Bonnie Kelly v. Omaha Housing Authority , 721 F.3d 560 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2671
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Bonnie Kelly
lllllllllllllllllllll Plaintiff - Appellant
v.
Omaha Housing Authority, also known as Housing Authority of the City of
Omaha; Stanley Timm, Executive Director, in his individual and official capacity;
Does 1-50
lllllllllllllllllllll Defendants - Appellees
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Bonnie Kelly
lllllllllllllllllllll Plaintiff - Appellant
v.
Housing Authority of the City of Omaha; Stanley Timm, Executive Director, in his
individual and official capacity; Does 1-50
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 15, 2013
Filed: July 22, 2013
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Before RILEY, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
This case concerns whether an appellant’s appeal must be dismissed for failure
to order the necessary portions of a trial transcript.
After Bonnie Kelly was fired from the Omaha Housing Authority, she brought
discrimination lawsuits against the organization and its executive director
(collectively, “OHA”). The district court1 consolidated the two lawsuits. Kelly’s case
proceeded to a jury trial on (1) race and sex discrimination claims and (2) a First
Amendment retaliation claim. At the close of Kelly’s evidence, OHA moved for
judgment as a matter of law (“JAML”) on all claims under Rule 50 of the Federal
Rules of Civil Procedure. The district court denied the motion on Kelly’s race and sex
claims. The district court took OHA’s Rule 50 motion on the First Amendment
retaliation claim under advisement. After all evidence was presented, OHA renewed
its Rule 50 motion, and the district court granted JAML on Kelly’s First Amendment
retaliation claim. The jury found in favor of OHA, rejecting Kelly’s sex- and race-
based claims. Kelly then filed a post-trial motion seeking a new trial and
reconsideration of the JAML. The district court denied her motion. Kelly now
appeals only the district court’s grant of JAML on her retaliation claim.
OHA filed a motion to dismiss this appeal based upon Rule 10(b) of the Federal
Rules of Appellate Procedure, asserting that Kelly ordered an insufficient portion of
the trial transcript and that as a result we cannot properly review the district court’s
grant of JAML. We issued an order stating that we would consider OHA’s motion to
dismiss with the case itself.
1
The Honorable Joseph F. Bataillon, United State District Judge for the District
of Nebraska.
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Pursuant to the Federal Rules of Appellate Procedure, it is the appellant’s duty
to order the trial transcript. Fed. R. App. P. 10(b). “The transcript, or part of it, is
necessary where the appellant intends to urge on appeal that a finding or conclusion
by the trial court is unsupported by the evidence or is contrary to the evidence.”
Billings v. Chi. Rock Island & Pac. R.R. Co., 570 F.2d 235, 237 n.6 (8th Cir. 1978)
(per curiam); see also Fed. R. App. P. 10(b)(2). “It is important, if not essential, to the
reviewing court that an appellant bring before this court all parts of the proceedings
below necessary for a determination of the validity of any claimed error.” Schmid v.
United Bhd. of Carpenters, 827 F.2d 384, 386 (8th Cir. 1987) (per curiam) (internal
citation and quotation marks omitted); see also Sylla-Sawdon v. Uniroyal Goodrich
Tire Co., 47 F.3d 277, 281 (8th Cir. 1995) (“[T]he lack of a transcript precludes us
from conducting any meaningful review of these issues.”).
Kelly originally only ordered the portion of the trial transcript that contained
her testimony and later filed a certificate with the district court that no additional
transcript would be ordered. (Certificate of No Tr. Order, ECF 161.) Thus, the
remaining portions of the transcript were not transcribed and are not available on the
Case Management/Electronic Case Files System. But according to the district court’s
docket, Kelly presented four additional witnesses. (Witness List, ECF No. 132.) She
contends that her testimony alone is sufficient for us to review the district court’s
grant of JAML.
We review de novo an order granting JAML, considering “all of the evidence
in the record.” Tatum v. City of Berkeley, 408 F.3d 543, 549 (8th Cir. 2005). For
Kelly to sustain her First Amendment retaliation claim, she must demonstrate that she
suffered an adverse employment action that was causally connected to her protected
speech. See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 985-86 (8th Cir. 2011).
Reviewing whether an adverse employment action occurred, a court must distinguish
“petty slights or minor annoyances,” see Clegg v. Ark. Dep’t of Corr., 496 F.3d 922,
929 (8th Cir. 2007) (internal quotation marks omitted), from “a material change” in
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the conditions or terms of employment, see Duffy v. McPhillips, 276 F.3d 988, 992
(8th Cir. 2002) (internal quotation marks omitted).
Although Kelly’s testimony was important and relevant, it is only a small
portion of the testimony and evidence presented during her four-day trial. Without
the remaining relevant portions of the trial transcript, we cannot meaningfully review
the district court’s findings, engage in the intense factual inquiry required to analyze
Kelly’s retaliation claim, see Clegg 496 F.3d at 929; Duffy, 276 F.3d at 992, review
the record de novo, see Tatum, 408 F.3d at 549, or consider “all of the evidence in the
record,” see id. Therefore, because we cannot properly review the issues in this case
based on the record Kelly provided, we do not address the merits of Kelly’s First
Amendment retaliation claim. See Schmid, 827 F.2d at 386.
Accordingly, we grant OHA’s motion to dismiss Kelly’s appeal.
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