Kwame v. Children's Hospital ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 14 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
SYLVESTER KWAME,
Plaintiff - Appellant,
vs. No. 96-1136
(D.C. No. 94-WY-2307)
THE CHILDREN’S HOSPITAL (D. Colo.)
ASSOCIATION, a Colorado corporation,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before EBEL, BRORBY, and KELLY, Circuit Judges.**
Sylvester Kwame appeals from a judgment against him in his Title VII
discrimination claim against The Children’s Hospital. He argues that the district court
erred in instructing the jury regarding the definition of retaliation. He also moves to
supplement the record on appeal with a transcript of the testimony of a witness, Rodney
Coleman.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
Mr. Kwame did not preserve his appeal by making an objection below to the
instruction he now challenges. Fed. R. Civ. P. 51 (“No 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 of
the objection.”); Continental Trend Resources v. OXY USA, 44 F.3d 1465, 1473 (10th
Cir. 1995), cert. granted and judgment vacated on other grounds, 116 S. Ct. 1843 (1996);
Doc. 39 at 3 (no objection to Instruction 11, which is challenged in this appeal; no
objection to the charge to the jury).
Even if we permitted the requested supplementation, the record would still be
insufficient for our review of the error alleged. An error in instructing the jury will result
in reversal only if the appellate court finds the error to be prejudicial based upon a review
of the record as a whole. Rios v. Bigler, 67 F.3d 1543, 1549 (10th Cir. 1995); King v.
Unocal Corp., 58 F.3d 586, 587 (10th Cir. 1995). The appellant bears the responsibility
of providing this court with a proper record on appeal. Fed. R. App. P. 30; 10th Cir. R.
10.1; King, 58 F.3d at 587; see also Fed. R. App. P. 10. Likewise, when challenging a
jury instruction, the record must include the challenged instruction. 10th Cir. R.
10.3.2(a); see also 10th Cir. R. 28.2(c). Absent a proper record, we cannot consider the
point. King, 58 F.3d at 588.
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AFFIRMED. Mr. Kwame’s motion to supplement the record is DENIED. The
mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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