F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 30 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
VIOLET LEE,
Plaintiff-Appellant,
v. No. 96-6392
(D.C. No. 94-CV-2079)
WILLIAM PERRY, SECRETARY, (W.D. Okla.)
DEPARTMENT OF DEFENSE,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
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.
*
This order and judgment is not binding precedent, except under the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.
Plaintiff was hired as a part-time checker at the commissary at Fort Sill in
1987. In 1993, a full-time position opened for which plaintiff was not selected.
Instead, the job was given to a white woman, younger than plaintiff. Plaintiff
filed a complaint alleging that defendant discriminated against her on the basis of
age, race, and gender. The district court granted summary judgment in favor of
defendant, and we affirm.
In granting summary judgment, the district court did not consider plaintiff’s
untimely response to defendant’s summary judgment motion. After defendant
filed its summary judgment motion, plaintiff filed a motion for extension of time
in which to respond. The district court granted plaintiff’s first motion for
extension of time. Plaintiff’s application for a second extension was denied.
Seven days after the response was due, plaintiff filed her response to defendant’s
summary judgment motion, and the following day she filed a third motion for
extension of time. The district court denied the third motion for extension of time
and ordered that plaintiff’s response be stricken. In its order striking the
response, the district court noted that one of plaintiff’s attorney’s excuses for
needing more time was another summary judgment response due in another case
before the district court. The court recognized that the case counsel referred to
was before another judge and that counsel had also requested an extension of time
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in that case, citing this case as an excuse for needing more time. The district
court admonished counsel in its order that it “does not appreciate counsel’s
attempt to play one case off of the other, in the apparent belief that chambers do
not communicate with one another.” Order Striking Pleadings at 2. The district
court also chided counsel for making a retroactive motion for more time, after he
had already filed the untimely response.
We review the district court’s denial of plaintiff’s motion for extension of
time for an abuse of discretion. See Buchanan v. Sherrill, 51 F.3d 227, 228 (10th
Cir. 1995). 1 Under the circumstances of this case, the district court did not abuse
its discretion in denying further extensions of time and striking plaintiff’s
untimely summary judgment response.
We now turn to the merits of the summary judgment ruling. We review the
district court’s grant of summary judgment de novo to determine whether there is
a genuine issue as to any material fact and whether the moving party is entitled to
1
Although neither party addresses this in their brief, it appears that
plaintiff’s first motion for extension of time was made pursuant to Fed. R. Civ. P.
6(b)(1) and the second one was pursuant to 6(b)(2). In fact, neither plaintiff nor
defendant even mentions the district court’s refusal to consider plaintiff’s
summary judgment response as a consequence of the court’s refusal to extend the
time in which it was filed. Insofar as defendant goes out of its way to criticize
plaintiff’s presentation of this appeal, we note that, in addition to its failure to
address the district court’s procedural handling of the summary judgment motion,
defendant’s brief on appeal is incomplete. Although it contains consecutively
numbered pages, the last sentence on page 4 is not completed on page 5. It
appears that an entire section of the brief is missing.
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judgment as a matter of law. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.
1996). We view the evidence in the light most favorable to the nonmoving party,
even when the evidence is produced by the movant. See Buchanan, 51 F.3d at
229. We must also follow the burden-shifting regime set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), which dictates that the plaintiff has
the burden of establishing a prima facie case of discrimination in her complaint,
id. at 802. The burden then shifts to defendant to articulate a legitimate,
nondiscriminatory reason for the action, after which the plaintiff must show that
the defendant’s proffered reason is a pretext. See id. at 802, 804.
Plaintiff’s complaint establishes a prima facie case of discrimination.
Answering plaintiff’s allegations of discrimination in its summary judgment
motion, defendant presents legitimate, nondiscriminatory reasons why plaintiff
was not selected for the full-time position. The record shows that plaintiff had
been the object of several customer complaints and the subject of various
documented disciplinary actions throughout her tenure. In contrast, the employee
selected for the full-time position had no customer complaints or disciplinary
incidents. In addition, even though she had not worked for defendant as long as
plaintiff, the selected employee had more years of experience, considering her
previous employment. Defendant met its burden of articulating legitimate,
nondiscriminatory reasons for not selecting plaintiff for the full-time position.
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Plaintiff failed to show that defendant’s stated reasons were pretext. As
stated above, the district court’s action in striking plaintiff’s untimely response to
the summary judgment motion was within its discretion, and the record contains
no evidence of pretext. 2 We, therefore, affirm the district court’s grant of
summary judgment in favor of defendant.
Finally, to the extent that plaintiff argues on appeal that the district court
judge erred in failing to sua sponte recuse himself from this case, we disagree.
Plaintiff did not request that the district court judge recuse himself, and she has
presented no facts that would suggest the judge should have acted sua sponte.
The judgment is AFFIRMED.
ENTERED FOR THE COURT
PER CURIAM
2
We note that, in its summary judgment order, the district court stated that it
had reviewed plaintiff’s untimely response and, even if it had considered the
response, plaintiff did not meet her burden. We, too, have reviewed the untimely
response and we agree with the district court that, even considering the untimely
response, plaintiff would not have survived summary judgment.
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Lee v. Perry
Combined Opinion