89 F3d 849 Denmon v. T Runyon

89 F.3d 849

Marcell E. DENMON, Plaintiff-Appellant,
v.
Marvin T. RUNYON, Postmaster General, United States Postal
Service, Defendant-Appellee.

Nos. 92-CV-2144, 94-3299.

D.C. No. 92-CV-2144.

United States Court of Appeals, Tenth Circuit.

June 28, 1996.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

ORDER AND JDUGMENT*

LOGAN, Circuit Judge.

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Plaintiff Marcell E. Denmon appeals from a judgment in favor of defendant United States Postal Service in his Title VII action, in which he alleged that he was discharged by defendant because of his race and sex, and for engaging in protected activity. Judgment was entered for defendant on all of plaintiff's claims, VI R., doc. 199, following a four-day trial to the court and pursuant to a thirty-page memorandum and order, which sets forth the district court's findings of fact and conclusions of law, see id., doc. 198.

3

Plaintiff has not provided a trial transcript on appeal. Although plaintiff is proceeding in forma pauperis, he is not automatically entitled to a free trial transcript. Under 28 U.S.C. § 753(f), plaintiff is entitled to a transcript at the expense of the United States only "if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question)." That has not happened in this case. See VI R., doc. 219 at 2 (district court's mem. and order, denying plaintiff's request for an order directing preparation of a trial transcript and this court's order of December 29, 1994, denying plaintiff's request for an order directing preparation of a trial transcript.

4

Plaintiff has made a request to supplement the record on appeal, which we hereby grant. We have requested from the district court, received, and reviewed a supplementary record, consisting of sixteen volumes.1 Having reviewed the record, as supplemented, in its entirety, we affirm.

5

On appeal, plaintiff contends that the district court failed to make adequate findings of fact under Fed.R.Civ.P. 52(a) concerning the treatment of allegedly similarly situated postal employees. "[T]he touchstone for whether findings of fact satisfy Rule 52(a) is whether they are 'sufficient to indicate the factual basis for the court's general conclusion as to ultimate facts' so as to facilitate a 'meaningful review' of the issues presented." Joseph A. ex rel. Wolfe v. New Mexico Dep't of Human Servs., 69 F.3d 1081, 1087 (10th Cir.1995)(quoting Otero v. Mesa County Valley Sch. Dist. No. 51, 568 F.2d 1312, 1316 (10th Cir.1977)), cert. denied, 116 S.Ct. 1678 (1996). Findings of fact need not be "inordinately detailed," Colorado Flying Academy, Inc. v. United States, 724 F.2d 871, 878 (10th Cir.1984), cert. denied, 476 U.S. 1182 (1986), provided they give the reviewing court " 'a clear understanding of the factual basis for the trial court's decision.' " Bell v. AT & T, 946 F.2d 1507, 1510 (10th Cir.1991)(quoting Lujan v. New Mexico Health & Social Servs. Dep't, 624 F.2d 968, 970 (10th Cir.1980)). In this case, the challenged findings satisfy Rule 52(a). It is clear that the district court concluded that the other instances of employee misconduct cited by plaintiff as relevant were not similar, either because the alleged misconduct was not as serious as that for which plaintiff was discharged or because different decision makers were involved in the disciplinary process. See VI R., doc. 198 at 24.

6

Plaintiff also challenges the district court's factual findings that: (1) Postmaster Abbott, who made the decision to discharge plaintiff, was not influenced by a memorandum prepared by plaintiff's supervisor, James Harvey; (2) Harvey's "intensive surveillance of plaintiff was 'warranted, given plaintiff's documented history of irresponsible, dangerous, and trouble-making behavior on the job,' " Plaintiff's Br. at 92; (3) the examples cited by plaintiff of similarly situated employees being treated differently did not involve incidents that were as serious as the one for which plaintiff was discharged; and (4) Postmaster Abbott did not look at plaintiff's official personnel folder or any memorandum written by Harvey in making his decision.

7

Our review of the district court's factual findings is limited to determining whether they are clearly erroneous. Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1491 (10th Cir.1994); see also Fed.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is without factual support in the record, Heim v. Utah, 8 F.3d 1541, 1543 (10th Cir.1993), or if " 'the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed,' " Metz, 39 F.3d at 1491 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)). In our review, we defer to the trial court's credibility determinations, Heim, 8 F.3d at 1543, and "[w]hen a witness's testimony is inconsistent, we defer to the trial court's determination of facts," id. at 1545. Having carefully reviewed the record as supplemented on plaintiff's motion, we find nothing to warrant reversing the district court's findings of fact, particularly in the absence of a trial transcript. See Trujillo v. Grand Junction Regional Ctr., 928 F.2d 973, 976 (10th Cir.1991)("When a trial transcript is not designated as part of the record on appeal, an appellate court cannot review the district court's factual findings and must accept them as correct."); Rubner & Kutner, P.C. v. United States Trustee (In re Lederman Enters., Inc.), 997 F.2d 1321, 1323 (10th Cir.1993); Deines v. Vermeer Mfg. Co., 969 F.2d 977, 978-79 (10th Cir.1992).

8

Finally, plaintiff contends that "[a]s a matter of law under Title VII," the district court erred in finding for defendant on plaintiff's retaliation claim "where ... Postmaster Abbott testified that he made the decision to discharge Mr. Denmon based in part upon the Harvey memo." Plaintiff's Br. at 6. Having concluded that the challenged factual findings are not clearly erroneous, including the finding that Postmaster Abbott was not influenced by the Harvey memo, we find no error in the district court's application of the law.

9

AFFIRMED.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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

1

The supplementary record consists of all original trial exhibits and items numbered as follows on the docket of the district court: 146, 147, 151, 154, 156-159 (inclusive),161-184 (inclusive), 187, 189, 191, 193, 194, 196, and 197

2

The court did not make a finding that plaintiff had been subjected to "intensive surveillance." Instead, "[b]ased upon all of the evidence presented at trial," the court found that "any close supervision of plaintiff was warranted, given plaintiff's documented history of irresponsible, dangerous, and trouble-making behavior on the job." VI R., doc. 198 at 21