* This order and judgment is not binding precedent, e xcept under the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

### OCT 30 2003 

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

TERENCE M. GARRETT, Ph.D.,

Plaintiff-Appellee,

v. JOE ANNA HIBLER, Ed.D., in her individual capacity; THE STATE OF OKLAHOMA, ex rel. THE BOARD OF REGENTS FOR OKLAHOMA COLLEGES, a constitutional agency,

Defendants, and WILLIAM J. KERMIS, Ph.D., in his individual capacity,

Defendant-Appellant. No. 02-6300 (D.C. No. 00-CV-2073-M) (W.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , BALDOCK , and McCONNELL , Circuit Judges.-2-

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. Plaintiff Terence M. Garrett, a former tenure-trackassistant professor at Southwestern Oklahoma State University (SWOSU) and president of the SWOSU chapter of the American Association of University P rofessors, brought suit under 42 U.S.C. § 1983 against several SWOSU administrators in the ir individual capacities, alleging that they terminated his emplo yment in retaliation for his exercise of rights of free speech and association g uaranteed by the Fourteenth Amendment. He also asserted a state-law claim of w rongful discharge against the State of Oklahoma, ex rel . the Board of Regents for Oklahoma Colleges. A jury returned verdicts against William J. Kermis, the SWOSU vicepresident of academic affairs, and the Board of Reg ents, SWOSU’s governing body. The jury also returned a verdict in favor of defendant Joe Anna Hibler, the SWOSU president. The district court later granted the Board’s motion for judgment as a matter of law. Dr. Kermis is the sole appellant. He argues that t he district court committed legal error in failing to grant his motio n for judgment as a matter of-3-

law or, in the alternative, a new trial. Exercisin g jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court.

I. BACKGROUND Plaintiff began teaching in the SWOSU social scienc es department under a one-year contract for the 1995-96 academic year. E ffective August 1997, he was appointed to a tenure-track position. In September1999 he expressed to an administrator his concerns about classroom overcrow ding and other fire and safety hazards. By e-mail, he then reported the al leged hazards to the state fire marshal, copying department members, the departmentchair, and the dean of the school of arts and sciences. The e-mail evoked dis approval from several administrators. Also in the autumn of 1999, Plaintiff applied for t enure. His application was approved by a vote of the social science depart ment faculty and the interim department chair. Ultimately, however, Plaintiff w as not only denied tenure but was denied renewal of his position, effective in th e 2000-01 academic year. The nonrenewal decision began with a recommendation Dr. Kermis made to President Hibler, who then made a recommendation of nonrenewa l to the Board. The Board approved the recommendation.-4-

This lawsuit followed. At the conclusion of a five -day trial, the jury returned a verdict finding the Board liable in the amount of $34,959 and Dr. Kermis liable in the amount of $53,063. Subsequently, the district court determined that th e Board was immune from suit and therefore vacated the judgment agains t the Board and dismissed the claim against it. The court, however, denied Dr. K ermis’s motion for judgment under Fed. R. Civ. P. 50(b) or for a new trial unde r Fed. R. Civ. P. 59. Dr. Kermis appeals the denial of this motion.

II. DISCUSSION This court reviews de novo the denial of a motion f or judgment as a matter of law under Federal Rule of Civil Procedure 50(b), applying the same legal standard that the district court should have applied. See Tyler v. RE/MAX Mountain States, Inc ., 232 F.3d 808, 812 (10th Cir. 2000). A Rule 50(b ) motion is evaluated by examining all the evidence admitted at trial, construing that evidence and the inferences from it in the light mo st favorable to the non-moving party, and refraining from making credibility deter minations or weighing the evidence. See id . “Judgment as a matter of law is appropriate ‘onl y if the evidence points but one way and is susceptible to n o reasonable inferences which may support the opposing party’s position.’” Id. (quoting Finley v. United States , 82 F.3d 966, 968 (10th Cir. 1996). As for denial o f a motion for a new trial, the-5-

trial court’s decision will stand absent a showing of “a manifest abuse of discretion.” Blanke v. Alexander , 152 F.3d 1224, 1235 (10th Cir. 1998). We find no basis for granting Dr. Kermis judgment a s a matter of law, nor do we find any abuse of discretion by the district court in denying his motion for a new trial. We proceed to examine Dr. Kermis’s ar guments that (1) the erroneous inclusion in the trial of the state-law c laim against the Board prevented him from receiving a fair trial; (2) there is insuf ficient evidence that Dr. Kermis caused the wrongful termination; and (3) the jury s hould have been instructed on the requirement of personal participation in a § 19 83 violation. There appear to be two components to Dr. Kermis’s c omplaint about inclusion at trial of the claim against the Board. First, he contends that the admission of evidence relevant to the claim againstthe Board affected the jury’s analysis of the case against the individual defenda nts. But this contention is unsupported because Dr. Kermis fails to point to any specific evidence not relevant to the claim against him and admitted at t rial only as relevant to the laterdismissed claim against the Board. Second, Dr. Kermis appears to claim that the very p resence of the Board as a defendant caused him prejudice. He argues that “ [t]he jury was misled (by [the Board’s] presence in the trial) into thinking that [the Board] was liable not only for Plaintiff’s ‘wrongful termination’ but somehow, was liable for the violation of-6-

Plaintiff’s free speech as well.” Aplt. Br. at 10- 11. As support for this argument, he claims that the jury’s written questions demonstrate its confusion. He asserts that “the jury wanted to be able to punish [the Boa rd] and felt that it needed to find either Hibler or Kermis or both liable as well .” Aplt.’s Br. at 10. We reject this argument as speculative. It is not at all cle ar to us that the jury questions communicate a desire to punish the Board. Moreover , if the jury had found Dr. Kermis liable only because of a desire to hold the Board liable, it would not have imposed higher damages on Dr. Kermis than on the Board. Perhaps the district court would have been well-advised to atte mpt to answer the jury’s questions, but as far as the briefs on appeal indic ate, Dr. Kermis made no objection to the district court’s response to the q uestions and hence cannot complain on appeal about the adequacy of the respon se. Next, Dr. Kermis claims that there is insufficient evidence that he personally played a substantial or motivating role in the Board’s termination decision. He asserts that President Hibler’s indep endent investigation broke the line of causation between his own motives and the B oard’s decision not to renew Plaintiff’s contract. Dr. Kermis, however, has failed to provide this cou rt with an adequate record to decide the issue. As this court’s rules make clear, sufficiency challenges ordinarily require submission of the ent ire trial transcript for our-7-

review. See 10th Cir. R. 10.1(A)(1) (“The appellant must provi de all portions of the transcript necessary to give the court a comple te and accurate record of the proceedings related to the issues on appeal.”); id. , 10.1(A)(1)(a) (“When sufficiency of the evidence is raised, the entire r elevant trial transcript must be provided.”). An appellant’s “failure to submit the entire trial transcript provides a separate basis for rejecting [a] sufficiency of the evidence argument.” Dilley v. SuperValu, Inc ., 296 F.3d 958, 963 n.2 (10th Cir. 2002); see also Roberts v. Roadway Express, Inc ., 149 F.3d 1098, 1104-05 (10th Cir. 1998) (rejecti ng sufficiency-of-the-evidence claim when appellant su bmitted only excerpts of trial transcript). Here, Dr. Kermis included no trial testimony in his appendix on appeal. Although Plaintiff has filed a supplemental appendi x which includes a few excerpts, we do not have a complete record of t he trial, and Dr. Kermis’s briefs refer to only a handful of pages of testimony. Without a complete transcript of the relevant testimony—in particular, all testimony relevant to whether President Hibler made the nonrenewal recomm endation totally independently of Dr. Kermis’s input—we cannot prope rly assess Dr. Kermis’s sufficiency-of-the-evidence argument. In any event , our review of excerpts in Plaintiff’s appendix shows that the jury could have been skeptical that President Hibler’s decision was based solely on herown investigation.-8-

Perhaps Dr. Kermis’s failure to provide an adequate record results from his misunderstanding of the sufficiency-of-the-evidence standard. A heading in his brief states: “The evidence is sufficient to show that an independent investigation was conducted.” Reply Br. at 5 (capitalization omi tted). But when reviewing a sufficiency-of-the-evidence claim, the issue is whe ther the verdict is supportable, not whether a contrary verdict could also be sustai ned. We limit our review “‘to determining whether the record--viewed in the lightmost favorable to the prevailing party--contains substantial evidence to support the jury’s decision.’” United Phosphorus, Ltd. v. Midland Fumigant, Inc. , 205 F.3d 1219, 1226 (10th Cir. 2000) (quoting Comcoa, Inc. v. NEC Tel., Inc. , 931 F.2d 655, 663 (10th Cir. 1991)) (emphasis added). Additionally, contrary to his contention on appeal, Dr. Kermis may be liable for the wrongful termination of Plaintiff’s employment just by getting the process underway. “[D]irect participation is not n ecessary. . . . The requisite causal connection is satisfied if the defendant setin motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.” Snell v. Tunnell , 920 F.2d 673, 700 (10th Cir. 1990). In sum, Dr. Kermis has raise d no valid argument concerning the sufficiency of the evidence on the e lement of causation.-9-

Finally, in a related argument Dr. Kermis claims re versible error in the refusal of the district court to grant his request for an instruction stating that a defendant is not liable under § 1983 unless the defendant personally participate d in the alleged misconduct. He loses here, however, for failure to preserve the issue below. Rule 51 of the Federal Rules of Civil Procedure provides that “[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds o f the objection.” “‘[T]he purpose of the objection is to give the court an op portunity to correct any mistake before the jury enters deliberations . . . [. Ther efore,] an excessively vague or general objection to the propriety of a given instr uction is insufficient to preserve the issue for appeal.’” Davoll v. Webb, 194 F.3d 1116, 1140 (10th Cir. 1999) (quoting Medlock v. Ortho Biotech, Inc ., 164 F.3d 545, 553 (10th Cir. 1999)) Dr. Kermis’s reply brief argues that he made a time ly objection to the omission of a personal-participation instruction. But he points to no objection to the district court’s refusal to grant his profferedinstruction. Rather, he relies on his objections to Instructions 5 and 6, which, in e ssence, relate to the Board’s role as a principal that acts through its agents. These objections addressed a different point from the one raised on appeal. Thus, Rule 51 bars our consideration of Dr. Kermis’s jury-instruction argument.-10-

The judgment of the district court is AFFIRMED.

Entered for the Court

Harris L Hartz Circuit Judge