F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 21 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DOREEN JANICE CURRY,
Plaintiff-Appellant,
v. No. 02-5199
(D.C. No. 02-CV-33-H(M))
MAZZIO’S CORPORATION, (N.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , PORFILIO , and McCONNELL , 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Doreen Janice Curry appeals from the entry of summary judgment
for defendant Mazzio’s Corporation in this action alleging racial discrimination in
*
This order and judgment is not binding precedent, except under the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.
employment. The following passage from Jones v. Denver Post Corp. , 203 F.3d
748 (10 th Cir. 2000), summarizes the principles governing our consideration of
this appeal:
We review the district court’s grant of summary judgment
de novo, applying the same legal standard used by the district court.
Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law. We view the evidence and draw any inferences in a
light most favorable to the party opposing summary judgment, but
that party must identify sufficient evidence which would require
submission of the case to a jury.
Id. at 751 (citations and quotations omitted). We consider the substantive issues
argued by Ms. Curry in light of these principles and conclude that summary
judgment was properly granted for the reasons explained below. We also address
several procedural objections raised by Ms. Curry and conclude that none of these
involves an abuse of the district court’s discretion. Accordingly, we affirm.
While working for a temporary employment agency, Ms. Curry was placed
with Mazzio’s on a “temp-to-perm” basis. The situation soured almost
immediately. Ms. Curry’s list of complaints included such office minutia as the
placement of a calculator and telephone, but her primary grievances involved
company smoking policies, strict time/attendance requirements insisted upon by
her supervisor, and unspecified “extra work” imposed on her. Within a month,
complaints she voiced to her employment agency led to the termination of her
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assignment with Mazzio’s. She later filed employment discrimination actions
against her employment agency and Mazzio’s, both of which ended in summary
judgment being entered for the defendants. This court recently affirmed summary
judgment for the agency. See Curry v. Robert Half Int’l, Inc. , No. 02-5198, 2003
WL 21437208 (10 th Cir. June 23, 2003).
The district court granted summary judgment for Mazzio’s “[f]irst and
foremost [because] there is a dearth of evidence of racial animus.” R., doc. 53
at 1. We agree with this assessment of the record. Mazzio’s has articulated and
substantiated legitimate reasons for application of its anti-smoking policy to
Ms. Curry (like other permanent/potentially permanent employees brought in after
the policy went into effect, she was not allowed to smoke on company grounds
while longstanding employees could still do so) and the work
attendance/documentation requirements imposed on Ms. Curry by her supervisor
(attributed to both the supervisor’s absences for training and Ms. Curry’s
temp-to-perm status). As for office equipment, Mazzio’s explained that
Ms. Curry was hired during a period of transition and used a computer on a
common-area table that happened to have a phone and calculator; when a new
employee was placed with her, the calculator (which the computer made
redundant) was given to the new employee and the phone was simply moved a
few feet, remaining available to both. As for her amorphous complaint about
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extra work, Mazzio’s responded that her supervisor gave her a stack of reading
material and asked her to help out wherever she was needed when the supervisor
was scheduled for training and would be unavailable to direct her in the event she
had nothing to do. Mazzio’s emphasized, however, that she was never required to
stay overtime, to work hours in excess of others, or to do tasks her white
co-workers were not also asked to do.
Ms. Curry responded by reasserting her complaints and her belief that racial
bias was the motivation behind the events in question. That is not a proper case
for pretext. Once an employer provides a legitimate basis for its conduct, the
onus is on the employee to offer evidence of “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323
(10 th Cir. 1997) (emphasis added and quotations omitted). Without such
evidence, the case came down to Mazzio’s substantiated non-discriminatory
explanation against Ms. Curry’s bald accusation of racism. This court has
repeatedly held that a “[p]laintiff’s mere conjecture that [her] employer’s
explanation is a pretext for intentional discrimination is an insufficient basis for
denial of summary judgment.” Jones , 203 F.3d at 754 (quotations omitted).
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Ms. Curry challenges the affidavits submitted by Mazzio’s in support of
summary judgment, arguing that the affiants lacked personal knowledge of the
events Ms. Curry was complaining about. With respect to the affidavit submitted
by Ms. Curry’s own supervisor, this argument is frivolous. As for the rest, her
objection simply misses the point of the affidavits. They establish, explain, and
evidence the enforcement of policies cited by Mazzio’s for its conduct in this
case. Regardless of their ignorance of Ms. Curry’s circumstances, the affiants
demonstrate personal knowledge of and experience with the policies involved.
Their affidavits are thus both competent and relevant.
Ms. Curry contends that the district court wrongly dismissed her retaliation
claim during the proceedings on her initial motion for summary judgment. She
insists the court misunderstood her claim when rejecting it on the basis that, even
if her complaints about Mazzio’s had something to do with the termination of her
placement there, that action was taken by her employment agency, not Mazzio’s.
She maintains that the focus of the retaliation claim was, rather, on her treatment
by her supervisor, which she argues was the retaliatory consequence of
(unspecified) problems the supervisor had had with other minority employees.
See Aplt. Br. at 15. By characterizing her claim in this fashion, however, she
highlights a patent legal deficiency in her position. The first prerequisite of any
retaliation claim is the plaintiff-employee’s protected opposition to unlawful
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discrimination , prompting the employer’s retaliatory conduct. See, e.g. , Hysten v.
Burlington N. & Santa Fe Ry. Co. , 296 F.3d 1177, 1183 (10 th Cir. 2002); Penry v.
Fed. Home Loan Bank of Topeka , 155 F.3d 1257, 1263 (10 th Cir. 1998).
Ms. Curry does not allege or even suggest that she engaged in any protected
activity in connection with her supervisor’s treatment of the other minority
employees to whom she vaguely alludes here.
We turn now to Ms. Curry’s various procedural objections. First of all, she
contends the district court wrongly denied her request to appoint counsel. “The
appointment of counsel in a civil case is left to the sound discretion of the district
court.” Shabazz v. Askins , 14 F.3d 533, 535 (10 th Cir. 1994). The district court
expressly considered the relevant factors summarized in Rucks v. Boergermann ,
57 F.3d 978, 979 (10 th Cir. 1995), see R., doc. 14 at 1-2, and we cannot say its
resultant decision was an abuse of discretion. Indeed, the case turned on facts
which were relatively uncomplicated and largely within Ms. Curry’s personal
knowledge.
Ms. Curry argues that the district court should have granted her motion for
a transcript of the summary judgment proceedings at government expense. For
reasons which are not clear, she bases her asserted entitlement to a transcript on
Section 1102 of the Civil Practice Law and Rules for the State of New York,
which has no application here. A request for a free transcript in a civil federal
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case is governed by 28 U.S.C. § 753(f), and the district court’s ruling on such a
request is reviewed solely for abuse of discretion, see Carlile v. S. Routt Sch.
Dist. RE-3J , 739 F.2d 1496, 1501 (10 th Cir. 1984). Apart from mistakenly
relying on the state rule for an asserted entitlement, Ms. Curry advances no
substantive argument to challenge the district court’s ruling or to suggest how any
particular matter that surfaced only at the hearing would be material to the
disposition of this appeal. In light of these omissions and the lack of merit in the
issues we have already discussed, we cannot say the district court abused its
discretion in denying her a free transcript under § 753(f).
Ms. Curry also assigns as error the denial of her “Motion to Terminate
D[e]position,” which raised a number of procedural objections to the conduct of
her deposition. Pursuant to authority granted in 28 U.S.C. § 636(b)(1)(A), the
magistrate judge denied this non-dispositive pretrial motion. S ee R., doc. 45.
The district court docket reveals that Ms. Curry did not move for reconsideration
of the magistrate judge’s ruling before the district court. “‘[A]ppellate courts are
without power to hear appeals directly from orders of federal magistrates,”’ and,
thus, in light of Ms. Curry’s failure to seek district court review of the magistrate
judge’s order, “we may not consider the issues decided in that order on appeal.”
Pippinger v. Rubin , 129 F.3d 519, 533, 534 (10 th Cir. 1997) (quoting Niehaus v.
Kan. Bar Ass’n , 793 F.2d 1159, 1165 (10 th Cir. 1986)).
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Ms. Curry objects to the district court’s denial of her initial motion for
summary judgment on the ground that it lacked evidentiary materials to support
her factual allegations. See R., doc. 22. The district court’s ruling was fully in
accord with controlling summary judgment standards. See Reed v. Bennett ,
312 F.3d 1190, 1194 (10 th Cir. 2002) (“[S]ummary judgment is appropriate under
Rule 56(e) only when the moving party has met its initial burden of production
under Rule 56(c). If the evidence produced in support of the summary judgment
motion does not meet this burden, summary judgment must be denied even if no
opposing evidentiary matter is presented.” (quotations and emphasis omitted)).
Finally, Ms. Curry appears to argue that summary judgment should not have
been entered for Mazzio’s when she had not yet received discovery responses to
which she was entitled. She does not indicate the specific subject matter of the
discovery, much less explain what material facts she expected to uncover. In any
event, “if [Ms. Curry] felt [s]he could not oppose defendant[’s] motion[] for
summary judgment without more information, [s]he should have submitted an
affidavit pursuant to Fed. R. Civ. P. 56(f) requesting a continuance until further
discovery was had.” DiCesare v. Stuart , 12 F.3d 973, 979 (10 th Cir. 1993). Her
pro se status did not exempt her from this obligation and, thus, “we find no abuse
of discretion in [the district court’s] deciding the summary judgment motion
before discovery was completed.” Id.
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The judgment of the district court is AFFIRMED.
Entered for the Court
Michael W. McConnell
Circuit Judge
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