novo. We disagree with the City’s characterization of the trial court’s evaluation of the verdict forms as demonstrating “little or no legal analysis.” Aplt’s Br. at 9; see also Aplt’s App. ex. E, at 382-391, 424-427. Although the trial court did not explicitly rule on the prejudicial impact of this e vidence, it did so implicitly by permitting the evidence under Rule 404(b). Moreove r, the trial court carefully considered the factual underpinnings of the verdictforms and ultimately determined that they were admissible “over objectio n” and “allow[ed] full crossexamination” regarding these exhibits. Aplt’s App. Ex. E, at 427. In addition,-11-

there was ample colloquy regarding the exhibits. S ee id. at 381-92, 423-27, 442- 51. We thus reject the City’s suggestion that we c onduct a de novo review of the admission of the verdict forms and review for abuse of discretion. A. Elements of retaliatory discharge claim A claim under 42 U.S.C. § 1983 alleging retaliatory discharge by a government official because of the plaintiff’s cons titutionally protected speech requires proof of three elements. First, the plain tiff must prove that his speech was constitutionally protected because it addresseda matter of public concern. Second, the employee’s interest, as a citizen, in h is speech must not be outweighed by the government employer’s interest in the effici ency of its office. Third, the protected speech must have been a substantial and m otivating factor in the adverse employment decision. See Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977); Givhan v. Western Line Consol. Sch . Dist. , 439 U.S. 410, 416-17 (1979). 1. Admissibility of the Verdict Forms The first issue on appeal concerns the third elemen t: whether Mr. Schneider’s testimony in the 1988 civil service com mission hearing was a substantial and motivating factor in the City’s dec ision to transfer him to the Denver Police Training Academy. The district court ’s decision was complicated by action of both counsel in this case; both appearto have had morphing attitudes as to their theories for admission or non-admissionof the verdict forms in-12-

question. Mr. Schneider’s counsel first presented two verdict forms from other civil rights cases filed against the City for “impe achment purposes.” He asked the trial court to take judicial notice of the forms. Aple’s Supp. App. at 6. Mr. Schneider’s counsel argued that the forms would be offered to controvert Chief Michaud’s anticipated testimony that the City did n ot have a policy of retaliating against its employees. The court declined to rule at that time. During the trial but before their admission, counsel asked that the verd ict forms be considered for “impeachment purposes and as direct evidence,” Aplt ’s App. Ex. E, at 381, of the City’s alleged policy of discriminating against employees for exercise of their rights. Before deeming the forms admissible, the d istrict court considered the underlying facts and procedural posture of each act ion. The City argues that because each form’s probative value was substantially outweighed by its prejudicial impact upon the jury, its admission deprived the City of its right to a fair trial. Specifically, the Ci ty raises two objections to the admission of each jury verdict form. First the City maintains that each verdict form, which arguably indicated prior bad act(s) on the part of the defendant in those actions, was inadmissible under Federal Rule of Evidence 404(b), and could not be used to established a pattern of retaliatory conduct. Next, the City challenges each form’s relevance as impeachment evi dence under Federal Rule of Evidence 608(b). a. Reed v. City and County of Denver, 96-B-38-13-

The first verdict form, from Reed v. City and County of Denver , 96-B-38, filed May 27, 1999, involved a § 1983 action where the jury found that the plaintiff had established that her exercise of her First Amendment right to freedom of speech was a motivating factor in the City’s dec isions to remove her from her current position. Chief David Michaud was the supe rvisor in Reed , as he is here. However, the Reedverdict form indicates that the Reed jury also found that the City demonstrated it would have removed Ms. Reed fr om her position even if she had notexercised her First Amendment right to free speech . See Aplt’s App. ex. A (verdict form from Reed v. City and County of Den ver(filed May 27, 1999)). Thus, the Reedform indicated that Ms. Reed established by a prep onderance of the evidence that the exercise of her First Amendme nt rights was a motivating factor in her removal, but the form also indicated that the jury found evidence in support of the City’s affirmative defense that the City would have transferred her in any event. Although the City did object to the admissibility o f the Reedform before and during trial, the record actually shows that th e City conceded that it revoked any objection to the Reedform. See Aplt’s App. ex. E at 427 (“I have no objection to the Reedverdict form coming in as long as we can talk abou t the whole verdict form in Reed .”). At oral argument, counsel also admitted it acquiesced to the admission of the Reedform because the form itself aided the defense: it established that the City would have tr ansferred the employee in1 Rule 404(b) provides that:

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action i n conformity therewith. It may, however, be admissible for otherpurposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. -14- question even if she had not engaged in protected s peech. The City has thus waived this argument and we decline to review it. See Worden v. Tri-State Ins.
Co. , 34 F.2d 336, 341 (10th Cir. 1965) (noting that wh ere one party “withdrew its objections” to the introduction of certain evidence , “no error was in fact committed”); United States v. Weiss , 930 F.2d 185, 199 (2d Cir. 1991) (holding where counsel withdrew objection to the exclusion o f documentary evidence, counsel “waived his right to appeal this matter”).

(b) Rowe v. City and County of Denver (i) Rule 404(b) The second verdict form, filed Oct. 6, 1998, arose from a Title VII action styled Rowe v. City and County of Denver . In Rowe , the jury found that the City discriminated against Ms. Rowe through a hostile wo rk environment and intentional retaliation. See id. ex. B (verdict form from Rowe v. City and County of Denver(filed Oct. 6, 1998)). Chief Michaud testified he was not the supervisor responsible for the retaliation against Ms. Rowe, a nd this testimony is unrefuted. The City challenges the admission of the Rowe verdict form under Fed. R. Evid. 404(b) 1 , which generally excludes evidence of other acts f or the purpose of-15-

proving a person acted similarly on other occasions . See San Juan v. IBP , 160 at 1297. However, “we have modified this general rule somewhat in the context of employee discharge cases requiring proof of discrim inatory intent.” Coletti v. Cudd Pressure Control , 165 F.3d 767, 776 (10th Cir. 1999); see San Juan , 160 F.3d at 1297 (noting that “character evidence is ad missible in civil trials to show motive or intent”). For example, in San Juan , we concluded the district court correctly applied Fed. R. Evid. 404 when it admitte d testimony of other employees about their treatment by the defendant employer bec ause the evidence was relevant to the issue of the employer’s discriminatory inten t to mistreat employees following their work-related injuries. See id. ; Spulak v. K Mart Corp. , 894 F.2d 1150, 1156 (10th Cir. 1990) (holding, in an ADEA ac tion, that the district court properly admitted testimony of other employees as p robative of the defendant’s discriminatory intent); Curtis v. Oklahoma City Pub . Schls. Bd. of Educ. , 147 F.3d 1200, 1217 (10th Cir. 1998) (noting that “[t]estimo ny of other employees may be relevant in assessing an employer’s retaliatory int ent if the testimony establishes a pattern of retaliatory behavior or tends to discred it the employers assertion of legitimate motives”). In order for the court to find such character testi mony relevant, however, the plaintiff must show the circumstances involving the other employees are such that their statements can “logically or reasonably be ti ed to the decision to terminate [the plaintiff].” Curtis , 147 F.3d at 1217 (internal quotation marks and ci tations-16-

omitted); see Schrand v. Federal Pac. Elec. Co. , 851 F.2d 152, 156 (6th Cir. 1988) (holding the trial court committed reversible errorby admitting testimony of two former employees of defendant company because no ev idence tied the testimony to defendant’s decision to terminate). A “[p]laint iff can meet this requirement by showing that the same supervisors were involved in prior discriminatory employment actions.” Heno v. Sprint United Managem ent Co. , 208 F.3d 847, 856 (10th Cir. 2000). Furthermore, “the district courtshould carefully scrutinize the time frame in which other alleged acts of discrimin ation occurred.” Id. Additionally, even though such evidence may be rele vant to show motive or intent, the trial court may still properly disallow relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative eviden ce. Fed. R. Evid. 403 (emphasis added) The City seeks to distinguish Rowe from Mr. Schneider’s action on the grounds that the former arose under Title VII. The City notes that, although the elements of a Title VII and a § 1983 prima facie ca se may be similar (i.e. , an adverse employment action, a causal connection, and protected activity), these elements do not address the liability issue. In a Title VII action, unlike in a § 1983 action, the factfinder may impute the conduct of a supervisor to the employer. See 42 U.S.C. § 2000e-2 (noting that Title VII applie s specifically to-17-

“employers” and their “agents”); McCue v. State of Kansas, Dep’t of Human
Resources , 165 F.3d 784, 788 (10th Cir. 1999) ( “As a resultof this clear statutory instruction, courts have long and consistently heldthat the scope of liability in Title VII actions is defined by the law of agency.” ). In a § 1983 action against a municipality, there must be evidence that the final decision or policy maker was responsible for the retaliation. See Butcher v. City of McAlester , 956 F.2d 973, 977 n. 2 (10th Cir. 1992) (“[I]n a § 1983 proceedin g the municipality must itself be at fault, and it is not, under respondent superi or, responsible for the isolated torts of its employees.”). We agree that Rowe involved different issues. Chief Michaud offered unrefuted testimony that the person responsible forthe Title VII retaliation in the
Rowe lawsuit was Sergeant J. O. Brown, not Chief Michau d. Unlike the employees who complained in San Juan–where the acts of the employer involved harassment and mistreatment of employees following their injuries or claims for medical benefits–Mr. Schneider can demonstrate litt le or no connection with the
Rowe case. There is little time frame in the record re garding the underlying actions other than the 1999 date of the verdict for ms and testimonial recollection.
See Heno , 208 F.3d at 856 (urging trial courts to carefully scrutinize the time frame of other alleged acts of discrimination). In addition, we have found no authority allowing the admission of averdict form , standing alone, as direct or circumstantial evidence. Its admission was error.2Curiously, Mr. Schneider’s counsel, in the altern ative, suggests collateral

estoppel and judicial notice somehow foreclose the City from challenging the admission into evidence of the verdict form. Couns el’s understanding of these theories is incorrect, and his briefing is inadequate for review by this court. -18- (ii). Rule 608(b) The City also disputes the admission of the Rowe verdict form under Fed. R. Evid. 608(b). Rule 608(b) governs the admissibi lity of specific instances of conduct of a witness for purposes of impeachment. It provides: Specific instances of the conduct of a witness, forthe purpose of attacking or supporting the witness’ credibility, o ther than conviction of crime . . . , may not be proved by extrinsic evi dence. They may, however, in the discretion of the court, if probati ve of truthfulness or untruthfulness, be inquired into on cross-examinati on of the witness. Fed. R. Evid. 608(b). Mr. Schneider’s counsel argued that the forms wouldcontrovert Chief Michaud’s testimony that the City did not have a po licy of retaliating against its employees. In fact, the City offered testimony fr om Chief Michaud affirming that the defendant City in the Rowe case was found to have intentionally retaliated against Ms. Rowe. He testified he was aware of thi s jury finding. Thus, the district court erred to the extent it admitted the Rowe verdict form for impeachment of Chief Michaud’s testimony. 2

2. Effect of evidentiary errors on the verdict Having found error in the admission of the Rowe verdict form, we must consider whether the error “prejudicially affect[ed ] a substantial right of a party”3 Ideally, of course, the district court should hav e instructed the jury about

“limitations on the use of [the verdict form.]” Sm ith v. Ingersoll-Rand, Co , 214 F.3d 1235, 1250 (10th Cir. 2000). “The burden in t his situation, however, fell to [the City] to request an appropriate limiting instr uction.” Id. The City does not suggest that it asked for a limiting instruction re garding the verdict form, and none was given. -19- and unduly and substantially affected the jury’s ve rdict. 3 San Juan , 160 F.3d at 1296-97. The City has the burden of making that sh owing. Here we must also note our frustration with the des ignation of the record by both parties in this case. See Fed. R. App. P. 10; 10th Cir. R. 10. The City, a s appellant, is responsible for designating those “‘p apers filed in the district court which are relevant to specific arguments made in th e briefs’” for inclusion in the appellate record. Green v. Johnson , 977 F.2d 1383, 1387 (10th Cir. 1992) (quoting 10th Cir. R. 10.2.1). Furthermore, “‘it i s counsel’s responsibility to see that the record excerpts are sufficient for conside ration and determination of the issues on appeal and the court is under no obligati on to remedy any failure of counsel to fulfill that responsibility.’” Deines v . Vermeer Mfg. Co. , 969 F.2d 977, 979 (10th Cir. 1992) (quoting General Order, 10th C ir., Oct. 25, 1990, p. 5); see also Adler v. Wal-Mart Stores, Inc. ,144 F.3d 664, 672 (10th Cir. 1998) (noting we “have a limited and neutral role in the adversarial process, and are wary of becoming advocates who comb the record of previousl y available evidence and make a party's case for it”).-20-

After combing through the scant record nonetheless, we have found several items that would have been of great use to the City in making its argument that the admission of the verdict form substantially influen ced the jury’s verdict. Items that would have been helpful for us to weigh the me rits of this argument include an unabridged transcript of Mr. Schneider’s jury tr ial proceedings, including the complete closing arguments, the jury instructions a nd the pretrial order. See Naimie v. Cytozyme Labs., Inc. , 174 F.3d 1104, 1113 (10th Cir. 1999) (“If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the ap pellant shall include in the record a transcript of all evidence relevant to suc h finding or conclusion, and, if the appellant fails to do so, the court is under no obligation to remedy any failure of counsel to fulfill that responsibility”) (quotat ions omitted). We have opted to remedy counsel’s failure nonetheless and requested that the City supplement the record with the submission of the closing arguments and the jury instructions. Having reviewed these submissions, we are in a bett er-informed position to rule on the merits of this case. In support of its contention that the Rowe verdict form affected the verdict, the City notes that, during closing argument, Mr. S chneider’s counsel referred to the Rowe action as evidence of a previous act of retaliatio n. Our review of the record indicates that Mr. Schneider’s counsel referred to the verdicts in three paragraphs of the twenty-plus page closing argument , and these paragraphs4In closing, Mr. Schneider’s counsel stated the f ollowing with reference to the verdict forms: It’s your job as a jury to compensate Mr. Schneid er for the emotional trauma that he suffered as a result of hi s transfer and his loss of a career. You saw how well the city listen ed to the verdict in Zuchel . You saw how well that the city listened to the v erdict in Miriam Reed’s case when it was found to have retali ated against her for her exercise of free speech. Now, you heard the city testify. You heard Chief M ichaud tell you that Miriam Reed didn’t tell the truth. But I anticipate you will get an instruction from this court that will tell y ou that Miriam Reed’s speech could not have been protected by the First Amendment if it was false speech, because false speech is notprotected speech. So did they listen to that verdict in Miriam Reed? Did they listen to verdict in Wilma Rowe?

. . . . The city doesn’t consider emotional distress that w as caused to Bob Schneider by this transfer, just like they didn ’t worry about the Miriam Reed verdict. Aplt’s Supp. App. Ex. R, at 1052-53. -21- include references to the Reedverdict form, which we are not considering on appeal. 4The Rowe verdict form was not the primary evidence on which Mr. Schneider’s counsel relied. Instead, counsel caref ully reviewed the weight of the evidence. Our review of the record satisfies us that there wa s sufficient circumstantial evidence to temper the evidentiary errors and suppo rt the jury’s verdict that the City fired Mr. Schneider because of his exercise of his First Amendment rights. Mr. Schneider was a long-time veteran of the Metro SWAT Bureau who had applied at one point–and was denied–a position at t he Academy. While in Metro-22-

SWAT, he received stellar reviews and was thought t o be among the most, if not the most, qualified of the instructors in the divis ion. The jury heard evidence about the department’s response, or lack thereof, t o the fourteen year old Zuchel case. There was evidence that Mr. Schneider’s test imony from the administrative hearing was far from well-received, and his subsequ ent transfer, one that evaded the customary bureaucratic process, was swift. Unr efuted testimony established that his transfer, ostensibly to facilitate the dec isional training instruction program, apparently involved little involvement in the program. In sum, based on the record before us, there was sufficient evidence before the jury to make a decision for either party, depending upon its credi bility determinations. We therefore conclude that there was sufficient evi dence before the jury to determine that Mr. Schneider’s criticism of the Dep artment was a substantial and motivating factor in the City’s decision to transfe r him irrespective of the erroneous admission of the Rowe verdict form. We cannot say that any evidentiary errors interfered with the jury’s verdi ct. See San Juan , 160 F.3d at
1296-97.

B. Testimony from Sergeant Hughes The City next challenges the exclusion of certain t estimony from Sergeant Hughes. During cross-examination, the City’s couns el asked Sgt. Hughes whether his friendship with Chief Cuthriell became strained when the Chief led the Internal Affairs division of the police department. Mr. Sch neider’s counsel objected to the-23-

question, first claiming that the question was argu mentative and irrelevant. After the judge excused the jury, the City’s counsel advi sed the trial court it asked the question to show motive, bias, or prejudice for imp eachment purposes. Mr. Schneider’s counsel countered that to allow a line of questioning regarding Sergeant Hughes Internal Affairs record was unfair surprise. The trial court asked if the City had informed Mr. Schneider’s counsel about this line of questioning. The City’s counsel respo nded it had not but maintained that no procedural or evidentiary rule required herto do so. The trial judge stated that “[her] rule, which [she] made very clear to al l the attorneys, is that there were to be no surprises in this case. Everything was to be made known to the other side.” Aplt’s App. ex. D, at 341. She then sustai ned Mr. Schneider’s objection because of surprise, because it would entail a mini -trial of Sgt. Hughes, and because the prejudicial effect of the evidence outw eighed any probative value. The City maintains that because Fed. R. Civ. P. 26 specifically excludes the disclosure of impeachment materials, the withholdin g of such material is acceptable. See Fed. R. Civ. P. 26(a)(3) (“[A] party must provide . . . the following information regarding the evidence it may present at trial other than solely for impeachment. . . .”) (emphasis added). Mr. Schneider respond s that discovery proceeded on the notion that all evidence would be shared between the parties.-24-

We also note that the Advisory Committee Notes on Rule 26 state that “disclosure of such evidence–as well as other items relating to conduct of trial– may be required by local rule or a pretrial order. ” See Advisory Committee Notes, 146 F.R.D. at 635 (emphasis added). This si gnificant comment is entitled to weight in consideration of the Rule. See Schiavone v. Fortune, 477 U.S. 21, 31 (1986) (“Although the Advisory Committee's comments do not foreclose judicial consideration of the Rule's validity and meaning, t he construction given by the Committee is ‘of weight.’”); DeBiasio v. Illinois C entral Railroad , 52 F.3d 678, 685-86 (7th Cir. 1995) (“Rule 26(a)(3) of the Feder al Rules of Civil Procedure does not require pretrial disclosure of evidence us ed ‘solely for impeachment purposes.’”). We give wide discretion to the avoidance of side is sues and “minitrials” by district courts. Here, the trial court had express ly noted that there were to be “no surprises” in this case, and the City was well awar e of the trial court’s intent. Aplt’s App. ex. D, at 341 (“Everything was to be ma de known to the other side.”). In addition, the City’s counsel gave no reason thatit could not have conveyed the information about the investigation of Sgt. Hughes to Mr. Schneider’s counsel before trial. The City merely pointed out that Sgt . Hughes was not its witness. Although the City’s argument that Rule 26 does not require the disclosure of information to be used “solely for impeachment” is correct, the district court’s reasoning demonstrates that it excluded the testimo ny in part because of-25-

“surprise,” but also to thwart a mini-trial and to avoid unfair prejudice under Rule 403. Aplt’s App. ex. D, at 343; see id. at 340. We therefore conclude that the district court did not abuse its discretion in excl uding the evidence.

C. Compensatory damage award Finally, the City challenges the jury’s award of aw ard of $75,000 in compensatory damages to Mr. Schneider for his emoti onal suffering. The City maintains that the award is excessive, that it can only be a result of passion or prejudice, and that the only evidence supporting th e award was Mr. Schneider’s own testimony that he was “very upset.” See Aplt’s App. ex. F, at 680. Mr. Schneider counters that there is sufficient evi dence in the record of his emotional distress. “In reviewing the trial judge’ s determination that the damages awarded by the jury were not so inadequate as to re quire a new trial, we are to determine whether the trial judge has abused his di scretion.” Black v. Hieb’s Enters., Inc. , 805 F.2d 360, 362 (10th Cir. 1986). “When review ing the district court’s use of its discretion regarding excessive v erdict claims, we must determine whether the award was so excessive . . . as to shoc k the judicial conscience and to raise an irresistible inference that passion, preju dice, corruption or other improper cause invaded the trial.” Whiteley v. OKC Corp. , 719 F.2d 1051, 1058 (10th Cir. 1983) (internal quotation marks omitted).-26-

We acknowledge that much of the testimony regarding Mr. Schneider’s suffering was his own, but this fact is not disposi tive. See Hampton v. Dillard’s Department Stores , 247 F.3d 1091, 1115 (10th Cir. 2001) (upholding compensatory damage award of $56,000 where only tes timony regarding emotional suffering was that of plaintiff), cert. d enied , 122 S. Ct. 1071 (2002). Not only did Mr. Schneider testify, but the jury al so heard testimony from his colleagues regarding his emotional distress. Lieut enant Phelan testified to Mr. Schneider’s disappointment over his transfer. See Aple’s Supp. App. at 14. Captain Coogan noted Mr. Schneider’s apparent despa ir at the Academy and during the May 22, 1998 meeting. See id. at 91-93. Deputy Chief of Operation David Abrams testified that he thought Mr. Schneide r felt “hurt” and “betrayed” and “appeared depressed.” Id. at 98. Unlike this court, the jury had the opportunity to observe Mr. Schneider and the other witnesses and to credit or discredit thei r testimony regarding Mr. Schneider’s alleged mental anguish. Under such cir cumstances, we cannot say the jury’s decision to compensate Mr. Schneider for hi s alleged mental anguish either shocks the judicial conscience or raises an inferen ce of passion or prejudice. Cf. Mason v. Oklahoma Tpk. Auth. , 115 F.3d 1442, 1457 (10th Cir. 1997) (affirming jury’s decision not to compensate plaintiff where o nly testimony regarding emotional suffering was his own, noting the jury’s opportunity to observe plaintiff’s testimony).-27- III. CONCLUSION For the reasons stated above, we AFFIRM the distric t court’s judgment. The district court abused its discretion when it ad mitted the Rowe verdict form, but sufficient evidence remained for the jury to de termine that the City’s transfer of Mr. Schneider was retaliatory and the error did not substantially affect the verdict. In addition, the district court did not e rr when it excluded the impeachment testimony regarding Sergeant Hughes on the basis of unfair surprise to Mr. Schneider. Finally, the compensatory damage award in the amount of $75,000 is not excessive and is supported by suffic ient evidence in the record.

Entered for the Court,

Robert H. Henry Circuit Judge